Penal Code 118 PC -- California Perjury Law

The California law of perjury is defined under Penal Code 118 PC. A person commits perjury in this state when he/she deliberately give false information while under oath. You are subject to prosecution for perjury if you willfully give false information in any of the following circumstances:

when testifying in court,

when being deposed,

in a signed affidavit,

in a signed declaration, or

in a signed certificate.

Although California law treats perjury as a felony, many people get wrongfully charged with it. Simply getting accused of perjury or prosecuted for it does not necessarily mean you have to be convicted.

In this article, our Los Angeles criminal defense attorneys will provide a comprehensive guide to understanding how perjury is prosecuted.and more importantly, defended.by addressing the following topics:

How Does the Prosecutor Prove that I Committed Perjury?

Examples of Perjury Under California Penal Code 118 PC

Subornation of Perjury Under Penal Code 127 PC

Penalties, Punishment, and Sentencing for Perjury

What are the Defenses to Perjury?

If after reading this article, you would like more information, we invite you to contact us at one of our local criminal law offices.

How Does the Prosecutor Prove that I Committed Perjury?

In order to establish that you committed perjury under California law, the prosecutor must prove each of the following four facts (otherwise known as "elements of the crime"):

That you made a deliberate or willful statement,

knowing that the statement was false,

that you were under an oath to tell the truth at the time you made the statement, and

that the statement was (or related to) a "material" fact.¹

Let's examine each of these elements more closely.

You made a deliberate or willful statement

If you intentionally make a statement (either verbally or in writing) that gets conveyed to another person with the intent that it be taken as true, you satisfy this requirement.²

This is an important fact -- conveying your statement to another is a requirement of this element. Simply saying or writing something intended only for yourself will not subject you to this charge.

However, your silence can actually amount to a "statement" if you intended it to serve as a substitute for verbal or written expression.³

Example: As part of the jury selection process at a criminal trial, groups of prospective jurors are placed under oath and then questioned together. When the judge or attorneys ask questions, jurors raise their hands to indicate "yes" answers and leave their hands down to indicate "no" answers. The judge asks the group, "have any of you ever been arrested?" Timothy, who was arrested last year for lewd conduct in public, feels embarrassed declines to raise his hand. The silence implies a negative response to the question and could subject Timothy to a perjury charge.⁴

This scenario applies to a very specific set of facts (that is, the jury selection process). However, it stands to reason that your silence could invite a California perjury law charge in any situation where your silence qualifies as a deliberate or willful false statement.which leads us into the next element.

Knowing that your statement was false

This element goes to the heart of a California perjury case.if you don't knowingly provide false information, you can't be convicted of this offense. "Mistake of fact" will serve as an absolute defense to this charge.⁵

In order to be convicted of perjury under Penal Code 118 PC, you must knowingly make an unequivocally false statement. Literally true but misleading or unresponsive statements do not amount to perjury.⁶ Similarly, a witness who gives literally true answers may not be convicted of this offense for failing to volunteer more explicit information.⁷

Example: The judge asked Rick, a prospective juror in a criminal case, if anybody in his immediate family had ever been arrested. Rick told the judge that his son got arrested years ago for possession of a controlled substance. He failed to tell the judge that he, himself, had also been arrested for the same offense.even though Rick knows that his own arrest is also relevant to the judge's inquiry.

Although Rick failed to disclose his own arrest, his statement that his son had been arrested was true. The way that Rick answered the question was misleading.it implied that his son was the only one arrested.but it was nonetheless true. As a result, even though Rick failed to volunteer his own arrest, he will be exempt from a perjury conviction based on the literal truth of his statement.

That said, you can subject yourself to a California perjury charge if you make a willful statement while unaware of its truth.⁸ If you make a statement knowing that you are unaware of whether it is true.with the intent that it should be accepted as true.you could be prosecuted as if you had made a false statement.⁹

Example: Adding to the above scenario, suppose that the judge followed up by asking Rick if his son has had any subsequent "run-ins" with the law. Rick's answer was "absolutely not". The fact is that Rick's son lives in another state and the two haven't spoken or communicated in years. While it could be true that Rick's son hasn't since been arrested, Rick knew when he answered that he had no actual knowledge about his son's legal situation.

When Rick testified that his son "absolutely" hadn't suffered any other arrests.intending that the judge accept his answer as the truth.he committed perjury.

