People v. Gallardo

Filed 8/28/15
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,
A141550
v.
KENNETH GALLARDO, (San Mateo County
Super. Ct. No. SC078627A)
Defendant and Appellant.

INTRODUCTION
After Defendant Kenneth Gallardo stopped paying court-ordered child support for
nearly a year, his ex-wife sought an income withholding order. In an effort to thwart her
efforts, defendant requested a court hearing to set aside the wage assignment. At the
hearing, he denied he was behind on his child support payments, and held up a sheaf of
fraudulent papers that he described to the court as cancelled checks and other documents
that proved he owed no money. He handed the documents to his disbelieving ex-wife
and the Department of Child Support Services attorney at the hearing, who both
expressed suspicion about the legitimacy of the documents. The family court denied
defendant’s request without prejudice, finding “insufficient evidence” to set aside the
wage assignment. A few weeks later, defendant pressed his claim at the Department of
Child Support Services office, once again providing it with fraudulent documents to
review.

*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part B of the Discussion section.

1
 Defendant was convicted of two counts of offering forged and fraudulent
documents into evidence in violation of Penal Code section 132,1 and one count of
forgery under Penal Code section 470, subdivision (b). He does not challenge the forgery
conviction. He appeals his convictions under section 132 on the grounds that the
evidence was insufficient as a matter of law because he did not offer the forged checks
“in evidence” within the meaning of the statute, and the jury instruction on section 132
was erroneous. In the published portion of this opinion, we hold that the evidence was
sufficient to support defendant’s convictions under section 132. In the unpublished
portion of this opinion, we reject defendant’s challenge to the jury instruction.
FACTUAL AND PROCEDURAL BACKGROUND
The facts in this case are essentially undisputed. Defendant and Jane Parrish were
divorced in 2001, and defendant was ordered to pay Parrish monthly child support for
their two children. In November 2010, defendant stopped making the payments, and
would not respond to Parrish’s inquiries about the missing payments.
Parrish went to the San Mateo County Department of Child Support Services
(DCSS) in September 2011 for help. After Parrish submitted proof that defendant had
not paid child support since November 2010, DCSS took steps to have an order sent to
defendant’s employer to withhold his wages and assign them to pay child support.
Defendant responded by filing a request for a hearing in superior court to set aside the
wage assignment order.
A hearing on defendant’s request was held in San Mateo County Superior Court
on January 12, 2012. Defendant, Parrish, and Eric Tannenwald, a DCSS attorney, were
present. Parrish told the commissioner that she had not been paid child support since
October 2010, and Tannenwald supported her contention. The commissioner asked
defendant, “Anything you want to say . . . in addition to what Miss Parrish or Mr.
Tannenwald has indicated to the court?” Defendant responded by holding up some
documents and stating: “Yes, Your Honor. I have copies of the cancelled checks, and I

1
All further unspecified statutory references are to the Penal Code.

2
apologize, in going through this I realized that I am missing a month, but basically from
the November 2010 to November 2011, and I have been faithfully paying my child
support ever since the initial order was sought by Miss Parrish. And again, I see no
reason for the state and the county to waste their resources on this when in fact it is being
paid.”
Defendant handed the documents to Tannenwald. They included purported copies
of the cancelled checks that defendant had referenced, and statements from defendant’s
credit union purporting to show the checks had been cashed. Tannenwald told the
commissioner: “Your Honor, he provided copies of the front of the check, looks like a
back of a check with the same signature, but what I would typically see in reviewing
these, in the courts of my practice, are some notations from the bank, specifically clearing
numbers and things like that, the posting banks.” Parrish also reviewed the checks
provided by defendant. She told the commissioner: “I have never received these checks,
I did not sign them, and suspiciously it is the exact same signature printout, exact same
thing. Looks like he photoshopped it.”
The commissioner denied defendant’s request to set aside the wage assignment
without prejudice, finding there was “insufficient evidence today to go forward with [the
request].” The commissioner told defendant that “if you want to go to DCSS and show
them documentation that you have been making timely payments, you can re-file, and I
will take it up again then.”
A few weeks after the January 12 hearing, Tannenwald wrote to defendant asking
if he wanted an administrative review to contest the arrears. DCSS was authorized to
conduct such an administrative review by Family Code section 17526, subdivision (a).
As part of its review, DCSS was required to “consider all evidence and defenses
submitted by either parent on the issues of the amount of support paid or owed.” (Fam.
Code, § 17526, subd. (a).)2

2
Family Code section 17526, subdivision (a), states: “Upon request of an obligor
or obligee, the local child support agency shall review the amount of arrearages alleged in
a statement of arrearages that may be submitted to the local child support agency by an

