California Case Law on Perjury
"A trial court's conclusion that a defendant has committed perjury may be considered as one fact to be considered in fixing punishment as it bears on defendant's character and prospects for rehabilitation." (People v. Redmond (1981) 29 Cal.3d 904, 913.)
"The commission of perjury is of obvious relevance in this regard, because it reflects on a defendant's criminal history, on her willingness to accept the commands of the law and the authority of the court, and on her character in general." (United States v. Dunnigan (1993) 507 U.S. 87, 94.)
In People v. Howard (1993) 17 Cal.App.4th 999, the Court of Appeal held that "when imposing an aggravated sentence on the ground the defendant committed perjury at trial, the sentencing court is constitutionally required to make on-the-record findings as to all the elements of a perjury violation." (Howard, supra, 17 Cal.App.4th at p. 1001.)
Howard found that the trial court had failed to make the requisite express findings, but deemed the error harmless beyond a reasonable doubt because, given the conflicting testimony at trial, "the court's own conclusion that there was perjury could only have been based on a finding that Howard had been untruthful. There was no other basis for rejecting his testimony." (Id. at p. 1005.)
The Howard court interpreted Dunnigan as requiring this result as a matter of constitutional imperative in order to protect the defendant's right to testify. (Howard, supra, 17 Cal.App.4th at p. 1004.)
Dunnigan, however, makes clear that the defendant never argued that the requirement of stating perjury findings was constitutionally based.
The Dunnigan court summarily rejected the hypothetical constitutional arguments that increasing a sentence because of perjury (1) interferes with the right to testify, ("for we have held on a number of occasions that a defendant's right to testify does not include a right to commit perjury") and (2) distorts the decision whether to testify or remain silent. (Dunnigan, supra, 507 U.S. at pp. 95-96.)
In People v. Middleton (1997) 52 Cal.App.4th 19, 35-36 (disapproved on other grounds in People v. Gonzalez (2003) 31 Cal.4th 745, 752), the defendant complained that the trial court's decision to impose consecutive rather than concurrent sentences was flawed because it had relied on the defendant's perceived perjury at trial without making the express findings required by Howard.
Citing People v. Scott (1994) 9 Cal.4th 331, the Middleton court found that defendant had waived the claim because he had not objected on that basis when the court stated that it was imposing consecutive sentences because the defendant had " 'lied to the court and the jury.' " (People v. Middleton, at p. 35.)
All of these cases involved discretionary sentencing choices that otherwise required a statement of reasons and resulted in the imposition of an aggravated or enhanced sentence. (People v. Redmond, supra, 29 Cal.3d 904 upper term; People v. Howard, supra, 17 Cal.App.4th 999 same; Dunnigan, supra, 507 U.S. 87 upward adjustment of sentence by two levels; People v. Middleton, supra, 52 Cal.App.4th 19 consecutive sentences.)