It bears repeating that making a statement knowing that you are unaware of whether or not it is actually true.with the intent that it should be accepted as true.can trigger criminal liability for perjury just as if you testify to something you know to be false.

Finally, even though it may prove to be false, an oath of office that contained an unfulfilled promise of future conduct doesn't qualify as perjury.¹⁰

You were under oath to tell the truth at the time you made the statement

Offering false testimony in a civil or criminal court proceeding is the most obvious and common way to trigger liability for a California perjury charge. Providing false information during a deposition or in an affidavit, certificate, or declaration will also subject you to prosecution for this offense.

As for the above "legal terms".an affidavit is a written statement verified by oath or affirmation. A certificate is a written testimony to the truth of any fact. And a "declaration" is a written statement certified to be true under penalty of perjury.¹¹

Providing false information during a court proceeding, a deposition, or in these documents, and

delivering them to another, with

the intent that your statements will be received as true fulfills this element.¹²

Example: You fill out a job application at the office where you are seeking employment. At the end of the employment application, there is a place where you sign "under penalty of perjury" that the information that you provided is true.

In response to a question about whether you have ever been terminated from previous employment, you answered "no". However, you were fired from your last job because your boss suspected that you had been embezzling money from him.

After completing your application, you decided that you weren't going to apply for the job. You couldn't find a trash can, so you left the application on a nearby desk. Someone picked up you application and submitted on your behalf. This scenario would not subject you to a perjury charge. You didn't deliver the application, nor did you intend for it to be read. But.

If after completing the application, you turned it in, you then would be liable for perjury under California law. You (1) provided false information in a "declaration" by stating that you hadn't been terminated, (2) "delivered it" when you turned it in, and (3) intended that your "no" answer be taken as the truth.

It should be noted that the fact that an oath wasn't properly administered, received, or properly written will not necessarily serve as a defense to a perjury charge.¹³

That your statement amounted to a "material" fact

In order to be prosecuted for perjury under California Penal Code 118 PC, the statement must be material.

In general, a "material" fact is one of real importance or of great consequence. With respect to California perjury, a statement is material if, at the time it was made, it (1) was used to affect the outcome of the proceeding in which it was made, or (2) had the probability of influencing the outcome of the proceeding for which it was made.¹⁴

There is no requirement that the statement actually influence the proceeding.¹⁵ Nor is there a requirement that you know that the statement was material.¹⁶

A statement "relating to" a material fact is material

A statement that isn't material on its face (but may have some indirect tendency to prove or disprove an issue that is critical to the proceeding) may nonetheless satisfy the "material" requirement. If the statement relates to a material fact, you still face a perjury conviction.¹⁷

Example: Dave was charged with stealing a woman's purse on a downtown street. He wasn't arrested at the scene, but was later "picked up" by officers in a nearby location based on the victim's description of his appearance.

When the prosecutor asked Dave if he smoked, he replied that he quit smoking and hadn't had a cigarette in years.facts which, by themselves, don't seem particularly relevant. However, the officer who arrested Dave testified that he found "Lucky strikes" in Dave's pocket and remembered that Dave was "putting out" a cigarette when the officer approached him.

When the police asked the woman what was in her purse when it was stolen, a pack of Lucky strikes was among the items that she listed.

Although Dave's testimony that he didn't smoke wouldn't seem material to a theft case, it was a lie that related to a material fact.his identity as the thief. The fact that he had been smoking and that he was carrying the same cigarettes as the victim tended to prove that he was, in fact, the person who the woman identified.

As a result, Dave's false testimony about smoking would satisfy the "material" element and could subject him to a separate perjury charge.

In addition, "false testimony that affects the credibility of a witness is material and will support a perjury conviction".¹⁸

Examples of Perjury Under California Penal Code 118 PC -

A variety of situations may trigger a perjury charge. Some examples include:

Intentionally providing and delivering false information on a driver's license, loan, or other application that has a phrase reading something along the lines of "I declare under penalty of perjury that the above information is true and correct." Also, if you enter a structure (such as a DMV office) intending to commit perjury inside, you may also face a California burglary charge.

Intentionally providing and delivering false information on a tax return, statement, or report that requires an oath, regardless of whether the oath was actually taken¹⁹

Intentionally rendering a false translation of another's testimony if you are a "sworn" interpreter²⁰

Testifying as to your opinion if you don't honestly believe in the opinion about which you are testifying²¹

Knowingly and intentionally making a materially false statement in a police report that you, as a law enforcement officer, file with your agency²²

If the facts of your case involve a false written document, you may additionally face charges for Penal Code 470 Forgery, tax fraud, Penal Code 484 Petty Theft or Penal Code 487 Grand Theft.

