March 8, 2016
1. In General; Validity
This section simply seeks to bring within its terms various classes of instruments entitled under our law to be recorded, without any regard to whether the particular instrument is defective in form or certification. People v. Webber (1919) 44 Cal App 120, 186 P 406, 1919 Cal App LEXIS 473; People v. Baender (1924) 68 Cal App 49, 228 P 536, 1924 Cal App LEXIS 217.
The statute was designed to prevent the recordation or registration of spurious documents, knowingly offered for record with intent to defraud. People v. Baender (1924) 68 Cal App 49, 228 P 536, 1924 Cal App LEXIS 217.
The constitutionality of this section is upheld as against an attack based on former Cal Const Art IV § 24 (see now Cal Const Art IV § 9), requiring that the subject of an act be expressed in its title. People v. Standley (1932) 126 CA 739, 15 P2d 180, 1932 Cal App LEXIS 587.
The trial court erred in failing to dismiss an amended information in which defendant was charged with 10 counts of forgery, Pen C § 470, and 10 counts of presenting a false or forged document for recording, Pen C § 115. The counts contained in the amended information and the counts contained in the original information for which a guilty verdict had been reversed for insufficient evidence were based on the identical conduct. Since defendant's conviction was reversed for insufficiency of evidence, Pen C §§ 1262 and 1009 had no application to the case. While it is true that a defendant may be retried when a conviction is reversed for trial error, retrial on the same charge is impermissible if the reversal is based on insufficiency of the evidence. The prosecution here made a deliberate choice of prosecuting defendant originally on grand theft charges, while all along knowing that the identical evidence could support forgery and filing false document charges. Defendant's prosecution on the new information was barred by Pen C § 654(a). Sanders v. Superior Court (1999, 2nd Dist) 76 Cal App 4th 609, 90 Cal Rptr 2d 481, 1999 Cal App LEXIS 1018.
The word "instrument," in this section, is limited in its application to that class of instruments invariably referred to throughout our statutes. People v. Fraser (1913) 23 Cal App 82, 137 P 276, 1913 Cal App LEXIS 182.
Generally the term "instrument" as applied to documents necessarily imports a paper writing; but every paper writing is not necessarily an instrument within the statutory meaning of the term. With reference to writings the term "instrument" as applied in our statutes has been defined to mean an agreement expressed in writing, signed and delivered by one person to another, transferring the title to or creating a lien on real property, or giving a right to a debt or duty. People v. Fraser (1913) 23 Cal App 82, 137 P 276, 1913 Cal App LEXIS 182.
It is only the recording of an instrument entitled to be recorded which constitutes a crime under this section. People v. Webber (1919) 44 Cal App 120, 186 P 406, 1919 Cal App LEXIS 473.
The gist of the offense is the offering for record of a false or forged deed. People v. Standley (1932) 126 CA 739, 15 P2d 180, 1932 Cal App LEXIS 587.
Intent to defraud another or the defrauding of anyone is not required. People v. Standley (1932) 126 CA 739, 15 P2d 180, 1932 Cal App LEXIS 587.
This section does not require a specific intent, as the word "knowingly" does not impart the idea of intent, but merely refers to a knowledge of the essential facts which bring the act within the statute. People v. Horowitz (1945) 70 Cal App 2d 675, 161 P2d 833, 1945 Cal App LEXIS 1120.
This section does not require that the act be done with intent to defraud, nor does it require that anyone be defrauded thereby. The crime is sufficiently proved when it is shown that the accused intentionally committed the forbidden act. People v. Geibel (1949) 93 Cal App 2d 147, 208 P2d 743, 1949 Cal App LEXIS 1360.
Word "instrument" as used in section is limited in its meaning and application to that class of instruments defined as agreements expressed in writing, signed, and delivered by one person to another, transferring title to or creating lien on realty, or giving right to debt or duty. People v. Olf (1961, 2nd Dist) 195 Cal App 2d 97, 15 Cal Rptr 390, 1961 Cal App LEXIS 1429.
Pen C § 115, stating that every person who offers any false or forged instrument to be filed, registered or recorded in any public office is guilty of a felony, was designed to prevent the recordation of spurious documents knowingly offered for record. In the case of a deed, the crime is complete when the deed has been prepared so that upon its face it will have the effect of defrauding one who acts upon it as genuine. It is not necessary to constitute a completed offense that anyone actually be defrauded. A violation of the statute does not require a writing which falsely purports to be the writing of another, that is, a forgery. The statute differentiates between the two categories, clearly proscribing either a false or a forged instrument. Obviously, an instrument may have the effect of defrauding one who acts on it as genuine even though it does not bear a forged signature or otherwise meet the technical requirements of a forged instrument. Generes v. Justice Court (1980) 106 CA3d 678, 165 Cal Rptr 222, 1980 Cal App LEXIS 1908.
