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Perjury: Law, Sentence, & Defense
PC 118a & 118(a)
Information regarding the crime of perjury is found at California penal code sections 118a and 118(a). In short, perjury means to lie under oath, either on a declaration signed under penalty of perjury (i.e. tax documents, legal documents, etc.) or under a sworn oath (usually in court).
Note: less common perjury crimes include, false statement under oath but not sworn (PC 129), and lying under oath by a police officer (PC 118.1)
To prove that the defendant is guilty of perjury, the prosecutor must prove:
The defendant testified, under penalty of perjury, in a court of law or on legal documents, and
The defendant knew that he or she was testifying under oath or penalty of perjury, and
When the defendant testified, he or she willfully stated information was true when he or she knew it was false, and
The information was material to the case (not some trivial misrepresentation)
In sum, perjury is defined as testifying falsely while under oath to any officer, tribunal, or person, or declaring under penalty of perjury that something is true when the defendant knows it to be false.
PC 118(a) v. 118a
When perjury is charged after false testimony is given in court the defendant is charged with penal code 118(a) [Perjury under oath]
When perjury is charged after legal documents are filed with false information, or missing information, with the intend to defraud, the defendant is charged with penal code 118a [Perjury by false affidavit].
Example 1: If the defendant signs legal documents with the welfare department to receive welfare benefits, and the defendant knowingly includes false information, or excludes pertinent information, on the welfare documents, he or she may be charged with perjury by false affidavit.
Example 2: If a defendant testifies under oath in a child support case that he earns less money than he actually earns, and the defendant knows that he or she actually earns more money than which he or she stated under oath, then the defendant may be charged with perjury under oath (also called lying under oath), because the issue of his or her finances is material to a child support.
New Perjury Law (PC 118.1(a))
Per new California law, a defendant who commits perjury as a peace officer, may face special punishment(s): This new law is found at California Penal Code Section 118.1(a), which states:
Every peace officer who, in their capacity as a peace officer, knowingly and intentionally makes, or causes to be made, any material statement in a peace officer report, or to another peace officer and the statement is included in a peace officer report, regarding the commission or investigation of any crime, knowing the statement to be false, is guilty of filing a false report, punishable by imprisonment in the county jail for up to one year, or in the state prison for one, two, or three years.
PC 118a & 118(a) Penalties
Both PC 118a & 118(a) are classified as felonies in California. If the defendant is found guilty of perjury under oath (PC 118(a), the defendant may be punished by up to four years in the state prison. If the defendant is found guilty of perjury by false affidavit (PC 118a), the defendant may face up to three (3) years in prison).
Probation Sentence: In some perjury cases it may be possible to have the charges dismissed or reduced. In other perjury cases a sentence of probation (without prison) may be possible. Whether or not a perjury charge is dismissed, reduced, or granted probation depends largely on the egregiousness of the case and the defendant's criminal history.
Note: Probation sentences can include some type of work release, house arrest, or community service that is intended to serve as an alternative to jail and is made a condition of probation.
Strike Crime: PC 118a and 118(a) crimes are not considered strike crimes as those terms are found in California's Three Strikes Sentencing Law. If found guilty of either perjury charge the defendant may be eligible for early parole pursuant to Prop 57 (early release on parole for non-violent offenders). Also, the defendant may earn at least fifty percent (50%) credit off his or her sentence for any good time behavior while in jail or prison.
Moral Turpitude: Perjury is considered a crime of moral turpitude, which means that the crime is considered to be a moral wrong. Crimes of moral turpitude carry special punishments for non-U.S. citizens and licenses professional (i.e. doctors, dentist, nurses, lawyers, etc.).
Firearm Prohibition: If found guilty of perjury under either PC 118a or 118(a) the defendant will be prohibited from owning or possessing a firearm.
Collateral Punishment: In addition to any prison sentencing, criminal convictions for perjury crimes can lead to other severe consequences such as: Immigration issues (non-U.S. citizens), harsh probation or parole terms, fines, lawsuits, employment loss, civil lawsuits, increased punishment for future criminal convictions, and more.
Defenses to Perjury
Common defenses to perjury charges include: lack of jurisdiction on perjury by affidavit, mistake of fact as to what the defendant was signing, statute of limitations (could be very long in fraud type cases), duress, necessity, intoxication, insanity, coerced confessions, and more.
Special Statutory Defense: Per PC 118(b): "No person shall be convicted of perjury where proof of falsity rests solely upon contradiction by testimony of a single person other than the defendant. Proof of falsity may be established by direct or indirect evidence" (PC 118(b)).
Note: Per PC 118(b), the defendant's alleged perjury must be proved by something more than the testimony of one person, unless that one person is the defendant (Confession case).
Note: Perjury crimes are most commonly found in cases related to welfare fraud, tax crimes, insurance fraud, and employment disability claims. In many of these cases, a person, other than the defendant, assists the defendant in completing required legal forms. This can create a defense of mistake where the defendant relied on the representations of an assistant on how to legally comply with any legal form. This is especially true in situations where the defendant speaks a language different the language in which the requried legal forms are printed.
To learn more about the crime of Perjury and defenses to penal code 118a and 118(a), contact our criminal defense attorneys today for a free consultation. Our criminal defense attorneys are successful, aggressive, and have handles hundreds of criminal cases, including many perjury cases. Call today!
Quick Reference Sheet
Crime: Perjury by False Affidavit
Code: PC 118a (CalCrim 2640 & 2641)
Wobbler: No. PC 118a is not a wobbler. PC 118a is only charged as a felony.
Incarceration: PC 118a prison sentence range: 2, 3, or 4, years
Probation: Probation is available in PC 118a cases (assuming other crimes or enhancements that bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
Work Release or House Arrest: In some cases, a probation sentence can include actual in-custody county jail, house arrest (electronic monitoring), or work release (or some combination of these penalties); however, most in-custody jail sentence orders that are required as a terms of probation are much shorter than the maximum jail sentence.
PC 1170(h)): No. PC 118a is not subject to PC 1170(h) sentencing. This means that any incarceration ordered after a conviction, that is not part of a probation sentence, must be served in state prison (as opposed to a county jail), and the prison sentence may not be split or suspended.
Strike: PC 118a is not a strike offense listed in California's Three Strikes law.
Credits: 50% good conduct credits available.
CIMT: PC 118a is a crime involving moral turpitude, which means that an arrest or conviction could lead to the following:
Professional Licensing problems
Impeachment on credibility
Firearms: PC 118a convictions prohibit a defendant from owning or possessing a firearm.
Bail: $50,000 (San Bernardino County)
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California Perjury Crimes (Abbrev.)
PC 118(a): 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 matter which he or she knows to be false, is guilty of perjury.
This subdivision is applicable whether the statement, or the testimony, declaration, deposition, or certification is made or subscribed within or without the State of California.
PC 118(b): No person shall be convicted of perjury where proof of falsity rests solely upon contradiction by testimony of a single person other than the defendant. Proof of falsity may be established by direct or indirect evidence.
PC 118a: Any person who, in any affidavit taken before any person authorized to administer oaths, swears, affirms, declares, deposes, or certifies that he will testify, declare, depose, or certify before any competent tribunal, officer, or person, in any case then pending or thereafter to be instituted, in any particular manner, or to any particular fact, and in such affidavit willfully and contrary to such oath states as true any material matter which he knows to be false, is guilty of perjury. In any prosecution under this section, the subsequent testimony of such person, in any action involving the matters in such affidavit contained, which is contrary to any of the matters in such affidavit contained, shall be prima facie evidence that the matters in such affidavit were false.