Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F06750
BLEASE, J.
This is a perjury case gone awry. A jury found defendant Susan Renee Lesniewski guilty of perjury. (Pen. Code, § 118, subd. (a).) She was charged with making seven false statements under oath, but, as the People concede, at least two of them were true. She was given an oath that required her to swear that her testimony “may be the truth”, which did not require that she testify truthfully. (Italics added.)
The trial court suspended imposition of sentence and placed defendant on three years formal probation on the condition, among others, that she serve one year in jail.
A reference to a section is to the Penal Code.
Lesniewski appeals, contending, among other things, that the trial court erred in finding the oath was deficient only in the form of its administration (§ 121) and in preventing her trial counsel from arguing the content of the oath.
We shall conclude that the failure of the oath to require the oath taker to testify truthfully violates the substance of the oath requirement (§ 118), and not the form of its administration (§ 121), and thereby compels the reversal of the judgment of conviction.
Given our conclusion, we need not address defendant’s remaining contentions.
FACTUAL AND PROCEDURAL BACKGROUND
On August 17, 2005, Michael Mancheno was arrested after attempting to sell one-quarter pound of methamphetamine to a police informant. He was charged with, among other things, possession of methamphetamine with the intent to sell. A section 1275.1 hold was placed on his release from jail after the officers who arrested him filed affidavits expressing concern that he would use proceeds from drug sales “to bail out and continue [his] enterprise.” The officers also initiated an asset forfeiture proceeding for the 2004 Harley Davidson motorcycle Mancheno was riding when he was arrested. Mancheno’s bail was set at $250,000.
Section 1275.1, subdivision (b)(1) allows a hold to be placed on a defendant’s release if a peace officer files a declaration “setting forth probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained.” Should a judge or magistrate determine that probable cause exists, the defendant must show by a preponderance of the evidence “that no part of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was obtained by felonious means.” (§ 1275.1, subd. (c).)
On August 28, 2005, defendant sought to post bail for Mancheno and met with Kenneth Griffin, the owner of Downtown Bail Bonds. During that meeting, defendant paid a $20,000 bail premium (eight percent of the bail amount), plus a $10 fee, for a total of $20,010. The bail was secured by a short form deed of trust on defendant’s residence. At the behest of the district attorney’s office, Griffin had defendant execute a “1275 agreement.” By signing the agreement, defendant agreed the bail premium was a gift and that she would not “accept [any] outside money legally or illegally obtained to pay the bail premium.”
Thereafter, Griffin provided the “1275 agreement” and various financial documents to Dale Kitching, the deputy district attorney responsible for Mancheno’s prosecution, for review. While it appeared to Kitching that defendant had fairly substantial financial resources, he was not satisfied defendant would just give Mancheno $20,010 as a gift since she had known Mancheno for just six months and they were not romantically involved. Kitching was concerned that defendant would pay the bail premium with her money, and then Mancheno or someone acting on his behalf would repay her with “criminally obtained” money. Accordingly, Kitching refused to request that the hold be lifted, and the matter was set for a section 1275.1 hearing.
Pursuant to an agreement between the district attorney’s office and the Sacramento County Superior Court, when a section 1275.1 hold has been placed on a defendant’s bail, the bail bonds company provides financial records and other documents to the district attorney’s office for review. If the deputy district attorney conducting the review is satisfied the requirements of section 1275.1 have been met, he or she so advises the court and asks that the hold be lifted, thereby dispensing with the need for a hearing. When reviewing a 1275 agreement and other documentation that is presented, Kitching looks at “the immediate source of the money from which . . . the premium” will be paid. Even if the “initial money” looks “clean,” he looks to see whether there is any indication of “a back door deal . . between the defendant drug dealer and the person who’s going to pay his bail” that is contrary to what is represented in the 1275 agreement. As Kitching acknowledged, section 1275.1 allows a defendant to borrow money to pay a bail premium so long as the money is not feloniously obtained. (§ 1275.1, subd. (e) [“Nothing in this section shall prohibit a defendant from obtaining a loan of money so long as the loan will be funded and repaid with funds not feloniously obtained.”].)
Defendant testified at the hearing. Before she did so, the clerk instructed her to raise her right hand and asked: “Do you solemnly swear that the testimony you’re about to give in the matter now pending before this [c]ourt may be the truth, the whole truth and nothing but the truth, so help you God?” (Italics added.) Defendant responded, “Yes, I do.”