In a prosecution in which the information charged defendant with attempting to file a forged death certificate, and in which defendant pleaded nolo contendere to offering a forged instrument for filing (Pen C § 115), defendant was entitled to appeal the conviction, since he was able to establish jurisdictional grounds going to the legality of the proceedings, as required under Pen C § 1237.5 (prerequisites to appeal from conviction on plea of guilty or nolo contendere). Both defendant and the prosecution agreed that a death certificate was not an "instrument" within the meaning of Pen C § 115, thereby rendering the plea defective. Since the issue raised by defendant was jurisdictional, it was cognizable on appeal after defendant's plea. People v. Soriano (1992, 1st Dist) 4 Cal App 4th 781, 6 Cal Rptr 2d 138, 1992 Cal App LEXIS 323.
An altered temporary restraining order was an "instrument" for purposes of Pen C § 115 (filing false instrument). Thus, defendant's conviction of violating § 115 was not improper, where he had obtained an ex parte order enjoining his former girlfriend from contacting or harassing him, and had added false requirements to the order before filing it with the marshal. Although prior case law had required that a document represent an agreement in order to qualify as an "instrument," a more recent appellate court opinion rejected this requirement. Subsequently, the Legislature extensively revised § 115, leading to the presumption that the more recent case was approved. Moreover, the amendments to § 115 demonstrate a legislative intent to protect judicial and public records such as the temporary restraining order. People v. Parks (1992, 4th Dist) 7 Cal App 4th 883, 9 Cal Rptr 2d 450, 1992 Cal App LEXIS 811.
Materiality is not an element of the offense of offering a false or forged instrument for record (Pen C § 115). The terms of § 115 do not suggest materiality is an element of the offense. The core purpose of § 115 is to protect the integrity and reliability of public records. This purpose is served by an interpretation that prohibits any knowing falsification of public records. Accordingly, a court may not insert into § 115 a requirement of materiality that the Legislature did not see fit to include. People v. Feinberg (1997, 1st Dist) 51 Cal App 4th 1566, 60 Cal Rptr 2d 323, 1997 Cal App LEXIS 17.
Fishing activity record is an instrument within the meaning of Pen C § 115, and the definition of "instrument" in the statute is not unconstitutionally vague; moreover, prosecution of an offending fishing boat operator was not precluded by a regulation governing fishing records, Cal. Code Regs. tit. 14, § 190, because the two provisions were not identical. People v. Powers (2004, Cal App 1st Dist) 117 Cal App 4th 291, 11 Cal Rptr 3d 619, 2004 Cal App LEXIS 418.
Violation of Pen C § 115, is governed by Pen C §§ 801.5 and 803(c), notwithstanding its absence from the list of specific offenses. Regardless of subsequent actions by the legislature, the terms of Pen C § 803.5(c), applied to the violation of Pen C, § 115, as charged against defendant. People v Soni (2005, Cal App 4th Dist) 134 Cal App 4th 1510, 36 Cal Rptr 3d 864, 2005 Cal App LEXIS 1944, 2005 CDOS 10702, 2005 Daily Journal DAR 14670.
Where an instrument, if genuine, would not be entitled to be recorded under the law of the state, as in the case of a forged instrument purporting to be an assignment of an interest in certain letters patent for an invention, it is not a felony to offer it for record, or to cause or procure it to be recorded. People v. Harrold (1890) 84 Cal 567, 24 P 106, 1890 Cal LEXIS 843.
A birth certificate is not an "instrument" within the meaning of this section. People v. Fraser (1913) 23 Cal App 82, 137 P 276, 1913 Cal App LEXIS 182.
There can be no forgery of an instrument which is void upon its face. People v. Baender (1924) 68 Cal App 49, 228 P 536, 1924 Cal App LEXIS 217.
A deed was constituted a false and forged instrument within the meaning of this section by the signing of the grantor's name to the deed, valid upon its face, by another, and the impersonation of the grantor in the acknowledgment, with intent on the part of the person procuring such signature and impersonation to defraud his wife of a life estate in the property, and the actual deception of a title company in insuring title in the belief that such deed was genuine. People v. Baender (1924) 68 Cal App 49, 228 P 536, 1924 Cal App LEXIS 217.
Although a deed conveys no title, being valid on its face it may be the subject of forgery. People v. Baender (1924) 68 Cal App 49, 228 P 536, 1924 Cal App LEXIS 217.
No proof is required that anyone has been defrauded by the filing of a false or forged instrument. People v. Horowitz (1945) 70 Cal App 2d 675, 161 P2d 833, 1945 Cal App LEXIS 1120.
In a prosecution for forgery of a will and a contract, for offering a false document to be filed of record, and for offering false evidence, it is error to instruct as to the meaning of criminal intent and to define the word "wilfully" in connection therewith, without limiting the application of such instruction to the charge of forgery, which is the only one involving actual intent, and the prejudicial effect of such error is not cured by an instruction to the effect that forgery is one of the crimes in which a specific element of intent is required. People v. Geibel (1949) 93 Cal App 2d 147, 208 P2d 743, 1949 Cal App LEXIS 1360.