3
 On February 29, 2012, defendant went to DCSS’s office and met with Blanca
Velasquez, a DCSS case worker. Defendant gave her copies of the same cancelled
checks that he had provided Tannenwald during the January 12 hearing, plus copies of
what were supposedly three more cancelled checks from December 2011, January 2012,
and February 2012, and about a year’s worth of statements from defendant’s credit union.
According to Velasquez, defendant “requested an administrative review” of the child
support issue by DCSS as soon as possible.3
Tannenwald wrote a letter to defendant the next day confirming that DCSS
received the documents defendant provided and would “begin an administrative review
and provide copies to Ms. Parrish for verification.” Tannenwald forwarded copies of the
documents to Parrish. Parrish told Tannenwald that she believed the documents were
fraudulent and that she had still not received child support payments.
Tannenwald, on behalf of DCSS, filed an Order To Show Cause in the superior
court seeking a judicial determination of child support arrears owed by defendant. A
hearing was noticed for May 31, 2012. Tannenwald also took steps to have a subpoena
issued to defendant’s credit union for copies of the checks and bank statements that
defendant said proved he had paid child support.
Defendant moved to quash the subpoena. A hearing on defendant’s motion to
quash was held on May 15, 2012. Defendant argued that disclosure of his financial
information would violate his privacy rights. He also told the court: “I have provided
copies of the cancelled checks as they’ve requested. I’ve provided copies of the
clearance numbers. I’ve provided copies of bank statements showing the pertinent

applicant for child support enforcement services. The local child support agency shall
complete the review in the same manner and pursuant to the same timeframes as a
complaint submitted pursuant to Section 17800. In the review, the local child support
agency shall consider all evidence and defenses submitted by either parent on the issues
of the amount of support paid or owed.”
3
Defendant later testified that he “[didn’t] believe [he] demanded an
administrative review,” but “remember[ed] asking Ms. Velasquez if these documents
would allow her to make a decision about whether or not to release the levy on my bank
account.”

4
information. . . . [¶] And Ms. Parrish has not provided anything, any legal basis or expert
testimony to say that what I have provided is not correct. She has not provided any bank
statements of her own to refute that, that she has been paid.” The court denied
defendant’s motion to quash.
Later that same day, defendant used a credit card to pay the full amount of child
support he owed Parrish. Defendant informed Tannenwald the next day that he paid the
missing child support, and requested that DCSS withdraw the subpoena and take the
upcoming May 31 hearing off calendar. Tannenwald conveyed defendant’s request to
Parrish, but she refused to agree.
Prior to the May 31 hearing, defendant’s credit union responded to the DCSS
subpoena with a declaration stating that the checks had never been presented and never
cleared defendant’s account. Defendant failed to appear at the May 31 hearing. The
court found that defendant had not paid child support from November 2010 until May
2012, as reflected in the DCSS audit.
Defendant was charged with two counts of offering forged or fraudulent
documents into evidence in violation of section 132. Count 1 was based on the
documents defendant brought to the January 12 hearing. Count 2 was based on the
documents defendant provided to DCSS on February 29. Defendant was also charged
with forgery (§ 470, subd. (b); count 3).4
Defendant testified at the jury trial in this matter and admitted that he did not pay
child support to Parrish during the contested period. He admitted he falsified the checks
and bank statements that he brought to the January 12, 2012, hearing and provided to
DCSS on February 29, 2012. Defendant denied that he was trying to defraud Parrish out
of child support payments. He testified that “[i]t was only my intent to stall DCSS from,
you know, putting liens on my bank account or taking away my licenses. . . . [¶] . . . I just
merely wanted to buy some time and have them asking questions rather than liening [sic]

4
Defendant was also charged with grand theft, but this count was dismissed before
trial at the request of the prosecution.

5
my bank account or anything like that.” As to why he did not use his credit card to pay
child support prior to May 15, 2012, defendant testified that May 15 was when he first
learned he could use a credit card to pay child support.
Defendant was convicted on all three counts and placed on three years supervised
probation with terms and conditions that included, as to count 3, that he serve one year in
the county jail.5
Defendant timely filed a notice of appeal.
DISCUSSION
A. The Evidence Was Sufficient to Convict Defendant of Violating Section 132.
1. Standard of Review
Section 132 was enacted in 1872 and has never been amended. It 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 ante-dated, is guilty of a felony.”
Defendant contends that due process requires reversal on counts 1 and 2 because
the prosecution’s evidence was insufficient as a matter of law to prove his guilt.
Defendant argues that “[a] violation of section 132 occurs when a defendant ‘offers into
evidence,’ false evidence,” and that, as to count 1, he never actually offered the
fraudulent checks and bank statements into evidence during the January 12 hearing. As
to count 2, he contends that his “mere delivery of the false documents to DCSS also did
not constitute “ ‘offer[ing] into evidence’ ” those documents within the meaning of
section 132.” Separately, he argues that there was “no evidence [he] knew that any such
proceeding was taking place,” referring to the administrative proceeding regarding his
delinquent child support payments.
The Attorney General argues that the evidence was sufficient to convict defendant
on count 1 because, even though defendant did not formally move documents into

