People v. GriffiniPeople v. Griffini
- Reporters:
- ,
- Before:
- Masterson
Opinion
MASTERSON, J.
A person who makes a material and knowingly false statement in an affidavit is guilty of perjury only if he delivers the affidavit to another person with the intent that it be uttered or published as true. (
Background
In November 1994, defendant Anthony Griffini, came to California from Missouri. He traveled with a friend, Aaron, with whom he had served time in a Missouri prison. Defendant took up residence at the home of Aaron’s aunt, Sherry, in Lancaster, California. Sherry learned about defendant’s criminal background through conversations with Aaron and defendant.
Sherry was employed as the manager of Regional Patrol Services (RPS) in Quartz Hill, California. She suggested that defendant apply for a job at RPS as a security guard. In December 1994, defendant completed an application
Because defendant was not registered in California as a security guard, he was required to take a written test concerning the power to arrest. (See former
The Bureau’s registration form consisted of three identical pages that were attached at the top, perforated, and separated by two carbon sheets. The top page, a white original, was to be submitted directly to the Bureau (with the fingerprint card); the second page, a pink duplicate, was to be retained by the applicant as a temporary registration card; and the last page, a yellow duplicate, was to be kept by the employer.
Defendant was convicted of perjury based on a security guard registration form dated December 31, 1994, which bore the printed name “Michael Paul Stuart” at the top. Defendant’s home address, his work address, and a false Social Security number appeared in handwriting below his name. The form also contained a series of “yes or no” questions. The “no” box was checked in response to the following question: “Have you ever been convicted of any crime or entered a plea of nolo contendere? (This includes misdemeanors and felonies regardless of the length of time which has lapsed since their
Defendant testified that he did not sign the registration form, did not put any information on it, and did not ask anyone to sign it. He claimed he did not know who had signed the form or when it was signed. Defendant stated that he had nothing to do with signing the form. He testified that Sherry gave him the pink copy of the completed form and told him, “[Kjeep this on you at all times but if they start questioning it, call me.” According to defendant, he never received the white original or the yellow copy of the form.
At the time the registration form was signed, there were only two employees who worked in the RPS office: Sherry, the manager, and Nancy, an administrative assistant. Nancy testified that she generally handled all of the paperwork in the office, including the completion of security guard registration forms and their placement in the personnel files. If Nancy did not handle the paperwork, Sherry did.
The completed registration form bearing defendant’s name was never sent to the Bureau. RPS kept the white original and the yellow copy in defendant’s personnel file. Defendant took the pink copy, folded it, and put it in the pocket of one of his work shirts.
In May 1996, the People filed an information against defendant, charging him with perjury in violation of Penal Code
Defendant pleaded not guilty and denied the priors. Trial was by jury. The trial court instructed the jury on the elements of perjury as set forth in CALJIC, stating: “In order to prove this crime, each of the following elements must be proved: [10 1. A person declared under penalty of perjury and willfully stated as true a matter which was false. [10 2. The declaration under penalty of perjury was made in circumstances permitted by law. [10 3. The person knew the statement was false and was being made under the penalty of perjury. [10 4. The false statement was material. [IQ 5. The person had the specific intent to declare falsely under penalty of perjury.” (See CALJIC No. 7.21 (6th ed. 1996 bound vol.).)
The jury found defendant guilty of perjury and found true the allegations of prior felony convictions. The trial court struck two of the three out-of-state priors because they did not qualify as violent or serious felony convictions under California law (see
People
v.
Myers
(1993) 5 Cal.4th 1193 [22 Cal.Rptr.2d 911, 858 P.2d 301]) and sentenced defendant to six years in prison (see
Discussion
Defendant contends that he could not be guilty of perjury unless he delivered the completed security guard registration form to another person with the intent that it be uttered or published as true. We agree.