Subornation of Perjury Under California Penal Code 127 PC

California law recognizes another type of perjury -- subornation of perjury under Penal Code 127 PC. If you willfully convince or persuade someone else to commit perjury.and they do, in fact, commit perjury.you may be convicted of this offense.

In order to prove that you committed subornation of perjury, the prosecutor must prove

that you convinced someone else to testify falsely,

that perjury was, in fact, committed,

the statements of the perjurer were material,

that the statements were willfully made with the knowledge that they were false, and

that you knew that the perjurer's statements were false.²³

Example: Frank was charged with Penal Code 273.5 Corporal Injury on a Spouse. Frank's wife, Lisa, told police that Frank had hit her in the presence of Frank's friend, Joe. Although Joe did indeed witness the incident, Frank convinced Joe to testify that he (Frank) never hit Lisa and that she made up the allegation because she suspected Frank had been cheating on her. Frank and Joe both offered this false testimony at trial.

Based on these facts, Frank and Joe would be liable for Penal Code 118 perjury, since they both falsely testified about a material fact. But Frank would also be liable for Penal Code 127 "subornation of perjury," since he convinced Joe to testify falsely.

If you get charged with subornation of perjury in California, you will be prosecuted and (if convicted) punished as if you were the one who personally committed the perjury.²⁴

Penalties, Punishment, and Sentencing for Perjury in California

Perjury under Penal Code 118 PC is a felony. If convicted, you face two, three, or four years in the California State Prison. Depending on the circumstances, you may additionally be sentenced to

formal probation,

fines,

restitution (especially if the conduct involved providing false information in connection with an application for welfare aid -- also known as "welfare fraud"), and

community service or labor.

If you are convicted of perjury (or of subornation of perjury) that leads to the conviction and execution of another, you will be sentenced for aggravated perjury. Aggravated perjury is punishable by death or life imprisonment without the possibility of parole.²⁵

What are the Defenses to a California Perjury Charge?

There are several defenses that our Los Angeles criminal defense attorneys may be able to present on your behalf, depending on the specific circumstances of your arrest. Below are some of the most successful.

Mistake or misunderstanding

If, at the time you made your statement, you honestly or justifiably believed it was true, you can't be convicted of this offense...even if it turned out to be a false statement.²⁶ This is because you wouldn't be "willfully" making a false statement, one of the essential elements of a perjury charge.

Example: You testified on behalf of your friend Steve who was being prosecuted for Penal Code 459 burglary. You testified to seeing Steve on the corner of 3rd and Main in Santa Monica on June 21st at 3:00 p.m. -- the same time he was charged with committing the burglary in Long Beach. You stated that when you saw him, you honked your horn but there was no indication that he heard you. You believed your testimony to be true. But it turns out you were mistaken. Other evidence proved conclusively that Steve had indeed committed the Long Beach burglary.

Despite having given inaccurate testimony, you would not be liable under California perjury law. A mistaken belief (even if false) cannot sustain a perjury conviction.

Based on the same principal, if you misunderstood a direction, question, or other instruction that caused you to make the alleged false statement, you would be entitled to an acquittal of this offense.

Example: In one of the affidavits that you were required to fill out as a part of your divorce proceeding, you under-reported your income. The form asked for your total earnings and you mistook that to mean your "take home" pay. As a result, the income you reported was substantially less than what you had actually earned.

Based on these facts, you wouldn't face perjury liability since you did not intentionally provide false information. You simply misunderstood the instructions, which led you to provide an inaccurate answer to the question.

The bottom line is this -- if you didn't intend to make a false statement, you are not guilty of perjury. Period.

Insufficient evidence

Another person's testimony that conflicts with yours is insufficient, in-and-of itself, to support a perjury conviction.²⁷ In order to prove your guilt, the prosecutor must offer corroborating evidence to prove that your statement was, in fact, false.²⁸

However, if a jury believes, based on your own conflicting testimony, that one version of your testimony was false, no further corroboration is necessary.²⁹

Example: John testified during his DUI trial that he only drank two beers before he drove.a statement that the prosecution alleged was false based on his blood alcohol concentration of 0.12%. He testified that he was drinking at a bar by himself and that the bar didn't serve food, only drinks.