5
The trial court stayed execution of the county jail sentence pending this appeal.

6
evidence during the January 12 hearing, he used them in an attempt to persuade the court
that he had paid the missing child support payments. As to count 2, the Attorney General
argues that the evidence was sufficient to show that defendant offered the fraudulent
documents in evidence on February 29 by providing them to DCSS because his
production was in connection with an administrative review of the missing child support
payments. The Attorney General also argues that there was substantial evidence that
defendant knew DCSS would be conducting an administrative review and that, in any
event, defendant’s knowledge of an administrative review is not an element of section
132.
A state court conviction violates due process if it is not supported by sufficient
evidence. (People v. Rowland (1992) 4 Cal.4th 238, 269.) “When considering a
challenge to the sufficiency of the evidence to support a conviction, we review the entire
record in the light most favorable to the judgment to determine whether it contains
substantial evidence—that is, evidence that is reasonable, credible, and of solid value—
from which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Lindberg (2008) 45 Cal.4th 1, 27.) “We presume in support of the
judgment the existence of every fact the trier of fact reasonably could infer from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility. [Citation.]” (Ibid.) To the
extent a challenge to the sufficiency of the evidence is based on the interpretation of a
statute, our interpretation of the statute is de novo. (People v. Hassan (2008) 168
Cal.App.4th 1306, 1313.)
2. Construction of the Phrase “Offers in Evidence”
The phrase “offers in evidence” in section 132 has been construed by courts only
sporadically. One of the earliest cases was People v. Wignall (1932) 125 Cal.App. 465,
where defendant was convicted of violating section 132 after he filed a false will in a
probate proceeding. The appellate court reversed the conviction, holding the evidence

7
was insufficient to show he offered the will in evidence during the probate proceeding,
although the court did not discuss the phrase “offers in evidence” in much detail. (Id. at
p. 475.) The court simply stated that the false will “is not mentioned in the testimony of
any witness and is not covered by any admission or stipulation of counsel. . . . It contains
no endorsement which would even tend to indicate that it had ever been introduced in
evidence in any probate proceeding.” (Ibid.) Although the evidence was insufficient to
convict defendant of offering the false will in evidence, the court held it was sufficient to
convict defendant under a different statute for filing the false will with the clerk’s office.
(Ibid.)
In People v. Hooper (1935) 10 Cal.App.2d 332, defendant was convicted of
violating section 132 based on his use of a falsified check in a civil trial to show that he
did not owe rent. (Id. at pp. 333-334.) Defendant argued on appeal that the evidence was
insufficient to show that he offered the falsified check in evidence during the civil trial
because it was never formally introduced into evidence. (Id. at p. 334.) The court
disagreed, stating: “It is true that the record does not disclose that the check was ever
marked as an exhibit in the civil case, and the court reporter at that trial could not
discover from his notes that it was ever formally introduced in evidence. But the check
was produced in the municipal court by appellant’s attorney, appellant there testified as to
the check and the disputed endorsement, it was marked for identification, was examined
by the court and was the subject of expert testimony and legal argument. We are of the
opinion that such use of the document constitutes an offering in evidence within the
meaning of the section.” (Id. at pp. 334-335.)
In People v. Horowitz (1945) 70 Cal.App.2d 675, defendant was convicted of
forgery of a will (§ 470), causing a forged will to be filed (§ 115), preparing a false and
antedated will (§ 134), and offering in evidence a forged will (§ 132). (Id. at p. 684.)
The charges were based on defendant’s actions in connection with the purported will of
his late mother. (Ibid.) He argued on appeal that the evidence was insufficient to sustain
his convictions. (Ibid.) In the brief discussion pertaining to section 132, the court
concluded the evidence was sufficient to convict defendant because “[h]e offered [the

8
will] for probate. He defended a contest filed by [the decedent’s husband]. He
knowingly offered the forged instrument in evidence, the crime denounced by section
132.” (Id. at p. 688.)
In People v. Geibel (1949) 93 Cal.App.2d 147, defendant, an attorney, was
charged with forgery of a will (§ 470), causing a forged will to be filed (§ 115), and
offering in evidence a forged will (§ 132), all relating to the will of a former client. (Id.
at pp. 152-153.) Defendant was convicted on all three counts. (Id. at p. 152.) He argued
on appeal that the evidence was insufficient to show he offered a false will in evidence in
violation of section 132, because he had merely offered a will for probate by presenting it
at a hearing. The court disagreed, and summarized the evidence supporting defendant’s
conviction: “[A]t the hearing on the petition for admission to probate of the will,
[defendant] appeared not only as one of the attorneys for the petitioner, but there testified
as to the execution of the will and the genuineness of the disputed signature of the
testator. The document was examined by the court, and was the subject of expert
testimony and legal argument.” (Id. at pp. 169-170.) The court concluded: “[w]e are
persuaded that such use of the instrument constitutes an offering in evidence within the
meaning of the code section (People v. Hooper, 10 Cal.App.2d 332, 334), and that the
evidence was, therefore, sufficient to support the verdict and judgment on [the section
132 count].” (Id. at p. 170.)6
The meaning of “offers in evidence” was discussed at length in People v. Pereira
(1989) 207 Cal.App.3d 1057 (Pereira), where defendant was charged with two counts of
violating section 132. One count involved the production of a fraudulently altered loan
application in response to a subpoena issued by the Fair Political Practices Commission
(FPPC) in connection with its investigation of possible violations of the Political Reform

6
The court reversed the trial court’s judgment and order denying defendant’s
motion for a new trial on unrelated grounds, to wit, that the trial court committed
prejudicial error by admitting evidence that defendant was suspended from the practice of
law (People v. Geibel, supra, 93 Cal.App.2d at pp. 173-174), by not permitting defendant
to testify about legal services he rendered for the decedent (id. at pp. 174-175), and by
improperly instructing the jury (id. at pp. 177-179).