A transcript of the hearing was read to the jury and admitted in evidence.
Thereafter, defendant was asked, among other things: “You understand [the $20,010] is to be a gift and you’re to receive no payment?” She responded, “Yes, I do.” Citing defendant’s testimony that “she does not intend and does not expect to receive any kind of reimbursement from . . . [d]efendant or anyone else,” the trial court found “that the source of the funds is legitimate” and lifted the section 1275.1 hold.
Several months later, defendant telephoned American General Finance concerning Mancheno’s 2004 Harley Davidson motorcycle, which he had used as security to obtain a personal loan in the amount of $2,515.13. A representative from American General told defendant that if she paid off the loan and provided a power of attorney, American General could provide her with the title to the motorcycle. Shortly thereafter, defendant delivered a power of attorney, signed by Mancheno, authorizing American General to “release” title of the motorcycle to defendant.
Meanwhile, the representative told the district attorney’s office about defendant’s call, and thereafter, James Ross, an investigator with the district attorney’s office, made a pretextual telephone call to defendant, in which he identified himself as a representative from American General. The telephone conversation was tape recorded, and the tape was played for the jury at trial. Ross advised defendant that he was attempting to close an account and saw that she had called regarding a motorcycle that American General had “an account on.” Defendant acknowledged making such a call. She explained that she had loaned Mancheno over $25,000 in August of 2005, a “good portion” of which was for bail. She explained that the loan “was supposed to get repaid from [Mancheno’s] house selling, but by the time his house sold there was no equity in it. [¶] . . . [¶] So basically [the motorcycle is] what’s left.” Mancheno had repaid her approximately $7,000 in the form of a bedroom set and another motorcycle, leaving a balance of $18,000. When Ross asked if she had any paperwork concerning the loan that was executed at the time the loan was made, defendant responded: “The problem is -- and I’ll be perfectly honest, . . . he’s not supposed to repay me based on the law, ‘cause I bailed him. [¶] . . . [¶] That’s -- but he -- we understand. Does that make sense? [¶] . . . [¶] We have an understanding.” Later, she explained that “because of the type of bail [and] the hold that he had on him, [the bail] wasn’t supposed to get repaid. It was supposed to be gifted. [¶] . . . [¶] But [Mancheno] and I understood it to be repaid. And so does everyone else except the [district attorney]. [¶] . . .[¶] The [district attorney is] the only one that’s not on board with that.” During the course of the conversation, defendant repeatedly sought assurances from Ross that he would not discuss her or the fact she had loaned Mancheno money with the district attorney.
The parties stipulated that the recording need not be transcribed. A transcript of the recording was prepared by the district attorney’s office and distributed to the jury before the tape was played. We rely on the transcript for the contents of the conversation.
After the close of the People’s case, defendant moved for acquittal (§ 1118.1), arguing, among other things, that “the oath administered at the [section] 1275[.1] hearing was not an oath.” Referring to the clerk’s use of the word “may,” as opposed to “shall” or “will,” defense counsel asserted that defendant merely promised that she might tell the truth and that such “an oath . . . will [not] sustain a charge of perjury.” Relying on section 121, which provides in pertinent part that “[i]t is no defense to a prosecution for perjury that the oath was administered or taken in an irregular manner,” the People argued the clerk’s use of the word “may” was merely an irregularity in the giving of the oath, and thus, of no consequence. The trial court denied the motion.
Defendant did not testify at trial.
Prior to closing arguments, the People requested that the trial court prohibit defense counsel from “attempt[ing] to argue that somehow the oath was flawed,” arguing the court’s ruling denying defendant’s motion for acquittal precluded such an argument. The court agreed, stating: “[W]ith my ruling it’s a matter of law that the oath was given, and you can’t attack the oath, the content of the oath.”
During his closing argument, defense counsel argued that none of the statements relied on by the People as a basis for the perjury charge were false, defendant had no expectation of being repaid when she testified at the section 1275.1 hearing, and it was only after the hearing that “[t]he discussion of the motorcycle” took place.
The jury was instructed with a modified version of CALCRIM No. 2640 (perjury) as follows:
“To prove that . . . defendant is guilty of [perjury], the People must prove that:
“1. The defendant took an oath to testify truthfully before a competent tribunal or officer, under circumstances in which the oath of the State of California lawfully may be given[;]
“2. When . . . defendant testified, she willfully stated that the information was true even though she knew it was false;
“3. The information was material;
“4. The defendant knew she was making the statement under oath;
“AND
“5. When . . . defendant made the false statement, she intended to testify falsely while under oath.
