CALCRIM-2640-Perjury - Penal Code 118 - Judicial Council of California Criminal Jury Instructions

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D.
PERJURY
2640. Perjury (Pen. Code, 118)

The defendant is charged [in Count
violation of Penal Code section 118].
] with perjury [in
To prove that the defendant is guilty of this crime, the People must
prove that:
<Alternative 1Adefendant took an oath>
[1. The defendant took an oath to (testify[,]/ [or] declare[,]/
[or] depose[,]/ [or] certify) truthfully before a competent
(tribunal[,]/ [or] officer[,]/ [or] person) under circumstances
in which the oath of the State of California lawfully may be
given;]
<Alternative 1Bdefendant gave statement under penalty of
perjury>
[1. The defendant (testified[,]/ [or] declared[,]/ [or] deposed[,]/
[or] certified) under penalty of perjury under circumstances
in which such (testimony[,]/ [or] declaration[,]/ [or]
deposition[,]/ [or] certificate) was permitted by law;]
2. When the defendant (testified[,]/ [or] declared[,]/ [or]
deposed[,]/ [or] certified), (he/she) willfully stated that the
information was true even though (he/she) knew it was
false;
3. The information was material;
4. The defendant knew (he/she) was making the statement
under (oath/penalty of perjury);
[AND]
5. When the defendant made the false statement, (he/she)
intended to (testify[,]/ [or] declare[,]/ [or] depose[,]/ [or]
certify) falsely while under (oath/penalty of perjury)(;/.)
<Give element 6 only if statement made in declaration, deposition,
or certificate.>
[AND
555
(Pub. 1284)
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CRIMES AGAINST GOVERNMENT
6. The defendant signed and delivered (his/her) (declaration[,]/

[or] deposition[,]/ [or] certificate) to someone else intending
that it be circulated or published as true.]
Someone commits an act willfully when he or she does it willingly
or on purpose.
[An oath is an affirmation or any other method authorized by law
to affirm the truth of a statement.]
[Information is material if it is probable that the information
would influence the outcome of the proceedings, but it does not
need to actually have an influence on the proceedings.]
[Information is material if
definition; see Bench Notes>.]
<insert appropriate
The People do not need to prove that the defendant knew that the
information in (his/her) statement was material.
You may not find the defendants 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 defendants statement
was false. This other evidence may be direct or indirect. [However,
if you conclude, based on the defendants own testimony, that the
allegedly false statement was in fact false, then additional evidence
is not required.]
If the defendant actually believed that the statement was true, the
defendant is not guilty of this crime even if the defendants belief
was mistaken.
The People allege that the defendant made the following false
statement[s]:
<insert alleged statement[s]>.
[You may not find the defendant guilty unless all of you agree that
the People have proved that the defendant made at least one false
statement and you all agree on which particular false statement
the defendant made. The People do not need to prove that all the
allegedly false statements were in fact false.]
[It is not a defense (that the oath was given or taken in an
irregular manner/ [or] that the defendant did not go before or take
the oath in the presence of the officer claiming to administer the
oath) as long as the defendant caused the officer administering the
556
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CALCRIM No. 2640
oath to certify that the oath had been taken.]

[When a person makes a statement, without qualification, that
information is true, but he or she does not know whether the
information is true, the making of that statement is the same as
saying something that the person knows is false.]
[If the defendant attempted to correct the statement after it was
made, that attempt may show that the defendant did not intend to
(testify[,]/ [or] declare[,]/ [or] depose[,]/ [or] certify) falsely. It is up
to you to decide the meaning and importance of that conduct.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements
of the crime.
The court has a sua sponte duty to define material. (People v. Kobrin
(1995) 11 Cal.4th 416, 430 [45 Cal.Rptr.2d 895, 903 P.2d 1027] [materiality
is a fact question to be decided by the jury].) The first bracketed definition of
material is appropriate for court proceedings or legislative hearings. (People
v. Hedgecock (1990) 51 Cal.3d 395, 405 [272 Cal.Rptr. 803, 795 P.2d 1260]
[not appropriate for charge of perjury on required disclosure forms].) For
other types of proceedings, the court should use the second bracketed
sentence, inserting an appropriate definition in the blank provided. (Id. at pp.
405407.)
The court has a sua sponte duty to instruct the jury about the need for
corroboration of the evidence of perjury. (People v. Di Giacomo (1961) 193
Cal.App.2d 688, 698 [14 Cal.Rptr. 574]; Pen. Code, 118(b).) If the
evidence that the statement is false is based in whole or in part on the
defendants testimony, give the bracketed sentence that begins with
However, if you conclude, based on the defendants own testimony.
If the prosecution alleges under a single count that the defendant made
multiple statements that were perjury, the court has a sua sponte duty to
instruct on unanimity. (People v. McRae (1967) 256 Cal.App.2d 95, 120121
[63 Cal.Rptr. 854].) Give the bracketed paragraph that begins with You may
not find the defendant guilty unless.
Give element 6 if the case involves a declaration, deposition, or certificate.
(Pen. Code, 124; People v. Griffni (1998) 65 Cal.App.4th 581, 596 [76
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Cal.Rptr.2d 590] [delivery requirement applies to declaration; discussing at

length meaning of deposition, declaration, certificate, and affidavit];
Collins v. Superior Court (2001) 89 Cal.App.4th 1244, 1247 [108 Cal.Rptr.2d
123]; People v. Post (2001) 94 Cal.App.4th 467, 480481 [114 Cal.Rptr.2d
356].)
Give the bracketed sentence that begins with It is not a defense (that the
oath was given or taken in an irregular manner on request if supported by
the evidence and when instructing with element 1A. (Pen. Code, 121.)
Give the bracketed sentence that begins with When a person makes a
statement, without qualification, on request if supported by the evidence.
(Pen. Code, 125.)
If there is sufficient evidence, give the bracketed paragraph that begins with
If the defendant attempted to correct. (People v. Baranov (1962) 201
Cal.App.2d 52, 6061 [19 Cal.Rptr. 866].)
AUTHORITY
Elements.
Pen. Code, 118.
Oath Defined.
Irregular Oath Not a Defense.
Knowledge of Materiality Not Necessary.
Completion of Deposition, Affidavit, or Certificate. Pen. Code, 124;

