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District Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Appellant, v. Clarence L. PIERCE, 11, Defendant and Respondent.

Cr. 11415.

Decided: August 10, 1966

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood, Chief, App.Div., and Harry B. Sondheim, Deputy Dist. Atty., for plaintiff and appellant. Erling J. Hovden, Public Defender, Marvin Schwartz and James L. McCormick, Deputy Public Defenders, for defendant and respondent.

The People appeal from the order of the trial court dismissing an information charging respondent with the crime of perjury. This order was entered upon the granting of respondent's motion made under section 995 of the Penal Code.

Despite the fact that the arguments of both appellant and respondent would tend to broaden the scope of our inquiry, the following narrowly defined issue of law is the completely determinative question in this case: May false statements in a declaration made under penalty of perjury in support of an application for a writ of habeas corpus constitute the basis for a charge of perjury? We have concluded that this question must be answered in the affirmative.

We may dispose of the many subsidiary issues and considerations argued by the parties to this appeal by restating the established rules governing the consideration of motions to dismiss made under section 995 of the Penal Code. These are well stated in Perry v. Superior Court, 57 Cal.2d 276, 283–284, 19 Cal.Rptr. 1, 5–6, 368 P.2d 529, 533, as follows:

‘But it must be emphasized at the outset that the elements of an offense, herein grand theft by false representations, need not be established beyond a reasonable doubt in order to hold a defendant to answer following a preliminary examination. It is provided in section 872 of the Penal Code that a defendant must be held to answer if ‘it appears from the examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof. * *’, and the latter phrase, ‘sufficient cause,’ is equivalent in meaning to ‘reasonable or probable cause.’ [Citation.] As we stated in Rogers v. Superior Court, 46 Cal.2d 3, 7–8, 291 P.2d 929, 932, “[s]ufficient cause' and ‘reasonable and probable cause’ mean such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.' Moreover, “[r]easonable and probable cause' may exist although there may be some room for doubt.' [Citation.]

‘It is axiomatic that in considering the propriety of a motion to set aside an information pursuant to section 995 of the Penal Code, the reviewing court may not substitute its judgment as to the weight of the evidence for that of the committing magistrate. And if there is some evidence in support of the information, the court will not inquire into the sufficiency thereof. [Citations.]

‘Although the magistrate, in reaching his decision, may weigh the evidence, resolve conflicts, and give or withhold credence to witnesses, such a balancing of the evidence is not within the powers of a tribunal reviewing the magistrate's order. [Citation.] Thus, petitioner's contention concerning the claimed insufficiency of the evidence that petitioner made representations of past events or existing facts must be discussed in light of the aforesaid doctrines restricting the scope of review of a decision by a magistrate to hold a defendant to answer.’

On November 19, 1964, respondent herein, being then a prisoner confined in the Los Angeles County central jail, presented to Edgar Vestey, a deputy sheriff assigned to said jail, a document that read in opening part as follows:

‘Clarence L. Pierce

Los Angeles County Jail

Los Angeles, California

In Propria Persona:






S/S Case No. 108186

In Propria Persona



‘Comes now, I, Clarence L. Pierce, known hereafter as Petitioner throughout this Writ, swears to under the penalty of perjury, that every statement, contention and accusation stated in this Writ, be the whole truth, respected for under our highest laws of the land.’

Thereafter followed respondent's specific and detailed allegations asserting that while in custody he had been severely beaten by certain officers of the sheriff's department on two different occasions, namely, at the time of his arrest on November 11, 1964, and again on November 17, 1964, upon his return to jail following his arraignment in the municipal court upon the charge for which he had been arrested. Subsequently a complaint was filed charging respondent with the crime of perjury by reason of the alleged falsity of these statements contained in his petition for the writ of habeas corpus.