9
Act. (Id. at pp. 1061-1062.) The second count involved production of a different version
of the same loan application in a civil proceeding to enforce a judgment. (Ibid.)
Defendant had initially received a subpoena duces tecum in connection with the civil
proceeding, but reached an agreement with the subpoenaing party to produce documents,
including the loan application, voluntarily. (Ibid.) The trial court granted defendant’s
motion to dismiss both section 132 counts, reasoning that the “mere producing of the
documents” did not amount to offering the documents into evidence. (Id. at p. 1063.)
The appellate court in Pereira reversed and held that “the scope of section 132
extends beyond those situations involving the formal introduction in evidence of
documents in a court of law.” (Pereira, supra, 207 Cal.App.3d at p. 1067.) The court
construed the phrase “offers in evidence” in the context of the wide breadth of section
132, which, by its terms, applies to “any trial, proceeding, inquiry, or investigation
whatever, authorized or permitted by law.” (Id. at p. 1063.) The court determined that
this phrase “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.” (Id. at pp.
1063-1064.)
In considering the loan application produced in response to the FPPC subpoena,
the court held that “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.” (Pereira,
supra, 207 Cal.App.3d at p. 1064.) “The subpoena duces tecum to defendant to produce
the . . . loan application was issued in furtherance of such an investigation of ‘possible
violations’ of the Political Reform Act (Gov. Code, § 83115),” and the purpose of the
investigation was “to gather evidence.” (Id. at pp. 1064-1065.) Accordingly, the court
concluded that “[o]ne who in response to an FPPC subpoena knowingly submits
fraudulently altered or antedated documents in such an investigation, ‘offers in evidence’
the documents so tendered within the meaning of section 132.” (Id. at p. 1065.)

10
 The Pereira court reached a similar conclusion with regard to the loan application
produced in the civil judgment enforcement proceeding. The court reasoned that “the use
of a subpoena duces tecum to discover and inspect relevant documents is an accepted
practice” in civil judgment enforcement proceedings as part of an examination of the
debtor’s property. (Pereira, supra, 207 Cal.App.3d at p. 1066.) Such an examination “is
similar to a trial” because witnesses are required to appear and to testify, and “[a]t the
conclusion of the examination, the judge or referee may order the judgment debtor’s
interest in the property applied to satisfy the money judgment.” (Ibid.) “Thus, the
production of documents pursuant to a subpoena duces tecum in contemplation of a
debtor’s examination is an ‘[offer] in evidence’ at a ‘trial, proceeding, inquiry, or
investigation . . . authorized or permitted by law. . . .’ ” (Id. at p. 1066.) “That the
documents were ultimately produced pursuant to an agreement between counsel and not
in direct response to the subpoena duces tecum is of no import. It would be illogical to
hold criminal sanctions for offering false documents in evidence could be avoided simply
by agreeing voluntarily to produce the evidence in consideration for the dropping of a
subpoena.” (Ibid.)
Pereira was not unanimous. The dissenting opinion in Pereira stated that section
132 should not extend to the “mere delivery of documents to a state functionary
conducting a preliminary investigation and to an attorney seeking discovery to enforce a
civil judgment.” (Pereira, supra, 207 Cal.App.3d at p. 1069 [dis. opn. of Sparks, J.].)
The dissent’s view was that section 132 “contemplates that whatever the nature of the
investigation or inquiry it be sufficiently formal to permit the introduction of evidence.”
(Id. at p. 1075.) Accordingly, the dissent concluded that “offers in evidence” means to
“submit a document for introduction into the official record of some formal, pending
proceeding, inquiry or investigation of any kind which is authorized or permitted by
law.” (Ibid.)
People v. Bhasin (2009) 176 Cal.App.4th 461 involved a conviction under section
132 in connection with an earlier criminal case against defendant for identity theft and
securing a fraudulent loan. (Id. at p. 466.) In the underlying case, defendant fraudulently

11
obtained a document from the Department of Motor Vehicles (DMV), which he then
gave to his attorney to use to cross-examine a witness. (Ibid.) When defendant’s
attorney finished his cross-examination, he gave the document to the prosecutor, who
suspected that it was fraudulent. (Ibid.) After the prosecution investigated the
document’s authenticity, a mistrial was declared. (Id. at p. 467, fn. 3.) Defendant was
charged and convicted in a later trial of violating section 132 for his use of the false
DMV document. (Id. at pp. 464-465.) He appealed, arguing “there was insufficient
evidence presented that he ‘offered into evidence’ the [DMV document] at the underlying
trial to support his conviction for violating section 132.” (Id. at p. 468.) Defendant
contended that he must have actually moved the DMV document into evidence in order
to be found in violation of section 132. (Ibid.) The appellate court rejected this
argument. Quoting from Pereira at length, it stated that “ ‘offers in evidence’ ” should
not be used “ ‘in a technical sense or as a term of art.’ ” (Id. at p. 468.) The court
reasoned that “[t]he fact that defendant gave the [document] to his attorney, it was used in
cross-examination [of a witness], it was read into the record, and it was marked for
identification by defendant clearly was an offer of evidence within the meaning of section
132. The fact that the prosecution sought to move the [document] into evidence (without
objection from defendant’s counsel) was not imperative to a conviction of section 132.
There simply is no requirement that a document must be moved into evidence in order to
constitute a violation of section 132.” (Ibid.) The court concluded that the evidence
supported a finding that the document “was offered into evidence within the meaning of
section 132.” (Ibid.)
With these cases in mind, we turn to the evidence in this matter.
3. January 12 Hearing (Count 1)
Defendant argues that he did not offer the fraudulent checks and statements in
evidence during the January 12 hearing because they were not provided to the
commissioner or court clerk, and did not become part of the court record. The only case
defendant relies on to support his argument is People v. Wignall, supra, 125 Cal.App.
465. As we have noted, the court in Wignall did not discuss the phrase “offers in

