Brief Bank # B-837 (Re: LIO VI [Perjury (PC 118): Submitting False Statements To The DMV (VC 20, VC 4000.1) Is Lesser Included Of Perjury (PC 118)].)
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COURT OF APPEAL STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
VS.
JOHN DOE,
Defendant and Appellant.
________________________________________________)
Excerpt from
APPELLANT’S OPENING BRIEF
On Appeal From The Judgment Of The
Superior Court Of The State
Of California For The
County Of Sacramento
HONORABLE GRETA C. CROSSLAND, JUDGE
R. BRUCE FINCH
Attorney at Law SBN 98158
40 Birch Street, Suite B
Redwood City, CA 94062
Telephone:(650) 368-1011
Attorney for Appellant
Under The Independent
Case Assignment System
Of The C.C.A.P.
II. THE JUDGMENT ON COUNT TWO MUST BE REVERSED BECAUSE THE SUPERIOR COURT FAILED TO INSTRUCT THE JURY SUA SPONTE UPON THE NECESSARILY LESSER INCLUDED OFFENSE OF FALSE STATEMENTS TO THE DEPARTMENT OF MOTOR VEHICLES.
An uncharged crime is included in a greater charged offense if the language of the accusatory pleading encompasses all the elements of the lesser offense. (People v. Story (1985) 168 Cal.App.3d 849, 854, citing People v. Wolcott (1983) 34 Cal.3d 92, 98 and People v. Marshall (1957) 48 Cal.2d 394; see also People v. Wright (1996) 52 Cal.App.4th 203, 208.)
Vehicle Code section 20 makes it unlawful to
“..use a false or fictitious name, or to knowingly make any false statement or knowingly conceal any material fact in any document filed with the [DMV] …” (Veh. Code, sec. 20.)
The Vehicle Code declares this offense a misdemeanor. (Veh.
Code, sec. 40000.5.)
Count two of the Second Amended Complaint here alleged perjury in violation of Penal code section 118 subdivision (a,), specifying that, in a verified “..application for a California Driver’s Licence,” appellant falsely stated that “..he had never applied” for such a license “or Identification Card, when, in fact, he..had applied for a license and had been issued a license under the name of ROBERT ROE.” (C.T. pp. 16-17.)
Neither counsel requested, nor did the court give, any lesser included offense instruction under count two.
Hence the Second Amended Complaint
“..advised appellant that he was being accused of perjury for the false statements he [allegedly] made on the DMV application. Under the above stated test for determining lesser included offenses, Vehicle Code section 20 is included in the perjury offense in this case.” (People v. Story, supra, 168 Cal.App.3d 849, 854.)
The trial court has a sua sponte duty to instruct the jury upon every lesser offense when the evidence raises a question as to whether all of the elements of the charged offense are present. (See, e.g., People v. Breverman (1998) 19 Cal.4th 142, 154-155 and authorities cited there.) The duty remains absent a request for such instructions and even despite defendant’s objections to them. (Ibid.)
Complete failure of instructions upon this false-statements misdemeanor as a necessarily included offense of felony perjury was error.
Appellant had not only denied lying to the DHV while admitting false statements (R.T. p. 167; see People v. Story, supra, 168 Cal.App.3d at p. 854); he also denied verifying the DL-44 form (P.E. 12) claimed to be perjurious. (R.T. p. 164.)
The jury struggled with this issue, as manifested by their multiple requests of the court for clarification in the matter.
(C.T. pp. 57-58.)
On the first day of deliberations, the jury asked for a reread of the testimony of both the DMV investigator and appellant concerning the “California ID and driver’s license. (C.T. pp. 57, 84.) A second request the same day asked whether the applicant’s signature on the license application was essential to perjury. (C.T. pp. 58, 84.) The court directed the jury to read instructions 7.21. (C.T. p. 58.)
At some point during the second day of deliberations, the jury asked if it were perjury to sign a document “that is not included as one of these documents in which the statement declares under penalty of perjury…” The court advised that the declaration under penalty of perjury “applies to all documents which it declares to be true.” (C.T. p. 90.)
The jury also asked whether one who does not sign but merely submits a document under penalty of perjury is under the penalty “attested to in the document.” The court answered “no.” (C.T. p. 90; but see People v. Griffini (1998) 65 Cal.App.4th 581, decided July 14, 1998 – Pen. Code, sec. 118 subd. (a) requires proof as element delivery with intent that the document be uttered or published as true; and Pen. Code, sec. 31 – accomplice who aids and abets crime of others liable as principal.)
