People v. Pereira

207 Cal. App. 3d 1057, 255 Cal. Rptr. 285, 1989 Cal. App. LEXIS 90

• Court: California Court of Appeal
• Decided: February 7, 1989
• Docket: C003443
• Status: Published

Opinions

Opinion

PUGLIA, P. J.

An indictment charged defendant, Frank Pereira, with two counts of offering false evidence (Pen. Code, § 132) and two counts of preparing false documentary evidence (Pen. Code, § 134; hereafter all statutory references to sections of an undesignated code are to the Penal Code). Defendant moved to set aside the indictment (§ 995). The trial court granted the motion as to counts one and three and denied the motion as to counts two and four. The People appeal the order of dismissal (§ 1238, subd. (a)(1)).

The dismissed counts charged violations of section 132 under which one who “offers in evidence” any document as genuine or true in any trial, proceeding, inquiry or investigation authorized by law, knowing the document to have been fraudulently altered, is guilty of a felony. In this appeal we shall conclude that knowing delivery of such documents to investigating officials of the Fair Political Practices Commission and to counsel in the course of civil proceedings to enforce a judgment in each instance constitutes an “[offer] in evidence” in violation of section 132. Accordingly, we shall reverse the order dismissing counts one and three.

The charges against defendant are the outgrowth of an investigation commenced in March 1983 by the Fair Political Practices Commission (FPPC) into the affairs of former Sacramento County Supervisor William Bryan. One of the matters investigated by the FPPC concerned Bryan’s alleged failure to report a $200,000 loan which he obtained in 1981 from defendant’s loan brokerage firm. During the investigation, the FPPC served defendant with a subpoena duces tecum to produce documents concerning the loan. Defendant complied, producing documents which included a copy of the original loan application. According to the record, defendant concurrently gave “testimony” before the FPPC investigating officer that he had made written changes to the loan application but implied these changes were made at the time he was considering the application, rather than after the loan was made.

In November 1982, approximately six months before the FPPC commenced its investigation of Bryan, defendant had been served with a subpoena duces tecum by Attorney Michael Hackard. Hackard represented Whitworth Estates Corporation in a civil action against Bryan and a corporation with which Bryan was affiliated. After Hackard obtained a judgment on behalf of Whitworth, he learned defendant held deeds of trust against various properties in Sacramento County owned by Bryan. By means of the subpoena duces tecum, Hackard sought to discover from defendant information which might facilitate collection on the judgment.

In response to the subpoena, an attorney for defendant contacted Hackard and an agreement was reached whereby the documents requested would be produced voluntarily without the necessity of a subpoena. Hackard dropped the subpoena duces tecum. Counsel for defendant provided Hackard with a number of documents, including a copy of the aforementioned loan application.

After the FPPC commenced its investigation of Bryan, it obtained a copy of the loan application which had been provided to Hackard by counsel for defendant. A comparison of the copy given Hackard with the copy defendant submitted to the FPPC revealed the two documents were not identical. The copy given to the FPPC contained more information than did the copy provided to Hackard. Further, the reverse side of the copy given to the FPPC contained numerous handwritten notes which did not appear on the copy which Hackard had obtained.

In March 1987, the original loan application was seized from defendant’s office pursuant to a search warrant. The original contained more information than did the copy given to Hackard. The copy turned over to the FPPC was essentially identical to the original.

Expert examination of the original loan application revealed a number of material alterations both to the front and reverse sides. Different colored inks had been used in the changing of dates and certain initials had likewise been altered.¹ Some of the writing on the face of the original and all of the notes on the back were in defendant’s handwriting.

Section 132 provides: “Every person who, upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book, paper, document, record, or other instrument in writing, knowing the same to have been forged or fraudulently altered or antedated, is guilty of a felony.”

The first count of the indictment alleges defendant violated section 132 by an “[offer] in evidence” to the FPPC of a loan application which defendant knew to be fraudulently altered and antedated. Count two charges defendant violated section 134 by preparing a false version of the same loan application with the intent that it be produced for a fraudulent and deceitful purpose in the FPPC investigation, “a proceeding and inquiry authorized by law,” in contemplation of section 134.² Counts three and four pertain to the same loan document involved in the first two counts. Count three alleges defendant violated section 132 by an “[offer] in evidence” in a civil proceeding, Whitworth Estates Corporation v. Hawaii Properties Listed, of a loan application which he knew to be fraudulently altered and antedated. Count four charges defendant violated section 134 by preparing a false version of the same loan document with the intent that it be produced for a fraudulent and deceitful purpose in a civil proceeding, Whitworth Estates Corporation v. Hawaii Properties Listed. The trial court dismissed the two counts charging violation of section 132.

