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Perjury Prosecution Barred Against Man Who Swore He Had Not Been in ‘Trouble’ With Law
Court of Appeal Says He Did Not Necessarily Know Statement Was False Although He Had Just Been Arrested for DUI
By a MetNews Staff Writer
The Court of Appeal has affirmed the decision of a superior court denying a prosecution motion to proceed on a perjury charge, after a magistrate declined to bind the defendant over for trial, in a case where a man was arrested for drunk driving and 10 days later, in a declaration under penalty of perjury in support of his bid to terminate probation in two unrelated cases, said he “had no trouble with the law in the last 2 years 9 months.”
Presiding Justice James M. Humes of the First District’s Div. One authored the opinion. It affirms an order by Mendocino Superior Court Judge Cindee Mayfield which bars further proceedings against Kyle Mathew McNamara on the perjury charge.
McNamara’s arrest for driving under the influence occurred on Nov. 6, 2020. He signed a citation, agreeing, “without admitting guilt,” to appear on Dec. 8 for his arraignment.
The Mendocino District Attorney’s Office on Dec. 17, 2020 charged McNamara with perjury for representing in his declaration that he had not been in “no trouble with the law” in recent years when, in fact, he had just been arrested.
Magistrate’s View
After a preliminary hearing, the magistrate declared that it did not appear that McNamara “knew the information in his declaration was false,” reasoning:
“He’s presumed innocent, so it’s a reasonable interpretation of his statement to believe that he’s not in trouble with the law. He hasn’t been convicted.”
The D.A.’s Office made a motion under Penal Code §871.5 which provides that where a magistrate dismisses a charge, “the prosecutor may make a motion in the superior court within 15 days to compel the magistrate to reinstate the complaint or a portion thereof and to reinstate the custodial status of the defendant under the same terms and conditions as when the defendant last appeared before the magistrate.” Mayfield denied the motion and the D.A.’s Office appealed.
Humes’s Opinion
Humes wrote:
“We agree with the magistrate that the evidence was insufficient as a matter of law to establish probable cause to believe that McNamara willfully made a statement he knew was false. The statement, given its undisputed context, was both vague (in the sense that people of ordinary intelligence have to guess at its meaning) and ambiguous (in the sense that the phrase could have multiple meanings).”
He continued:
“To some people, ‘trouble’ as used in McNamara’s statement might mean any contact with the police, regardless of whether the contact resulted in an arrest, citation, charge, or conviction. To others, it might mean any contact with the police that resulted in criminal charges being filed. And to still others, it might mean interactions with the police that resulted in a conviction and sentence. No person of ordinary caution or prudence could reasonably infer that a person who was issued a citation, told he was not admitting guilt, was not charged, and was presumed innocent, willfully lied by thereafter claiming not to have been in trouble with the law.”
Humes added:
“We might have reached a different decision had McNamara stated in his declaration that he had not been cited by the police, had not been stopped by the police, or had not had any contact, encounter, or interaction with the police. And we might have reached a different decision if at the time of the statement McNamara had already been charged with, or convicted of, the DUI or another crime….In other words, we do not conclude that the statement that one has ‘had no trouble with the law’ can never support a perjury charge. Here, however, McNamara’s statement, in the uncontroverted context in which it was made, would not lead a person of ordinary caution or prudence to reasonably believe and conscientiously entertain a strong suspicion that he was guilty of perjury.”
The case is People v. McNamara, A162828.
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