By another written communication the next day, the jury announced a hopeless “deadlock” on count two, and asked guidance. (C.T. pp. 85, 88; R.T. p. 252.) One juror suggested “confusion as to the law” as the cause of the impasse on count two. (R.T. pp. 253-254.) The court again simply directed the jury to read the written jury instructions. (R.T. p. 254; see C.T. p. 58.)
On this record, had the court properly instructed under Vehicle Code section 20, the jury might have acquitted appellant of perjury and convicted him instead of this lesser included offense. For despite the court’s direction to the effect that one cannot be guilty of perjury without signing a declaration under penalty of it, the jury might have resolved its obvious doubts about the greater felony by convicting of the lesser Vehicle Code violation.
When one of the elements of the offense charged remains in doubt, but defendant is plainly guilty of some offense, [without instruction on lesser included offenses] the jury is likely to resolve its doubts in favor of conviction. Without such instructions, the jury is left with an “unwarranted all-or-nothing choice,” and the Due Process Clauses of both the United States Constitution and the California Constitution are implicated. (U.S. Const., Fourteenth Amend.; Cal. Const., art. I, sec. 7; People v. Ramkeesoon (1985) 39 Cal.3d 346, 451; see Beck v. Alabama (1980) 447 U.S. 625, 638 – “if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, [the state] is constitutionally prohibited from withdrawing that option from the jury in a capital case;” cf. People v. Breverman, supra, 19 Cal.4th 142 – no federal constitutional right to lesser included offense instruction yet determined in noncapital cases.)
Thus the record here shows the factual question posed by the omitted instruction under Vehicle Code section 2O was not necessarily resolved adversely to appellant under other, properly given instructions. (See People v. Sedeno (1974) 10 Cal.3d 703, 721; see People v. Breverman, supra, 19 Cal.4th 142 – question of applicable standard of review not yet “finally resolved.”)
But even under California standards of reversibility, the entire record here establishes at least a reasonable possibility that the erroneously omitted instruction under Vehicle Code section 20 affected the outcome. (Cal. Const., art. VI, sec. 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
Appellant had insisted throughout trial that he did not sign or fill out the commercial-license application form but merely submitted it to the DMV upon instructions from others, knowing it contained falsehoods. (R.T. pp. 160-161; 164-165.)
Correctly instructed under Vehicle Code section 20, the jury might have properly convicted appellant of this lesser offense instead of perjury based upon his own testimony, which the prosecution did not refute in any manner significant here.
The record shows, too, that some of the jury had credited appellant’s testimony on its face, and hesitated to convict of the greater perjury offense; and they had no information demonstrable on this record that falsely verifying a name – the one falsehood appellant explicitly admitted about the DL-44 license application – might suffice for guilt of perjury. (See, e.g., People v,. Darcy, (1943) 59 Cal.App.2d 342, 349-350; cf. Code Civ. Proc., sec. 1279.5 – common-law right to change name.)
Because the record does not disclose when during deliberations the court instructed the jury – before the deadlock or after it – that mere submission (without signature) of a false document does not constitute perjury, the fact of this additional instruction does not remove the reasonable probability that the omission of all instruction under Vehicle Code section 20 contributed to the guilty verdict on count two. (People v. Watson, supra, 46 Cal.2d 818.)
Therefore, reversal and remand is required.
CONCLUSION
The judgment of conviction on both charged counts suffers constitutional error. The whole evidence here is insufficient for guilt of transportation, and the erroneous instructional omission was reversible under various standards. (People v. Breverman, supra, 19 Cal.4th 142 dis, opn. of Mosk, J. – various standards of reversibility embody essentially, same inquiry as to effect upon outcome.) Reversal and remand must therefore follow.
Dated: September 28, 1998
Respectfully Submitted,
R. Bruce Finch
Attorney for Appellant
COURT OF APPEAL STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
VS.
JOHN DOE,
Defendant and Appellant.
________________________________________________)
Excerpt from
APPELLANT’S REPLY BRIEF
On Appeal From The Judgment Of The
Superior Court Of The State
Of California For The
County Of Sacramento
HONORABLE GRETA C. CROSSLAND, JUDGE
R. BRUCE FINCH
Attorney at Law SBN 98158
40 Birch Street, Suite B
Redwood City, CA 94062
Telephone:(650) 368-1011
Attorney for Appellant
Under The Independent
Case Assignment System
Of The C.C.A.P.
II. REVERSAL OF THE JUDGMENT AS TO COUNT TWO MUST FOLLOW BECAUSE NO PROPER INSTRUCTIONS RESOLVED THE ISSUE POSED BY THE OMITTED INSTRUCTIONS ON THE LESSER INCLUDED OFFENSE OF FALSE STATEMENTS TO THE DMV.
