People v. Barajas

FRIEDMAN, Acting P. J.

Defendant made his initial appearance before a magistrate on a felony charge. In response to the magistrate’s inquiry, he stated that he had no funds to employ an attorney. He then signed a form.handed him by the magistrate and entitled “Declaration of Indi

[751]

geney.” In that document he declared under penalty of perjury that he had no assets, specifically no savings account, and requested appointment of an attorney to defend him. The declaration form had been prepared by the magistrate, who customarily used it to determine accused persons’ eligibility for the services of the public defender. Upon handing the document to defendant for signature, the magistrate informed him that he was signing under penalty of perjury.

Defendant’s claim of poverty was false, for he had about $3,500 in a savings account. Charged with perjury, he moved unsuccessfully to set aside the information. A jury found him guilty and he appeals from the judgment.

Penal Code section 118 defines the crime of perjury. Originally drawn to describe the traditional statement under oath, it was expanded in 1955 to include the then-new declaration under penalty of perjury. In relevant part it declares: “. . . every person who testifies, declares, deposes, or certifies under penalty of perjury 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.”

Only one issue needs consideration. An element essential to perjury is administration of the oath or declaration in a ease in which it is permitted by a law. (Pen. Code, § 118,

supra; People

v.

Davidson,

227 Cal.App.2d 331, 334 [38 Cal.Rptr. 660] ;

People

v.

White,

122 Cal.App.2d 551, 552 [265 P.2d 115]; 2 Witkin, Cal. Crimes (1963) §§839, 840.) We sustain defendant’s contention that there was no proof of this essential element.