Collins v. Superior Court (2001) 89 Cal.App.4th 1244, 1247 [108
Cal.Rptr.2d 123].
Unqualified Statement Equivalent to False Statement.
Material Defined. People v. Pierce (1967) 66 Cal.2d 53, 61 [56

Cal.Rptr. 817, 423 P.2d 969]; People v. Hedgecock (1990) 51 Cal.3d 395,
405 [272 Cal.Rptr. 803, 795 P.2d 1260]; People v. Rubio (2004) 121
Cal.App.4th 927, 930934 [17 Cal.Rptr.3d 524].
Materiality Is Element to Be Decided by Jury. People v. Kobrin (1995)

11 Cal.4th 416, 430 [45 Cal.Rptr.2d 895, 903 P.2d 1027]; People v.
Feinberg (1997) 51 Cal.App.4th 1566, 1576 [60 Cal.Rptr.2d 323].
Specific Intent to Testify Falsely Required. People v. Viniegra (1982)

130 Cal.App.3d 577, 584 [181 Cal.Rptr. 848]; see also People v. Hagen
(1998) 19 Cal.4th 652, 663664 [80 Cal.Rptr.2d 24, 967 P.2d 563]
[discussing intent requirement for perjury].
Good Faith Belief Statement True Negates Intent. People v. Von

Tiedeman (1898) 120 Cal. 128, 134 [52 P. 155] [cited with approval in
Pen. Code, 119.

Pen. Code, 121.
558
Pen. Code, 123.
Pen. Code, 125.
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People v. Hagen (1998) 19 Cal.4th 652, 663664 [80 Cal.Rptr.2d 24, 967
P.2d 563]]; People v. Louie (1984) 158 Cal.App.3d Supp. 28, 43 [205
Cal.Rptr. 247].
Declaration Must Be Delivered. People v. Griffni (1998) 65

Cal.App.4th 581, 596 [76 Cal.Rptr.2d 590].
Unanimity. People v. McRae (1967) 256 Cal.App.2d 95, 120121 [63

Cal.Rptr. 854].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Governmental Authority, 5681.
2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 40,
Accusatory Pleadings, 40.07[6] (Matthew Bender).
LESSER INCLUDED OFFENSES
Attempted Perjury. People v. Post (2001) 94 Cal.App.4th 467, 480481

[114 Cal.Rptr.2d 356].
RELATED ISSUES
Unsigned Deposition
In People v. Post (2001) 94 Cal.App.4th 467, 480481 [114 Cal.Rptr.2d 356],
the court held that an unexecuted deposition transcript was like an
undelivered statement that could not form the basis for a perjury conviction.
Nevertheless, it was sufficient evidence to support a conviction on the lesser
included offense of attempted perjury. (Ibid.)
559
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0043

[ST: 513] [ED: 100000] [REL: 7]

2640. Perjury (Pen. Code, 118)

] with perjury [in

This version provided by LexisNexis Matthew Bender, Official Publisher, 800-533-1637,

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

[ST: 513] [ED: 100000] [REL: 7]

CALCRIM No. 2640

CRIMES AGAINST GOVERNMENT

6. The defendant signed and delivered (his/her) (declaration[,]/

This version provided by LexisNexis Matthew Bender, Official Publisher, 800-533-1637,

[ST: 513] [ED: 100000] [REL: 7]

CALCRIM No. 2640

CRIMES AGAINST GOVERNMENT

oath to certify that the oath had been taken.]

This version provided by LexisNexis Matthew Bender, Official Publisher, 800-533-1637,

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

[ST: 513] [ED: 100000] [REL: 7]

CALCRIM No. 2640

CRIMES AGAINST GOVERNMENT

Cal.Rptr.2d 590] [delivery requirement applies to declaration; discussing at

Pen. Code, 118.

Irregular Oath Not a Defense.

Knowledge of Materiality Not Necessary.

Completion of Deposition, Affidavit, or Certificate. Pen. Code, 124;

Unqualified Statement Equivalent to False Statement.

Material Defined. People v. Pierce (1967) 66 Cal.2d 53, 61 [56

Materiality Is Element to Be Decided by Jury. People v. Kobrin (1995)

Specific Intent to Testify Falsely Required. People v. Viniegra (1982)

Good Faith Belief Statement True Negates Intent. People v. Von

Pen. Code, 119.

Pen. Code, 123.

Pen. Code, 125.

This version provided by LexisNexis Matthew Bender, Official Publisher, 800-533-1637,

[ST: 513] [ED: 100000] [REL: 7]

CALCRIM No. 2640

CRIMES AGAINST GOVERNMENT

Declaration Must Be Delivered. People v. Griffni (1998) 65

Unanimity. People v. McRae (1967) 256 Cal.App.2d 95, 120121 [63

LESSER INCLUDED OFFENSES

Attempted Perjury. People v. Post (2001) 94 Cal.App.4th 467, 480481

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

This version provided by LexisNexis Matthew Bender, Official Publisher, 800-533-1637,

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