Updated May 22
Penal Code 118 PC is the California statute that defines the act and crime of perjury. This means deliberately giving false testimony while under oath (under “penalty of perjury”). A conviction a felony that carries a maximum sentence of up to 4 years in jail or prison.
The language of 118 PC states that “every person who, having taken an oath that he or she will testify…before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false…is guilty of perjury.”
- lying about the identification of a suspect when testifying in a California criminal trial.
- providing false information about a car accident in a deposition for a personal injury case.
- giving false information on a material matter in a signed affidavit.
A defendant can challenge a penalty of perjury charge with a legal defense. Common defenses include showing that:
- any falsehood was not intentional in nature
- the subject matter was not “material”, and/or
- the person was not actually under oath.
The offense is punishable by:
- custody in state prison for up to four years, or
- felony (or formal) probation.
Our California criminal defense attorneys will explain the following in this article:
- 2. Are there legal defenses?
- 3. What are the penalties for 118 PC?
- 4. Are there immigration consequences?
- 5. Can a person get a conviction expunged?
- 6. Does a conviction affect gun rights?
- 7. Are there related offenses?
1. How does California law define perjury?
A prosecutor must prove the following to convict a person of perjury:
- the defendant took an oath to testify truthfully (under penalty of perjury),
- the accused willfully stated that information was true even though he knew it was false,
- the information was “material,”
- the defendant knew he was making the statement while under oath, and
- the accused intended to testify falsely when he made his false statement.1
A person is subject to penalty of perjury laws when he gives information in any of the following situations:
- when testifying in court,
- when being deposed,
- in a signed affidavit,
- in a signed declaration,
- in a signed certificate, and
- in a DL 44 driver’s license application at the DMV.
Note that an “oath” is:
- an affirmation or any other method authorized by law,
- to affirm the truth of a statement.2
Questions often arise under this statute on the meaning of:
- material matter, and
- intent to testify falsely
For purposes of PC 118, someone commits an act willfully when he does it:
- willingly, or
- on purpose.3
Willfully under this statute also requires that a person willfully deliver a statement. This means he must convey his information:
- to another person, and
- do so either verbally or in writing.4
Example: Paco is being deposed in a case involving a contract dispute. When asked about the amount of the contract, he gives an incorrect figure on accident. Paco is not guilty of perjury because his statement was not given willfully. It was an accident.
Note that he is also not guilty even if he purposefully writes down a false amount on a piece of paper used for notes. This is because this information was never given to another person.
1.2. Material matter
A conviction under these laws requires that an accused give:
- a false statement,
- of a material matter.
A statement is “material” if:
- it was used to affect the outcome of a proceeding, or
- had the probability to influence the outcome of a proceeding.5
Note, though, that it is not required that a statement actually influence a proceeding.6
A statement can also be material if it relates to a material fact.7
Example: Carol saw a car accident that sparked a personal injury case. She knows the defendant and does not like him. During the trial, Carol falsely testifies that she saw the defendant speed up right before colliding with the plaintiff. She does so hoping her lie will persuade the jury to find the defendant negligent.
Here, Carol is guilty of perjury. Her lie was “material” since it was used to affect the outcome of the trial. It would even be material if she did not want to persuade the jury. This is because it was related to a material fact. This is whether the defendant used due care to avoid a collision.
1.3. Intent to testify falsely
A person is only guilty under these laws if he:
- makes a false statement, and
- intended to make the false statement.8
It is not perjury if a person:
- makes a false statement,
- with a good faith belief that it is true.9
Example: Nia is a witness in a shoplifting case, in which the defendant is accused of stealing cosmetics from Target. Nia was shopping at the store when the defendant allegedly committed the offense. When asked if Nia saw the accused in the cosmetics section, she states “no” actually believing this is true (although she was wrong). Two other witnesses say that they did in fact see the defendant in the cosmetics department.