A. Elements of Perjury
The People charged defendant with violating Penal Code
Section 124 of the Penal Code provides that, for purposes of defining perjury, “[t]he 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.” (Italics added.) Admittedly, section 124 does not use the term “declaration.” Nevertheless, the delivery requirement of section 124 would apply in this case if the security guard registration form constitutes a “certificate.” Alternatively, the delivery requirement would apply if the registration form is treated as the legal equivalent of an “affidavit.” With respect to this latter proposition,
In the context of civil litigation, courts have repeatedly acknowledged that
Plainly, the execution of an affidavit involves a more formal and exacting process than signing a declaration or certificate. An affiant must take an oath before a duly authorized officer. (
In reviewing the pertinent statutory history and case law, we keep two questions in mind: Does defendant’s security guard registration form constitute a “certificate” within the meaning of section 124, and is a “declaration” the legal equivalent of an “affidavit” for purposes of section 124? We answer both questions in the affirmative.
As first enacted in 1872,
According to the code commissioners who drafted the original Penal Code, the phrase “testify, declare, depose, or certify” in
In People v. Robles (1897) 117 Cal. 681 [49 P. 1042], the Supreme Court discussed the delivery requirement of section 124 for the first time. There, Aggie Abbott had been convicted of grand larceny in an earlier prosecution. She moved for a new trial based on an affidavit from William Robles in which he stated that he, not Abbott, had committed the theft. The People successfully prosecuted Robles for perjury based on his allegedly false affidavit. In reversing Robles’s conviction, the high court stated:
“Before a party may be convicted of perjury in making a false affidavit, he must either use the affidavit for a purpose contemplated by
“. . . The fact that the affidavit was used by the attorney of Abbott upon the hearing of the motion adds no strength to die pleading. Perchance it was purloined for the purpose. There is nothing in the pleading to indicate that it was so used at the request or with the consent of this defendant. Perhaps it w.as never intended to be so used. Perhaps it was used under objection and protest of the defendant. . . . Here the indictment only charges the making of the false affidavit; it does not charge enough. It should have declared that the affidavit was delivered with the intent that it be uttered and published as true. Such a statement in the pleading is just as necessary as to charge that the affidavit was made by the accused, or that it was false; if it were possible, more necessary, for while the affidavit remains in the hands of the accused no mischief is done. It is only when it leaves his hands that evil results follow. Hence the law says there is no crime until that event takes place.” (People v. Robles, supra, 117 Cal. at pp. 682-684.) 9
Although the
Robles
court interpreted the term “deposition” in section 124 to include an “affidavit,” the Legislature nonetheless amended section 124 in
In 1955, a second clause was added to
In 1956, the State Bar Committee on Administration of Justice recommended that the Legislature expand the permissible use of statements made under penalty of perjury. (See
Selected 1957 Code Legislation
(1957) 32 State Bar J. 501, 567-568.) The committee reported that “[ljast year the Legislature and Governor gave favorable consideration to a proposal, by others, to permit a
certification
‘under penalty of perjury,’ in lieu of the customary appearance and oath, in the verification of a pleading. . . . . . . [1D The Federal Government has successfully pioneered the general use of
certifications,
instead of formal subscriptions under oath, in tax matters. Failure to observe the letter of the law, in formalities of execution under
On January 17, 1957, a bill to add
The bill was passed by both houses of the Legislature, and the Governor approved it on July 4, 1957. (Sen. Final History,
supra,
at p. 345.) As
Shortly after the passage of the bill, the State Bar Committee on Administration of Justice noted that “[n]ew
In light of this statutory history, we reach several conclusions. First, as established in People v. Robles, supra, 117 Cal. 681, the delivery requirement of section 124 constitutes an element of perjury in cases involving a false deposition, affidavit, or certificate.
Finally, by operation of
Our conclusions are supported by
People
v.
Pierce
(1967) 66 Cal.2d 53 [56 Cal.Rptr. 817, 423 P.2d 969]. In that case, the defendant had been arrested on a charge of battery. While in custody, he drafted a petition for a writ of habeas corpus, alleging mistreatment by deputy sheriffs during and after his arrest. The petition was addressed to the Los Angeles County Superior Court and began with the attestation, “ ‘Comes now, I, Clarence L. Pierce, . . . swears to under penalty of perjury, that every statement, contention and accusation stated in this writ, be the whole truth . . .
