Filed 11/18/16
                           CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                      DIVISION ONE


THE PEOPLE,
        Plaintiff and Appellant,
                                                    A148325
v.
WILSON MORERA-MUNOZ,                                (San Francisco County
                                                    Super. Ct. App. No. APP-15-007903)
        Defendant and Respondent.


        The People challenge the San Francisco Superior Court appellate division’s
decision finding unconstitutional Vehicle Code section 31,1 which criminalizes the
making of false statements to law enforcement officers while they are engaged in the
performance of their duties under that code. Specifically, the appellate division
invalidated section 31 on the ground that it improperly restricts speech in contravention
of the First Amendment of the United States Constitution because the statute’s
application is not expressly restricted to the making of “material” misstatements. Based
on this conclusion, the appellate division reversed defendant’s conviction. The People
argue that the statute may be construed or reformed to include a materiality provision,
thereby curing any constitutional deficiencies. Construing the statute to include such a
provision, we conclude the statute is not constitutionally infirm. In light of this, the jury
should have been instructed on the element of materiality. Under the circumstances of
this case, however, we conclude the instructional error is harmless beyond a reasonable




        1
        All further statutory references are to the Vehicle Code except as otherwise
indicated.
doubt. Accordingly, we reverse the judgment of the appellate division and order
defendant’s conviction reinstated.
           FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I.     The Arrest and Trial
       Just after midnight on September 2, 2014, a San Francisco police officer was
dispatched to investigate a report of a person asleep behind the wheel of a vehicle parked
in a lane of travel.2 Defendant was the vehicle’s sole occupant. He was in the driver’s
seat, slouched forward with his seat belt fastened. The vehicle was not running but the
keys were in the ignition. When the officer reached in to retrieve the keys, he noticed an
odor of alcohol. The officer then ordered defendant to exit the vehicle and stand on the
sidewalk. When questioned, defendant denied having had anything to drink, and said he
had been on his way home from work. He agreed to take a breath test, which showed
blood-alcohol levels of 0.260 percent and 0.266 percent. He was then arrested on
suspicion of driving under the influence.
       On September 12, 2014, the People filed a misdemeanor complaint charging
defendant with driving under the influence of alcohol (§ 23152, subd (a)—count 1),
driving with an 0.08 percent or higher blood-alcohol level (§ 21352, subd. (b)—count 2),
providing false information to a peace officer (§ 31—count 3), driving while having 0.01
percent or higher blood-alcohol level while on probation (an infraction) (§ 23154,
subd. (a)—count 4), and violating the minimum speed law (§ 22400, subd. (a)—count 5).
The complaint also alleged a prior conviction for violating section 23152, subdivision (b),
and included allegations that his blood-alcohol content exceeded both 0.15 percent
(§ 23578) and 0.20 percent (§ 23538, subd. (b)(2).)
       At trial, defendant testified—contrary to his statement to the officer—that on the
night of his arrest he was returning from an after-work party at which he “drank a few
beers.” He had departed from the party with a friend, who drove defendant’s vehicle and

       2
        The parties have not provided us with a reporter’s transcript of the trial.
However, they do not appear to dispute the relevant facts. We take the facts from the
appellate division’s opinion and from recitations appearing in the parties’ briefs.

                                             2
later left him inside with the keys in the ignition. Defendant moved to the driver’s seat,
fastened the seat belt, and fell asleep.
       On January 28, 2015, a jury found defendant guilty of count 3, and not guilty of
counts 1 and 2. The prosecutor dismissed counts 4 and 5 on the same day. As to count 3,
the section 31 count, the jury had been instructed as follows: “To prove the Defendant
guilty of this crime, the People must prove that: One, the Defendant gave information
either orally or in writing; Two, that information was given to [a] peace officer in
lawfully performing or attempting to perform his duties as a peace officer; Three, the
Defendant knew the information to be false.” The court also read a unanimity instruction
for this charge, indicating the People had presented evidence of more than one violation
and that all the jurors had to agree on the violation that was proven. The jury was not
required to disclose which violation it selected.
       On February 6, 2015, the trial court suspended imposition of sentence and placed
defendant on 18 months of probation with various terms and conditions.
II.    The Appeal to the Appellate Division
       On February 9, 2015, defendant appealed his conviction to the superior court’s
appellate division. In his opening brief, his principal argument was that section 31 is
facially invalid under the First Amendment of the United States Constitution because it
criminalizes the giving of any false information to a peace officer without regard to the
information’s materiality.
       On April 18, 2016, the appellate division reversed defendant’s conviction. The
court relied on United States v. Alvarez (2012) ___ U.S. ___ [132 S.Ct. 2537] (Alvarez),
in concluding that section 31 must be interpreted narrowly to require the false statement
at issue to have materially affected the performance of the officer’s duties. After finding
the statute would not survive intermediate scrutiny without this modification, the
appellate division concluded retrial was necessary because the jury had not been
instructed on the element of materiality.
       On April 20, 2016, defendant requested certification of the judgment for
publication.


