No.

FILED

},{AR I 0 20ltrOFFIC: OF THE CLE:RK

IN'IHE

SUPEREMH C]OUR'| OIT TI]E UNITED STATES

Howard Herships,

Petiti,rrrer',

V.

('alifbrnia.

Respondent.

On Writ o1'Certiorari'['o the- Califbrnia Sr"rprerne Court

PIrl-l'llON F'OR \L'RI'| OF CER-l'lOItAI{l

Horvard I-lershipsP.O. Box 1501Carrnichael, Ca 95609415 933-5X90

In Pro Sei*- .' ;i :"i':{..-;';'".,.r ':i:1 l'. ... : : i,j

,i i

QUEST]ONS PRESENTED FC)R REVIEWwhether the Confrontation Clause permits the prosecution to introduce testimonialstatements of a non-testi$ring compur:er technician through the in_courttgstimonv of a police' officer who dict not perform o'' obsJrve the prirtout of thedigital photos arLd virJeos used as a ter;limony introduced as the sole trasis for thecriminal prosecurtion'?

y!:]her the Equral protection clause of the r4rh Amendment prohibirs thecalifornia Supreme Court from denying a criminal clefendantls petition for writ ofProhibition and litay of the prosecutir:n when revieu'has been granted on the verysame issues by the Califomia Suprer.ne Court?

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TABLE OF CONTENTS

QUESTIONS PRESI]NTED FOR Rti,/rEWTABLE OII AU'THORITIES

JTIRISDIC'TION

RELEVANT CC)NS]-ITUTIONAL P R OVISIONSSTATEMENT

STII\4MARY OF' ARGLII\4ENT

ARGLMENTSI

IF THE PRSECLITION INTRODUC]]|S AWITNESSES' TI]STIMONAL STATE:MENTSREGARDING TI{E C)PERATION 01; ACOMPUTER GENERATED DIGITA I, PHOTOSAND VIDEOS, THE I3OMRoNTAI.]ONCLAUSE ENTITLES THE DEFENDANT TOBE CONFRONTI]D \VITFI TFIAT P,I.]{TICULI\RWIT\IESS.

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7-9

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WHEN TFil3 CAT,IFORNIA SUPRE]\IE COLR:1' 12- 13GRANTED REVIEW IN PEOPLE VI;. GOLDSI\4ITI{EVERY OTHER I]RIIIINAI. DEFEN I)ANT IT IS ADENTAL OF THE; EQUet pRoTEC-r-toN CLAUSEOF TFIE FOURTITEN fH AMENDMI;I'JT TO GRANTREVIEW IN PEOPLE VS. GOLDSMI'IH AND'IO DENYPETITIONER'S lYzuTON I-I{E VER]T SAME ]SStESCONCLUSION 14

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.IABLE C)]I ATJTHORII]ES

CASES

Crawford v. Wasrhingtons4l u. s. 36 (2006)

Bullcoming v. New Nlexico564U. S.

__, (20n)

PAGE[S]

10, ll &13

l3

Giles v. California128 Sct 2678 (20118) I IGriffin v. Illinois3s 1 U.S. 12 (tes6\

1 3

Marbury v. Madisrons U.S. 138 (180:i) l0Melendez -Diaz v. Massachusettsss7 u. s. 30s (2009) 13People vs. Broazkian203 Cat App 4', 52.5 (20t2) PASSIMPeople vs. GoldsrnLith203 Cat app 4'h l5t5 (2:,012) pASSIMUnited States v. Gonzales-Lopez548 U.S. 140 (20015) I 1Youngblood v. West Virginias47 U.S. 867 (2006) r:

lll

.IABLE CIII AUTHORII'IES

FEDERAL COhISTI,TUTIC)NAL AI],I,{ENDMENTS

Sixth Amendment

Fourteenth Amendment

STATE STATU'|I]SCalifornia fividence CodeSection 1552Section 1553

California \/ehicle Cc'deSection 21455.5 (:e)

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PASSIM

PASSIM

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APPENDIX:

APPENDIX I

OPINION OF T]IE CALIFORNIA SL|PREME COIIRTDENYING WRIT O]T PROHIBITIO]\ AND REQUESTFOR STAY

APPENDIX 2

PAGEIS]