Here, Nia is not guilty of perjury because there was no intent to lie. Her statement was false for the accused really was in cosmetics. But Nia gave her statement with the reasonable belief that it was true.
2. Are there legal defenses?
A defendant can use a legal defense to contest a perjury charge.
Three common defenses are:
- no intentional lie,
- no material matter, and/or
- not under oath.
2.1. No intentional lie
Recall that a person is only guilty under these laws if he:
- made a false statement, and
- intended to make that false statement.
This means it is a defense for an accused to say that he did not act with this intent. Perhaps, for example, he made a false statement:
- on mistake, or
- with the belief that it was true.
2.2. No material matter
A defendant is only guilty of perjury if he makes a false statement on a “material matter.” A defense, therefore, is that a statement was not on a material issue within a proceeding. Perhaps, for example, a witness simply:
- lied about her age, and
- it had nothing to do with the case.
2.3. Not under oath
Penal Code 118 only applies if a person made a statement while under oath. Therefore, an accused is not guilty if:
- he made a lie, and
- he was not sworn in to testify truthfully.
3. What are the penalties for 118 PC?
Perjury is a felony offense in California.
The crime is punishable by:
- custody in state prison for up to four years, and/or
- a maximum fine of $10,000.10
Note that a judge may award a defendant with felony probation in lieu of prison time.
4. Are there immigration consequences?
A conviction under these laws will not have any negative immigration consequences.
California law says that crimes involving moral turpitude can cause a non-citizen to be:
Perjury, however, is not this type of crime.11
5. Can a person get a conviction expunged?
A person can only get an expungement if awarded probation.
Expungements are prohibited if a defendant receives prison time. This is opposed to time in county jail.
This means that:
- an expungement is not allowed for perjury if,
- a perjury conviction results in a prison sentence.
The crime, though, can be expunged if the defendant gets probation instead of prison.
6. Does a conviction affect gun rights?
A conviction under these laws will hurt a person’s gun rights.
California law says that:
- convicted felons,
- are not allowed to own or possess a gun.
Since perjury is a felony offense, a conviction would strip away a defendant’s gun rights.
7. Are there related offenses?
There are three crimes related to perjury. These are:
- filing false documents – PC 115,
- forgery – PC 470, and
- subornation of perjury – PC 127.
7.1. Filing false documents – PC 115
Penal Code 115 PC is the California statute that makes it a crime to:
- knowingly file, register or record a false or forged document,
- with a government office in the state.
Note that this offense is a type of California fraud crime.
7.2. Forgery – PC 470
Penal Code 470 PC is the California statute that defines the crime of “forgery.”
A person commits this offense when he falsifies a signature or fraudulently alters certain documents.
This crime is different that perjury because it does not require that an accused was under oath.
7.3. Subornation of perjury – PC 127
Penal Code 127 PC sets forth the crime of “subornation.”
This is a type of perjury where:
- a defendant willfully persuades someone else to commit perjury, and
- the other person does perjure.
Note that in this situation:
- the defendant would be guilty of subornation, and
- the other person would be guilty of perjury.
For additional help…
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.
For information on perjury charges in Nevada and Colorado, please see our articles on:
- CALCRIM No – 2640. Perjury. Judicial Council of California Criminal Jury Instructions (2017 edition). See also Cabe v. Superior Court (1998) 63 Cal.App.4th 732.
- CALCRIM No – 2640. Perjury.
- See same.
- People v. Griffini (1998) 65 Cal.App.4th 581.
- People v. Feinberg (1997) 51 Cal.App.4th 1566. See also People v. Rubio (2004) 121 Cal.App.4th 927.
- California Penal Code 123.
- Ex Parte Davis (1921) 52 Cal.App. 631.
- People v. Viniegra (1982) 130 Cal.App.3d 577.
- People v. Hagen (1998) 19 Cal.4th 652.
- California Penal Code 1170h.
- Rivera v. Lynch (2016) 816 F3d. 1064.