Opinion
D075460
06-10-2020
THE PEOPLE, Plaintiff and Respondent, v. ANDREW J. PANKEY, Defendant and Appellant.
Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Supervising Deputy Attorney General, Lise Jacobson and Douglas P. Danzig, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE384524) APPEAL from a judgment of the Superior Court of San Diego County, Herbert J. Exarhos, Judge. Affirmed. Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Supervising Deputy Attorney General, Lise Jacobson and Douglas P. Danzig, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury convicted Andrew J. Pankey of perjury by declaration (Pen. Code, § 118, subd. (a)) based on false statements that he made in a sworn application for a domestic violence restraining order. Pankey asserts that the trial court prejudicially erred when it modified the perjury instruction to allow the jury to consider whether he had intentionally omitted a material fact or facts in determining whether he intentionally made a false statement. We affirm.
Undesignated statutory references are to the Penal Code.
II.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal involves an incident that occurred on August 30, 2018, in the lobby of the El Cajon Police Department (the Department) during a custody visitation. Approximately a week before the incident, Pankey came to the lobby counter of the Department and questioned El Cajon Police Officer Timothy Roberts about Pankey's custody dispute with K.K., the mother of Pankey's child. K.K. also spoke with Roberts that same week regarding some questions that she had about having child visitation at the Department. At that time, Roberts read the family court parental agreement between Pankey and K.K. and learned that the couple had joint legal custody of the infant, K.K. had physical custody, and Pankey had visitation rights, with K.K. to be present during Pankey's visitations.
Unless otherwise noted, all date references are to 2018.
On August 30, Roberts, was again working the lobby counter of the Department, sitting behind glass and beneath a sign that said "Information." The lobby is a "public safe place" that is monitored by surveillance cameras. Custody visitations and exchanges sometimes take place there. Roberts was on light duty status at the time and was not wearing a uniform. His police badge hung around his neck and on his belt were a blue access card, a holstered firearm, and two ammunition magazines. "Relief Desk Officer, El Cajon Police" was written on the front of the access card.
That afternoon, K.K. entered the lobby with her and Pankey's baby and sat down in a chair. Pankey later entered the lobby and sat down next to K.K. Roberts saw Pankey and K.K. stand up. K.K. had her arms extended to block Pankey, who was holding the baby. When Roberts approached the couple, Pankey told Roberts that he was taking the baby to Pankey's mother's house to finish the visitation and that the couple's parental agreement required that K.K. follow him to his mother's house for the rest of the visit.
Roberts stopped Pankey from leaving because Pankey's statements contradicted what Roberts had previously read in the couple's parental agreement. Although Roberts did not announce himself as a police officer, Roberts told Pankey that if he tried to leave with the baby, Roberts would likely arrest him. Pankey sat down and finished his visit. Roberts gave Pankey his business card, which had Roberts's name and identification number on it. The jury watched the surveillance video of the incident. During the incident, Roberts's hand was never close to his gun.
On September 4, Pankey and Pankey's mother went to the police department's lobby to speak to Roberts. Pankey informed Roberts that he had followed Roberts's advice and obtained a restraining order. However, Roberts had never told Pankey to get a restraining order. Pankey had a "[DV-100] Request For Domestic Violence Restraining Order" (the form) and a "DV-110 . . . Temporary Restraining Order" with him. Pankey asked Roberts to serve the order on K.K. In the form, Pankey requested protection from K.K. He stated that the most recent abuse had occurred on August 30, and described the abuse as follows:
"I met respondent for an exchange at 4:00 [p.m.]. While I was holding our child she refused to let me leave/holding her arms out and getting in my way, blocking me from getting into the car. Then a man came out (who seemed to be with her), with a gun. I was afraid that I would be harmed. I'm requesting this order for protection."
In a section of the form asking whether the respondent, K.K., had used or threatened to use a gun or any other weapon, a box stating "Yes" was checked. In a section of the form asking, "Did the police come" the box indicating "No" was checked. The "Conclusion" section of the form stated, "I declare under penalty of perjury under the laws of the State of California that the information above is true and correct." The form was dated August 31 and signed by Pankey. Attached to the form was a "Request For Child Custody And Visitation Orders" and a "Child Custody And Visitation Order" giving Pankey sole custody of the child.