CALIFORNIA SENATE BILL 1303ENACTED LEGISL,,\1'ION WHICTJDECLARES THAT I-HE C()MPUTI,I{GENERATED REPCRT IS PRESLII\{FDTO BE CORRECT AND T'FtrN THFBURDEN SHIFTS T(f TFIE DEFEN])ANTAND NO RIGHTOF COMRONTAIIONIS REQUIRED A-2-14APPENDIX 3

REDFLEX MEMOSWHICH ASSERI S T,IfiIR DESIRE.(, T'O OVERRULETLIE COURT OF I\PI,EAL DECiSSICIN IN PEOPL,E VS.BORAZIAN AND CONDIF!'THE COURT OF'APPEALDECISSION IN PI]OPLE VS GOLD:;IVIITH ,A- 1 5- 1 7APPENDIX 4

CALIFORNIA SI.JPR]]ME COI.,RT CIITDER GRAN'|INGREVIEW IN PEOPLE VS. GOLDSMI IH z\- I 8APPENDIX 5

CALIFORNIA SI-]PRI]ME COURT CII{DER DENYINGDE-PUBLISHINCi THE REPORTED DECISSION I}.IPEOPLE VS. BOITAKIAN AND GRI\NTING REVI EW A-19-26

A-l

No,

IN THE

I]IIP]3REME COUR I OF TFIE LN, TED STATES

;;i,*"*petitioner,

V.

California,

Responclent,

On Writ. of CertiorariTo the Calilornia Supreme Clourt

PETITION FOR 'fr,,RIT OF C]ERI-IORARI

Howard F{ershipsP.O. Box 1tjOlCarmichael, Ca 956094is 933-51 t0

In Pro Se

QIUESTIONS PRESENTED FOR REVIEWwhether the co'frontation clause permits the prosecution to introduce testimonialstatements of a non-tr:stiffing compuier technician tlrrough the in_courttestimony of a police officer who o'ia not perform or" obr.*. the prirrtout of thedigital photos anrc videos used as a testimony introduced as the sole llasis for thecriminal prosecurli on?

I/f.elher the Equrar protection clause cf the l4,h Ame:ndment prohibits thecalifornia Suprerne court fr'm deny ing a..irinuiJefendant,s petition for writ ofProhibition and stay ofthe prosecutic,rr when review has been granted on the verysame issues by the Califomier Supreme Court?

PETITION FOR 'MRIT OF CERTTORARI

Petitioner Flovrard Herships re:spectfully requests that this Colrt grantcertiorari and reversr: the judgment of the california supreme court.

OPINION BELOWThe order denying the writ of Prohibition and Request for Stay is not

reported but is attachi:d hereto as App,e ndix L

JURISDICTIONThe Judgment of the Clalifornia liupreme Court was entered on December

11,2013. This Coutrt has jurisdiction Pursuant to Titlr:28 U.S.C. ti 1254 (l) on thisPetition for Writ o1'Ce:rtiorari.

RI'LEVANT CONST ITUTIONAL PROVISIONSThe Sixth lr.tnendment to the Llnited State Conr;titution provide s in relevant

part: "ln all criminal prosecutions, the erccused shall enjoy the right...to beconfronted w.ith wirnesses against hinr. .,'

The Fourteenth r\mendment to lhe United States Constitution provides inrelevant pan: "No state shall rnake or r:nforce any law which shall abridge theprivileges or immuttitie,s of citizens of t.re United Statt:s: ... deny to any personwithin its jurisdicti'n the equal protection of the laws.',

The Fourteerrth ltmendrnent to the United Stater; Constitution provides inrelevant part: "No state shall ntake or e'rLforce any law which shall abridge theprivileges or immurrities of citizens of the United States: nor shall any state depriveany person of life, l.Lberty, or property. vrithout due process of law.,,

S'I'ATEMENTThe State of California enacterJ California Evidence Code sections 1552,

which codifies by State Law that "creates a presumption of authentir:ity for a'printed represent'tion of computer i'[ormation or er computer program.,,similarly, Evidence code $ 1553 creirtes a presumption of authenticj ty for a'printed representation of inrages stored on a video or digital mediunr.,, SeeAppendix 2.

