Charlotte Keeley Misconduct Sacramento Superior Court: Unlawful Proof of Service - Sacramento County Judge Robert Hight - Judge James Mize - US District Court Eastern District of California - 3rd District Court of Appeal Judge Vance Raye - California Supreme Court Tani Cantil Sakauye

Cal. Prac. Guide Civ. Pro. Before Trial Ch.
9(I)-B
California Practice Guide: Civil Procedure Before Trial
Hon. William F. Rylaarsdam, Hon. Lee Smalley Edmon, Contributing Editors: Atty. Richard J. Burdge, Jr., Atty.
Richard B. Goetz, and Atty. David J. Pasternak
Chapter 9. Part I Law And Motion
B. Preparing And Filing Motions
(a) [9:85.1] Proof of service: A declaration of personal service is required by the person delivering the
documents.
FORM: Proof of Personal ServiceCivil (Judicial Council form POS020).
=> [9:85.2] PRACTICE POINTER: If you are going to use a messenger to serve documents on opposing
counsel or parties, the proof of service must be by the messenger. A declaration signed by a secretary
who gave the papers to the messenger is hearsay and not sufficient.
For the same reason, a declaration by the attorney (e.g., I caused to be delivered by hand) is likewise
insufficient. If you are relying on personal service, the person who actually served the document must
sign the proof of service.
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(vi)
Filing False Document
1945. Procuring Filing of False Document or Offering False

Document for Filing (Pen. Code, 115)
The defendant is charged [in Count
] with (offering a (false/ [or]
forged) document for (filing[,]/ [or] recording[,]/ [or] registration)/having
a (false/ [or] forged) document (filed[,]/ [or] recorded[,]/ [or] registered))
[in violation of Penal Code section 115].
To prove that the defendant is guilty of this crime, the People must
prove that:
<Alternative 1Aoffering>
[1. The defendant offered a (false/ [or] forged) document for
(filing[,]/ [or] recording[,]/ [or] registration) in a public office in
California;]
<Alternative 1Bprocuring>
[1. The defendant caused a (false/ [or] forged) document to be
(filed[,]/ [or] recorded[,]/ [or] registered) in a public office in
California;]
2. When the defendant did that act, (he/she) knew that the
document was (false/ [or] forged);
AND
3. The document was one that, if genuine, could be legally (filed[,]/
[or] recorded[,]/ [or] registered).
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
AUTHORITY
Elements.
Pen. Code, 115.
Materiality of Alteration Not Element. People v. Feinberg (1997) 51

Cal.App.4th 1566, 15781579 [60 Cal.Rptr.2d 323].
Meaning of Instrument as Used in Penal Code section 115. People v. Parks

(1992) 7 Cal.App.4th 883, 886887 [9 Cal.Rptr.2d 450]; Generes v. Justice
Court (1980) 106 Cal.App.3d 678, 682684 [165 Cal.Rptr. 222]; People v.
43
This version provided by LexisNexis Matthew Bender, Official Publisher, 800-533-1637,
www.lexisnexis.com/bookstore, for public and internal court use.
(Pub. 1284)
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CRIMINAL WRITINGS AND FRAUD
Powers (2004) 117 Cal.App.4th 291, 295297 [11 Cal.Rptr.3d 619].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Property, 171172.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143,
Crimes Against Property, 143.04[1][b] (Matthew Bender).
RELATED ISSUES
Meaning of Instrument
Penal Code section 115 applies to any instrument that, if genuine, might be
filed, registered, or recorded under any law of this state or of the United States
. . . . (Pen. Code, 115(a).) Modern cases have interpreted the term instrument
expansively, including any type of document that is filed or recorded with a public
agency that, if acted on as genuine, would have the effect of deceiving someone.
(See People v. Parks (1992) 7 Cal.App.4th 883, 886887 [9 CalRptr.2d 450];
Generes v. Justice Court (1980) 106 Cal.App.3d 678, 682684 [165 Cal.Rptr.
222].) Thus, the courts have held that instrument includes a modified restraining
order (People v. Parks, supra, 7 Cal.App.4th at p. 886), false bail bonds (People v.
Garcia (1990) 224 Cal.App.3d 297, 306307 [273 Cal.Rptr. 666]), and falsified
probation work referrals (People v. Tate (1997) 55 Cal.App.4th 663, 667 [64
Cal.Rptr.2d 206]). In the recent case of People v. Powers (2004) 117 Cal.App.4th
291, 297 [11 Cal.Rptr.3d 619], the court held that fishing records were
instruments under Penal Code section 115. The court stated that California
courts have shown reluctance to interpret section 115 so broadly that it
encompasses any writing that may be filed in a public office. (Id. at p. 295.) The
court adopted the following analysis for whether a document is an instrument,
quoting the Washington Supreme Court:
(1) the claimed falsity relates to a material fact represented in the