Prosecution of automobile dealer for offering to be filed with the department of motor vehicles certain false documents described as "Dealer's Reports of Sale," and "Certificates of Non-Operation," assuming that such documents were "instruments" within meaning of this section, under which prosecution was brought, such prosecution should nevertheless have been brought under former Veh C § 131(d), providing that one who knowingly makes false statements in any document required to be filed with departments of motor vehicles is guilty of misdemeanor. People v. Wood (1958, 2nd Dist) 161 Cal App 2d 24, 325 P2d 1014, 1958 Cal App LEXIS 1697.
Motion to set aside count of indictment charging president of company with wilful violation of this section was properly granted where allegedly false or forged document offered to be filed of record was application for permit filed with Corporations Commissioner which was not "instrument" within meaning of section. People v. Olf (1961, 2nd Dist) 195 Cal App 2d 97, 15 Cal Rptr 390, 1961 Cal App LEXIS 1429.
The trial court properly dismissed an information charging defendant with violating Pen C § 115, prohibiting the filing, registration, or recording of any false or forged instrument, by procuring and filing a false affidavit of voter registration, on the ground that the affidavit of voter registration was not an "instrument" within the meaning of that term as used in Pen C § 115, in view of the long standing judicial definition of the term as including only an agreement expressed in writing, signed, and delivered by one person to another, transferring the title to or creating a lien on real property, or giving a right to a debt or duty. People v. Fox (1977) 73 CA3d 178, 140 Cal Rptr 615, 1977 Cal App LEXIS 1810.
Wills are not agreements, and they also are considered instruments within the contemplation of Pen C § 115, providing that every person who offers any false or forged instrument to be filed, registered or recorded in any public office is guilty of a felony. Generes v. Justice Court (1980) 106 CA3d 678, 165 Cal Rptr 222, 1980 Cal App LEXIS 1908.
Prosecution of defendant for offering a false or forged instrument to be filed in a public office (Pen C § 115), based on allegations that defendant, an attorney, had offered a forged will for probate, was barred by the general three-year statute of limitations for felony prosecutions (former Pen C § 800(a)), where the criminal complaint was not filed for more than three years after the alleged offense. Violation of § 115 does not constitute the "falsification of public records" within the meaning of former Pen C § 799, which provided that there was "no limitation within which a prosecution for … the falsification of public records must be commenced." A will is not a public document before it is filed for probate; thus, any falsification of a will before it is filed would not constitute the falsification of a public record. The procuring or offering of a false instrument for filing in a public office (§ 115) is an entirely separate offense from the falsification of a document already part of the public record (Gov C §§ 6200, 6201), and there was nothing to show that the Legislature intended the exception created by § 799 to be interpreted broadly so as to include § 115 offenses. People v. Garfield (1985) 40 Cal 3d 192, 219 Cal Rptr 196, 707 P2d 258, 1985 Cal LEXIS 402.
Fines were properly imposed against a defendant convicted of filing false deeds of trust in connection with an elaborate scheme to unlawfully shield a friend's personal assets from collection by judgment creditors (Pen C §§ 115, 115.5). The statutory fines were not meant only to benefit owners of property fraudulently encumbered, but also to protect the interests of judgment creditors of the property owners. The statute (Pen C § 115.5) applies to "every person" filing a false deed of trust on a single family residence with the county recorder, and is clear and unambiguous, neither stating nor implying an exception for deceitful homeowners who unlawfully attempt to encumber their own property. Pen C § 115.5, is but a more specific application of the general statute (Pen C § 115) and the purpose behind both statutes is the same, to preserve the integrity and reliability of public documents. It is no defense that the accused also owned the property for which the fraudulent documents were filed. People v. Gangemi (1993, 1st Dist) 13 Cal App 4th 1790, 17 Cal Rptr 2d 462, 1993 Cal App LEXIS 236.
Each of two defendants was properly convicted of violating Pen C § 115 (offering false or forged instrument for filing), where each defendant was a probationer with a community service requirement as a condition of probation, and each had reported, on a work referral form, community service work that she had not completed. Each defendant's work referral form was an "instrument" under § 115. The object of § 115 is to protect the integrity of judicial and public records. The work referral forms in this case were to be filled out by an administering agency to reflect the number of hours defendants had worked on a service project, and they were intended to be filed with the court to demonstrate fulfillment of the work service condition of probation. Defendants had not performed the service reflected on their respective documents, and they knew it. They deliberately filed these false documents with the court in order to induce the court to credit them with satisfaction of a probation term they had not satisfied. Under these circumstances, the documents were "instruments" within the meaning of § 115. People v. Tate (1997, 2nd Dist) 55 Cal App 4th 663, 64 Cal Rptr 2d 206, 1997 Cal App LEXIS 442.
Nancy Duffy McCarron, CBN 164780
Attorney, Real Estate Broker, BBB Arbitrator, CA Notary Public
Certified Forensic Loan Auditor, Property Manager
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