Roberts noted that Pankey's statements about the previous day's incident were "completely inaccurate." Roberts refused to serve the restraining order or to have any other officer in the Department serve it. Roberts told Pankey that he would arrest Pankey if Pankey tried to have somebody else serve the order because Pankey had lied to obtain the order. Pankey left, but returned later that day with K.K. for what appeared to be a child visitation.
The People charged Pankey with one count of perjury by declaration based on statements that he made in the form. Before trial, the prosecutor filed an in limine motion arguing that CALCRIM No. 2640 regarding perjury did not adequately address the facts in the case. The prosecutor requested that the court modify the instruction by adding the following language: "Depending on your finding of the facts in this case; the intentional omission of material facts that would have influenced the outcome of the proceedings can also constitute a false statement." During a conference on jury instructions, the court "cleaned . . . up" the instruction that the prosecutor had requested because, as the court noted, the proposed instruction would have made "those non acts . . . perjurious in and of themselves." Over defense objection, the court gave the jury a modified version of CALCRIM No. 2640 as follows:
"The defendant is charged in Count 1 with perjury in violation of Penal Code section 118. [¶] To prove that the defendant is guilty of this crime the People must prove that: [¶] 1. The defendant declared under penalty of perjury under circumstances in which such declaration was permitted by law; [¶] 2. When the defendant declared, he willfully stated that information was true even though he knew it was false; [¶] 3. The information was material; [¶] 4. The defendant knew he was making this statement under penalty of perjury; [¶] 5. When the defendant made the false statement, he intended to declare falsely while under penalty of perjury; [¶] AND [¶] 6. The defendant signed and delivered his declaration 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.
"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. [¶] The People do not need to prove that the defendant knew that the information in his statement was material.
"You may not find the defendant's statement was false based on the testimony of any single witness. There must be some other evidence that the defendant's statement was false. This other evidence may be direct or indirect. However, if you conclude, based on the defendant's own testimony, that the allegedly false statement was in fact false, then additional evidence is not required.
"A statement that is literally true, though misleading, is not a false statement. [¶] If the defendant actually believed that the statement was true, the defendant is not guilty of this crime even if the defendant's belief was mistaken.
"The People allege the defendant's statements found in Section 27, subsection (a), on Page 5 of 6 of the Request for Domestic Violence Restraining Order, Form DV-100, which is marked as People's Exhibit 3, were false, specifically, the following statements:
"Section 27, subsection (a)(2):
"A. 'While I was holding our child she refused to leave/holding her arms out and getting in my way-blocking me from getting into the car.'
"B. 'Then a man came out (who seemed to be with her) with a gun.'
"C. 'I was afraid that I would be harmed and [I] am requesting this order for protection.'
"Section 27, subsection (a)(3):
"D. In response to the question on Form DV-100, 'Did the person in 2 use or threaten to use a gun or any other weapon?', the defendant's statement by checking the box indicating 'Yes.'
"E. [The statement that] 'A male that was with the respondent had a gun.'
"In determining whether or not the defendant intentionally made a false statement or statements, you may consider whether or not the defendant intentionally omitted a material fact or facts that would have influenced the outcome of the proceedings. Among the factors that you may consider are:
"1. Whether the incident occurred in the public lobby of the El Cajon Police Department;
"2. Whether the 'man' referred to was an on-duty El Cajon Police Officer assigned to work the front desk of the police department;
"3. Whether the 'man' wore a visible police badge and carried a visible firearm.
"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.
"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." (Bolding added.)
III.
DISCUSSION
Pankey argues that the trial court's addition of the bolded language to CALCRIM No. 2640 allowed the jury to convict him based solely on the omission of information on the form. He claims that the added language is contrary to the principle that the "failure to volunteer testimony to avoid [a] misleading impression does not constitute perjury . . . ." (In re Rosoto (1974) 10 Cal.3d 939, 949 (Rosoto).) Pankey asserts that the modified instruction improperly allowed the jury to convict him based on the legally invalid theory that the omission of a material fact can constitute a false statement, and that reversal is required unless we conclude that the verdict was based on a valid ground. The People disagree, claiming that Pankey's argument is based on a misreading of the instruction. We agree with the People.
