False Report by a Peace Officer – Penal Code Section 118.1
Peace officers who knowingly file false reports may be punished with either a misdemeanor or felony criminal charge pursuant to Penal Code Section 118.1. Penal Code Section 118.1 establishes a form of perjury specific to police officers.1
Elements of the Offense:
A peace officer is guilty of a crime under Penal Code Section 118.1 if all of the following occurred:
1. The peace officer filed a report regarding the commission of a crime or the investigation of a crime;
2. The officer knowingly and intentionally made a false statement in the report;
3. The false statement concerned any material matter the officer knew to be false.
Defenses to a Penal Code Section 118.1 allegation may include:
A. Knowledge Defense: The officer did not know that the statement was false. At times, officers can act under incomplete or undeveloped information. They may glean information learned from other officers or civilian witnesses. An officer may inaccurately remember an event because he suffered from great stress at the time of the observation. Accordingly, his inaccurate statements were not knowingly false.
B. No Specific Intent to make a False Statement: When arguing a lack of knowledge, defense counsel may also assert that the officer lacked any specific intent to lie. Police offices often wait hours or even days before authoring reports due to the demands of their jobs. Defense counsel should point out all of the factors which demonstrate why the officer’s error was simply an innocent mistake, and not an intentional act of deception.
C. The statement was not material: The false statement must be material to support a Penal Code Section 118.1 prosecution.
Penal Code Section 118.1 is referred to as a “wobbler.” A “wobbler” is any crime that may be punished as either a felony or a misdemeanor. In some cases, the District Attorney will only pursue a 118.1 violation as a misdemeanor. If the District Attorney elects to make the matter a felony, the judge can reduce the charge to a misdemeanor over the District Attorney’s objection.
Penal Code Section 118.1 carries the following punishment:
• Misdemeanor or felony probation accompanied by a jail term of up to 364 days.
• Confinement in the state prison for 1, 2 or 3 years.2
Penal Code Section 118.1 violations are career-ending criminal allegations for any peace officer. Charges of this nature are rarely brought by prosecutors in pro-law enforcement jurisdictions like Ventura County. The elected District Attorney will hesitate to risk the ire of powerful police unions by bringing such a charge unless there is almost no doubt whatsoever of the officer’s guilt. Because 100% certainty never exists in any prosecution, Ventura County law enforcement typically deals with suspected false police reports through internal disciplinary procedures.
About the Author:
Bill Haney served as a supervising prosecutor and major crimes attorney in the Ventura County District Attorney’s Office. He is also an adjunct law professor at a prestigious Southern California law school. At your initial consultation, Mr. Haney will outline a defense that is designed to give you the best possible chance for a successful outcome in court.
(1) See Penal Code Section 118. See also 2 Witkin, Cal.Crim. Law 4th (2012) Crimes – Govt, § 60, p. 1492.
(2) Penal Code Section 118.1 is not a Realignment offense under Section 1170(h). A prison sentence is served in the California Department of Corrections, not county jail.