The preparation of declarations containing false statements to be used to obtain injunctive relief constituted the offense of preparing false evidence in violation of Penal Code section 134. Defendant Lucero was convicted of preparing false evidence in the form of signed declarations (Pen. Code, § 134) to be used in court in support of her request for injunctive relief to halt a petition drive to recall her from her position as a city council member in Shasta Lake. On appeal she argued that a declaration containing a false statement is not a “false or ante-dated book, paper, record, instrument in writing, or other matter or thing” within the meaning of section 134. Held: Affirmed. Lucero argued that an “instrument in writing” within the meaning of section 134 refers to formal documents that give rise to contract, obligation, or liability, but not letters or memoranda. The court found it unnecessary to decide whether the declarations prepared by Lucero were instruments in writing, because a declaration can constitute a “paper,” as well as any “other matter or thing,” which encompasses a great range of materials, and includes the declarations prepared by Lucero. In addition, Lucero argued the declarations were not “false” within section 134 because they were not altered or forged. However, the declarations were false because they claimed something happened other than what actually happened. For prosecution under section 134, a document need not be a forgery or altered. The declarations submitted by Lucero were not the genuine declaration of each declarant; they each contained false information furnished for them by Lucero or with her assistance, and were deceitful. They were therefore false with the meaning of section 134.

The Williamson rule does not preclude prosecution for preparing false evidence instead of the more specific perjury statute. Lucero argued she could not be prosecuted for preparing false evidence because her conduct was covered by the more specific statutes prohibiting perjury (Pen. Code, § 118, subd. (a)) and suborning perjury (Pen. Code, § 127). The Court of Appeal disagreed. If a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute (In re Williamson (1954) 43 Cal.2d 651). Both perjury and suborning perjury require a witness to make a statement that the witness knows is false. Here, the evidence established that Lucero duped the petition signers into signing declarations, and the statements were not made with the declarants’ knowledge that the statements were false. Suborning perjury requires a corrupt agreement to testify falsely. Thus, the perjury statutes do not cover Lucero’s conduct and the Williamson rule does not apply. With respect to her own declaration, prosecution under section 134 was appropriate because the Williamson rule does not apply where the general statute does not provide a more severe penalty than the special statute and here, both perjury and false evidence are felonies and the punishment triad for perjury is greater than that for preparing false evidence. While there may be some differences in how the sentencing schemes are to be carried out after the Realignment Act, the Court of Appeal concluded that these were a “wash” for purposes of the Williamson rule.

Materiality is not an element of Penal Code section 134. Lucero argued that materiality is an element of section 134, and the trial court erred in denying her request for an instruction on materiality. According to Lucero, an element of materiality is implied in section 134 by the requirement of a “fraudulent or deceitful purpose,” because materiality is a component of both fraud and deceit. Section 134 does not expressly contain a materiality element and there is no requirement that the court or any person actually rely on the false information. The focus of the statute is not on the fraud but on the attempt to perpetrate a fraud in a trial or other proceeding with the intent to mislead or deceive the trier of fact, whether the fraud turns out to be material or not. Materiality is not an element of preparing false evidence.

Substantial evidence supported defendant’s convictions for preparing false evidence. The evidence showed that Lucero participated in the preparation of the declarations. While these form declarations were pre-typed, their preparation was not complete until the blanks were filled in and each declarant signed. Lucero furnished each of the declarants with the form declaration, told them to fill in the blanks, explained how the blanks should be filled in, or told the declarant where to sign, and they signed them. Additionally, the circumstantial evidence was sufficient to give rise to the reasonable inference that Lucero furnished the false information for inclusion in the petition signers’ declarations. There was substantial evidence the statements in the declarations were false and that Lucero acted with a fraudulent or deceitful purpose in duping the declarants into signing them. Moreover, even if materiality was an element of section 134, the false statements were material in the sense that they provided arguments to support Lucero’s attempt to halt her recall. The evidence to support the section 134 convictions was sufficient.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/C077666.PDF