In considering defendant’s motion to dismiss, the trial court appears to have assumed that both the FPPC investigation and the civil proceeding were “proceedings authorized by law,” but that in neither instance did defendant’s production of the altered documents constitute an “[offer] in evidence” within the meaning of section 132. The court explained: “In the instant case the defendant produced the information at the behest of others in matters relating to someone else. He was not a party and hence could not and did not offer the documents in evidence as that term is understood in legal circles. fl|] The People argue[] that in order to give full meaning to the statute the phrase offer in evidence must be determined more broadly than defendant’s interpretation. They argue that because Section 132 speaks of offering in evidence in a trial, proceeding, inquiry, or investigation it means to include more than the formal offering of evidence in a trial or hearing, [fl] I disagree. The defendant, a non-party in the Bryan matter, in my judgment cannot be said to have offered anything in evidence, even in the less formal investigative or investigatory proceeding. . . . [fl] In Count Three the defendant’s attacks are the same as those on Count One. He claims in part that the production of documents to Mr. Hackard did not amount to an offering into evidence, [fl] For the same reasons that I discussed with regard to Count One, I do not believe that the mere producing of the documents to Mr. Hackard can be equated with offering the documents in evidence as a non-party. The defendant did produce the documents. But to stretch that act into an offer of evidence . . . would be to go beyond a reasonable interpretation of section 132.”

“In California, there is no rule of strict construction of penal statutes. Such statutes are to be construed '. . . according to the fair import of their terms, with a view to effect [their] objects and to promote justice.’ [Citations.] A statute is to be given a reasonable and common sense construction in accordance with its apparent purpose and the intent of the Legislature—one that is practical rather than technical and that will lead to a wise policy rather than to mischief or an absurdity. [Citation.] The legislative intent should be gathered from the whole statute rather than from isolated parts or words. All of the parts should be construed together if possible without doing violence to the language or spirit of the statute. [Citation.]” (People v. Fields (1980) 105 Cal.App.3d 341, 343-344 [164 Cal.Rptr. 336].)

The phrase “offers in evidence” must be construed in the context of and harmonized with the other words in section 132. The act characterizing a violation of section 132 is an offer in evidence occurring “upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law . . . .” “[A]ny . . . proceeding, inquiry, or investigation whatever, authorized or permitted by law” bespeaks a broad range of formal as well as informal settings in which an “[offer] in evidence” may constitute a violation of the section. Viewed in this light, the phrase “[offer] in evidence” is not used in a technical sense or as a term of art. Thus the tender of documents pursuant to a subpoena duces tecum issued by the FPPC constitutes an offer in evidence within the meaning of section 132 if made during a proceeding, inquiry or investigation authorized or permitted by law.

An FPPC investigation is one “authorized or permitted by law” within the meaning of section 132. Government Code section 83115 commands the FPPC “[u]pon the sworn complaint of any person or on its own initiative” to “investigate possible violations” of the Political Reform Act. (Gov. Code, § 81000 et seq.) The FPPC may “subpoena witnesses, compel their attendance and testimony, administer oaths and affirmations, take evidence and require by subpoena the production of any books, papers, records or other items material to the performance of the Commission’s duties or exercise of its powers.” (Gov. Code, § 83118.) The “duties” and “powers” of the Commission of course include investigation of “possible violations” of the Political Reform Act. (Gov. Code, § 83115.)

Government Code section 83119 provides the FPPC “may refuse to excuse any person from testifying, or from producing books, records, correspondence, documents or other evidence in obedience to the subpoena of the [FPPC] notwithstanding an objection that the testimony or evidence required” may “tend to incriminate” the person subpoenaed. Government Code section 83119 further confers transactional immunity on those whose testimony is so compelled. Defendant does not contend that the compulsory process of a subpoena violated his constitutional rights against self-incrimination (U.S. Const., Amend. V; Cal. Const., art I, § 15.)³

The subpoena duces tecum to defendant to produce the Bryan loan application was issued in furtherance of such an investigation of “possible violations” of the Political Reform Act (Gov. Code, § 83115). At the time defendant delivered the requested documents in response to the subpoena he submitted to questioning by the official in charge of the FPPC investigation concerning the loan application. A partial transcript of that interview, in evidence before the grand jury, refers to defendant’s responses to the questions as “testimony.” Although it does not appear whether or not defendant’s testimony was under oath, the FPPC was clearly authorized to swear defendant on that occasion for the purpose of “tak[ing] evidence.” (Gov. Code, §83118.)

