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1Filed 1/8/15See Dissenting OpinionCERTIFIED FOR PUBLICATIONIN THE COURT OF APPEAL OF THE STATE OF CALIFORNIAFOURTH APPELLATE DISTRICTDIVISION TWOTHE PEOPLE,Plaintiff and Respondent,v.VIKTORS ANDRIS REKTE,Defendant and Appellant.E060272(Super.Ct.Nos. APP1300118 & RR182259VR)OPINIONAPPEAL from the Superior Court of Riverside County. William A. Anderson, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Reversed.D. Scott Elliot for Defendant and Appellant.Gregory P. Priamos, City Attorney, Kristi J. Smith and Rosemary Koo, Deputy City Attorneys, for Plaintiff and Respondent.Viktors Rekte received a citation bymail for a violation of Vehicle Code, section 21453, subdivision (a), for failing to stop at a red light, based on aphotograph taken pursuant to the Automated TrafficEnforcementSystem (ATES).At trial, the court overruledin limine objectionsto the admission of the photographic evidence on 2foundational grounds. Thereafter, defendant presentedexpert testimonyto rebut the presumption of the reliability of the photographic evidencedue to noncompliance with the California Manual on Uniform Traffic Control Devices (MUTCD or Manual). The trial court found defendant guilty of the offense. Defendant appealed to the Appellate Division of the Riverside County Superior Court, arguing, among other things, that the presumptions established by Evidence Code sections 1552 and 1553, affecting the burden of producing evidence, were rebutted. The Appellate Division affirmed the judgment and subsequently certified the matter for transfer to this court. We reverse.BACKGROUNDPrior to the commencement of trial, defendant made an in limine motion to exclude the photographic and video evidence on grounds:(1) the yellow light interval did not conform with the standards required by the MUTCD; (2) the defendant was not provided with pretrial discovery of the video clip upon which the ATEScitation was based; and (3) the geometry of the intersection and placement angles of the ATESequipment and traffic signals obscured the view of a substantial portion of the traffic signal light. The trial court denied the in limine motion. Defendant also objected to the foundational statement and introduction of the evidence of the videotape, or the declarations of any Redflex employee, which objections were overruled. The matter3proceeded to trial with Operator Teagarden appearing on behalf of the City of Riverside.1Operator Don Teagardenis a retired Riverside Sheriff's Department deputy.Since May 2010, he has been employed by the Riverside Police Department to review violations of the Automated Traffic Enforcement System (ATES).2The automated camera system captures drivers who enter an intersection while facing a red traffic light. The system is triggered when a car goes through a red light while driving at least 15 miles per hour. The ATES system was installed and maintained by Redflex Traffic Systems (Redflex). The systemtakesa series of still photographs and a 12-second video, depicting the elements of the violation. The images are transmitted electronically to the Redflex office in Phoenix, where they are reviewed by Redflex personnel. Redflex then sends a compact discwith the images and the 12-second video on it to the Riverside Police Department, where Operator Teagarden reviews them. Digitally printedon the photographic image is information relative to the date, time, location, vehicle speed, and how long the signal light had been in the red at the time the photograph was taken.Although Operator Teagardendid not personally test the sequence, hetestified that the 1The Riverside City Attorney's Office does not prosecute violations of the California Vehicle Code (http://www.riversideca.gov/attorney/[as of October 7, 2014]).2Operator Teagarden referred to the system as the Automated Red Light Camera System and the parties referred to the system by the acronym ARLE. However, the system's actual name is Automated Traffic Enforcement System. (Veh. Code, 21455.5.) We will use the acronym ATES for this system.4yellow phases met or exceeded the minimum "recommendations"3established by the California Department of Transportation(CalTrans). On November 5, 2012, Operator Teagarden received digital photographs and a video clip from Redflex, showing defendant's vehicle, as it was photographed on October 26, 2012, traveling southbound on Tyler Street where it intersects with State Route 91. The digital informationon the photograph, received by electronic means from Redflex,indicated defendant was traveling at 15 miles per hour in aposted 35 mile an hour zone. The photographic and video evidence showed the defendant's vehicle to be approximately six feet behind the limit line when the signal had been red for at least 0.96 seconds, and showed the vehicle failed to stop for the red light, continuing to make a right turn. According tothe digital information on the photographic evidence he received, Operator Teagarden testified that the yellow lightintervaltime was 3.65 seconds,which exceeds the 3.6 seconds required for a 35 mile an hour roadway. After reviewing the photographic and video evidence, Operator Teagarden issued a citation for violating Vehicle Code section 21453, subdivision (a), which was then mailed by the vendor, Redflex Traffic Systems, to defendant. 