People v. Pereira

• Decision Date: 07 February 1989
• Docket Number: No. C003443,C003443
• Citation: 207 Cal.App.3d 1057,255 Cal.Rptr. 285
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Frank A. PEREIRA, Defendant and Respondent.

Page 285

255 Cal.Rptr. 285

207 Cal.App.3d 1057

The PEOPLE, Plaintiff and Appellant, v. Frank A. PEREIRA, Defendant and Respondent.

No. C003443.

Court of Appeal, Third District, California.

Feb. 7, 1989.

Review Denied May 17, 1989.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., W. Scott Thorpe, Supervising Deputy Atty. Gen., for plaintiff and appellant.

Clyde M. Blackmon, Dale A. Drozd, Sacramento, Steven Meinrath, San Diego, Blackmon & Drozd, Sacramento, for defendant and respondent.

PUGLIA, Presiding Justice.

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 Pen.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. [p ] 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. [p ] 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.... [p ] 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. [p ] 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.)...