The purpose of an FPPC investigation as authorized by Government Code section 83115 is to gather evidence. One who in response to an FPPC subpoena knowingly submits fraudulently altered or antedated documents in such an investigation, “offers in evidence” the documents so tendered within the meaning of section 132.⁴

We further conclude that within the meaning of section 132 defendant “[offered] in evidence” the documents provided Hackard pursuant to the subpoena and subsequent informal agreement in the civil judgment enforcement proceeding involving Whitworth Estates Corporation (hereafter Whitworth).

Code of Civil Procedure section 1985 defines a subpoena as “[a] writ or order directed to a person and requiring his attendance at a particular time and place to testify as a witness. It may also require him to bring with him any books, documents, or other things under his control which he is bound by law to produce in evidence.” (Italics added.) Defendant does not claim that the issuance of a subpoena duces tecum is not legally authorized in a proceeding under the statutory provisions to enforce a judgment. (Former Code Civ. Proc., § 681 et seq.; present § 680.010 et seq.)⁵

Indeed, the usual supplementary proceeding utilized by a judgment creditor such as Whitworth seeking to discover property of the judgment debtor to apply toward satisfaction of a money judgment is an order to the judgment debtor to submit to examination and answer questions regarding the debtor’s property. (Former Code Civ. Proc., § 714; present § 708.110, subd. (a); see 8 Witkin, Cal. Procedure (3d ed. 1985) Enforcement of Judgment, § 274, p. 237; Debt Collection Practice in Cal. (Cont.Ed.Bar 1987) §§ 8.5-8.18, pp. 568-581; Cal. Debt Collection Manual (Cont.Ed.Bar 1978) §§ 9.2-9.16, pp. 574-586.) The examination is held before either a judge or court appointed referee (former Code Civ. Proc., § 714; present § 708.110, subd. (a)). In preparation for the examination, discovery may be necessary as the actual examination is not so much a device to gather information as it is a tool to confirm the existence of certain assets. (Debt Collection Practice in Cal., op.cit. supra, § 8.18, pp. 580-581; see Cal. Debt Collection Manual, op. cit. supra, § 9.16, p. 586.) Thus, the use of a subpoena duces tecum to discover and inspect relevant documents is an accepted practice. {Ibid.)

Moreover, under the statutory scheme to enforce judgments, the examination is similar to a trial in which witnesses are required to appear and to testify “in the same manner as upon the trial of an issue” (former Code Civ. Proc., § 718; present Code Civ. Proc., § 708.130, subd. (a)). At the conclusion of the examination, the judge or referee may order the judgment debt- or’s interest in the property applied to satisfy the money judgment. (Former Code Civ. Proc., § 719; present Code Civ. Proc., § 708.205.) Thus, the production of documents pursuant to a subpoena duces tecum in contemplation of a debtor’s examination is an “[offer] in evidence” at a “trial, proceeding, inquiry, or investigation . . . authorized or permitted by law . . . .” (§ 132.)

That the documents were ultimately produced pursuant to an agreement between counsel and not in direct response to the subpoena duces tecum is of no import. It would be illogical to hold criminal sanctions for offering false documents in evidence could be avoided simply by agreeing voluntarily to produce the evidence in consideration for the dropping of a subpoena. (Cf. Code Civ. Proc., § 1985.1 [person subpoenaed to appear at a time certain may agree with issuing party to appear at another time and the agreement is enforceable by contempt].) In either case, the result is the same: the offer in evidence of forged or fraudulently altered or antedated documents in a proceeding authorized by law.

Although not directly on point, People v. Fields, supra, 105 Cal.App.3d 341, is instructive. In Fields, the defendant, an inmate of a county jail, was convicted of violating section 135 (destruction of evidence) when he flushed marijuana down the toilet after he had grabbed it from an officer who had seized it in the jail.⁶ On appeal defendant argued that because section 135 expressly prohibits the destruction only of materials “about to be produced in evidence upon any trial, inquiry, or investigation whatever,” it applied only in instances where formal legal proceedings were pending. Rejecting this cramped construction, the Fields court characterized defendant’s argument as “contrary to the fair import of the statute; it ignores the words ‘or investigation whatever’ [italics in original].” (Fields, supra, 105 Cal.App.3d at p. 345.) The court concluded that when defendant “grabbed the contraband . . . and flushed it down the toilet, he intentionally destroyed the contraband to prevent it from being ‘produced in evidence’ at a ‘trial, inquiry or investigation ....’” {Id. at p. 346.)

