What is Treason?
Definition of Treason: Treason is defined generally and modernly as an intentional betrayal against the sovereignty of the government by a person who owes allegiance to that government. Historically, treason was defined as any betrayal, especially against one’s own faith or to someone to whom the betrayer owed a high level of trust (i.e., spouse, church, king, queen, etc.).
Synonyms for treason include treachery (traitor), perfidiousness (against your county), rebellion (against your government), disloyalty (to your government), mutiny, and sedition (inciting treason against your government).
California Law: Treason is defined in California law at Penal Code Section 37 & 38:
PC 37(a): Treason against this state consists only in levying war against it, adhering to its enemies, or giving them aid and comfort, and can be committed only by persons owing allegiance to the state. The punishment of treason shall be death or life imprisonment without possibility of parole. The penalty shall be determined pursuant to Sections 190.3 and 190.4 (PC 37(a)).
PC 37(b): Upon a trial for treason, the defendant cannot be convicted unless upon the testimony of two witnesses to the same overt act, or upon confession in open court; nor, except as provided in Sections 190.3 and 190.4, can evidence be admitted of an overt act not expressly charged in the indictment or information; nor can the defendant be convicted unless one or more overt acts be expressly alleged therein (PC 37(b)).
Note: An over act towards treason is conduct on the part of the defendant, beyond mere words, that demonstrates the defendant’s intent to commit treason and makes a substantial step in furtherance of that treacherous intent.
PC 38: Misprision of treason is the knowledge and concealment of treason, without otherwise assenting to or participating in the crime. Misprision of treason means ‘knowingly conceal evidence of treason’ [PC 38 Abbrev.]
Evidence Required to Prosecute: To prove treason against California (PC 37), the prosecuting attorney will need to prove, beyond a reasonable doubt, that the defendant:
Owed an allegiance to the state of California, and
Made an overt act in furtherance of treason, and
Intentionally levied war against California, or
Intentionally adhered to the enemies of California, or
Knowingly gave aid and/or comfort to an enemy of California
Levying War: To levy war means to use actual force against the government. The use of weapons is not necessarily needed for a person to levy war against the government.
Adhering to Its Enemies: To adhere to an enemy of the state means to join an enemy of the state and/or give loyalty and support to an enemy of the state (or United States).
Note: Treason, as a California or US federal crime, can only exist against a person who otherwise owes loyalty to California or the United States. Therefore, giving loyalty to an enemy of the state of California or the United States is tantamount to disloyalty to the same.
Providing Aid or Comfort: Providing aid to an enemy of the state or United States can come in various forms, including, but not limited to, the following: providing financial assistance to an enemy of the government while knowing that the financial assistance provided will be used to support forceful opposition to California or the United States; concealing or housing enemy soldiers or terrorist against the state or the United States; providing intelligence to an enemy of the state or United States while knowing that intelligence will be used to assist forceful action against the state or United States; and more.
Federal Law: Treason is also defined as a crime in the United States Code (USC) at section 2381. The federal definition of treason is similar to California PC 37(a) definition: Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States (18 U.S.C §2381.).
Note: Treason is the only crime described in the United States Constitution at Article 3, Section 3: “Treason against the United States shall only consist of levying war against them, or in adhering to their enemies, giving them aid and comfort.”
Penalty for Treason
Treason Causing Death: According to California Penal Code §190.3: If the defendant is found guilty of murder in the first degree in the commission of treasonous act, and the defendant is not sentenced to a probation sentence, then the defendant may be punished by either death, or life in prison without the possibility of parole (LWOP), as determined by the trier of fact (jury) [PC 190.3 Abbreviated and Summarized in Relevant Part].