3In reality, conformity with the uniform standards prescribed by the California Department of Transportation is mandatory. (Veh. Code, 21400, 21401.) At oral argument, counsel for the City indicated that the witness actually used the term "requirements" in describing the MUTCD provisions, but after further review, we were unable to find such testimony.5On cross-examination, Operator Teagarden acknowledged he could not tell if the monthly inspections of the equipment conducted by Redflex included verification of the time intervals for the signal lights, and did not know if anyone employed by the City of Riverside checked to make sure the system was calibrated properly. The defense presented expert testimony by engineer Sean Stockwell, who visited the location of the infraction on more than one occasion, before and after the date of the offense, to time the yellow light interval. To time the interval, Stockwell took four video clips of the changing traffic signals, which he uploaded onto a video program on his computer, in order to get a time index.On each occasion, using the software indexingcapability, the yellow light interval was found to be 3.5 seconds, plus or minus 0.07 seconds, which is less than the 3.6 second minimum interval required by the MUTCD. In examining the actual intersection where the offense was to have occurred, Stockwell noticed that the traffic signals are in perfect alignment with the camera which is mounted in the center median of the road.At that angle, a driver in the right-hand turn lane looking ahead would have to turn left 20 degrees in order to see the stop light.There is a 24 degree difference between the driver at the limit line and the ATEScamera system, so as the driver approaches the intersection, he or she has to look more and more to the left. The angle obscures 41 percent of the traffic signal light. The MUTCD requires that signal placement, aiming and adjustment is to optimize visibility of the signal's indications to approaching traffic, not to the ATEScamera. When the case was closed to evidence, the defense argued for dismissal because the geometry of the intersection and placement of the signals requires the driver to look 6away from his or her direction of travel in order to see the light, and because the yellow light interval was less than the mandated 3.6 seconds, demonstrating that the equipment was not functioning properly and the evidence was unreliable. The court found beyond a reasonable doubt that defendant violated Vehicle Code section 21453, subdivision (a) and imposed a fine of $490.00.Defendant appealed to the Appellate Division of the Riverside County Superior Court.On November 20, 2013, the appellate division affirmed the judgment on the infraction.On December 4, 2013, defendant applied for certification to transfer the matter to this court.On December 19, 2013, the Appellate Division of the Riverside County Superior Court granted that request. DISCUSSIONDefendant raises three issues on appeal: (1) whether the trial court committed error by referring to People v. Gray(2011) 199 Cal.App.4th Supp. 10(Gray), review granted June 20, 2012, S202483 [superseding opinion filedMarch 13, 2014, People v. Gray(2014) 58 Cal.4th 901]; (2) whether the trial court committed error in applying Evidence Code sections 1552 and 1553; and (3) whether the trial court committed error relating to the burden of proof in infraction cases. The first issue involves the trial court's reference to a case pending review that hasnowbeen superseded by a subsequent opinionof theCalifornia Supreme Court.The second and third issues, which are interrelated and involve the burden of producing evidence, are issuesof first impression.Because theseissues are so intertwined, we will deal with them as one issue.71. Any Reference to People v. Gray Was Harmless.Defendant argues that a miscarriage of justice occurred due to the trial court's reference to the case of Gray, formerly at 199 Cal.App.4th Supp. 10,because that case had been depublished. The Supreme Court had granted review on June 20, 2012, so it was not citable as precedent.(Cal. Rules of Ct., rules 8.1105(e)(1)& 8.1115 (a).)The holding of Gray was inapposite to the issues of the instant matter so any reference tothat decision was harmless.The appellate decision in Grayinvolved a limited issue: whether the local jurisdiction failed to comply with Vehicle Code section 21445.5 (regarding the requirement of posting warning notices for 30 days before issuing citations upon commencement of the ATESprogram). The trial court's reference to that decision, whether published or not, was irrelevant to the issues posited by defendant at trial: whether the evidence lacked sufficient foundation to be admissible, and whether the equipment was properly calibrated where it recorded a yellow light interval of 3.65 seconds, in the face of expert testimony that the actual interval was only 3.5 seconds. Thus, any reliance by the trial court on that decision was harmless error.Inany event, on March 13, 2014, the California Supreme Court issued its opinion, which superseded the