Metropolitan News-Enterprise


Wednesday, July 1, 2009


Page 1


Court Upholds Conviction Over False Photo Evidence




A defendant who intentionally identified photographs as depicting a different intersection than the one where he claimed the picture was taken was properly convicted of preparing “false” evidence, the First District Court of Appeal ruled yesterday.

Div. Three affirmed Andrew Bamberg’s conviction under the false evidence statute, Penal Code Sec. 134, along with convictions for perjury and concealing or destroying evidence. San Mateo Superior Court Judge Quentin Kopp sentenced Bamberg to five years probation, including a year in jail.

The charges arose out of Bamberg’s defense to a traffic citation issued in Redwood City in 2005. The citation was issued at a four-way stop at the intersection of Whipple Ave. and King St.

The traffic case was tried before Superior Court Commissioner Susan Greenberg. A police officer testified that Bamberg ran the stop sign traveling westbound on Whipple.

Bamberg testified that there was no stop sign at the intersection, but admitted there was a stop sign at Copley Ave. and Whipple. Copley Ave. is the name to which King St. changes north of Whipple.

Bamberg presented five photographs which he claimed depicted the intersection of Whipple and King. The commissioner, however, who was familiar with the area—having driven through it five days a week for the previous five years—thought that two of the photos looked like they were taken at Hopkins and King, about one block south of where Bamberg was ticketed. 

After neither the officer nor Bamberg objected, the commissioner visited the scene,  confirmed that two of the photographs depicted the intersection of Hopkins and King, found Bamberg guilty, and fined him $215.50.

Bamberg appealed the citation, and a court conference was scheduled to prepare a settled statement for the appeal, since the trial was not transcribed. When Bamberg presented his photographs, however, the commissioner realized they were not the ones shown at trial because they were in color, were date-stamped after the date of the trial, and lacked the notations that Greenberg made on them at the trial.

After a recess, Bamberg returned with three black-and-white photographs that were offered at trial, but not the two that Greenberg had concluded showed the wrong intersection. He said “perhaps” he had them at home.

He was subsequently charged with two counts of perjury, two counts of preparing false evidence, and one count of misdemeanor destroying or concealing evidence. One count of preparing false evidence was dismissed under Penal Code Sec. 995; the remaining charges went to a jury.

Jurors found the defendant guilty after hearing testimony that Bamberg had not only presented testimony that misidentified the photographs as being of the intersection at which he was ticketed, but had altered one of the photographs so that a picture of the King St. sign read “Copley.”

Presiding Justice William McGuiness, writing yesterday for the Court of Appeal, said Bamberg’s taking and presentation of the two photographs of the intersection of Hopkins and King, combined with his testimony that they were of the intersection of Whipple and King, constituted preparation of false evidence under Sec. 134.

The statute provides:

“Every person guilty of preparing any false or ante-dated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of a felony.”

McGuiness rejected the contention that evidence must be false “on its face,” without regard to testimony explaining its meaning, to support a conviction.

“[F]alsity,” the jurist wrote, “is not an absolute quality,” but “can turn upon what the evidence is offered to prove.”

The presiding justice elaborated:

“Even though appellant did not alter the photographs themselves, he literally ‘prepared’  evidence with the intent to defraud the court in a proceeding authorized by law.  He did not simply lie about the content of the photographs while testifying in traffic court.  Rather, he prepared the evidence with the intention of defrauding the court into believing the photographs portrayed a location they did not in fact depict.  Thus, it is not correct to say appellant’s wrongful conduct was limited to lying under oath, as appellant suggests.  Preparing false evidence and testifying about the evidence are two distinct acts.  One can testify falsely about evidence even though it may have been prepared without any intent to deceive.”

McGuiness also rejected the argument that the statute should be interpreted as proposed by the defendant pursuant to the rule of lenity. Reading the statute in context shows there is nothing ambiguous about the legislative intent behind Sec. 134, he said.

In an unpublished portion of the opinion, McGuiness said there was sufficient evidence to support the conviction of destroying or concealing evidence, based on Greenberg’s testimony about the two photographs that were presented at trial but not at the settled statement hearing.

Bamberg’s attempt to offer different photographs, followed by his presentation of only three of the five original photographs, showed a consciousness of guilt from which the jury properly inferred that Bamberg destroyed the other two photographs or was knowingly concealing them from the court, the presiding justice said.

The jury was not required to credit Bamberg’s assertion that he might have destroyed the two photos before he received a letter from the court clerk explaining that all evidence presented at the traffic trial had to be brought back for the settled statement hearing, McGuiness said. The photographs had been returned at the end of the trial, as is the court’s usual practice.

 “In light of the overwhelming evidence of appellant’s deception and dishonesty, the jury could find that he destroyed or concealed the photographs after receiving the clerk’s letter,” the jurist said.

The case is People v. Bamberg, A120767.


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