Treason Not Resulting in Death: If the defendant is found guilty of treason, and neither murder in the first degree is alleged with the treason offense, nor the defendant is sentenced to a probation sentence, then the defendant may be sentenced to life in prison without the possibility of parole (LWOP). [PC 37(a)]
Misprision of Treason: If found guilty of misprision of treason (knowingly conceal treason), the defendant may be sentenced to either a probation sentence, or up to sixteen (16) months, two (2) years, or three (3) years in prison [PC 38 & PC 1170(h) Abbrev.].
Note: Whether the defendant serves 16 months, 2 years, or 3 years in prison after a conviction for misprision of treason depends largely on the facts of the case, the sophistication of the case, the defendant’s criminal history, and more.
Probation Sentence: A probation sentence is a period of supervision in lieu of prison. A probation sentence after conviction is allowed in California treason cases, but a probation sentence is not guaranteed. Whether a defendant receives a probation sentence after a PC 37 or PC 38 conviction depends largely on the facts and circumstances of the case, the defendant’s criminal history, the harm caused by the defendant’s conduct, and more. Probation sentences carry ‘terms of probation’ that must be adhered to in order to remain on probation. For more information, see Felony Probation & VOP.
Note: A probation sentence for a violation of PC 37 can carry a jail sentence as a ‘term of probation.’ However, a jail term related to a probation sentence is generally much shorter than the maximum prison sentence allowed for if the defendant was otherwise not granted probation.
PC 1170(H) Sentencing: If the defendant is found guilty of PC 37, and she is not granted a probation sentence, then the defendant will serve her time in a California state prison. That PC 37 prison sentence may neither be split (partially served out of prison on work release), nor suspended (not served unless and until the defendant violates a term of her out-of-prison sentence condition). For more information, see PC 1170(h) Sentencing.
Note: For PC 38 convictions (misprision of treason), the defendant might have her prison sentence split or suspended [PC 1170(h)]
Strike Offense: Treason charged under PC 37 is considered a ‘super strike’ offense in California. This means that the defendant may serve up to life in prison upon conviction even if she has no criminal history. Generally, strike offenses also carry additional penalties for subsequent criminal offenses. For more information, see PC 667.5 (violent crimes) & PC 1192.7 (serious crimes).
CIMT: Treason charged under PC 37 is considered a crime involving moral turpitude. A crime involving moral turpitude is an offense that is morally wrong or otherwise involves deceit or dishonesty. Crimes involving moral turpitude, including PC 37, carry collateral consequences for non-US citizens (i.e., deportation, denial of citizenship, and denial of the right to enter the United States), licensed professionals (license suspension, license revocation, denial of license, etc.), military personnel (prospective military candidates, veterans, active military, and more).
Also, crimes involving moral turpitude may be used to impeach a witness’s character in subsequent prosecutions or civil proceedings. For more information, see CIMT.
Firearm Penalties: A conviction for PC 37 or PC 38 will result in the loss of the right of the defendant to own and possess firearms and/or ammunition.
Additional Penalties: In addition to the jail or prison sentence and other penalties listed above, a person convicted of treason under PC 37 or PC 38 may also face the following penalties: court fines and fees, parole terms, violation of probation or parole if defendant was on either at the time of her offense, civil lawsuits, loss of insurance benefits, multiple prosecutions (state and federal government), and more.
Federal Law Penalties
Note: United States Congress may not alter the definition of treason, but Congress may set penalties for treason. Per federal law, treason against the United States can lead to a minimum of a five (5) year prison sentence in a federal prison. If murder in the first degree is alleged to have been committed in the act of treason against the United States, then the defendant may face the death penalty under federal law. Other penalties similar to PC 37 California law for treason may apply.
Defense to Treason
Every treason case is different and supported by different alleged facts and circumstances. With that said, common defenses to treason allegations charged under PC 37 or PC 38 include, but are not limited to, the following: alibi defense, insanity, duress, insufficient evidence, entrapment, illegal search and seizure, illegal or coerced confessions, and more. To learn more about defense to criminal allegation in general, see Defenses to Crimes.