instrument; and (2a) the information contained in the document is of
such a nature that the government is required or permitted by law,
statute or valid regulation to act in reliance thereon; or (2b) the
information contained in the document materially affects significant
rights or duties of third persons, when this effect is reasonably
contemplated by the express or implied intent of the statute or valid
regulation which requires the filing, registration, or recording of the
document.
(Id. at p. 297 [quoting State v. Price (1980) 94 Wash.2d 810, 819 [620 P.2d 994].)
Each Document Constitutes a Separate Offense
Penal Code section 115 provides that each fraudulent instrument filed or offered for
filing constitutes a separate violation (subdivision (b)) and may be punished
separately (subdivision (d)). Thus, the Legislature has unmistakably authorized the
imposition of separate penalties for each prohibited act even though they may be
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part of a continuous course of conduct and have the same objective. (People v.
Gangemi (1993) 13 Cal.App.4th 1790, 1800 [17 Cal.Rptr.2d 462].)
19461949.
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2641. Perjury by False Affidavit (Pen. Code, 118a)

The defendant is charged [in Count
] with perjury by false
affidavit [in violation of Penal Code section 118a].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant gave an affidavit in which (he/she) (swore[,]/ [or]
affirmed[,]/ [or] declared[,]/ [or] deposed[,]/ [or] certified) that
(he/she) would (testify[,]/ [or] declare[,]/ [or] depose[,]/ [or]
certify) before a competent (tribunal[,]/ [or] officer[,]/ [or]
person) in connection with a case that had been or would be
filed;
2. The defendant signed and delivered (his/her) affidavit to someone
else intending that it be used, circulated, or published as true;
3. In the affidavit, the defendant willfully stated that information
was true even though (he/she) knew it was false;
4. The information was material;
5. The defendant knew (he/she) was making the statement under
(oath/affirmation);
AND
6. When the defendant made the false statement, (he/she) intended
to (testify[,]/ [or] declare[,]/ [or] depose[,]/ [or] certify) falsely
while under (oath/affirmation).
Someone commits an act willfully when he or she does it willingly or on
purpose.
An affidavit is a written statement made under an (oath/affirmation)
given by a person authorized to administer oaths. [An oath is an
affirmation or any other method authorized by law to affirm the truth
of a statement.]
[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.]
[Information is material if
Bench Notes>.]
<insert appropriate definition; see
The People do not need to prove that the defendant knew that the
information in (his/her) statement was material.
You may not find the defendants statement was false based on the
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CRIMES AGAINST GOVERNMENT
testimony of
<insert name of witness> alone. In addition to
the testimony of
<insert name of witness>, there must be
some other evidence that the defendants statement was false. This other
evidence may be direct or indirect. [However, if you conclude, based on
the defendants own testimony, that the allegedly false statement was in
fact false, then additional evidence is not required.]
If the defendant actually believed that the statement was true, the
defendant is not guilty of this crime even if the defendants belief was
mistaken.
The People allege that the defendant made the following false
statement[s]:
<insert alleged statement[s]>.
[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.]
[It is not a defense (that the oath was given or taken in an irregular
manner/ [or] that the defendant did not go before or take the oath in
the presence of the officer claiming to administer the oath) as long as
the defendant caused the officer administering the oath to certify that
the oath had been taken.]
[If you find beyond a reasonable doubt that after the defendant made
the statement[s] in the affidavit, (he/she) testified under oath in another
case involving the same facts, but made [a] statement[s] that (was/were)