                                              3
       On April 29, 2016, the People petitioned for rehearing, asking the appellate
division to reconsider its definition of “materiality” or, alternatively, to certify the case
for transfer to this court.3
       On May 17, 2016, the appellate division filed a modified final judgment. Rather
than define the term materiality more specifically, the court declined to construe
section 31 altogether, declaring it unconstitutional and ordering judgment entered in favor
of defendant. To assist this court in deciding whether to order the case transferred, the
appellate division transmitted a copy of the certified for publication opinion.
       On May 25, 2016, we decided transfer was warranted and ordered the case
transferred to this court on our own motion. (See Cal. Rules of Court, rule
8.1008(a)(1)(B).)
                                        DISCUSSION
I.     The People’s Contentions
       The People assert the appellate division erred when it held section 31 violates the
First Amendment because the statute does not specifically target “material”
misstatements made to peace officers. Instead of invalidating section 31, the People urge
that the appellate division should have construed or reformed the statute to include a
materiality provision. The People also argue defendant’s conviction should be reinstated
because any failure to instruct the jury on the element of materiality was harmless beyond
a reasonable doubt.
II.    Standard of Review
       Where an issue presented involves the constitutionality of a statute, we review the
lower court’s determination de novo. (Vergara v. State of California (2016)
246 Cal.App.4th 619, 642.) In conducting our review, we adhere to the settled principles
that “ ‘[statutes] are to be so construed, if their language permits, as to render them valid
and constitutional rather than invalid and unconstitutional’ [citation] and that California

       3
        The appellate division had interpreted section 31 “to apply only to false
statements that materially affected the performance of an officer’s duties under the
Vehicle Code.” The People argued this subjective standard was incorrect.

                                               4
courts must adopt an interpretation of a statutory provision which, ‘consistent with the
statutory language and purpose, eliminates doubt as to the provision’s constitutionality.’ ”
(People v. Amor (1974) 12 Cal.3d 20, 30; see People v. Harrison (2013) 57 Cal.4th 1211,
1228.)
III.     General First Amendment Principles
         As a general matter, the First Amendment’s guarantee of freedom of speech means
that government has no power to restrict expression because of its message, ideas, subject
matter, or content. (Alvarez, supra, 132 S.Ct. at p. 2543; Ashcroft v. American Civil
Liberties Union (2002) 535 U.S. 564, 573.)4 The Constitution demands that content-
based restrictions on speech be presumed invalid and that the government bear the burden
of showing their constitutionality. (Alvarez, at pp. 2543–2544.) But while the First
Amendment grants individuals broad freedoms with respect to speech, the right to free
speech is not without limits. The Supreme Court has repeatedly recognized that certain
categories of speech do not enjoy the benefit of full First Amendment protection. (See
Alvarez, at p. 2544; United States v. Stevens (2010) 559 U.S. 460, 468–469 (Stevens).)5
Also, if a statute is content neutral, courts apply intermediate scrutiny, a more lenient test
than the test applied to content-based restrictions, because “[c]ontent-neutral [statutes] do
not pose the same ‘inherent dangers to free expression’ . . . that content-based regulations
do.” (Turner Broadcast System., Inc. v. FCC (1997) 520 U.S. 180, 213 (Turner).)




         4
         We observe neither the parties nor amicus curiae address the California
constitutional liberty of speech clause. Whereas the First Amendment to the United
States Constitution, in relevant part, provides that government “shall make no law . . .
abridging the freedom of speech,” article I, section 2, subdivision (a), of the California
Constitution reads: “Every person may freely speak, write and publish his or her
sentiments on all subjects, being responsible for the abuse of this right. A law may not
restrain or abridge liberty of speech or press.”
         5
         As discussed further below, these categories include obscenity, defamation,
fraud, incitement, and speech integral to criminal conduct. (Stevens, supra, 559 U.S. at
pp. 468–469.)

