calcrim-2640-perjury - penal code 118 - judicial council of california criminal jury instructions

7/26/2019 CALCRIM-2640-Perjury - Penal Code 118 - Judicial Council of California Criminal Jury Instructions

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D. PERJURY2640. Perjury (Pen. Code, 118)

The defendant is charged [in Count ] with perjury [inviolation of Penal Code section 118].

To prove that the defendant is guilty of this crime, the People mustprove that:

[1. The defendant took an oath to (testify[,]/ [or] declare[,]/[or] depose[,]/ [or] certify) truthfully before a competent(tribunal[,]/ [or] officer[,]/ [or] person) under circumstancesin which the oath of the State of California lawfully may begiven;]

[1. The defendant (testified[,]/ [or] declared[,]/ [or] deposed[,]/[or] certified) under penalty of perjury under circumstancesin which such (testimony[,]/ [or] declaration[,]/ [or]deposition[,]/ [or] certificate) was permitted by law;]

2. When the defendant (testified[,]/ [or] declared[,]/ [or]deposed[,]/ [or] certified), (he/she) willfully stated that the

information was true even though (he/she) knew it wasfalse;

3. The information was material;

4. The defendant knew (he/she) was making the statementunder (oath/penalty of perjury);

[AND]

5. When the defendant made the false statement, (he/she)intended to (testify[,]/ [or] declare[,]/ [or] depose[,]/ [or]certify) falsely while under (oath/penalty of perjury)(;/.)

[AND

555 (Pub. 1284)

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6. The defendant signed and delivered (his/her) (declaration[,]/[or] deposition[,]/ [or] certificate) to someone else intendingthat it be circulated or published as true.]

Someone commits an act willfully when he or she does it willinglyor on purpose.

[An oath is an affirmation or any other method authorized by lawto affirm the truth of a statement.]

[Information is materialif it is probable that the information

would influence the outcome of the proceedings, but it does notneed to actually have an influence on the proceedings.]

[Information is material if .]

The People do not need to prove that the defendant knew that theinformation in (his/her) statement was material.

You may not find the defendants statement was false based on the

testimony of alone. Inaddition to the testimony of ,there must be some other evidence that the defendants statementwas false. This other evidence may be direct or indirect. [However,if you conclude, based on the defendants own testimony, that theallegedly false statement was in fact false, then additional evidenceis not required.]

If the defendant actually believed that the statement was true, the

defendant is not guilty of this crime even if the defendants beliefwas mistaken.

The People allege that the defendant made the following falsestatement[s]: .

[You may not find the defendant guilty unless all of you agree thatthe People have proved that the defendant made at least one falsestatement and you all agree on which particular false statement

the defendant made. The People do not need to prove that all theallegedly false statements were in fact false.]

[It is not a defense (that the oath was given or taken in anirregular manner/ [or] that the defendant did not go before or takethe oath in the presence of the officer claiming to administer theoath) as long as the defendant caused the officer administering the

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oath to certify that the oath had been taken.]

[When a person makes a statement, without qualification, thatinformation is true, but he or she does not know whether theinformation is true, the making of that statement is the same assaying something that the person knows is false.]

[If the defendant attempted to correct the statement after it wasmade, that attempt may show that the defendant did not intend to(testify[,]/ [or] declare[,]/ [or] depose[,]/ [or] certify) falsely. It is upto you to decide the meaning and importance of that conduct.]

New January 2006

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements

of the crime.

The court has a sua sponte duty to define material. (People v. Kobrin(1995) 11 Cal.4th 416, 430 [45 Cal.Rptr.2d 895, 903 P.2d 1027] [materiality

is a fact question to be decided by the jury].) The first bracketed definition of

material is appropriate for court proceedings or legislative hearings. (People

v. Hedgecock(1990) 51 Cal.3d 395, 405 [272 Cal.Rptr. 803, 795 P.2d 1260]

[not appropriate for charge of perjury on required disclosure forms].) For

other types of proceedings, the court should use the second bracketed

sentence, inserting an appropriate definition in the blank provided. (Id. at pp.

405407.)The court has a sua sponte duty to instruct the jury about the need for

corroboration of the evidence of perjury. (People v. Di Giacomo (1961) 193

Cal.App.2d 688, 698 [14 Cal.Rptr. 574]; Pen. Code, 118(b).) If the

evidence that the statement is false is based in whole or in part on the

defendants testimony, give the bracketed sentence that begins with

However, if you conclude, based on the defendants own testimony.