“ . . . . . . . . . . . . . . . . . . .
“An oath is an affirmation or any other method authorized by law to affirm the truth of the statement.
“ . . . . . . . . . . . . . . . . . . .
“The People allege that . . . defendant made the following statements during the hearing pursuant to . . . [s]ection 1275.1:
“1. . . .:
“Q. And you’ve also signed a promise to -- it’s called an execution of 1275 agreement in which you have agreed to give a gift to . . . Mancheno in the sum of, was it $20,000?
“A. $20,010.
“2. . . .:
“Q. You understand this is to be a gift and you’re to receive no payment?
“A. Yes, I do.
“3. . . .:
“Q. Do you understand that you have now testified you will receive no gift or any money back from him? Do you understand that?
“A. Yes I do.
“Q. And that is under penalty of perjury which carries up to three years in state prison?
“A. Yes, I do.
“4. . . .:
“Q. Okay. Have you talked to anybody about whether or not you could take reimbursement for this $20,000 amount?
“A. I told Rick that it was a gift and Michael that it was a gift.”
“5. . . .:
“Q. Has anybody offered or suggested to you that they might at some later date from whatever source repay you?
“A. No. Not that I recall. I mean, Michael has said he would repay me, and I reiterated that it is a gift. I’ve reiterated that.”
“6. . . .:
“Q. So you’re going to pay $20,010 for the premium, right?
“A. Yes.
“Q. And you understand that’s totally nonrefundable no matter what happens in his case, could be dismissed tomorrow and you don’t get that back?
“A. Yes.
“7. . . .:
“Q. And it’s your testimony under oath here subject to penalty of perjury that you are giving him over $20,000 never to be repaid and that you’re risking the equity in your home for the [Mancheno] who prior to him being arrested in this case you didn’t even know he had [a] criminal record?
“A. Yes. I believe in him.
“You may not find . . . defendant guilty unless all of you agree that the People have proved that . . . defendant made at least one false statement and you all agree on which particular false statement . . . 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 as long as . . . defendant caused the officer administering the oath to certify that the oath had been taken. [¶] . . . .”
This last part of the instruction is not an accurate statement of the law. Section 121 reads in its entirety: “It is no defense to a prosecution for perjury that the oath was administered or taken in an irregular manner, or that the person accused of perjury did not go before, or was not in the presence of, the officer purporting to administer the oath, if such accused caused or procured such officer to certify that the oath had been taken or administered.” As originally enacted in 1872, the section ended with the phrase “in an irregular manner.” The remainder of the section was added in 1905. (Stats. 1905, ch. 485, § 3, p. 648.) “The object of the [1905] amendment [was] to cut off the defense sometimes successfully made in perjury cases, that the defendant did not in fact go before the officer and take oath, it being at the same time admitted that he sent the affidavit to the officer with the intention that he should certify to it, and with the intention that it should be used as valid.” (Code commrs. note foll. 47 West’s Ann. Pen. Code, § 121 (1999 ed.) p. 261.) Thus, contrary to the instruction, it is not a defense that the oath was given or taken in an irregular manner whether or not the defendant caused the officer administering the oath to certify that the oath had been taken.
DISCUSSION
I
Defendant contends the trial “court’s restriction of the defense argument regarding the form of the oath violated [her] right to counsel, right to present a defense, and reduced the [People’s] burden of proof on the elements [of the offense] relating to the oath.”
The dispositive issue is the form of the oath.
At the section 1275.1 hearing, defendant swore that the testimony she was about to give “may be the truth, the whole truth and nothing but the truth . . . .” (Italics added.) The trial court found the clerk’s use of the word “may” was a mere irregularity in the administration of the oath and prohibited defense counsel from “attack[ing] . . . the content of the oath” during his closing argument. This was error.
Section 118, subdivision (a) provides in pertinent part: “Every person who, having taken an oath that he or she will testify . . . 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 . . . is guilty of perjury.”