                                              5
IV.    Section 31
       Enacted in 1965 (Stats. 1965, ch. 1264, § 1, pp. 3139–3140), section 31 provides:
“No person shall give, either orally or in writing, information to a peace officer while in
the performance of his duties under the provisions of this code when such person knows
that the information is false.” Legislative history indicates the statute was primarily
“intended to curtail [the practice of knowingly giving traffic officers false information] in
accident investigation and reporting,” with the goal of “mak[ing] the accident reports
more valid and prevent[ing] a waste of manpower in disproving such false statements.”
(Cal. Highway Patrol, memo to Gov. Edmund G. Brown, July 12, 1965.)
       A contemporaneous report prepared by the Office of Legislative Counsel on
July 8, 1965, does not mention the First Amendment, but does cite to cases pertaining to
due process and statutory construction and observes: “A literal construction of this bill
would make it unlawful for a person knowingly to give any false information to a peace
officer on duty, whether or not it related to and materially affect[ed] the officer’s duties
under the Vehicle Code. In view of the rules mentioned, however, we are of the opinion
that a court would limit its application to the giving only of false information relating to
and materially affecting the performance by the peace officer of his Vehicle Code
duties.” (Legis. Counsel, Rep. on Sen. Bill No. 123 (1965 Reg. Sess.), p. 2, italics
added.)

V.     The Appellate Division Erred in Relying on Alvarez Because Section 31 Does
       Not Target Protected Speech
       As noted above, in its final judgment the appellate division concluded section 31
does not survive intermediate scrutiny absent a materiality provision. Abandoning its
initial attempt to construe section 31 to include a materiality provision, it declared the
statute to be unconstitutional. In arriving at its conclusion, the panel relied heavily on the
United States Supreme Court’s decision in Alvarez, which invalidated, on First
Amendment grounds, a federal statute criminalizing the making of statements falsely
asserting that one had received certain military awards. That opinion is readily
distinguishable from the present case.


                                              6
       A. The Alvarez Decision
       At issue in Alvarez was the constitutionality of the Stolen Valor Act of 2005,
former 18 United States Code section 704(b), which at that time provided, in relevant
part: “Whoever falsely represents himself or herself, verbally or in writing, to have been
awarded any decoration or medal authorized by Congress for the Armed Forces of the
United States . . . shall be fined under this title, imprisoned not more than six months, or
both.” (Alvarez, supra, 132 S.Ct. at p. 2543.) The defendant in Alvarez challenged the
constitutionality of the statute after the federal government filed charges against him for
falsely telling fellow district water board members, at a public meeting, that he had been
awarded a Congressional Medal of Honor.
       The Supreme Court struck down the Stolen Valor Act in a six-to-three decision,
although no opinion garnered a majority of the Court. Writing for the four-justice
plurality, Justice Kennedy began by articulating the general rule that “content-based
restrictions on speech have been permitted, as a general matter, only when confined to the
few ‘ “historic and traditional categories [of expression] long familiar to the bar.” ’ ”
(Alvarez, supra, 132 S.Ct. at p. 2544, quoting Stevens, supra, 559 U.S. at p. 468.) He
listed these categories as follows: incitement, obscenity, defamation, speech integral to
criminal conduct, fighting words, child pornography, fraud, true threats, and speech
presenting grave and imminent danger. (Alvarez, at p. 2544.) Noticeably absent from
this list, he noted, is a general exception to the First Amendment for false statements.
(Alvarez, at p. 2544.) The plurality surmised that this absence “comports with the
common understanding that some false statements are inevitable if there is to be an open
and vigorous expression of views in public and private conversation, expression the First
Amendment seeks to guarantee.” (Ibid.)
       Justice Kennedy distinguished Supreme Court precedent that the government
argued had excepted false statements from First Amendment protections entirely: “These
quotations all derive from cases discussing defamation, fraud, or some other legally
cognizable harm associated with a false statement, such as an invasion of privacy or the
costs of vexatious litigation. [Citation.] In those decisions the falsity of the speech at


