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People v. Bamberg

June 30, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ANDREW BAMBERG, DEFENDANT AND APPELLANT.



(San Mateo County Super. Ct. No. SC060896A) Trial Court: San Mateo County Superior Court Trial Judge: Hon. Quentin Kopp.

The opinion of the court was delivered by: McGuiness, P.J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Appellant Andrew Bamberg contested a traffic citation for failing to stop at a stop sign. He introduced photographs to support his claim there was no stop sign at the intersection at which he purportedly committed the traffic violation. However, a number of the photographs relied upon by appellant actually depicted a different intersection. As a result of appellant‟s statements and actions in the traffic case, a jury convicted him of perjury, preparing false evidence, and concealing or destroying evidence. (Pen. Code, §§ 118, 134, 135.)

This appeal requires us to consider whether an unaltered photograph may be considered "false" within the meaning of Penal Code section 134,*fn2 which makes it a crime to prepare false evidence. We conclude the photographs offered by appellant were false in that they depicted something other than what appellant claimed they showed. Substantial evidence supports the conclusion that appellant prepared the photographs with the intent to deceive the traffic court. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On March 12, 2005, appellant received a traffic citation for failing to stop at a stop sign at the intersection of Whipple Avenue and King Street in Redwood City. (Veh. Code, § 22450.) The intersection of Whipple and King is a four-way stop, i.e., there is a stop sign on each of the four sides of the intersection. King changes names as it intersects Whipple, which generally runs in an east-west direction. On the south side of Whipple, the cross-street is named King Street, whereas on the north side of Whipple, the cross-street is named Copley Avenue. Although the street that runs in a north-south direction changes names as it crosses the intersection with Whipple, the intersection forms a "perfect cross."

Appellant appeared in traffic court on May 10, 2005, to contest the ticket. Commissioner Susan Greenberg presided over the traffic court trial. The Redwood City police officer who issued the traffic citation testified that appellant had been traveling westbound on Whipple and had gone through the intersection of Whipple at King without stopping for the stop sign.

Appellant, who was sworn to tell the truth, testified there was no stop sign at King and Whipple. He acknowledged, however, there was a stop sign at Copley and Whipple (which is part of the same intersection). He introduced a total of five black-and-white photographs, which he claimed depicted the intersection of Whipple and King. He asserted the photographs proved there was no stop sign at the intersection.

Based on her familiarity with the area, Commissioner Greenberg recognized the first three photographs as the intersection of Whipple and King. However, she immediately recognized that the last two photographs did not depict the intersection of Whipple and King. One of the last two photographs showed a street sign for King but was taken so that it was not possible to read the name of the cross street. After examining the photographs for a few moments, she realized they were of the intersection of Hopkins and King, which is about one block south of the intersection of Whipple and King. The commissioner was familiar with the intersection because she had driven through it five days a week for the previous five years. The intersection of Hopkins and King is not a four-way stop. Motorists traveling on King must stop at Hopkins, but motorists traveling on Hopkins, which runs parallel to Whipple, can cross King without stopping.

Commissioner Greenberg decided to take the matter under submission rather than rule from the bench. She informed appellant and the officer that she intended to visit the site of the traffic violation and asked whether there was any objection. Neither side objected. At the conclusion of the trial, the court returned to appellant the five photographs he had used to support his case. The court routinely returns evidence presented at traffic court trials due to the volume of cases and lack of storage space.

On her way home that evening, Commissioner Greenberg confirmed that the last two photographs appellant presented depicted the intersection of Hopkins and King, not Whipple and King. She recognized various landmarks at the intersection that appeared in the photographs she had seen earlier that day at trial. The next day, Commissioner Greenberg found appellant guilty of the traffic violation and assessed a fine of $215.50.

Redwood City police officer Gregory Farley had been present in court at the traffic court trial on May 10, 2005, and had heard appellant‟s testimony that there was no stop sign at Whipple and King. Two days after the trial he drove to the intersection and determined there was, in fact, a stop sign at the intersection. However, he noticed the street sign at the intersection of Whipple and King, which should have read "King," instead had been replaced by a street sign that read "Copley." As altered, the signs on both sides of the street intersecting Whipple incorrectly read "Copley." Thus, there was no longer any street sign at Whipple and King that read "King." Officer Farley drove to the end of Copley, which terminates at Durlston. At that intersection, the Copley street sign was missing. A neighbor who lived near the intersection of Copley and Durlston had noticed the Copley sign was where it should have been on the morning of May 10, 2005, the date of appellant‟s traffic court trial. The following day at about 7:00 a.m., he noticed the Copley sign was gone.

Appellant filed a notice of appeal from the traffic infraction on June 9, 2005. A settled statement hearing was set for August 2, 2005. The purpose of the settled statement hearing was to prepare a record of testimony and other evidence presented at trial for purposes of the appeal, in light of the fact the trial had not been transcribed by a court reporter. Only the evidence presented at trial is considered at a settled statement hearing; no new evidence is allowed. On July 21, 2005, a court clerk sent a letter to appellant requesting that he bring to the settled statement hearing the photographic evidence he had presented at trial.

On August 2, 2005, appellant and the police officer who issued the traffic citation appeared before Commissioner Greenberg for purposes of preparing a settled statement on appeal. Both were placed under oath by the court clerk. The commissioner asked appellant for the five photographs he had presented at the traffic court trial. Instead of presenting the five black-and-white photographs he had offered at trial, appellant presented ten color photographs, which Commissioner Greenberg immediately recognized were not the photographs he had offered at the traffic court trial. In addition to the fact the photographs were in color, they had date stamps on the back that reflected a date after the traffic court trial. When Commissioner Greenberg told appellant the photographs were not the ones presented at trial, he argued with her and insisted they were in fact the photographs he had previously presented. She told appellant she had made notations at the time of trial demonstrating the photographs he was proffering were not the ones he had presented at trial.

Commissioner Greenberg reminded appellant he was under oath and gave him time "to gather his thoughts and get it together and review again the statement [the commissioner] prepared, which indicated the five photographs." After a break, appellant returned with three of the five original photographs he had offered at trial. The photographs depicted the intersection of Whipple and King. The commissioner asked appellant for the other two photographs. He told her he did not have them with him but "perhaps" he had them at home. ...


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