Like section 135, section 132 condemns acts committed in the context of any “investigation whatever, authorized by law. . . .” Manifestly, the scope of section 132 extends beyond those situations involving the formal introduction in evidence of documents in a court of law.⁷

Also instructive is People v. Clark (1977) 72 Cal.App.3d 80 [139 Cal.Rptr. 817]. In Clark, the defendant was charged with violating section 134, (see fn. 2, ante, p. 1062) based on his alleged preparation of a false document introduced by his representative at a grievance committee hearing at a state university where defendant had sought employment. The trial court dismissed the information, ruling section 134 did not apply to such an administrative proceeding. The appellate court reversed, holding section 134 clearly encompassed the grievance board hearing, as it was both a proceeding authorized by and an inquiry pursuant to law, i.e., Education Code section 24315. The court concluded: “The Legislature in addition to providing that this section apply to full-scale trials, provides a penalty for falsely produced material at other proceedings or inquiries ‘authorized by law,’ which plainly need not be full-scale trials.” {Id., at pp. 83-84.)

Defendant points out section 132 has been applied only in formal, legal proceedings, such as a trial or probate proceeding. (E.g., People v. Geibel (1949) 93 Cal.App.2d 147, 169-170 [208 P.2d 743] [offering forged will for probate]; People v. Horowitz (1945) 70 Cal.App.2d 675, 685-688 [161 P.2d 833] [offering forged will for probate]; People v. Hooper (1935) 10 Cal.App.2d 332, 333-335 [51 P.2d 1131] [forged check not received in evidence but marked for identification and referred to in testimony].) We know of no authority, however, proscribing the application of section 132 to less formal proceedings. The defendant is wrong in suggesting that People v. Wignall (1932) 125 Cal.App. 465 [13 P.2d 995] is such authority. Wignall was charged in three counts with (1) forging a will, (2) causing the forged will to be filed of record in the office of the county clerk and (3) “offering the forged will in evidence in a probate proceeding entitled ‘In the matter of the Estate of Charles Wellington Scott, deceased.’ ” (At p. 467.) Wignall was convicted of all three counts. The appellate court reversed the conviction for offering in evidence for lack of any evidence that the forged will was ever offered in evidence in a probate proceeding as charged. (P. 475.) There was evidence sufficient to sustain the conviction, under a separate penal statute for causing the forged will to be filed of record in the office of the clerk. (At p. 475.) It was not contended, nor could it be, that the act of filing the forged will with the clerk occurred upon a “trial, proceeding, inquiry, or investigation” within the meaning of section 132.

Even assuming section 132 has not been invoked in extra-judicial proceedings, that “is not authority against permitting such use.” (People v. Clark, supra, 72 Cal.App.3d at p. 84.) Moreover, the objective of section 132, as with section 134 with which the Clark court dealt, “is to prevent the fraudulent introduction of material in a proceeding under the authority of law. To apply the . . . section to inquiry proceedings is necessitated by the purpose of discouraging introduction of this material.” {Id., p. 84.)

Defendant contends that section 132 applies only to the “subjects” of an investigation or inquiry or to the “parties” in a civil proceeding. We disagree. By its terms section 132 applies to “every person.” The object of preventing the introduction of fraudulent material in a proceeding authorized by law would be severely compromised if application of the section were limited only to those who are the subject of the investigation or parties to the proceeding.

Defendant argues that on these facts violation of section 134 constitutes the only proper charge. Again we disagree. Sections 132 and 134 are complementary. The latter section applies to the preparation of a false or antedated document with the intent to produce it or allow it to be produced for any fraudulent purpose. The former section applies to the actual offer in evidence of a false or fraudulently altered or antedated document. Each section deals with a discrete act and in a proper case a defendant may be charged with and convicted of both.

Defendant asserts that even though he may have altered the loan document, the evidence is insufficient to show that he did so with a fraudulent purpose or intent to deceive. The only mental element essential to a violation of section 132 is knowledge concurrent with the offer in evidence that the document has been fraudulently altered or antedated. Here, not only was the copy of the document sent to Hackard different from the original, but the numerous alterations to the original which were also included on the copy sent to the FPPC were in defendant’s handwriting. Evidence was presented to the grand jury to show that when defendant tendered the requested loan document both to Hackard and to the FPPC, he did so knowing the document had been fraudulently altered or antedated. Moreover, there was evidence that defendant was untruthful when he told the FPPC the alterations were made before the loan was approved. The evidence before the grand jury reasonably gives rise to a strong suspicion (People v. Uhlemann (1973) 9 Cal.3d 662, 667 [108 Cal.Rptr. 657, 511 P.2d 609]) that with culpable knowledge defendant on two occasions offered in evidence as genuine and true a forged and altered document.⁸

The judgment of dismissal is reversed.