different from (that/those) in the affidavit, you may, but are not
required to, rely on that testimony to conclude that the statement[s] in
the affidavit (is/are) 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.]
[If the defendant attempted to correct the statement after it was made,
that attempt may show that the defendant did not intend to (testify[,]/
[or] declare[,]/ [or] depose[,]/ [or] certify) falsely. It is up to you to
decide the meaning and importance of that conduct.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
506
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[ST: 463] [ED: 100000] [REL: 8]
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CALCRIM No. 2641
The court has a sua sponte duty to define material. (People v. Kobrin (1995) 11
Cal.4th 416, 430 [45 Cal.Rptr.2d 895, 903 P.2d 1027] [materiality is a fact question
to be decided by the jury].) The first bracketed definition of material is appropriate
for court proceedings or legislative hearings. (People v. Hedgecock (1990) 51
Cal.3d 395, 405 [272 Cal.Rptr. 803, 795 P.2d 1260] [not appropriate for charge of
perjury on required disclosure forms].) For other types of proceedings, the court
should use the second bracketed sentence, inserting an appropriate definition in the
blank provided. (Ibid.)
The court has a sua sponte duty to instruct the jury about the need for
corroboration of the evidence of perjury. (People v. Di Giacomo (1961) 193
Cal.App.2d 688, 698 [14 Cal.Rptr. 574]; Pen. Code, 118(b).) If the evidence that
the statement is false is based in whole or in part on the defendants testimony,
give the bracketed sentence that begins with However, if you conclude, based on
the defendants own testimony.
If the prosecution alleges under a single count that the defendant made multiple
statements that were perjury, the court has a sua sponte duty to instruct on
unanimity. (People v. McRae (1967) 256 Cal.App.2d 95, 120121 [63 Cal.Rptr.
854].) Give the bracketed paragraph that begins with You may not find the
defendant guilty unless.
Give the bracketed sentence that begins with It is not a defense (that the oath was
given or taken in an irregular manner on request if supported by the evidence.
(Pen. Code, 121.)
Do not give the bracketed paragraph stating that defendant testified under oath in
another case involving the same facts if there is evidence that the defendants
statements alleged to be false in the current case were in fact true. (Pen. Code,
118a; Evid. Code, 600607; People v. Roder (1983) 33 Cal.3d 491, 497505
[189 Cal.Rptr. 501, 658 P.2d 1302].) Although the statute creates a rebuttable
presumption that the first statements made were false, the instruction has been
written as a permissive inference. An instruction phrased as a rebuttable
presumption would create an unconstitutional mandatory presumption. (See People
v. Roder, supra, 33 Cal.3d at pp. 497505.)
Give the bracketed sentence that begins with When a person makes a statement,
without qualification, on request if supported by the evidence. (Pen. Code, 125.)
If there is sufficient evidence, give the bracketed paragraph that begins with If the
defendant attempted to correct. (People v. Baranov (1962) 201 Cal.App.2d 52,
6061 [19 Cal.Rptr. 866].)
AUTHORITY
Elements.
Pen. Code, 118a.
Oath Defined.
Irregular Oath Not a Defense.
Knowledge of Materiality Not Necessary.
Pen. Code, 119.

Pen. Code, 121.
Pen. Code, 123.
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Completion of Deposition, Affidavit, or Certificate. Pen. Code, 124; Collins

v. Superior Court (2001) 89 Cal.App.4th 1244, 1247 [108 Cal.Rptr.2d 123].
Unqualified Statement Equivalent to False Statement.
Material Defined. People v. Pierce (1967) 66 Cal.2d 53, 61 [56 Cal.Rptr. 817,
423 P.2d 969]; People v. Hedgecock (1990) 51 Cal.3d 395, 405 [272 Cal.Rptr.
803, 795 P.2d 1260]; People v. Rubio (2004) 121 Cal.App.4th 927, 930934 [17
Cal.Rptr.3d 524].
Materiality Is Element to Be Decided by Jury. People v. Kobrin (1995) 11

Cal.4th 416, 430 [45 Cal.Rptr.2d 895, 903 P.2d 1027]; People v. Feinberg
(1997) 51 Cal.App.4th 1566, 1576 [60 Cal.Rptr.2d 323].
Specific Intent to Testify Falsely Required. People v. Viniegra (1982) 130