Respondent concedes that, for purposes of determining the court’s sua sponte duty to instruct a trial jury on lesser included offenses, an offense is necessarily included within a charged offense if the accusatory pleading describes the grater offense in such a way that, if it is committed as charged, the lesser offense is necessarily committed. (RB p. 12,; People v. Geiger (1984) 35 Cal.3d 510, 517, fn. 4, overld. on other grounds in People v. Breverman (1998) 19 Cal.4th 142; People v. Miranda (1994) 21 Cal.App.4th 1464, 1467.)
But respondent “submits” that the perjury charge here did not necessarily include a violation of Vehicle Code section 20 because the count two language failed “express[ly]” to allege that appellant had made false statements “to `the Department of Motor Vehicles’ [DMV].” (RB p. 13.)
This language, however, substantially “advised appellant that he was being accused of perjury for the false statements he made on the … application” he submitted to the DMV for the “California Driver’s License.” (People v. Story (1985) 168 Cal.App.3rd 849, 854.) For by public law the DMV has exclusive authority to grant such licenses to any qualified person upon due application. (See Veh. Code, secs. 290, 12800 et. seq.)
Respondent alternatively allows that the perjury charge here may necessarily include a violation of Vehicle Code section 20, but claims the evidence below exempted the superior court of its sua sponte duty to instruct the jury upon this lesser included misdemeanor in that the proofs do not show appellant guilty only of this lesser charge. (RB pp. 13-14.)
Respondent claims that the jury could not have convicted appellant of either perjury (Pen. Code, sec. 118) or making false statements to the DMV (Veh. Code, sec. 20) had it accepted appellant’s testimony and rejected the prosecution’s evidence. (RB pp. 13-15.) But this oversimplifies the defense case.
The heart of appellant’s defense below pled that he had knowingly and willfully stated as true a matter he knew to be false — that his name was John Smith and that he had not previously applied for a license or identification card — and that he had done so in order to get a license but avoid official discovery of the “bad record” accrued under his true name, Robert Roe. (AOB 12.)
Appellant denied signing any statement under penalty of perjury, but admitted knowingly and willfully (and falsely) representing to the DMV that his name was John Smith. (AOB pp. 12, 20.)
The jury expressed uncertainty whether one is guilty of perjury who merely submits a document without signing; and the superior court answered that question negatively. (C.T. p. 90; AOB p. 21.) Properly instructed in the language of Vehicle Code section 20, however, the jury might have found appellant guilty of only that lesser offense had it credited his largely uncontradicted testimony that he had simply submitted the false license application (P.E. 12) to the DMV at the direction of others. (R.T. pp. 160-161; AOB pp. 21, 23.)
The jury would have heard that one can be guilty of violating Vehicle Code section 20 on proof of “us[ing] a false or fictitious name” or “knowingly mak[ing] any false statement … in any document filed with the DMV;” and it might have concluded appellant had done this, without committing perjury, by simply uttering the falsehoods stated in the application to the DMV as he admittedly did. (Veh. Code, sec. 20; RB p. 11, fn. 3.)
Under the different test of lesser included offenses for forbidden double conviction (see People v. Miranda, supra, 21 Cal.App.4th at p. 1467), Vehicle Code section 20 and Penal Code section 118 serve different purposes, and the latter does not include the same matter that the former does, not do they conflict. (People v. Molina (1992) 5 Cal.App.4th 221, 226.) Unlike perjury offenses, a violation of Vehicle Code section 20 carries no requirement of a false certification or false verification. (Id., at p. 227.)
Thus the factual question posed by the omitted instruction under Vehicle Code section 20 was not necessarily resolved against appellant under other, properly given instructions.
Respondent concedes by silence that omission of sua sponte instructions on lesser included offenses implicate the Due Process Clauses of our California and federal charters, and appears to suggest no other instructions (save those defining perjury) that might have resolved the question posed by these omitted sua sponte instructions. (AOB p. 22.)
Hence, if this error is not reversible per se on this record, it at least bears the reasonable possibility of effect upon the outcome. (AOB p. 23, citing People v. Watson (1956) 46 Cal.2d 818, 836.) Therefore, the judgment must be reversed.
CONCLUSION
Reversal and remand must follow for the constitutional errors variously infecting the factual and legal bases of the judgment. Let the court so order.
Dated: December 2, 1998
Respectfully Submitted,
R. Bruce Finch
Attorney for Appellant