People v. Meaders

• Decision Date: 20 October 1983
• Citation: 148 Cal.App.3d 1155,197 Cal.Rptr. 1
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Edward W. MEADERS, Defendant and Appellant. AO 13744.
• Court: California Court of Appeals Court of Appeals

Page 1

197 Cal.Rptr. 1

148 Cal.App.3d 1155

PEOPLE of the State of California, Plaintiff and Respondent, v. Edward W. MEADERS, Defendant and Appellant.

AO 13744.

Court of Appeal, First District, Division 1, California.

Oct. 20, 1983.

Certified for Partial Publication

As Amended Nov. 10, 1983.

Hearing Denied Jan. 26, 1984.

James Feliciano, San Jose, for defendant and appellant.

John K. Van De Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Herbert F. Wilkinson, Michael I. Mintz, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

NEWSOM, Associate Justice.

The instant appeal is from Meaders' conviction of four counts of vehicle theft (Veh. Code, § 10851), two counts of receiving stolen property (Pen.Code, § 496), one count of possession of a concealable firearm by an ex-felon (Pen.Code, § 12021, subd. (a)), one count of embezzlement (Pen.Code, §§ 504, 487), one count of insurance fraud (Ins. Code, § 556), and one count of attempted subornation of perjury (Pen.Code, §§ 664, 127).

We address appellant's contention that his conviction of attempted subornation of perjury was error. The pertinent facts may be briefly summarized as follows: Subsequent to his arrest, appellant solicited one Killaine to procure two favorable defense witnesses at trial, and stated his willingness to pay $2,000 to each witness. Killaine contacted the police and a meeting was arranged between appellant and two undercover officers posing as potential witnesses. After the meeting, appellant and the officers went to appellant's bank where the latter tendered an initial $500 to the "witnesses." Appellant was thereupon rearrested on a charge of subornation of perjury. At the close of the People's case-in-chief, the prosecution's motion to amend the charge to attempted subornation of perjury was granted. Upon conviction on this count, appellant was sentenced to an 18 month term, such period to be served concurrently with the 6 years imposed on the remaining counts.

Our discussion of this issue begins with the relevant statutes. Penal Code section 127 provides that: "Every person who willfully procures another person to commit perjury is guilty of subornation of perjury, and is punishable in the same manner as he would be if personally guilty of the perjury so procured."

Penal Code section 664 provides in pertinent part that: "Every person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempts, as follows: [p] 1. If the offense so attempted is punishable by imprisonment in the state prison, the person guilty of such attempt is punishable by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense so attempted; provided, however, that if the crime attempted is one in which the maximum sentence is life imprisonment or death the person guilty of such attempt shall be punishable by imprisonment in the state prison for a term of five, seven, or nine years."

Since an essential element of subornation of perjury is the actual commission of perjury by the witness ³ (People v. Ross (1894) 103 Cal. 425, 37 P. 379; People v. Jones (1967) 254 Cal.App.2d 200, 62 Cal.Rptr. 304; 2 Witkin, Cal.Crimes, § 833, p. 783), it would appear that, as respondent contends, any intentional undertaking to procure false testimony, accompanied by a direct, unequivocal act toward that end which fell short of the actual commission of perjury by the witness would be punishable as an attempt under Penal Code section 664.

California case law in this area is unclear. In People v. Thomas (1883) 63 Cal. 482, 483, upon which appellant principally relies, the defendant was accused of attempting to suborn perjury. In a per curiam opinion our Supreme Court held that a demurrer to the information should have been sustained, observing that " '[a]ttempting to suborn perjury' is not the generic name of any class of offenses." This sweeping declaration, however, is immediately followed and arguably vitiated by a catalogue of the particular deficiencies in the information under scrutiny: "There is nothing stated to indicate that the act of defendant would have resulted in a subornation of a witness if it had not been frustrated by extraneous circumstances [citation]; or that the testimony which defendant tried to have given was material to the issue; or that he did not believe it to be true, or, indeed, what was the testimony he asked any person to give." (Id., at pp. 482-483.) We believe this language should be strictly interpreted as meaning that where, as in the facts of that particular case, the information alleges nothing more than an "attempt to suborn perjury," such an information would be insufficient. ⁴

On the other hand, in a later high court opinion we find the suggestion that such a crime is indeed cognizable under California law. (People v. Coffey (1911) 161 Cal. 433, 442, 119 P. 901.) ⁵ And one appellate court decision has come to our attention which upheld a conviction for attempted subornation of perjury. (People v. Gray (1942) 52 Cal.App.2d 620, 655, 656, 127 P.2d 72.)

A respected authority, while acknowledging that the case law is murky, has commented that there is "some indication of a recognition" of the crime of attempted subornation of perjury. (2 Witkin, Cal.Crimes, § 835, p. 785.)

We think this represents the better view. Certainly the People of this state have a compelling interest both in preventing corrupt interference with the administration of justice and protecting themselves from exposure to such inducements to interfere with the solemn process of law. And it cannot be doubted that the purpose of the law of attempt is both to penalize conduct which would have been harmful if not...