Cal.App.3d 577, 584 [181 Cal.Rptr. 848]; see also People v. Hagen (1998) 19
Cal.4th 652, 663664 [80 Cal.Rptr.2d 24, 967 P.2d 563] [discussing intent
requirement for perjury].
Good Faith Belief Statement True Negates Intent. People v. Von Tiedeman
(1898) 120 Cal. 128, 134 [52 P. 155] [cited with approval in People v. Hagen
(1998) 19 Cal.4th 652, 663664 [80 Cal.Rptr.2d 24, 967 P.2d 563]]; People v.
Louie (1984) 158 Cal.App.3d Supp. 28, 43 [205 Cal.Rptr. 247].
Unanimity. People v. McRae (1967) 256 Cal.App.2d 95, 120121 [63

Cal.Rptr. 854].
Mandatory Presumption Unconstitutional Unless Instructed as Permissive

Inference. People v. Roder (1983) 33 Cal.3d 491, 497505 [189 Cal.Rptr. 501,
658 P.2d 1302].
Pen. Code, 125.
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Governmental Authority, 5681.
2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 40,
Accusatory Pleadings, 40.07[6] (Matthew Bender).
LESSER INCLUDED OFFENSES
Attempted Perjury. People v. Post (2001) 94 Cal.App.4th 467, 480481 [114

Cal.Rptr.2d 356].
RELATED ISSUES
See the Related Issues section of CALCRIM No. 2640, Perjury.
26422649.
Reserved for Future Use
508
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Charlotte Keeley Misconduct Sacramento Superior Court: Unlawful Proof of Service - Sacramento County Judge Robert Hight - Judge James Mize - US District Court Eastern District of California - 3rd District Court of Appeal Judge Vance Raye - California Supreme Court Tani Cantil Sakauye

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Charlotte Keeley Misconduct Sacramento Superior Court: Unlawful Proof of Service - Sacramento County Judge Robert Hight - Judge James Mize - US District Court Eastern District of California - 3rd District Court of Appeal Judge Vance Raye - California Supreme Court Tani Cantil Sakauye

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Cal. Prac. Guide Civ. Pro. Before Trial Ch.

[ST: 1] [ED: 100000] [REL: 8]

Filing False Document

1945. Procuring Filing of False Document or Offering False

Pen. Code, 115.

Materiality of Alteration Not Element. People v. Feinberg (1997) 51

Meaning of Instrument as Used in Penal Code section 115. People v. Parks

[ST: 1] [ED: 100000] [REL: 8]

CALCRIM No. 1945

CRIMINAL WRITINGS AND FRAUD

Powers (2004) 117 Cal.App.4th 291, 295297 [11 Cal.Rptr.3d 619].

(1) the claimed falsity relates to a material fact represented in the

[ST: 1] [ED: 100000] [REL: 8]

CALCRIM No. 1945

CRIMINAL WRITINGS AND FRAUD

Reserved for Future Use

[ST: 463] [ED: 100000] [REL: 8]

2641. Perjury by False Affidavit (Pen. Code, 118a)

<insert appropriate definition; see

Composed: Mon Mar 11 19:04:06 EDT 2013

CALCRIM No. 2641

CRIMES AGAINST GOVERNMENT

Composed: Mon Mar 11 19:04:07 EDT 2013

CALCRIM No. 2641

CRIMES AGAINST GOVERNMENT

Pen. Code, 118a.

Irregular Oath Not a Defense.

Knowledge of Materiality Not Necessary.

Pen. Code, 119.

[ST: 463] [ED: 100000] [REL: 8]

CALCRIM No. 2641

CRIMES AGAINST GOVERNMENT

Completion of Deposition, Affidavit, or Certificate. Pen. Code, 124; Collins

Unqualified Statement Equivalent to False Statement.

Materiality Is Element to Be Decided by Jury. People v. Kobrin (1995) 11

Specific Intent to Testify Falsely Required. People v. Viniegra (1982) 130

Unanimity. People v. McRae (1967) 256 Cal.App.2d 95, 120121 [63

Mandatory Presumption Unconstitutional Unless Instructed as Permissive

Pen. Code, 125.

LESSER INCLUDED OFFENSES

Attempted Perjury. People v. Post (2001) 94 Cal.App.4th 467, 480481 [114

Reserved for Future Use

California's Broken Branch

Friday, September 19, 2014

Demand Judicial Accountability!

Judicial Wall of Shame: Share your story!

We invite participants to bring personal photos and/or brief

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