Deegan, J.,

* concurred.

1 Concurrent with his delivery of the loan application, defendant testified before the FPPC that the initials “AKP” on the back of the application referred to his wife. However, there was expert testimony before the grand jury that the initials originally were “AKT” and had been altered to read “AKP.” “AKT" are the initials of Angelo K. Tsakopoulos, a land developer. In the course of the FPPC investigation, evidence was discovered suggesting that Tsakopoulos was the true source of approximately $256,000 in loans made to Bryan ostensibly by defendant’s loan brokerage firm. On the basis of this information, the FPPC amended a civil complaint filed against Bryan to include two charges of conflict of interest resulting from Bryan’s supervisorial votes on land use matters involving property in which Tsakopoulos had an interest.

2 Section 134 provides: “Every person guilty of preparing any false or antedated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony.”

3 The loan application was manifestly relevant to both the FPPC investigation and the civil judgment enforcement proceedings and defendant makes no claim to the contrary. If the subpoena called for production of irrelevant matter or was otherwise defective or if compliance would have infringed defendant’s constitutional rights, defendant could have moved to quash or alternatively have refused compliance and presented his excuse when enforcement was attempted against him. (People v. Warburton (1970) 7 Cal.App.3d 815, 824 [86 Cal.Rptr. 894]; see Southern Pac. Co. v. Superior Court (1940) 15 Cal.2d 206, 210 [100 P.2d 302, 130 A.L.R. 323]; Pelton Motors, Inc. v. Superior Court (1953) 120 Cal.App.2d 565, 569-570 [261 P.2d 275].) By complying with the subpoena without challenging relevance (120 Cal.App.2d at p. 569; People v. Rummler (1975) 44 Cal.App.3d 638, 642-643 [118 Cal.Rptr. 872]) or objecting on grounds of compelled self-incrimination (People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740, 744-745 [218 Cal.Rptr. 24, 705 P.2d 347]), defendant waived any such claims (see United States v. Oliver (8th Cir. 1975) 525 F.2d 731, 734-735; People v. Randall (1970) 1 Cal.3d 948, 955 [83 Cal.Rptr. 658, 464 P.2d 114]). Thus the extended discussion of relevance and self-incrimination in the dissent is wholly gratuitous.

4 This construction of the statute obviously is not so sweeping and indiscriminate as to encompass, as charged in the dissent, “all deliveries of forged documents during an investigation.” (Post, at p. 1076.)

5 At the time Hackard served the subpoena duces tecum, the applicable law concerning enforcement of judgments was found in title IX, “Execution of Judgment in Civil Actions” (former Code Civ. Proc., § 681 et seq.). Effective July 1, 1983, the former procedure was replaced with the new “Enforcement of Judgments Law.” (Code Civ. Proc., § 680.010 et seq.; Stats. 1982, ch. 1364, § 2, p. 5070; § 3, p. 5236.) Our discussion focuses on the law in effect at the time of service of the subpoena duces tecum, although a similar analysis would obtain under the new procedure.

6 Section 135 states: “Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor.”

7 Defendant expressly disavows any challenge to section 132 as being insufficiently definite to satisfy the due process requirement that a criminal statute give adequate notice of the conduct required to avoid its penalties. (See People v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 345 [138 Cal.Rptr. 66, 562 P.2d 1315].)

8 Pointing out that the loan application and related documents were mailed to Attorney Hackard not by defendant but by his Attorney, the dissent professes difficulty in understanding “how the majority can conclude, even given its construction of the statute, that there was reasonable or probable cause to believe that defendant offered [these] forged documents in evidence . . . .” (Post, fn. 2, p. 1071.) The answer quite simply is that we have not so concluded for the reason that we are not called upon to do so. The sufficiency of the evidence in this context was not challenged either in the trial court or on appeal. We note that the only claim of evidentiary insufficiency, to which we have responded, is presented by defendant on the express premise that the documents were, as variously stated in his brief, “supplied” and “produced” by defendant.

Assigned by the Chairperson of the Judicial Council.