(Id.
at p. 58.) The defendant signed and dated the petition. He gave it to a deputy sheriff and asked that it be sent to the municipal court (which had no jurisdiction to grant the writ).
(Id.
at pp. 57, 59.) The deputy ignored the defendant’s instructions and mailed the petition to the Los Angeles County Superior Court.
{Id.
at p. 57.) The superior court held hearings on the matter, and the defendant eventually dismissed the petition.
(Id.
at pp. 57-58.) Thereafter, the defendant was successfully prosecuted for perjury under
In attempting to overturn his perjury conviction, the defendant made two arguments pertinent to the case before us. First, he claimed that the attestation clause in the petition was not sufficient to constitute a declaration under penalty of perjury because it appeared at the beginning of the petition. In rejecting this argument, the Supreme Court first noted that section 1474 requires a habeas corpus petition to be verified by oath or affirmation.
(People
v.
Pierce, supra,
66 Cal.2d at p. 59.) The court then quoted
As for his second argument, the defendant complained that although he had instructed the deputy sheriff to mail the petition to the municipal court, the deputy had instead mailed it to the superior court. The defendant asserted that if he had known that the deputy was going to send the petition to the
Thus, in
Pierce,
the court recognized that where
Notwithstanding Pierce, the People take refuge in the fact that the trial court relied on CALJIC in instructing the jury on the elements of perjury., (See CALJIC Nos. 7.21, 7.23, 7.24 (6th ed. 1996 bound vol.).) Granted, CALJIC does not provide an instruction on the delivery requirement in perjury cases involving a declaration. However, CALJIC does not provide an instruction on the element of delivery in any type of perjury case, even one involving a “deposition, affidavit or certificate”—the three situations expressly covered by section 124. Needless to say, we are not bound by CALJIC in determining whether the jury was properly instructed. (See, e.g., People v. Beeman (1984) 35 Cal.3d 547, 555, 560-561 [199 Cal.Rptr. 60, 674 P.2d 1318]; People v. Spry (1997) 58 Cal.App.4th 1345, 1363-1372 [68 Cal.Rptr.2d 691].)
Finally, the People contend that a declaration is not the legal equivalent of an affidavit unless it is prepared in connection with some type of litigation, i.e., where there are adverse parties. Plainly, defendant’s security guard registration form was
not
created for use in an adversarial proceeding. In support of their contention, the People rely on the definition of “affidavit” in the Code of Civil Procedure: “a written declaration under oath,
made without notice to the adverse party.”
(
In short, because a security guard registration form constitutes a “certificate” under section 124 and, alternatively, because section 2015.5 equates a “declaration” with an “affidavit” for purposes of section 124, the People had to prove that defendant delivered the completed registration form to someone with the intent that it be uttered or published as true.
B.-D. *
Disposition
The judgment is reversed with respect to the trial court’s determination that defendant’s prior conviction in the State of Missouri for attempted robbery is a strike under the Three Strikes law (
Ortega, Acting P. J., and Dunn, J., * concurred.
A petition for a rehearing was denied July 31, 1998.
Notes
In fact, during that time period, defendant had been convicted of three felonies in Missouri: attempted robbery in the first degree, burglary in the first degree, and burglary in the second degree. For those offenses, he served over three years in prison. He was released in October 1993.
The Bureau is now known as the Bureau of Security and Investigative Services. (
That statute provides: “Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly 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, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material tnatter which he or she knows to be false, is guilty of perjury. . . .” (Italics added.)
The statute actually refers to a “certification” instead of a “certificate.” (See fn. 3, ante.) However, because those terms are interchangeable, we will use the word “certificate” for the sake of consistency. (See Webster’s Third New Internat. Dict. (1993) p. 367, cols. 1-2 [defining “certification” as “a certified statement: certificate”].)
