Nathan Paul Kobrin appeals from a judgment of conviction entered after a jury found him guilty of one count of perjury (Pen. Code,1 § 118), two counts of arson (§ 451, subd. (d)), six counts of preparing false documentary evidence (§ 134), and nine counts of making a false report of a criminal offense (§ 148.5). Appellant claims his conviction must be reversed because the trial court instructed the jury improperly, and because the evidence was insufficient to support some of his convictions. We disagree and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 17, 1991, appellant looked out of his apartment window and saw Halim Sanjanie staring at him from near the apartment's pool. Appellant asked Sanjanie, " 'What's the problem?' " Sanjanie replied, " 'What's your problem.' " Appellant said, " 'I don't have a problem, I live here.' " Sanjanie then walked to within two feet of appellant's window and asked, " 'Are you
Jewish?' " Appellant said, " 'Yes.' " Sanjanie then said, " 'What are you a fucking spy? You Jew.' " Sanjanie raised his fist and shouted, " 'If I see you outside, I'm going to kill you. I'm going to kick your ass.' "
Appellant called the police who, after verifying appellant's account by speaking with witnesses, arrested Sanjanie for making terrorist threats. The district attorney then filed a complaint against Sanjanie and the case went to trial. Unfortunately, two of the jurors were exposed to news reports about the incident so a mistrial was declared. Retrial of the matter was then scheduled for October 1991.
The altercation between appellant and Sanjanie apparently caused appellant a great deal of stress. He was angry with Sanjanie and wanted to make him look bad. Thus, between June and September 1991, appellant staged a number of incidents in order to make it look as though Sanjanie was continuing to harass him. Appellant prepared six notes with threatening comments such as " 'I kill you fucking Jew' " and "No trial or you die," and told the police Sanjanie had left them on his doorstep. Appellant also set fire to a fence near his apartment twice and told the authorities Sanjanie was responsible. In addition, appellant called his apartment from a local pay phone several times and then told the police he had received threatening phone calls.
Appellant recounted many of these false incidents in a declaration he submitted to the Contra Costa County Superior Court. Based on the declaration, the court issued a restraining order barring Sanjanie from harassing appellant further.
Eventually, a police officer assigned to investigate the harassment claims began noticing inconsistencies in appellant's story. When the officer confronted appellant with those inconsistencies, appellant admitted that he had concocted the notes, set the fires, and staged many of the harassing phone calls.
Based on these facts, an information was filed charging appellant with the offenses noted above. After a jury convicted appellant on all counts, he timely filed the present appeal.
II. DISCUSSION
A. JURY INSTRUCTION ON PERJURY
Count 1, charging perjury, was based upon the declaration appellant submitted to the Contra Costa Superior Court asking that Sanjanie be barred
from harassing him further. Accordingly, the court in this case instructed the jury with CALJIC No. 7.21 as follows: "Every person who declares under penalty of perjury and willfully states as true any material matter which is false and which the defendant knows to be false is guilty of the crime of perjury in violation of Penal Code Section 118." The court then recited the various false statements appellant had recounted in the declaration and concluded the instruction by stating, " If you find the defendant made one or more of the statements as charged, said statements were material matters within the definition of perjury read to you. " (Italics added.)
Appellant now challenges that portion of the instruction which we have emphasized. He claims that whether the statements in the declaration were "material" was a question of fact which should have been submitted to the jury. By instructing the jury those statements were "material," appellant argues, the trial court violated his constitutional right to have the jury determine all the essential elements of the perjury offense. (See In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 375, 90 S.Ct. 1068].) We disagree.
In California, as in most states, the courts have held that the materiality of a statement in a perjury prosecution is a question of law for the court to decide. (See, e.g., People v. Pierce (1967) 66 Cal. 2d 53, 61 [56 Cal. Rptr. 817, 423 P.2d 969]; People v. McRae (1967) 256 Cal. App. 2d 95, 101 [63 Cal. Rptr. 854]; People v. Sagehorn (1956) 140 Cal. App. 2d 138, 153 [294 P.2d 1062]; People v. Brophy (1942) 49 Cal. App. 2d 15, 24-25 [120 P.2d 946]; see also Annot., Materiality of Testimony Forming Basis of Perjury Charge as Question for Court or Jury in State Trial (1985) 37 A.L.R.4th 948.) This rule has been in effect in California for over a century (see People v. Lem You (1893) 97 Cal. 224, 228-229 [32 P. 11]), and has been recognized by the appellate courts as recently as last year (People v. Jimenez (1992) 11 Cal. App. 4th 1611, 1622-1623 [15 Cal. Rptr. 2d 268]).