12
evidence” in any detail, but held that the evidence was insufficient to convict a defendant
under section 132 when a false will was filed for probate but not mentioned in testimony
or introduced in evidence during any proceeding. Wignall is distinguishable because in
this matter, defendant made affirmative use of fraudulent documents during a court
hearing. They were the centerpiece of his argument: he held up the documents and
referred to them when arguing to the court, and he provided the documents to Parrish and
Tannenwald. After listening to defendant explain the significance of the fraudulent
documents, the commissioner concluded there was “insufficient evidence to go forward”
with his request.
Defendant argues that People v. Bhasin, supra, 176 Cal.App.4th 461 is
distinguishable because in Bhasin, unlike here, the fraudulent document was actually
marked for identification, there was questioning and sworn testimony about the
document, and the contents of the document were read into the record. We do not find
this argument persuasive. Section 132, by its terms, applies to “any trial, proceeding,
inquiry, or investigation whatever,” which includes the January 12 family law hearing
regarding wage garnishment––a hearing that defendant was authorized by law to request.7
Although the formalities in the criminal trial in Bhasin and the January 12 family court
hearing differ, defendant’s use of the fraudulent documents at the January 12 hearing was
similar to defendant’s conduct in Bhasin. In both cases, the documents were offered in
support of the merits, and their substance was described on the record for the finder of
fact to consider.
Defendant argues that Pereira, supra, 207 Cal.App.3d 1057 is distinguishable
because defendant there “affirmatively produced the documents under compulsion of law
during an inquiry or investigation,” which was not the case at the January 12 family court
hearing. This is a distinction without a difference. Section 132, by its terms, does not
require documents to be produced under compulsion of law. Nor have courts construing

7
Defendant was authorized to request such a hearing by Family Code section
5246, which allows for a court hearing when a local child support agency serves an
income withholding order on an obligor’s employer. (Fam. Code, § 5246, subd. (b), (e).)

13
section 132 read in such a requirement. The defendants in People v. Bhasin, supra, 176
Cal.App.4th at page 466 and People v. Hooper, supra, 10 Cal.App.2d at page 334
voluntarily offered fraudulent documents at trial in support of their cases, and each was
convicted of violating section 132. The same is true in People v. Horowitz, supra, 70
Cal.App.2d 675 and People v. Geibel, supra, 93 Cal.App.2d 147, where defendants filed
false wills as part of a probate proceeding. Nothing indicates they did so under
compulsion of law. (People v. Horowitz, supra, 70 Cal.App.2d at p. 688 [defendant
“knowingly offered the forged instrument in evidence”]; People v. Geibel, supra, 93
Cal.App. 2d at p. 169 [“the will was offered for probate by [defendant] or at his behest”].)
It would be anomalous to conclude that the defendant in Pereira, supra, 207 Cal.App.3d
1057 was liable under section 132 because he was compelled by subpoena to produce
documents, but defendant here is not because he availed himself of court process and
chose to use fraudulent documents to support his cause.
Defendant argues that “other sources of law” establish that the phrase “offers in
evidence” does not extend to his conduct during the January 12 hearing. Defendant relies
on section 140 of the Evidence Code, which defines “evidence” as “testimony, writings,
material objects, or other things presented to the senses that are offered to prove the
existence or nonexistence of a fact.” (Evid. Code, § 140.) This definition says nothing
about the meaning of the phrase “offers in evidence.” Further, the false checks and
statements used in court on January 12 meet the statutory definition of “evidence,”
because they were writings that defendant used to prove the non-existence of the
allegation that he had not paid child support.
Defendant also argues that the fraudulent checks and bank statements “did not
contain any of the indicia of evidence as defined in CALCRIM No. 104,” which defines
“evidence” as “the sworn testimony of witnesses, the exhibits admitted into evidence, and
anything else [the trial judge] tell[s] you to consider as evidence.” Like section 140 of
the Evidence Code, the definition in CALCRIM No. 104 says nothing about the meaning
of the phrase “offers in evidence.” Further, the definition in CALCRIM No. 104 is of

14
little utility in interpreting section 132 because jury instructions apply to trials, and
section 132 extends to any “proceeding, inquiry, or investigation whatever.”
Another “source of law” defendant relies on is California Rules of Court, rule
3.1306 (rule 3.1306), which governs the use of evidence at law and motion hearings.
This rule states, in part, that “[e]vidence received at a law and motion hearing must be by
declaration or request for judicial notice without testimony or cross-examination, unless
the court orders otherwise for good cause shown,” and a party seeking to present oral
evidence must seek written permission at least three days before the hearing. (Rule
3.1306(a), (b).) Defendant contends that this rule applied to the January 12 hearing, and
because defendant did not present the documents in conformity with it, he could not have
offered them in evidence within the meaning of section 132. Assuming, without
deciding, that rule 3.1306 even applied to the January 12 hearing,8 defendant’s argument
is meritless. Rule 3.1306 is not a rule of evidence or exclusion, but a rule of procedure
for law and motion proceedings. A document does not lose its status as “evidence”
because a party does not comply with the requirements of rule 3.1306. Further, a court
may consider evidence that is not submitted in compliance with rule 3.1306 if no
objection is made, or upon a showing of good cause. If rule 3.1306 even applied to the
January 12 proceeding, we may assume the family court commissioner found good cause
to consider the documents used by defendant. (Evid. Code, § 664.)9