This legislation, (SB r303) als. codified Califbrnia Vehicle Cr>

"Petition for rerview afte:r the court of ,{ppear affirmeda judgment of conviction of a criminar offense. Thecourr limited review to rhe following issues: (1) whattestimony, if any, regarcling the accurac,y and'reriabirityof the automated traffic r:nforcement s./stem (ATES) is

required as a prerequisite to admission ,cf the ATES-geleratedeviclence? (2) Is the ATI:;S evidence heirsay and, if.s., do anyexceptions appJy?"

The California Suprerne Court also on May 9, 2}Iz,in the reported opinionin People

',,s. Bor.zakian 203 Cal App tlth 525 (2012) Cenied Redllex ,IrafficSystem's Motion to De-publish the r[rsftgd opinion. See Appendix :.

The Court of Appeal Opinion i.n People vs. Borzakain reversed a convictionbased upon the legal theory that the aur:omated traffic enforcement sy'stem requiredthe computer techrnician who generate'cl the digital photos and vicleo rnust bepresent to authenticate them, The Court of Appeal further stated at F

observing officer deployed and the policedepartment's stanrJard operatin6; procedures?

As our precedent rnakes plain, the answer is-emphatically

'No."' (Id. at pp.[131 S.Ct. atpp, ,.Zlt4_27tjl, ,ltrrion oritted.)"[T]he lr]onfrontarion] Clause does not toleratidispensi::rg with confrontation sirnply b..urr.'

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the courl. believes that questioningone witnessabout another's teslimonial staternents provides?!" enough opgrortunity for crc)ss_examination.tfll . tTl . . [w']hen the State elected to inrrod:;ceCaylor's certification, Caylor bec:ame a witnessBullcoming had the right to confiont.,, (ld. ur t.il 31 S.Clt. at p. 2l 16l) Further, it bears mention'

that the "'Confrontation Clause irnposes a burdenon the prosecution to present its vrilnesses, not orrthe defendant to bring those advet.se witnesses inl.ocouft."'(Ilullcoming, supra, 564 U.S. at p,.-[13 ] S.Ct. at p. 27 tgl),,

Because the newly enar:tment of SB 1303 which sought to codified theholdings of People vs. Goldsmith petiticner herein soqght to seek relief via writ ofProhibition and Request for Srlay in thr: California Supreme Court as the both theCalifornia Evidence Codes sections 15:!,2 & 1 553 as well as Califomi,l VehicleCode section 2145:;-5 (e) was amended after the granting of review in people vs.Goldsmith, lvhich creates a presumption of correctnessr of documents submittedwithout any rjghts to confrontation by criminal defendrints. See Appe'dix 3.

The California Supreme Court denied Petitioner's Writ of prohrbition andRequest for a Stay, see Appenclix l.

Petitioner went to a trial by a cor.rrl commissioner and was denied the right toconfrontation of ad'zerse witnesses as rv:ll the police oIficer was perrnitted toauthenticate digital photos and videos that were not within the personerl knowledge

of the police officer and which wes and is pending in the Califomia SupremeCourt,

Petitioner was charged with nraking to right hand turns on a nrd light andu,as imposed a total fine of $980,00 all done without any authenticalion or the rightto confront adverse witnessr:s at a trial.

Petitioner filed motions in limine contesting t,r the police offic;er enteringsaid exhibits and objected to being de:nied adverse r.r,itnesses and the right to cross-examine which the California Suprenre Court deniecl as well as the trial judge.

SIA4MAR Y OF ARGUMENTl. The State violated the Confrrrntation Clause: by introducing the digital

pictures ancl videos testimonial statenrr:nts in a through the testimony of a policeofficer who did not perfbrm or observe any of the computer tasks or assuring thatpictures and videos were digitally enhanced and that the computer generatedprogram was working properly.

'l'he fbundational rule of the Confrontation Clzruse -

which has beenestablished for cenluries and applies across every kind of testimony

- is that if the

prosecution wishes to introdr:ce a witrLess's testimonial statements. then thedefendant is entitled to be confronted *'ith that particular witness, Confrontation ofa particular witness, serves four primary purposes: (l'r it enables cross-examinationconcerning the r.l,itttess's faclual asserti()ns, his belie'r,'ability, and his

4'n 525 at 547 held that Bullcoming \/, New Mexico supra applied irL automatedtraffic enforcement system cases.