Pursuant to section 121, “[i]t is no defense to a prosecution for perjury that the oath was administered or taken in an irregular manner . . . .” In discussing what constitutes an irregularity for purposes of section 121, the Supreme Court observed: “Whatever the character of the ‘irregularity’ or informality which would be obviated by this section, it was manifestly not intended to excuse the necessity of a valid oath. A reference to the note appended to that section in the original copy of the code by the commissioners who framed it indicates that the irregularity referred to in the statute has reference to some mere informality in the substance of the oath, as administered by the officers -- one of the citations being a case where the witness was sworn upon a copy of Watt’s Psalms and Hymns, the book being supposed to be the Bible; and another class of cases is referred to where the person taking the oath evades some formality with the intent to escape its obligation. We are satisfied that the section does not excuse the necessity of an oath in substantial form administered by a person of competent authority.” (People v. Cohen (1897) 118 Cal. 74, 80-81.)
On the other hand, the court has held that the omission of the phrase “so help you God” from the oath, was, at most, “an irregularity in matter of form in administering it . . . .” (People v. Parent (1903) 139 Cal. 600, 601.) In so holding, the court explained that “[t]he words ‘so help me God’ are no part of the oath or thing sworn to -- that the witness will tell the truth -- for they do not extend the operation of the oath. They are part of the form and manner and pertain to the mode of administering it, and, like kissing the Bible or raising the hand, are merely the sanction or pledge that the substance of the oath -- the declaration to tell the truth -- will be kept.” (Ibid.)
Here, the word “may” was “part of the oath or thing sworn to -- that the witness will tell the truth.” Defendant swore that the testimony she was about to give “may be the truth, the whole truth and nothing but the truth . . . .” The word “may” is a permissive word, not a word of requirement. (People v. Laws (1981) 120 Cal.App.3d 1022, 1033.) Thus, defendant in effect affirmed only that the testimony she was about to give may or may not be the truth.
Because the clerk’s use of the word “may” was not a mere informality in the administration of the oath, the trial court erred in so finding and in precluding defense counsel from challenging the validity of the oath in his closing argument. Given the clerk’s use of the word may, no reasonable juror could conclude defendant took an oath to testify truthfully as required to sustain her perjury conviction. (§ 118.) Accordingly, her perjury conviction must be reversed.
Without any citation to authority, the People assert that “[r]egardless of the wording of the oath, what matters is whether [defendant] herself felt she was required to tell the truth when she testified.” In support of their assertion, the People claim that while testifying at the section 1275.1 hearing, defendant “confirmed that she was testifying under penalty of perjury which carries up to a three year prison sentence.” Defendant testified at the hearing in pertinent part as follows:
“[MANCHENO’S COUNSEL]: Do you understand that you have now testified you will receive no gift or any money back from him? Do you understand that?
“[DEFENDANT]: Yes, I do.
“[MANCHENO’S COUNSEL]: And that is under penalty of perjury which carries up to three years state prison.
“[DEFENDANT]: Yes, I do.
“ . . . . . . . . . . . . . . . . . . .
“[THE PROSECUTOR:] And it’s your testimony under oath here subject to penalty of perjury that you are giving him over $20,000 never to be repaid and that you’re risking the equity in your home for the [Mancheno] who prior to him being arrested in this case you didn’t even know he had a criminal record?
“[DEFENDANT]: Yes. I believe in him.”
Since the reference to the testimony being “subject to penalty of perjury” relates to the oath and the oath was substantively deficient, defendant cannot “confirm” that which did not occur. Defendant did not take an oath to testify truthfully -- an essential element of the offense for which she was charged. Contrary to the People’s assertion, “her [erroneous] assumption that she took a legitimate oath to tell the truth” does not change the fact that she promised only that she may or may not do so.
Because we have concluded the evidence is insufficient as a matter of law to support defendant’s perjury conviction, defendant may not be retried on this charge based on principles of double jeopardy. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15; Pen. Code, § 654 [conviction and sentence under any provision is a bar to prosecution for same act or omission under any other]; § 1023 [conviction, acquittal or jeopardy is a bar to another prosecution on the same offense]; Greene v. Massey (1978) 437 U.S. 19, 24 [57 L.Ed.2d 15, 21]; People v. Hatch (2000) 22 Cal.4th 260, 272.)
DISPOSITION
The judgment is reversed and the trial court is directed to dismiss the case. If defendant is in custody upon the finality of this opinion, she shall be discharged from custody. (§ 1262.)
We concur: SCOTLAND, P. J., ROBIE, J.