At the preliminary hearing held herein, evidence was received in the form of testimony given by the officers involved which, if accepted as true by the committing magistrate, unquestionably proved the complete falsity of respondent's sworn statements and established ‘such a state of facts as would lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.’ (Perry v. Superior Court, supra, 57 Cal.2d at p. 283, 19 Cal.Rptr. at p. 5, 368 P.2d at p. 533.) Thereafter the information was filed in the superior court charging respondent with the crime of perjury. As indicated, respondent's motion under section 995 of the Penal Code was made and granted, the information was dismissed, and the present appeal ensued.

In material part, section 118 of the Penal Code provides that ‘* * * every person who testifies, declares, deposes, or certifies ‘under penalty of prejury’ in any of the cases in which such testimony, declarations, depositions, or certification is permitted by law under ‘penalty of perjury’ and wilfully states as true any material matter which he knows to be false, is guilty of perjury.' Subsection 3 of section 1474 of the Penal Code provides that the petition for writ of habeas corpus ‘must be verified by the oath or affirmation of the party making the application.’

Section 2015.5 of the Code of Civil Procedure provides: ‘Whenever, under any law of this State or under any rule, regulation, order or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official rather than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person stating the date and place of execution within this State and which is subscribed by him and certified or declared by him to be true ‘under penalty of perjury,’ which certification or declaration may be in substantially the following form:

‘I certify (or declare) under penalty of perjury that the foregoing is true and correct.’

Certainly the document which respondent presented to Officer Vestey fulfilled all the requirements of these statutes, and, assuming as we must that the statements therein made were intentional falsehoods, it constituted an appropriate foundation for a charge of prejury unless we are prepared to hold that no amount of false swearing in a petition for a writ of habeas corpus will justify and support a prosecution for the crime of perjury. This we are not prepared to do. The official form for petitions for writs of habeas corpus which has been adopted by the Judicial Council appears in 62 Cal.2d at pp. 1–7. This official form contains the following instruction:

‘You should exercise care to assure that all answers are true and correct. Since the petition contains a verification, the making of a statement which you know is false may result in a conviction for perjury.’ The form concludes with a verification ‘under penalty of perjury.’ We therefore are unable to find any indication in either legislative or judicial pronouncements tending to indicate that petitioners for writs of habeas corpus are entitled to sui generis treatment in connection with the crime of perjury.

Respondent argues in support of the order of dismissal, as he successfully argued in the court below, that the fact that Officer Vestey instructed respondent to add a recital at the end of the petition that the facts contained therein were made under the penalty of perjury conclusively establishes that respondent ‘never freely made any material statements under penalty of perjury.’ The fallacy of this argument is self-evident. Obviously it cannot be declared as a matter of law that the addition of the redundant recital required by the officer operated to nullify the affirmation ‘under penalty of perjury’ which respondent himself had written into his petition prior to the time he presented it to the officer.

The record before us demonstrates that before respondent handed his petition to Officer Vestey for transmission to the court, he had written therein his clear and unequivocal declaration 'under the penalty of perjury, that every statement, contention and accusation' stated therein was ‘the whole truth, respected for under our highest laws of the land,’ and that at the officer's instance he added another declaration to the same effect. Since the statutory law of this state clearly indicates that a petition for a writ of habeas corpus should be made under the penalty of perjury, we find nothing in the record to suggest that when Officer Vestey re quired the addition of this affirmation, he was motivated by any purpose other than the commendable desire to perform his duty in seeking to promote conformity with the law and with the rules of court designed to secure the legal sufficiency of such petitions.

We find no validity in respondent's argument to the effect that respondent intended that his petition be forwarded to a court lacking jurisdiction to entertain it. Section 124 of the Penal Code provides that ‘The making of a deposition, affidavit or certificate is deemed to be complete, within the provisions of this chapter, from the time when it is delivered by the accused to any other person, with the intent that it be uttered or published as true.’ There is nothing whatsoever in the record tending to indicate that respondent ever expressed any desire to withhold the handwritten petition which he had prepared or to retract his initial declaration therein that his statements were being made under the penalty of perjury.

The order under review is reversed.

HERNDON, Justice.

ROTH, P. J., and FLEMING, J., concur.

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