Mr. Justice Scalia, in Crawford v. Washington 541 U.S. 36 (,2004) statedthe rule as follows,:

"The Constitution prescribes a procedure fordetermirring the r:liability of testimony incriminal trials, and we, no less than the statecourts, lack authority to replace it with one ofour own devisine ''

Califbrnia Evidence Code sections 1552 & 1553 attempts to asrsert thereliability of the evidence o{'digital photos and videos are "[A] printodrepresentation of irnages stored on a \ ideo or digital medium is presumed to be an

accurate representzrtion of the images it purports to r:present" and done without theright under the Confrontation Clause lc, cross-examination of the tecfLnician whoprogrammed the computer generated arrtomatic traffic signal as it violates

Crawford v. Washington, supra.The photos and video submittecl by the police officer regarding the digital

photos and videos required confrontation b1,the technician who produccd and be

subjected to cross-r:xamination. The clr:rrial of these rights by the CaliFomiaSupreme C)ourt's etroneous r;onception of the Confrontation Clause cannot stand.

2. The State violated Petitioner's right to the F)qual Protection of the Law inthat it grante

App 4'n 525 (2012:) and still permit the Superior Cor:rl to proceed on automatedtraffic enfbrcement system cases,

Clearly, unrler the Rule of Lau' in this Country the Law has to apply equallyand to proceed on automated traffic enforcement syrstem when reviel1'has beengranted opening yawning br:each und:r the Fourteerrth Amendment to the UnitedStates Constitution.

What is even more troublesomr: is that SB 1313 "codified" the ruling in

People vs. Goldsnrith, by asserting the reliability of the photos and videos arepresumed correct and that are generated by the comlruter generated sy'stem as noright of conlrontation exists as they ale: not considered testimonial even throughthey require a person to generate thern, see Appendix 3 at A-16-17.

Even if the California Supreme Court holds ttrat the pictures artd video arenot reliable and re

The seminal case on point is clrawford v. w;ashington 541 l-r.s. 36 (2004)and which Mr. Justice Scalia held as follorvs:

"The Constitution prescribes a procedure fordetermining the reliability of testimony incriminal trials, and we, no less than the statecourls, lack authcrity to replace it with one ofour own devising,"

Respondent State of California zrmended the Clalifornia Eviderrce Codesections 1552 & l:i53 to assert that presentation of digital photos ancl videos do nothave to be authenticate by the technicians producing said printouts a1d as such is"[A] printed repres:entation c'f images storeci on a video or digital medium ispresumed to be an accurate representation of the imalges it purpofts t6 represent,,.Moreover, once tht: photos and or video is introducecl the burden shifrs to thecriminal defendant to prove by a preponderance of the evidence that the computersystems is not worlling properly, see (lalifornia Evidence Code sections lS52 &1 553.

What is even more interesting i: rhat rhe legislertion was proposerC byRedflex Tralfic Sysrtems so that they cculd codified the Court of Appeal decisionin People vs. Goldr;mith 203 Cal App' 4th 1515 (2011t) andovem.rle the reporteddecision in People'vs. Brozakian, 203 rJal .,\pp 4'h 525 (2012), see Allpendix 3.

Clearly', this amendment to both the Califomia Evidence Code siections 1552& 1553 as well as Clalifomia'Vehicle (lode section 21455.5 (e) seeks to ovem:leFederal Constitutiottal Issues which is in excess of the Califomia Legislature goingback to Marbury v. Modison, 5 U.S. t.lZ (1803).

More fundamentally, asr this Court has noted, "ft]he text of the SiixthAmendment does not suggest any open-ended exceptions flom the cor,frontationrequirement to be developed by the courts," Crawforcl, 541U.S. at 54. Nor is it"the role of courts to extrapolate from the words of the, [Confrontation Clause] to

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the values behind it, and then to enfor,:e its guarantees only to the ex:tent they serve(in the cour-ts' views) those underlyirrg values." Gik:s v. California, l2g S. Ct.2678, 2692 (2008).