We independently review the correctness and adequacy of the trial court's jury instructions, examining whether the court " 'fully and fairly instructed on the applicable law.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) "In reviewing a claim that the court's instructions were incorrect or misleading, we inquire whether there is a reasonable likelihood the jury understood the [challenged] instructions" in the manner defendant argues. (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332.) "We consider the instructions as a whole and assume the jurors are intelligent persons capable of understanding and correlating all the instructions." (Ibid.)
We reject Pankey's assertion that the trial court's modification of CALCRIM No. 2640 allowed the jury to convict him based on the legally invalid ground that the omission of a material fact, alone, can constitute a false statement. The court unambiguously instructed the jury on the elements that the People were required to prove, including the intentional making of a false statement. The instruction specified five allegedly false statements made by Pankey in the form. Immediately after listing the five allegedly false statements, the language of the instruction that Pankey challenges informed jurors that "[i]n determining whether or not the defendant intentionally made a false statement or statements, you may consider whether or not the defendant intentionally omitted a material fact or facts that would have influenced the outcome of the proceedings." The instruction then set forth three factors that jurors could consider in determining whether Pankey had made a false statement in the form. Simply put, the challenged language did not suggest that the omission of a material fact, alone, could constitute a false statement.
Because the trial court did not instruct the jury on two theories, one legally valid and the other legally invalid, we reject Pankey's assertion that we review the alleged error under the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. (People v. Aledamat (2019) 8 Cal.5th 1, 3.)
We similarly reject Pankey's assertion that during closing argument the prosecutor urged a verdict based on an incorrect theory of perjury by omission. The prosecutor first reviewed the elements of the crime with the jury. He then discussed each of the five alleged false statements in the form. Near the end of his argument, the prosecutor referenced CALCRIM No. 2640 and read the challenged language to the jury. He then argued that the information that Pankey omitted was material to the decision-making of the judge who reviewed the form. The prosecutor never told the jurors that the omitted information, itself, could be considered to be a false statement.
Finally, we are not persuaded by Pankey's citations to Rosoto, supra, 10 Cal.3d 939 and Cabe v. Superior Court (1998) 63 Cal.App.4th 732 (Cabe). Rosoto and Cabe rely on Bronston v. United States (1973) 409 U.S. 352 (Bronston) for the proposition that the failure of a witness during questioning to volunteer more explicit information does not constitute perjury if the witness's answers were literally true. (Bronston, at pp. 353, 362 [A witness may not be "convicted of perjury for an answer, under oath, that is literally true but not responsive to the question asked and arguably misleading by negative implication."]; Rosoto, at p. 949; Cabe, at p. 742.)
Our high court noted in Rosoto, supra, 10 Cal.3d 939, that, "[t]he testimony of a witness is ordinarily elicited either by general questions seeking a narration of events or a series of specific questions calling for specific answers as to each fact. [Citations.] When counsel uses the latter method the witness should respond to the question. He [or she] should not evade or volunteer matters not specifically asked for . . . ." (Id. at p. 949.) It was in this context that the court stated, "when . . . a witness' answers are literally true he [or she] may not be faulted for failing to volunteer more explicit information. Although such testimony may cause a misleading impression due to the failure of counsel to ask more specific questions, the witness' failure to volunteer testimony to avoid the misleading impression does not constitute perjury because the crucial element of falsity is not present in his [or her] testimony." (Ibid.)
The information that Pankey volunteered on the form was not in response to questioning; rather, he chose what information to include in the form. Accordingly, "[t]he rationale for this literally true analysis—counsel's right to pose questions as he or she wishes and the witness's prerogative as to how to answer the specific questions posed and his or her right to decline to volunteer more—does not apply here." (People v. Lucero (2019) 41 Cal.App.5th 370, 417 [addressing section 134 pertaining to the preparation of false documentary evidence].) Moreover, unlike Rosoto, supra, 10 Cal.3d 939 and Cabe, supra, 63 Cal.App.4th 732, the evidence suggests that some of the statements Pankey made in the form were not literally true. It was for the jury to determine whether Pankey believed that the statements that he made in the form were true. (People v. Dixon (1950) 99 Cal.App.2d 94, 96-97.)
In summary, we reject Pankey's claim of instructional error.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: HUFFMAN, Acting P. J. O'ROURKE, J.