8
Defendant submitted a special jury instruction on rule 3.1306 but then withdrew
his request. At defendant’s request, the jury was instructed on former California Rules of
Court, rule 5.119, which was in effect at the time of the January 12 hearing. That rule
stated “at a hearing on any order to show cause or notice of motion brought under the
Family Code, absent a stipulation of the parties or a finding of good cause . . . , the court
must receive any live, competent, and admissible testimony that is relevant and within the
scope of the hearing.” (Cal. Rules of Court, rule 5.119 [repealed effective Jan. 1, 2013].)
Like rule 3.1306, this rule is equally unpersuasive as authority that defendant did not
offer in evidence false documents at the January 12 hearing.
9
In his reply brief, defendant argues that the attorney general is interpreting
“offers in evidence” broadly, but that “[c]riminal statutes should be narrowly construed.”
This “rule of lenity” relied on by defendant only applies when there is an “ ‘egregious
ambiguity and uncertainty’ ” in the statute, and a court “can do no more than guess what

15
 We conclude there was substantial evidence that defendant “offer[ed] in evidence”
the fraudulent documents during the January 12 hearing. Defendant requested the court
hearing to quash an income-withholding order. He then affirmatively used the
documents in an effort to persuade the family court of the merits of his position.
Defendant held up the checks and bank statements during the hearing as proof he had
been “faithfully” paying child support since November 2010. He then provided the
documents to DCSS attorney Tannenwald, who told the commissioner that the checks did
not look like the kind he typically sees when looking for proof of child support payments.
Defendant’s former wife also examined the checks at the hearing and told the
commissioner she “never received these checks” and that it “looks like he photoshopped”
her signature onto the checks. After hearing from DCSS’s counsel and the parties, the
commissioner made a finding that “[b]ased on what I am hearing today . . . there has been
no payment yet received,” and concluded that “there is insufficient evidence today to go
forward” with defendant’s request to set aside the wage assignment order. (Emphasis
added.) We agree with Pereira that the phrase “offers in evidence” is “not used in a
technical sense or as a term of art.” (Pereira, supra, 207 Cal.App.3d at p. 1064.) On this
record, there was sufficient evidence to find that defendant had “offer[ed] in evidence”
forged or fraudulent documents at the January 12 hearing within the meaning of section
132.
4. February 29 Delivery of Documents to DCSS (Count 2)
Defendant challenges his conviction on count 2 on two grounds. First, he argues
that the meaning of “offers in evidence” does not extend to his delivery of documents to
DCSS on February 29. Second, he argues that even if it does extend to his conduct on
February 29, the evidence is insufficient to convict him because there was no evidence

the legislative body intended.” (People v. Avery (2002) 27 Cal.4th 49, 58.) The rule of
lenity has no application in this matter. We have not found an “ ‘egregious ambiguity
and uncertainty’ ” in section 132. Nor have the other courts that have construed the
meaning of “offers in evidence” in section 132.

16
that he “knew any kind of formal investigation would occur” when he delivered the
documents to DCSS.
As to the first argument, defendant makes many of the same arguments he raised
in connection with his conviction on count 1. He argues that he did not offer in evidence
the fraudulent checks on February 29 because he did not produce them under compulsion
of law. As we discussed earlier, whether a defendant offers evidence voluntarily is
beside the point for purposes of section 132. Defendant also relies on the same “other
sources of law” to argue that the phrase “offers in evidence” does not extend to his
conduct on February 29. Those authorities are equally inapposite for the same reasons
we have described.
Defendant relies on the dissenting opinion in Pereira, supra, 207 Cal.App.3d 1057
to support his argument that his delivery of documents to DCSS on February 29 was not
offering into evidence those documents within the meaning of section 132. This
argument is unavailing. In Pereira a defendant produced documents in response to a
subpoena in an FPPC proceeding, and produced similar documents in response to a
subpoena and informal request in a civil judgment enforcement proceeding. The
dissenting justice expressed the concern that “[u]nder the majority’s construction, any
known forged document delivered to some investigating official trolling on a fishing
expedition would violate the statute, even if it had no conceivable relevance to the
authorized investigation.” (Pereira, supra, 207 Cal.App.4th at p. 1076 [dis. opn. of
Sparks, J.].) The circumstances in the matter before us have no connection to this
concern. Defendant voluntarily delivered documents to DCSS and affirmatively used
them to support his claim that he had been faithfully paying child support. To the extent
the dissenting opinion in Pereira can be construed to mean that “offers in evidence”
should not extend to defendant’s conduct on February 29, we respectfully do not find it
persuasive.
Defendant’s other argument is that “[t]here was no evidence [he] knew any kind of
formal investigation would occur” when he delivered the documents to DCSS on
February 29. There was overwhelming evidence at trial to the contrary. At the