                                              7
issue was not irrelevant to our analysis, but neither was it determinative. The Court has
never endorsed the categorical rule the Government advances: that false statements
receive no First Amendment protection. Our prior decisions have not confronted a
measure, like the Stolen Valor Act, that targets falsity and nothing more.” (Alvarez,
supra, at p. 2545, italics added.)
       The plurality also addressed three examples (again raised by the government) of
criminal laws regulating false speech that courts have generally found permissible:
(1) the federal criminal prohibition of a false statement made to a government official,
(2) federal and state laws punishing perjury, and (3) federal prohibitions of the false
representation that one is speaking as a government official or on behalf of the
government. The plurality reasoned that these restrictions “do not establish a principle
that all proscriptions of false statements are exempt from exacting First Amendment
scrutiny.” (Alvarez, supra, 132 S.Ct. at p. 2546.) Rather, the plurality found all of these
offenses were distinguishable from the criminalization of pure speech.
       Significantly, for our purposes, in regard to the federal statute prohibiting false
statements to government officials, which punishes “whoever, in any matter within the
jurisdiction of the executive, legislative, or judicial branch of the Government . . .
[¶] . . . [¶] makes any materially false, fictitious, or fraudulent statement or
representation” (18 U.S.C. § 1001), the Alvarez plurality observed the statute’s
prohibition of false statements “made to Government officials, in communications
concerning official matters, does not lead to the broader proposition that false statements
are unprotected when made to any person at any time . . . .” (Alvarez, supra, 132 S.Ct. at
p. 2546, italics added.)
       The plurality also noted the same point could be made as to the unquestioned
constitutionality of federal and state perjury statutes, reasoning: “It is not simply because
perjured statements are false that they lack First Amendment protection. Perjured
testimony ‘is at war with justice’ because it can cause a court to render a ‘judgment not
resting on truth.’ [Citation.] Perjury undermines the function and province of the law
and threatens the integrity of judgments that are the basis of the legal system. [Citation.]


                                               8
Unlike speech in other contexts, testimony under oath has the formality and gravity
necessary to remind the witness that his or her statements will be the basis for official
government action, action that often affects the rights and liberties of others. Sworn
testimony is quite distinct from lies not spoken under oath and simply intended to puff up
oneself.” (Alvarez, supra, 132 S.Ct. at p. 2546, italics added.)
       Finally, the plurality distinguished statutes prohibiting false representations that
one is speaking on behalf of the government and/or impersonating a government officer,
noting these provisions “also protect the integrity of Government processes, quite apart
from merely restricting false speech.” (Alvarez, supra, 132 S.Ct. at p. 2546.) To the
extent such statutes “implicate fraud or speech integral to criminal conduct,” the plurality
reasoned, they were inapplicable to the issue at hand. The plurality then summarized:
“As our law and tradition show, then, there are instances in which the falsity of speech
bears upon whether it is protected. Some false speech may be prohibited even if
analogous true speech could not be. This opinion does not imply that any of these
targeted prohibitions are somehow vulnerable.” (Id. at p. 2546, italics added.)
       Having established that the court would not create a new category of unprotected
speech for false statements, the plurality turned to the constitutionality of the Stolen
Valor Act. Noting that “[t]he Act by its plain terms applies to a false statement made at
any time, in any place, to any person,” the plurality surmised that the “sweeping, quite
unprecedented reach of the statute puts it in conflict with the First Amendment.”
(Alvarez, supra, 132 S.Ct. at p. 2547.) The plurality then proceeded to apply “exacting
scrutiny” to the Stolen Valor Act, determining it could not survive. (Alvarez, at
p. 2548.)6 Although recognizing the government had compelling interests in protecting
the integrity of the Congressional Medal of Honor, the plurality determined the


       6
         Justice Breyer, joined by Justice Kagan, produced the majority for invalidating
the statute. Concurring in the judgment, while applying the test of intermediate scrutiny,
Justice Breyer agreed that the Stolen Valor Act worked a disproportionate harm to
protected speech interests relative to the government’s interests advanced by the Act.
(Alvarez, supra, 132 S.Ct. at p. 2556, conc. opn. of Breyer, J.)

                                              9
government had not shown its chosen restriction on speech was “ ‘actually necessary’ ”
(id. at p. 2549) to achieve its interest or that the restriction was “ ‘the least restrictive
means among available, effective alternatives’ ” (id. at p. 2551).
       B. Application to the Present Case
       Preliminarily, a look to our Penal Code and Civil Code reveals that there are many
categories of speech on which the state has placed certain limitations. For example, our
justice system has criminalized perjury (Pen. Code, § 118), the making of criminal threats
(id., § 422)7 and soliciting bribes (id., § 653f). These statutory provisions penalize
individuals for their written or spoken words, but each serves an important governmental
purpose. Under the Civil Code, we allow individuals to file lawsuits and recover against
those who intentionally deceive or defraud, those who defame, and those whose words
intentionally inflict emotional distress. This is not to say that all false or hurtful speech
falls outside the purview of First Amendment protection. To the contrary, as the plurality
in Alvarez elucidates in its opinion, the right to free speech does extend protection to
some classes of false speech. (Alvarez, supra, 132 S.Ct. at p. 2551.)
       Similarly, we conclude section 31 legitimately criminalizes the making of false
statements that interfere with the proper enforcement of the Vehicle Code. As we have
discussed, such statements do not implicate protected expressive activity. Accordingly,
on its face the statute under which defendant was convicted does not address speech




