People v. Bowley

DRAPER, P. J.

Defendant’s conviction of violating Penal Code section 288a (oral copulation) was reversed

(People

v.

Bowley,

59 Cal.2d 855 [31 Cal.Rptr. 471, 382 P.2d 591].) On the second trial, this time to the court sitting without a jury, he was again convicted, and now appeals from the second judgment.

A woman testified that, before a motion picture camera, she engaged in the prohibited act with defendant. Of course, she was an accomplice, and defendant could be convicted only if her testimony were corroborated (Pen. Code, § 1111). The film was exhibited and was the sole corroborative evidence. Defendant was identifiable in the film, which thus was probative evidence in itself. But, the Supreme Court pointed out, the film cannot speak for itself as to its own authenticity. It is probative only if shown to be accurate and to correctly portray what it purports to show. The only authentication at the first trial was the testimony of the accomplice. But the required corroboration must be evidence other than that of the accomplice herself. Thus, the court held, the film authenticated only by her testimony could not serve to corroborate her, and reversal was required.

At the second trial, the prosecution called a police officer assigned to the photography laboratory. He had two

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years’ schooling and nine years’ experience in photography. He had examined the questioned film in detail. He testified that no portion of it had been tampered with or faked in any way, and that it correctly “represents what the camera saw.”

Defendant argues that the expert’s testimony is an inadequate foundation for corroborative purposes because that witness did not testify “as to the time and place the film was made.” If applied here, this would require authentication by one present when the picture was taken. But accuracy of a film may be established “by the aid of expert testimony, . . . although there is no one qualified to authenticate it from personal observation” (59 Cal.2d at p. 862).