If the prosecution alleges under a single count that the defendant made

multiple statements that were perjury, the court has a sua sponte duty toinstruct on unanimity. (People v. McRae (1967) 256 Cal.App.2d 95, 120121

[63 Cal.Rptr. 854].) Give the bracketed paragraph that begins with You may

not find the defendant guilty unless.

Give element 6 if the case involves a declaration, deposition, or certificate.

(Pen. Code, 124; People v. Griffni (1998) 65 Cal.App.4th 581, 596 [76

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Cal.Rptr.2d 590] [delivery requirement applies to declaration; discussing at

length meaning of deposition, declaration, certificate, and affidavit];

Collins v. Superior Court (2001) 89 Cal.App.4th 1244, 1247 [108 Cal.Rptr.2d

123];People v. Post (2001) 94 Cal.App.4th 467, 480481 [114 Cal.Rptr.2d

356].)

Give the bracketed sentence that begins with It is not a defense (that the

oath was given or taken in an irregular manner on request if supported by

the evidence and when instructing with element 1A. (Pen. Code, 121.)

Give the bracketed sentence that begins with When a person makes a

statement, without qualification, on request if supported by the evidence.(Pen. Code, 125.)

If there is sufficient evidence, give the bracketed paragraph that begins with

If the defendant attempted to correct. (People v. Baranov (1962) 201

Cal.App.2d 52, 6061 [19 Cal.Rptr. 866].)

AUTHORITY

Elements. Pen. Code, 118.

Oath Defined. Pen. Code, 119.

Irregular Oath Not a Defense. Pen. Code, 121.

Knowledge of Materiality Not Necessary. Pen. Code, 123.

Completion of Deposition, Affidavit, or Certificate. Pen. Code, 124;

Collins v. Superior Court(2001) 89 Cal.App.4th 1244, 1247 [108

Cal.Rptr.2d 123].

Unqualified Statement Equivalent to False Statement. Pen. Code, 125.

Material Defined. People v. Pierce (1967) 66 Cal.2d 53, 61 [56

Cal.Rptr. 817, 423 P.2d 969]; People v. Hedgecock(1990) 51 Cal.3d 395,

405 [272 Cal.Rptr. 803, 795 P.2d 1260]; People v. Rubio (2004) 121

Cal.App.4th 927, 930934 [17 Cal.Rptr.3d 524].

Materiality Is Element to Be Decided by Jury. People v. Kobrin(1995)

11 Cal.4th 416, 430 [45 Cal.Rptr.2d 895, 903 P.2d 1027]; People v.

Feinberg (1997) 51 Cal.App.4th 1566, 1576 [60 Cal.Rptr.2d 323].

Specific Intent to Testify Falsely Required. People v. Viniegra(1982)130 Cal.App.3d 577, 584 [181 Cal.Rptr. 848]; see also People v. Hagen

(1998) 19 Cal.4th 652, 663664 [80 Cal.Rptr.2d 24, 967 P.2d 563]

[discussing intent requirement for perjury].

Good Faith Belief Statement True Negates Intent. People v. Von

Tiedeman (1898) 120 Cal. 128, 134 [52 P. 155] [cited with approval in

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People v. Hagen (1998) 19 Cal.4th 652, 663664 [80 Cal.Rptr.2d 24, 967

P.2d 563]]; People v. Louie (1984) 158 Cal.App.3d Supp. 28, 43 [205

Cal.Rptr. 247].

Declaration Must Be Delivered. People v. Griffni (1998) 65

Cal.App.4th 581, 596 [76 Cal.Rptr.2d 590].

Unanimity. People v. McRae(1967) 256 Cal.App.2d 95, 120121 [63

Cal.Rptr. 854].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes AgainstGovernmental Authority, 5681.

2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 40,Accusatory Pleadings, 40.07[6] (Matthew Bender).

LESSER INCLUDED OFFENSES

Attempted Perjury. People v. Post (2001) 94 Cal.App.4th 467, 480481

[114 Cal.Rptr.2d 356].

RELATED ISSUES

Unsigned Deposition

In People v. Post (2001) 94 Cal.App.4th 467, 480481 [114 Cal.Rptr.2d 356],

the court held that an unexecuted deposition transcript was like an

undelivered statement that could not form the basis for a perjury conviction.

Nevertheless, it was sufficient evidence to support a conviction on the lesser

included offense of attempted perjury. (Ibid.)

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calcrim-2640-perjury - penal code 118 - judicial council of california criminal jury instructions

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