CALCRIM No. 2640. Perjury (Pen. Code, § 118)

Judicial Council of California Criminal Jury Instructions (2023 edition)

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D. PERJURY

2640.Perjury (Pen. Code, § 118)

The defendant is charged [in Count ] with perjury [in violation of

Penal Code section 118].

To prove that the defendant is guilty of this crime, the People must

prove that:

[1. The defendant took an oath to (testify[,]/ [or] declare[,]/ [or]

depose[,]/ [or] certify) truthfully before a competent (tribunal[,]/

[or] officer[,]/ [or] person) under circumstances in which the oath

of the State of California lawfully may be given;]

[1. The defendant (testified[,]/ [or] declared[,]/ [or] deposed[,]/ [or]

certified) under penalty of perjury under circumstances in which

such (testimony[,]/ [or] declaration[,]/ [or] deposition[,]/ [or]

certificate) was permitted by law;]

2. When the defendant (testified[,]/ [or] declared[,]/ [or] deposed[,]/

[or] certified), (he/she) willfully stated that the information was

true even though (he/she) knew it was false;

3. The information was material;

4. The defendant knew (he/she) was making the statement under

(oath/penalty of perjury);

[AND]

5. When the defendant made the false statement, (he/she) intended

to (testify[,]/ [or] declare[,]/ [or] depose[,]/ [or] certify) falsely

while under (oath/penalty of perjury)(;/.)

<Give element 6 only if statement made in declaration, deposition, or

certificate.>

[AND

6. The defendant signed and delivered (his/her) (declaration[,]/ [or]

deposition[,]/ [or] certificate) to someone else intending that it be

circulated or published as true.]

Someone commits an act willfully when he or she does it willingly or on

purpose.

[An oath is an affirmation or any other method authorized by law to

affirm the truth of a statement.]

519

[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 <insert appropriate definition; see

Bench Notes>.]

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 defendant’s statement was false based on the

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 defendant’s statement was false.This other

evidence may be direct or indirect. [However, if you conclude, based on

the defendant’s 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 defendant’s 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.]

[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

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BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the

crime.

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. (Id. at pp. 405-407.)

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 defendant’s testimony, give

the bracketed sentence that begins with “However, if you conclude, based on the

defendant’s 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, 120-121 [63 Cal.Rptr.

854].) Give the bracketed paragraph that begins with “You may not find the

defendant guilty unless.”

Give element 6 if the case involves a declaration, deposition, or certificate. (Pen.

Code, § 124; People v. Griffıni (1998) 65 Cal.App.4th 581, 596 [76 Cal.Rptr.2d 590]

[delivery requirement applies to “declaration”; discussing at length meaning of

“deposition,” “declaration,” “certificate,” and “affidavit”]; Collins v. Superior Court

(2001) 89 Cal.App.4th 1244, 1247 [108 Cal.Rptr.2d 123]; People v. Post (2001) 94

Cal.App.4th 467, 480-481 [114 Cal.Rptr.2d 356].)

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 and

when instructing with element 1A. (Pen. Code, § 121.)

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,

60-61 [19 Cal.Rptr. 866].)

AUTHORITY

• Elements. Pen. Code, § 118.

• Oath Defined. Pen. Code, § 119.

• Irregular Oath Not a Defense. Pen. Code, § 121.

CRIMES AGAINST GOVERNMENT CALCRIM No. 2640

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• Knowledge of Materiality Not Necessary. Pen. Code, § 123.

• 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. Pen. Code, § 125.

• 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, 930-934 [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, 663-664 [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, 663-664 [80 Cal.Rptr.2d 24, 967 P.2d 563]]; People v.

Louie (1984) 158 Cal.App.3d Supp. 28, 43 [205 Cal.Rptr. 247].

• Declaration Must Be Delivered. People v. Griffıni (1998) 65 Cal.App.4th 581,

596 [76 Cal.Rptr.2d 590].

• Unanimity. People v. McRae (1967) 256 Cal.App.2d 95, 120-121 [63 Cal.Rptr.

854].

LESSER INCLUDED OFFENSES

• Attempted Perjury. People v. Post (2001) 94 Cal.App.4th 467, 480-481 [114

Cal.Rptr.2d 356].

RELATED ISSUES

Unsigned Deposition

In People v. Post (2001) 94 Cal.App.4th 467, 480-481 [114 Cal.Rptr.2d 356], the

court held that an unexecuted deposition transcript was like an undelivered

statement that could not form the basis for a perjury conviction. Nevertheless, it was

sufficient evidence to support a conviction on the lesser included offense of

attempted perjury. (Ibid.)

SECONDARY SOURCES

2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against

Governmental Authority, §§ 57-85.

2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 40,

Accusatory Pleadings, § 40.07[6] (Matthew Bender).

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Page last reviewed May 2023