On cross-examination, John conceded that his bar bill was $30. The jury concluded that there was no way that John paid $30 for only two beers when he was by himself in a bar that didn't serve food. Based on his own conflicting testimony, John could be liable for perjury for testifying that he only had two beers before he drove.

You quickly recanted your statement

While there is no requirement that you be given an opportunity to correct your alleged false statement, promptly doing so may help prove that you didn't intentionally provide false information.³⁰

You weren't the one who committed the crime

While this defense will not apply in a case where you personally testified either in court or in a recorded deposition, it may apply if your alleged false statement was made in writing.

If, for example, someone committed identity theft by forging your name on a falsified loan application, your case will be dismissed based on your innocence.

Along these same lines, your criminal defense attorney should always investigate procedural violations, misleading evidence, and false allegations in an effort to have your charges reduced or dismissed.

For more information on California perjury law or to discuss your case with a criminal defense lawyer, please don't hesitate to contact us. We have local criminal law offices in Los Angeles, San Francisco, Newport Beach, San Bernardino, Riverside, and all surrounding areas.

Legal References:

¹Cabe v. Superior Court, (1998) 63 Cal.App.4th 732 ("In order to lawfully hold a person to answer on the charge of perjury under [California Penal Code] section 118, evidence must exist of a "willful statement, under oath, of any material matter which the witness knows to be false.")

²People v. Griffini, (1998) 65 Cal.App.4th 581 (".for purposes of defining perjury, the making of a deposition, affidavit or certificate is deemed to be complete ... from the time when it is delivered by the accused to any other person, with the intent that it be uttered or published as true.'")

³California Evidence Code section 225 -- Statement ("'Statement' means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.")

⁴People v. Meza, (1987) 188 Cal.App.3d 1631 (Held that defendant's silence in response to a question asked collectively of the prospective jurors in a criminal case could constitute perjury under California Penal Code 118 PC.)

⁵California Jury Instruction - Criminal 7.24 -- Willfulness and knowledge required ("A statement made under an actual mistake and in a belief that it is true is not perjury even though the statement is false.")

⁶See Cabe v. Superior Court, above ("Thus, no perjury charge was permissible under the rule that a witness may not be convicted of perjury for an answer, under oath, that is literally true, even where the answer was not responsive to the question asked and arguably misleading by negative implication.")

⁷In re Rosoto, (1974) 10 Cal.3d 939 ("It is thus apparent that when, as here, a witness' answers are literally true he may not be faulted for failing to volunteer more explicit information. Although such testimony may cause a misleading impression due to the failure of counsel to ask more specific questions, the witness' failure to volunteer testimony to avoid the misleading impression does not constitute perjury because the crucial element of falsity is not present in his testimony.")

⁸California Jury Instruction - Criminal 7.24 -- Willfulness and knowledge required ("Perjury requires that the statement be made willfully by a person who knows that the statement is being made under [oath] [penalty of perjury] and who.[is aware that [he] [she] is ignorant of the truth or falsity of the statement].")

⁹California Penal Code section 125 -- Unqualified statement not known to be true. This section is used in connection with California Penal Code section 118. ("An unqualified statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false.")

¹⁰California Penal Code section 120 -- Oath of office (An oath of office as relates to the future performance of official duties is not subject to a perjury prosecution.)

¹¹See People v. Griffini, above ("A 'declaration' is an unsworn written statement certified to be true under penalty of perjury.A 'certificate' is a written testimony to the truth of any fact.An 'affidavit' is a written statement verified by oath or affirmation.")

¹²See People v. Griffini, above (".for purposes of defining perjury, 'the making of a deposition, affidavit or certificate is deemed to be complete ... from the time when it is delivered by the accused to any other person, with the intent that it be uttered or published as true.'")

¹³California Penal Code section 121 -- Oath; irregularity in administration ("It is no defense to a prosecution for perjury that the oath was administered or taken in an irregular manner, or that the person accused of perjury did not go before, or was not in the presence of, the officer purporting to administer the oath, if such accused caused or procured such officer to certify that the oath had been taken or administered.")

¹⁴People v. Feinberg, (1997) 51 Cal.App.4th 1566 ("The test for whether a statement is material in a perjury prosecution ([California] Pen. Code, § 118) is whether the statement or testimony might have been used to affect the proceeding in or for which it was made, or whether the statement could probably have influenced the outcome of the proceedings.")