original decision. The Court concluded that failure to comply with the 30-day period of issuing warning notices before using a red light camera to issue citations is not a jurisdictional precondition to enforcement of the red light traffic law. (People v. Gray, supra,58 Cal.4th at p. 911.)8The trial court mistakenly believed the Gray decision related to the admissibility of the digital photographs produced by an ATEScameraover objections similar to those raised by defendant here.Nevertheless,the admissibility of the evidence over foundational objectionsas to hearsay and authentication havebeen addressed bythe recent holding of People v. Goldsmith(2014)59 Cal.4th 258(Goldsmith), holding that the evidence is not hearsay, and is deemedproperly authenticated,albeitsubject to the defendant's demonstration that it was unreliable.(Goldsmith, supra, at pp. 269, 274.)The trial court's erroneous reliance on Gray, after review had been granted in that case, was harmless.2. Defendant's Expert's Testimony Rebutted the Presumptions Under Evidence Code, Sections 1552 and 1553, requiring Exclusion of the Redflex Evidence, and Resulting in a Judgment Unsupported by Evidence.Defendant argues that the court erred in applying Evidence Code Sections 1552 and 1553, respecting the information depicted in the records of Redflex Traffic Systems, consisting of the traffic citation, the 12-second video, and several still pictures of the vehicle with computer data imprinted at the top of the photographs.In this respect, defendant argues that the presumptions embodied in Evidence Code sections 1552 and 1553 were improperly viewed as presumptions affecting the burden of proof, rather than presumptions affecting the burden of producing evidence. We agree.We begin by noting that our Supreme Court has recently ruled on the admissibility of Automated Traffic Enforcement System (ATES) evidence over defense objections based hearsay and lack of authentication.In Goldsmith, the court held that the trial court did not err in admitting the ATES evidence because the presumptions of authenticity 9provided by Evidence Code sections 1552 and 1553 supporteda finding, in the absence of contrary evidence, that the printed versions of ATES images and data were accurate. (Goldsmith, supra,59 Cal.4th at p. 269.)In reaching its decision, the Supreme Court acknowledged that the presumptions set forth in Evidence Code sections 1552 and 1553 affect the burden of producing evidence, but observed that such presumptions do not require any weight to be given to the evidence if admitted, did not reduce the prosecution's burden of proof to show defendant's violation beyond a reasonable doubt,and did not deny the defendant a fair opportunity to rebut the presumed accuracy or reliability of the offered evidence. (Goldsmith, supra, 59 Cal.4th at p. 270, citing Western & A. Railroadv. Henderson (1929) 279 U.S. 639, 642 [73 L.Ed. 884, 49 S.Ct. 445].)"A presumption is either conclusive or rebuttable.Every rebuttable presumption is either (a) a presumption affecting the burden of producing evidence or (b) a presumption affecting the burden of proof."(Evid. Code, 601.)The burden of producing evidence means the obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue.(People v. Atwood (2003) 110 Cal.App.4th 805, 811; Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 145.)In a criminal case, because the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.(County Court v. Allen (1979) 442 U.S. 140, 167 [99S.Ct. 2213, 60 L.Ed.2d 777].)10The burden of producing evidence as to a particular fact is initially on the party having the burden of proof as to that fact. (Evid. Code, 550 People v. Barasa (2002) 103 Cal.App.4th 287, 296.)Once the plaintiff presents evidence to establish each element of its case, the defendant has the burden of going forward with its own evidence as to those issues.(Barasa, supra; see also,Evid. Code, 606;Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1309-1310.)Where the opposing party producesevidence undermining the presumption, the presumption is disregarded and the trier of fact must decide the question without regard to it. (Evid. Code, 603, 604; Craig v. Brown & Root (2000) 84 Cal.App.4th 416, 421.) In other words, the other party is no longer aided by the presumption and must prove the fact in question.(Rancho Santa Fe Pharmacy, Inc. v. Seyfert(1990) 219 Cal. App. 3d 875, 882.)Evidence Code sections1552 and 1553 provide a presumption for both the existence and content of computer information and digital images that the printed versions purport to represent, and establish, preliminarily, that a computer's print function has worked properly.(Goldsmith, supra, 59 Cal.4th at p. 269.) They may supporta finding that, in the absence of contrary evidence, the printed versions of ATES images and data are accurate representations of the images stored in the ATES equipment.(Ibid.)By their express language, Evidence Code sections 1552 and 1553, create presumptions affecting the burden of producing evidence."If a party to an action introduces evidence that a printed representation of the computer information or computer program is inaccurate or unreliable, the party introducing the printed