17
conclusion of the January 12 hearing, the commissioner told defendant that “if you want
to go to DCSS and show them documentation that you have been making timely
payments, you can re-file, and I will take it up again then.” Tannenwald wrote a letter to
defendant after the hearing, asking if defendant wanted DCSS to conduct an
“administrative review” of the missing child support payments. Defendant then
voluntarily went to DCSS on February 29 and provided DCSS with copies of the
fraudulent checks as proof that he was paying child support. Velasquez, the DCSS
caseworker, testified that when defendant provided the fraudulent checks and bank
statements on February 29, he “requested an administrative review as soon as possible.”
She also testified that defendant demanded that DCSS “unfreeze his accounts
immediately so that he could make his mortgage payment the next day.” The day after
defendant went to DCSS, Tannenwald wrote a letter to defendant stating that DCSS
received the documents and would “begin an administrative review and provide copies to
Ms. Parrish for verification.” Substantial evidence establishes that defendant knew
DCSS would conduct an administrative review.10
We thus conclude that there was sufficient evidence that defendant “offer[ed] in
evidence” fraudulent checks and bank statements when he provided them to DCSS on
February 29. Defendant hand-delivered the documents to DCSS in another attempt to
convince DCSS that he had been paying child support. Defendant’s stated goal was to
stop DCSS from garnishing his wages. It is undisputed that DCSS was authorized by
Family Code section 17526 to conduct an administrative review of the missing child
support payments, and that DCSS was required to “consider all evidence and defenses
submitted by either parent on the issues of the amount of support paid or owed.” (Fam.
Code, § 17526, subd. (a).) Given these circumstances, defendant’s actions on February

10
In any event, whether defendant knew DCSS would conduct an administrative
review of the missing child support payments is irrelevant to his section 132 conviction.
“The only mental element essential to a violation of section 132 is knowledge concurrent
with the offer in evidence that the document has been fraudulently altered or antedated.”
(Pereira, supra, 207 Cal.App.3d at pp. 1068-1069.) Defendant’s own testimony at trial
establishes that he knew the documents he provided to DCSS were fraudulent.

18
29 were more than just a “mere delivery” of documents to DCSS. He “offer[ed] in
evidence” the documents as part of a proceeding authorized by law. (§ 132.)
B. The Trial Court Did Not Commit Instructional Error.
Defendant argues that the trial court erred in instructing the jury about the
meaning of “offers in evidence.” We review de novo whether jury instructions correctly
state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.)
There is no CALCRIM instruction for section 132. The trial court gave an
instruction that first tracked the language of section 132, and then included a non-
exclusive list of examples of what it means to “offer[] in evidence” a document under the
statute. The instruction stated, in pertinent part:
“The defendant is charged in Counts 1 and 2 with offering false evidence in
violation of Penal Code Section 132. To prove that the defendant is guilty of this crime,
the People must prove, that: [¶] One, the defendant offered in evidence as genuine or true
any book, paper, document, record or other instrument in writing; two, the defendant
intended to produce it, or allow it to be produced, as genuine or true upon any trial,
proceeding, inquiry or investigation, whatever, authorized or permitted by law; three, the
defendant knew it was forged or fraudulently altered. [¶] The term ‘offer in evidence’ is
not used in the technical sense. The term ‘offer in evidence’ may include, but does not
necessarily need to include, the following: [¶] Formally offering a book, paper,
document, record or other instrument in writing into evidence in a court of law; filing a
court paper, document, record or other instrument in writing with the court; marking a
book, paper, document, record or other instrument in writing for identification; attaching
a book, paper, document, record or other instrument in writing to a declaration; providing
a book, paper, document or other instrument in writing, either in response to a subpoena
or by agreement with an opposing party; offering testimony regarding a book, paper,
document, record or other instrument in writing; reading a book, paper, document, record
or other instrument in writing into the record; or presenting a book, paper, document,
record or other instrument in writing for consideration upon any trial, proceeding, inquiry
or investigation, whatever, authorized by law. [¶] There is no requirement that the book,

19
paper, document, record or other instrument in writing that is offered has to be under oath
or by declaration under penalty of perjury. [¶] An administrative review is an inquiry
permitted by law.” (Italics added.)
Defendant argues the instruction was erroneous because “the language ‘offer in
evidence may include, but does not necessarily need to include the following . . . ,’
resulted in an instruction with no meaningful definition or limitation on what constituted
offering into evidence false evidence. . . . Other than listing examples, the instruction did
not provide any specific language defining ‘offer in evidence’ or imposing some limit on
that concept.” The Attorney General argues that defendant waived this argument because
he never submitted a clarifying instruction about the meaning of “offers in evidence,”
and, in any event, a jury could understand “offers in evidence,” and the examples “only
served to diminish the likelihood that the jury would misconstrue the meaning of the
phrase.” The Attorney General concludes that even if there was instructional error,
defendant suffered no prejudice.
“It is settled that ‘a defendant need not object to preserve a challenge to an
instruction that incorrectly states the law and affects his or her substantial rights.’
[Citations.] Even so, ‘ “a party may not complain on appeal that an instruction correct in
law and responsive to the evidence was too general or incomplete unless the party has
requested appropriate clarifying or amplifying language.” ’ [Citation.]” (People v.
Mackey (2015) 233 Cal.App.4th 32, 106.) Here, defendant’s challenge to the “may
include” language in the jury instruction is that it provided “no meaningful definition or
limitation” to what “offers in evidence” means. This is an argument that the instruction
was too general or incomplete. As such, defendant needed to propose amplifying and
clarifying language to the trial court. There is nothing in the record to show he did so,
and the argument is therefore waived. Defendant claims he submitted “special
instruction number three” to address this issue, but this instruction is not part of the
record on appeal, and the record does not otherwise indicate that it was presented to the
trial court for its consideration.

