People v. McNamara CA1/1

Filed 6/27/22 P. v. McNamara CA1/1 Reposting correct version NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Appellant, A162828 v. KYLE MATHEW MCNAMARA, (Mendocino County Super. Ct. No. SCUK-CRCR-2020-36934- Defendant and Respondent. 001)

The People appeal from a trial court order denying their motion to reinstate a charge of perjury against defendant Kyle Mathew McNamara. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND On November 6, 2020, McNamara was arrested for driving under the influence (DUI). The arresting officer drove McNamara to a friend’s house and issued a citation.1 McNamara signed the citation, thereby agreeing, “without admitting guilt,” to appear at an arraignment on December 8, 2020. (Boldface and capitalization omitted.)

McNamara was cited under Vehicle Code section 23152, 1

subdivisions (a) and (b). All subsequent citations are to the Penal Code unless otherwise indicated.

1

Ten days after his arrest, but before the DUI arraignment, McNamara sought to terminate his probation in two separate misdemeanor cases. In an accompanying handwritten declaration, which he signed under penalty of perjury, McNamara stated he had “had no trouble with the law in the last 2 years 9 months or problems with probation.” After McNamara was arraigned on the DUI charges, the Mendocino County District Attorney charged him with perjury, a felony, based on the theory that the declaration’s statement that he had “had no trouble with the law” in almost three years was false.2 A preliminary hearing on the perjury charge was held in May 2021. The officer who arrested McNamara for the DUI testified, and a copy of the citation was introduced into evidence. The officer testified that, while he could not recall the exact language he used, he advised McNamara that signing the citation “was not an admission of guilt” and “he ha[d] not been charged at that time.” In response to a defense question whether the officer told McNamara that “he was not in any trouble,” the officer answered: “Verbatim, I do not remember.” The magistrate also took judicial notice of the files in the two cases in which McNamara had sought to terminate his probation.3 At the conclusion of the preliminary hearing, the magistrate dismissed the perjury charge. After observing that one of perjury’s elements is that “the defendant willfully stated that information was true, even though he knew it was false,” the magistrate continued, “Now, in interpreting that, the Court is going to make the following factual finding. It doesn’t appear to me that