Code of Civil Procedure section 2015.5 governs the form and content of the attestation clause in a declaration or certificate. In this case, there is no dispute that the completed registration form was adequate under section 2015.5. (Cf. People v. Flores (1995) 37 Cal.App.4th 1566, 1573-1576 [44 Cal.Rptr.2d 585] [substantial compliance with section 2015.5 is sufficient in perjury case].)
A11 further references to sections 124 and 118 are to the Penal Code; all further references to section 2015.5 are to the Code of Civil Procedure.
In its original form, section 124 did not refer to affidavits.
Since 1872, the Code of Civil Procedure has defined “deposition” as “a written declaration, under oath, made upon notice to the adverse party” (21-22 West’s Ann. Code Civ. Proc. (1983 ed.) § 2004, pp. 62-63, italics added), while “affidavit” has been defined as “a written declaration under oath, made without notice to the adverse party” (id., § 2003, p. 61, italics added). In finding that a “deposition” includes an “affidavit,” the Robles court eschewed a strict application of the code definitions and instead construed those terms in accordance with the code commissioners’ comment that the word “depose” be read broadly to include nearly every form of written statement. (See code comrs. note, Ann. Pen. Code, supra, foll. § 118 at p. 60.)
The delivery requirement, as discussed in Robles, has been applied in several subsequent cases. (See People v. Calban (1976) 65 Cal.App.3d 578, 585, fn. 6 [135 Cal.Rptr. 441] [“[T]he mere making of the affidavit cannot constitute the crime. . . . [I]t is reasonable to require that the affidavit must be delivered to another person with the intent that it be uttered ór published as true.”]; People v. Hjelm (1964) 224 Cal.App.2d 649, 651-652 [37 Cal.Rptr. 36] [“When a perjury is claimed to have been committed in a written document such as an affidavit or a deposition, it is requisite to allege and to prove that the document had been completed. Completion is defined by statute to be delivery by the defendant to some other person, with the intent that it be uttered or published as true.”]; People v. Agnew (1947) 77 Cal.App.2d 748, 756 [176 P.2d 724] [“It is not until the verified false statement of the accused leaves the hands of its author that wrong to another is committed and the crime of perjury is complete.”]; People v. Darcy (1943) 59 Cal.App.2d 342, 350 [139 P.2d 118] [“. . . the offense is complete upon delivery of the affidavit to another person, with the intent that it be uttered or published as true”], disapproved on other grounds in Murgia v. Municipal Court (1975) 15 Cal.3d 286, 301, fn. 11 [124 Cal.Rptr. 204, 540 P.2d 44].)
The People argue that delivery to another person is not required under section 124 in light of the Supreme Court’s statement in Robles that “[bjefore a party may be convicted of perjury in making a false affidavit, he must either use the affidavit for a purpose contemplated by section 118 of the Penal Code, or deliver it to somefone] for such use.” (117 Cal. at p. 682, italics added.) We disagree. The gist of the statement in Robles is that a false affidavit must be used by someone for an improper purpose. The discussion in Robles leaves no doubt that, in cases covered by section 124, the accused must deliver the false statement to another person with the intent that it be uttered or published as true. (See 117 Cal. at pp. 682-684.)
Since 1957, section 2015.5 has been amended several times in ways that are not pertinent here. (See Historical Note, 21-22 West’s Ann. Code Civ. Proc., supra, § 2015.5, pp. 80-81.) Similarly, the subsequent amendments to section 118 do not concern us. (See Historical Note, 47 West’s Ann. Pen. Code (1988 ed.) § 118, pp. 178-179; id. (1998 supp. pamp.) § 118, p. 49.)
Section 2015.5 permits the use of a declaration “[w]henever, under any law of this state . . . , any matter is
required or permitted
to be supported . . . by the . . .
affidavit,
in writing of the person making the same . . . .” (Italics added.) A security guard registration form is required by law to be “verified.” (Former
See footnote, ante, page 581.
Judge of the Municipal Court for the Long Beach Judicial District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.