Use of False Citizenship or Resident Status Documents – Penal Code Section 114
California law punishes any person convicted of using false documents to hide their immigration status.
Elements of the Offense:
To conviction you of a felony or a misdemeanor under Penal Code Section 114, the prosecution must prove the following elements beyond a reasonable doubt:
(1) The person had the “specific intent” to use a false document to conceal citizenship or resident alien status1;
(2) The document was actually “used” to conceal the person’s true citizenship or resident alien status.
(3) The defendant had “knowledge” that the documents were false.
A criminal defense attorney may attack a Section 114 charge on numerous grounds. Mere possession of the false document is not a crime. The prosecution must show that you specifically intended to use the document to hide your true immigration status. Additionally, the government must prove beyond a reasonable doubt that you “knew” that the document was false.
An experienced criminal defense attorney should walk you through the potential defenses to your case during your first consultation.
Penal Code Section 114 is a “wobbler.”2 This means that the crime may be pursued as either a felony or a misdemeanor. Penal Code Section 114 is a felony punishable in the following manner:
• A five-year prison sentence served in a local jail facility;
• Felony probation and a local jail term of up to 365 days;
• A fine of up to twenty-five thousand dollars ($25,000).
• A misdemeanor punishable by up to 365 days in jail and a fine.
You should contact a competent criminal defense attorney immediately if you are arrested for using a document to gain employment or for any other purpose that allegedly falsifies the nature of your citizenship or resident alien status. A conviction could have dramatic consequences as to your future immigration status.
The felony punishment for using a false document for immigration purposes was added by the controversial 1994 ballot initiative known as “Proposition 187.” The political climate surrounding immigration has changed dramatically since 1994. It is unlikely that any District Attorney in California would seek felony punishment for the offense absent the false document’s use to further some greater criminal scheme or upon a determination that the offender has a serious criminal record.
(1) People v. Salazar-Merino (2001) 89 Cal.App.4th 590 [discussing Proposition 187].
(2) The plain reading of the statute would cause one to believe that all Section 114 violations must be treated as felonies. However, the passage of AB 109 in 2011 changed sentencing options for a host of felonies, including Section 114 violations. See 2011 Cal.Legis.Ser.Ch. 15 (A.B. 109) (WEST). AB 109(1) states: “Every offense which is prescribed to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternative sentence to the county jail, may be punishable by imprisonment in any of the state prisons or by a fine, but without an alternative sentence to the county jail, may be punishable in the county jail not exceeding one year or by a fine, or by both.” The statute essentially creates “stealth wobbler” offenses in the narrow class of cases where the Legislature has specified the imposition of a fine as an alternative to state prison. See People v. Mauch (2008) 163 Cal.App.4th 669, 675, citing People v. Isaia (1989) 206 Cal.App.3d 1558, 1564..