Accordingl'r, just as the Confrontation Clause does not tolerate .,[d]ispensingwith confrontation because" a court believes that "testimony is obviously reliable,,,Crawford, 541 U.S. at 62, t.he Clause: does not tolerate dispensing withconfrontation because a coutl believes that questioni:rg one witness about another,stestimonial statements provides a fair opportunity for. cross-examination.,,[T]heguarantee of confrrlntation is no guarantee at all if it is subject to wha.teverexceptions courts from the failure to provide the right to confrontation of witnesses

Indeed, this'Court has recently lejected the Ne,rr Mexico Supreme Court,smode of reasoning in Bullcoming v. l,lew N{exico 564 u. s.

_, 201 I ).In United States v. Gonzalez-Lopez,548 U.S ,140 (2006), the 6overnment

argued that illegitirnately denying a defendant his counsel of choice did not violatethe Sixth Amendmt:nt so longi as "subs;titute counsel'sr performance,, clid notdemonstrabh' prejudice the defendant in some way. Icl. at 144-45.

Expressly an,llogizing t.o the Creuvford line of cases, id. at 145-,l6,this Courtrejected that argumr,'nt. "lt is true enough," this Court explained, "that the purposeof the rights set forth in [the Sixth] An:e,ndment is to e:nsure a fair trial; but it doesnot follow that the rights can be disregarded so long ar; the trial is, on the whole,fair." Id. at 145. If a "particular guaran'-e:e" of the Sixt6 Amendment is violated, nosubstitute procedure can cure the violatiorl, ?Dd "[n]o trdditional showing ofprejudice is requirecl to make the violation'compiete."'Id. at 146 (footnoteomitted).

The same is true here. Just as sutrstitute counsel cannot satisfli the SixthAmendment, neithercan conliontation of a substitute rvitness provide .flor proper

11IJ.

cross-examination of the police offic:er who has no personal knowlerlge of the factsi,e. operation of the computer generated system.

I]WHENTFM CAL,IFORNIIA SUPREME COURI'GRANTED REVII]W IN PEOP]-E VS. GOLDSI{ITHEVERY OTT{ER I]RIMINAL DEFENDANT IT IS ADENIAI, OF THE EQLIAL PRC,TECTION CLAUSEOF TI{E FOURTT:UNTH AME|TDMENT TO GI{ANTREVIEW IN PEOPLE VS. GOLDSMITH AND .fO DENYPETITIC)NER'S \VRIT ON THE VERY SAMI' ISSUES.

When the Califomia Supreme Crrurt granted r,:view in people vs. Goldsmithon May, 9,2012,ilsought to settle an imporlant quer;tion regarding t,no conflictingCalifomia Court opinions by the two tlifi'erent reported opinions of the Division ofthe second Appellate District, people vs. Borzakian, 203 Cal App 4,', 525 (2012)and People vs. Goidsmith 203 Cal App 4,h i5 l5 (2012).

The Clalifornia Supreme Court then denied de-publishing the reportedopinion in People vs. Brozakian and lg.ranted review but held the briefine in thecase pending detennination in people vs. Goldsmith

Petitioner fiL:d a Writ of Prohibition asserting r.hat the change i.r the lawafter the granting o.[review by the Cal.:fbrnia Supreme Court, which vras done byRedflex Trafl'rc Systems to usurp the Clalifomia Supreme Court frorn ruling on theissues' Redflex Tra.ffic Systems by co,Jify all the elerrents of the Court of Appealdecision in People'rs. Goldsmith Supra sought to or,emrle the Court of AppealDecision in People vs. Borzakian, Su;rra was unconr;titutional see Alrpen dix 2.

The California Supreme Court d:nied the Writ ,tf prohibition and Requestfor stay even throuSf the verv same isr;ues which were and are pending the

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california supreme court is a denial .f the Equai I'rotection clause of the r4rhAmendment to the United States Corstitution.

Ever since this court's ruring in Griffin v. Iilinois,35lthat it is a deniar of Equar protection r0 grant an apprear to theappellate review t

CCINCLUSIONThe petition for writ of-cert.iorari should be granted,

Dated March g,:,.014

Floward Herships

1ATT