¹⁵People v. Darcy, (1943) 59 Cal.App.2d 342 - overruled on other grounds ("The test in a perjury charge is not that injury actually occurred as a result of the false statements, but that the falsehoods could have influenced or changed the status of the subject of the statement to the benefit of the falsifier or the detriment of others.")

¹⁶California Penal Code 123 -- Materiality and effect on testimony; knowledge of witness ("It is no defense to a prosecution for perjury that the accused did not know the materiality of the false statement made by him; or that it did not, in fact, affect the proceeding in or for which it was made. It is sufficient that it was material, and might have been used to affect such proceeding.")

¹⁷Ex Parte Davis, (1921) 52 Cal.App. 631 ("The matter sworn to need not be directly and immediately material. It is sufficient if it be so connected with the fact directly in issue as to have a legitimate tendency to prove or disprove such fact by giving weight or probability to the testimony of a witness testifying thereto, or otherwise.")

¹⁸People v. Rubio, (2004) 121 Cal.App.4th 927

¹⁹California Penal Code section 129 -- False return required to be under oath ("Every person who, being required by law to make any return, statement, or report, under oath, willfully makes and delivers any such return, statement, or report, purporting to be under oath, knowing the same to be false in any particular, is guilty of perjury, whether such oath was in fact taken or not.

²⁰People v. Walker, (1924) 69 Cal.App. 475 (States that an interpreter may be prosecuted for California perjury if he/she willfully renders a false translation.)

²¹People v. Webb, (1999) 74 Cal.App.4th 688 ("Opinion testimony constitutes perjury, 'if the witness does not honestly hold the opinion to which he or she testifies.'")

²²California Penal Code section 118.1 -- Peace officers; false report ("Every peace officer who files any report with the agency which employs him or her regarding the commission of any crime or any investigation of any crime, if he or she knowingly and intentionally makes any statement regarding any material matter in the report which the officer knows to be false, whether or not the statement is certified or otherwise expressly reported as true, is guilty of filing a false report.")

²³People v. Jones, (1967) 254 Cal.App.2d 200 ("The elements of the the crime of subornation of perjury consist of: a corrupt agreement to testify falsely (See People v. Coffey, 161 Cal. 433, 443-446 [119 P. 901, 39 L.R.A. N.S. 704]); proof that perjury has in fact been committed ( People v. Ross, 103 Cal. 425, 428 [37 P. 379]); the statements of the perjurer were material ( People v. Nickell, supra, 22 Cal.App.2d 117); People v. Metzler, 21 Cal.App. 80, 82 [130 P. 1192]); and evidence that such statements were willfully made with knowledge as to the falsity thereof. ( People v. Ross, supra, at p. 427.) Moreover, one who procures another to commit perjury must know that the perjurer's statements are false. ( People v. Carpenter, 136 Cal. 391 [68 P. 1027]; People v. Ross, supra.).")

²⁴California Penal Code section 127 -- Subornation of perjury; definition; punishment ("Every person who willfully procures another person to commit perjury is guilty of subornation of perjury, and is punishable in the same manner as he would be if personally guilty of the perjury so procured.")

²⁵California Penal Code section 128 -- Procuring execution of innocent person; punishment ("Every person who, by willful perjury or subornation of perjury procures the conviction and execution of any innocent person, is punishable by death or life imprisonment without possibility of parole.")

²⁶California Jury Instruction - Criminal 7.24 -- Willfulness and knowledge required ("A statement made under an actual mistake and in a belief that it is true is not perjury even though the statement is false.")

²⁷California Jury Instruction - Criminal 7.23 -- Perjury; proof necessary (".the defendant may not be convicted of perjury where the only proof of the falsity of the statement[s] is the testimony of one witness [other than the defendant] which contradicts defendant's statement[s].")

²⁸Judicial Council Of California Criminal Jury Instruction 2640 -- Perjury ("You may not find the defendant's statement was false based on the testimony of <insert name of witness> alone. In addition to the testimony of <insert name of witness>, there must be some other evidence that the defendant's statement was false.")

See jury instruction 2640, above (".if you conclude, based on the defendant's own testimony, that the allegedly false statement was in fact false, then additional evidence is not required.")

²⁹People v. Baranov, (1962) 201 Cal.App.2d 52 (".a correction by the defendant, or his attempted correction, of testimony before the tribunal where he originally appeared, may be of some value in showing that he was mistaken in giving his former statements, or that he inadvertently omitted significant evidence when first testifying, so to support the conclusion that he did not wilfully intend to testify falsely.")