20
 Even if defendant had not waived his challenge to the “may include” language, we
find no error with the instruction given by the court. The first part of the jury instruction
tracks the language of section 132 and includes all of the elements of a section 132 claim.
Defendant does not, and cannot, argue that instructing the jury by using the language of
section 132 was improper. “If the jury would have no difficulty in understanding the
statute without guidance, the court need do no more than instruct in statutory language.”
(People v. Poggi (1988) 45 Cal.3d 306, 327.) Defendant cites no authority (and we are
aware of none) holding that an instruction which tracks the language of a statute
necessarily is given in error if the instruction goes on to give further explanation.
Moreover, even if we determined that the trial court erred by giving examples of
what offers in evidence “may include,” defendant was not prejudiced by the error.
Defendant argues that the prosecutor “referred repeatedly” to the challenged instruction
during closing argument. To the contrary, the prosecutor told the jury it did not need to
consider the full list of examples in the jury instruction and should focus on the last
example about “presenting” a document “for consideration” upon any trial or proceeding.
The prosecutor stated: “The Court read to you, it may include but does not necessarily
need to include all of these things. And I admit, none of these things happened. . . . It
was completely, completely irrelevant because the Court also read to you that ‘offer in
evidence’ is presenting a paper, document, record or other writing for consideration upon
a trial, proceeding, inquiry or investigation, whatever, authorized by law.” In other
words, the prosecutor focused the jury on the language of the statute, not the list of
“irrelevant” examples that had nothing to do with the evidence in this case.
As defendant acknowledges, the evidence at trial was essentially undisputed. As
to count 1, a full transcript of the January 12 hearing was admitted into evidence as one
of the prosecution’s exhibits. As to count 2, defendant admitted at trial that he provided
fraudulent documents to DCSS on February 29 with the hope that DCSS would review
the documents and stop garnishing his wages. In essence, the jury was presented with
largely undisputed evidence about the circumstances by which the documents were used.
Most of the examples in the compendium given by the court were in fact irrelevant to

21
how the fraudulent documents were used by defendant in this matter. On this evidence, it
was not “reasonably probable that a result more favorable to [defendant] would have
been reached in the absence of the error.” (See People v. Watson (1956) 46 Cal.2d 818,
836.) Even under the standard for constitutional error under Chapman v. California
(1967) 386 U.S. 18, 24, we conclude beyond a reasonable doubt that any error was
harmless.
Defendant also argues that the trial court erred by giving an “overbroad” jury
instruction that “offer in evidence” included “presenting a book, paper, document, record,
or other instrument in writing for consideration upon any trial, proceeding, inquiry, or
investigation whatever, authorized by law.” Defendant contends that “[t]his sentence did
not require the evidence to be presented to the trial court. Under the over broad
definition of ‘offer in evidence,’ in the jury instruction given by the trial court, appellant
offered a document in evidence if he merely handed it to the prosecutor.” The Attorney
General argues that defendant waived this argument by failing to submit a clarifying
instruction to the trial court, but that, in any event, this is simply a restatement of the
argument that “offers in evidence” does not cover the type of conduct defendant engaged
in at the court hearing on January 12 and at DCSS’s offices on February 29.
To the extent that defendant’s argument is that the trial court misstated the law, the
argument is not waived. As we have noted, “ ‘a defendant need not object to preserve a
challenge to an instruction that incorrectly states the law and affects his or her substantial
rights.’ ” (People v. Mackey, supra, 233 Cal.App.4th at p. 106.) Nevertheless, we find
defendant’s challenge to this portion of the instruction unavailing. The instruction states
in its entirety that a document must be “present[ed] . . . upon any trial, proceeding,
inquiry, or investigation whatever, authorized by law.” A reasonable juror could not
construe the instruction as saying that “merely” handing a document to a prosecutor
without more means the document was offered in evidence. To the extent defendant is
arguing that the instruction was erroneous because it allowed the jury to convict him
when he did not formally introduce a document into an evidentiary record, this restates
defendant’s sufficiency of the evidence arguments, which we have rejected. “There

22
simply is no requirement that a document must be moved into evidence in order to
constitute a violation of section 132.” (People v. Bhasin, supra, 176 Cal.App.4th at p.
468.)
DISPOSITION
The judgment is affirmed.

_________________________
Miller, J.

We concur:

_________________________
Richman, Acting P.J.

_________________________
Stewart, J.

A141550, People v. Gallardo

23
Trial Court: Superior Court of San Mateo County

Trial Judge: Hon. Barbara J. Mallach

Attorney for defendant and-appellant John L. Staley

By appointment of the Court of Appeal
under the First District Appellate
Project’s Independent Case System

Attorneys for plaintiff and respondent Kamala D. Harris
Attorney General
Gerald A. Engler
Chief Assistant Attorney General
Jeffrey M. Laurence
Acting Senior Assistant Attorney
General
Elizabeth W. Hereford
Deputy Attorney General

A141550, People v. Gallardo

24