Most federal courts apply a similar rule. The United States Supreme Court first recognized that materiality in a perjury prosecution was a question of law in Sinclair v. United States (1929) 279 U.S. 263, 298. [73 L.Ed. 692, 699-700, 49 S.Ct. 268]. In the ensuing years, the court has reaffirmed this holding repeatedly, most recently only five years ago. (See Kungys v. United States (1988) 485 U.S. 759, 772 [99 L.Ed.2d 839, 853-854, 108 S.Ct. 1537] (per Scalia, J.); Russell v. United States (1962) 369 U.S. 749, 755-756 [8 L.Ed.2d 240, 245-247, 82 S.Ct. 1038]; Braden v. United States (1961) 365 U.S. 431, 435-438 [5 L.Ed.2d 653, 656-658, 81 S.Ct. 584].) Against this background, we have no difficulty in concluding the trial court could validly determine the materiality of appellant's misrepresentations. The instruction provided to the jury was correct.
Appellant presents two arguments in an attempt to evade this Conclusion. First, appellant relies on two recent cases where our state Supreme Court questioned whether the rule discussed above is still valid. In People v. Figueroa (1986) 41 Cal. 3d 714, 733, footnote 22 [224 Cal. Rptr. 719, 715 P.2d 680], the court stated the continuing validity of the proposition that materiality is a question of law was doubtful in light of modern due process requirements. Then in People v. Hedgecock (1990) 51 Cal. 3d 395, 409 [272 Cal. Rptr. 803, 795 P.2d 1260], the court held that, ". . . in a perjury prosecution based on errors or omissions in disclosure statements required by the [Political Reform] Act, materiality is an element of the offense, and must therefore be determined by the jury." The Supreme Court also stated that it expressed "no view whether in perjury prosecutions based on false testimony at a judicial or legislative proceeding the question of materiality is a jury issue." (Ibid.) Appellant interprets these comments as meaning that whether a statement is "material" in a perjury prosecution must now be determined by a jury. Of course, neither Figueroa nor Hedgecock stands for that proposition. In both cases, the court declined to consider the continuing viability of the rule. It is fundamental that cases are not authority for propositions which are not considered. (People v. Dillon (1983) 34 Cal. 3d 441, 473-474 [194 Cal. Rptr. 390, 668 P.2d 697].)
In any event, the vast majority of federal and state cases decided after Figueroa and Hedgecock have concluded that materiality is still an issue for the court to decide. (See People v. Jimenez, supra, 11 Cal. App. 4th at pp. 1622-1623; U.S. v. Wood (10th Cir. 1992) 958 F.2d 963, 973, fn. 15; U.S. v. Jones (10th Cir. 1991) 933 F.2d 807, 811-812.) Indeed, one court has gone so far as to state the federal circuit courts are now "unanimous" in this Conclusion. (See U.S. v. Paxson (D.C. Cir. 1988) 861 F.2d 730, 731-732 & fn. 1 [274 U.S.App.D.C. 71].) In the face of this continuing and near unbroken line of authority, we conclude materiality is a question of law even in light of modern due process considerations.
Appellant's alternate challenge is based on a line of authority emanating from United States v. Valdez (9th Cir. 1979) 594 F.2d 725, 729, where the Ninth Circuit held the materiality element of a perjury prosecution under 18 United States Code section 1001 must be decided by the jury. Appellant urges us to apply a similar rule here. We decline to do so for two reasons. First, the United States Supreme Court has approved a line of authority which holds that materiality in an action under 18 United States Code section 1001 is an issue for the court to decide. (Kungys v. United States, supra, 485 U.S. at p. 772 [99 L.Ed.2d at pp. 853-854].) In light of this ruling, the continuing viability of Valdez and the cases which follow it is in question. Second, even the Ninth Circuit interprets the Valdez rule narrowly
and has refused to extend that holding to perjury prosecutions under other federal statutes. (See, e.g., United States v. Flake (9th Cir. 1984) 746 F.2d 535, 537-538; U.S. v. Larm (9th Cir. 1987) 824 F.2d 780, 783-784.) Given the Ninth Circuit's reluctance to extend its own rule, we see no reason to extend that holding to California law.2
B. SUFFICIENCY OF THE EVIDENCE*fn*
III. DISPOSITION
The judgment is affirmed.
King, J., and Haning, J., concurred.
Disposition
The judgment is affirmed.
1. Unless otherwise indicated, all subsequent statutory references are to the California Penal Code.
2. Having reached this Conclusion, we need not determine whether any alleged instructional error was harmless.
* See footnote, ante, page 1668.