Lack of Overt Act: To prove the crime of treason charged under PC 37, the prosecuting attorney will need to prove that the defendant engaged in an overt act related to the alleged treason. An overt act is an intentional and substantial step towards the commission of a crime, beyond mere words, and which demonstrates or illuminates the intent of the defendant. The over act comes after the agreement to commit a crime.
Example of Overt Act: Examples of an overt act in a treason case might include, but are not limited to, the following: Purchasing weapons after conspiring with another person to use those weapons in a treasonous act; intentionally selling military secrets to an active enemy of the United States after agreeing to sell those secrets; allowing an enemy of the state to reside with you while she plans a treacherous act against the state, attempt to overthrow the government with actual force after conspiring to overthrow the government, and more.
Two Witness Requirement: To prove the crime of treason charged under PC 37, the prosecuting attorney will also need to prove that there were at least two witnesses to the overt act in furtherance of the treason (See Lack of Over Act above).
Note: There is an exception to the ‘two witness’ requirement related to the overt act where the defendant voluntarily and knowingly admits to the overt act in open court (PC 37(b)).
Overt Act Must Be Alleged: The prosecuting attorney must also expressly charge the alleged overt act in the charging documents. In other words, the prosecuting attorney cannot simply allege an ‘overt act’ in the charging document without alleging the exact ‘overt act’ conduct that is to be proven thereafter.
Note: The overt act does not have to be alleged against all treason conspirators in order for all treason conspirators to be charged or convicted. The overt act can be alleged against only one of the treason conspirators so long as the overt act otherwise is witness by two or more persons and the overt act alleged is specific detailed in the charging documents.
No Allegiance Defense: Treason does not apply to foreign nationals who do not owe an allegiance to the state of California or to the United States. However, other treason-similar crimes might apply to foreign nationals, including espionage, sedition, misprision of treason, terrorism, and more. Also, the ‘no allegiance defense’ does not apply to persons who have dual citizenship with the United States.
Statute of Limitations: There is no statute of limitation for PC 37 treason. In other words, the prosecuting attorney may commence a criminal complaint against the defendant at any time, even if the allegations of treason stem from decades-old conduct. However, PC 38 misprision of treason has a statute of limitation of three years from the date of the alleged treasonous conduct.
Note: Double jeopardy defense does not apply if the state of California and the federal government bring treason charges alleging the same conduct (PC 37 & 18 USC, 2381, respectively). This is because double jeopardy only applies to multiple prosecutions of the same incident by the same sovereign. For more information, see Double Jeopardy.
Post-Conviction Options: Treason is a rarely charged criminal offense. Nevertheless, post-conviction options include: appeal the criminal conviction; withdraw a guilty plea, certificate of rehabilitation (PC 38 cases); and request for Governors’ Pardon (PC 37 cases).
Note: After a California conviction for PC 37 treason, the defendant will have a post-conviction hearing where her sentence will be determined by a jury, unless the defendant otherwise entered a guilty plea in exchange for a non-death penalty sentence. At the PC 37 post-conviction hearing the defendant may present evidence in mitigation to convince the jury to avoid the death penalty and sentence the defendant to life without parole (PC 37(a)).
To learn more about the crime of treason, or PC 37(a), PC 37(b), and PC 38, contact our criminal defense lawyers today for a free consultation. Our criminal defense lawyers are available every day of the week for free in-office, first-visit consultations. We represent person charged with any felony or misdemeanor crime in the Inland Empire, including the County of San Bernardino and the County of Riverside, including the cities of Redlands, Yucaipa, San Bernardino, Colton, Hesperia, Eastvale, Victorville, and more. Call today!
Other Uncommon Crimes
Information on PC 37 & PC 38 provided herein is designed for that purpose only. No attorney – client relationship is created by use of the information. Accuracy of information is not guaranteed as the law is constantly changing. If you are charged with treason under California Penal Code section 37, or misprision of treason under PC 38, contact a criminal defense lawyer without delay.