       7
          It is settled that Penal Code section 422 is not unconstitutionally overbroad
because it is narrowly tailored to true threats, which are not protected by the First
Amendment. (People v. Toledo (2001) 26 Cal.4th 221, 233; In re Ryan D. (2002)
100 Cal.App.4th 854, 861–862; People v. Fisher (1993) 12 Cal.App.4th 1556, 1558–
1560.) “[T]he type of threat satisfying the criminal threat provisions of section 422—that
is, a threat ‘to commit a crime which will result in death or great bodily injury to another
person . . . which, on its face and under the circumstances in which it is made, is so
unequivocal, unconditional, immediate, and specific as to convey to the person
threatened, a gravity of purpose and an immediate prospect of execution of the threat’—
constitutes speech that falls outside the protection of the First Amendment.” (Toledo, at
p. 233.)

                                                10
protected by the First Amendment. Nevertheless, even if we were to assume that it does,
we would conclude that section 31’s prescription is constitutional.
VI.    Section 31 Passes Constitutional Muster Under the First Amendment
       A. Section 31 Is Not a Content-Based Restriction
       The United States Supreme Court has observed, “Deciding whether a particular
regulation is content based or content neutral is not always a simple task. We have said
that the ‘principal inquiry in determining content-neutrality . . . is whether the
government has adopted a regulation of speech because of [agreement or] disagreement
with the message it conveys.’ [Citations.] The purpose, or justification, of a regulation
will often be evident on its face. [Citation.] But while a content-based purpose may be
sufficient in certain circumstances to show that a regulation is content based, it is not
necessary to such a showing in all cases. [Citations.] Nor will the mere assertion of a
content-neutral purpose be enough to save a law which, on its face, discriminates based
on content.” (Turner, supra, 512 U.S. at pp. 642–643.)
       In asserting section 31 is content based, defendant relies on Houston v. Hill (1987)
482 U.S. 451 (Hill). Hill is distinguishable. The law at issue in that case made it a crime
for citizens to interrupt and/or behave rudely towards police officers. By criminalizing
the act of “ ‘oppos[ing], molest[ing], abus[ing] or interrupt[ing] any policeman in the
execution of his duty,’ ” the statute found unconstitutional in Hill was not only content
based, but restricted a particular viewpoint—the viewpoint expressing “verbal criticism
and challenge directed at police officers.” (Hill, at p. 461.) As Hill noted, the freedom to
express that viewpoint “without thereby risking arrest is one of the principal
characteristics by which we distinguish a free nation from a police state.” (Id. at p. 463.)
This type of benign expressive conduct is not what we are dealing with in the present
case. Here, we are concerned with persons who give deliberate misinformation to law
enforcement officers acting within the scope of their official duties. Additionally, no
viewpoint or even general subject matter is singled out by section 31.
       As Alvarez teaches, there is no general exception to the First Amendment for false
statements. (Alvarez, supra, 132 S.Ct. at pp. 2544–2545.) But, unlike the Stolen Valor


                                              11
Act analyzed in Alvarez, which targets falsity and nothing more, section 31 does not
imply the broader proposition that false statements falling within its purview are
unprotected when made to any person, at any time, in any context. (Alvarez, at p. 2547.)
Additionally, the falsities governed here have no value in and of themselves, are
necessarily injurious, and do not “chill” otherwise valuable or protected speech. (Id. at
pp. 2547–2549 [holding that the Stolen Valor Act falters under First Amendment scrutiny
given its sweeping reach without any clear limiting principle on the government power it
instills].) Section 31 criminalizes only those lies that are particularly likely to produce
harm. (See Alvarez, at p. 2554, conc. opn. of Breyer, J.)
       The People correctly argue that section 31 is content neutral. Defendant disagrees,
but concedes that the degree of scrutiny applicable here is intermediate scrutiny under the
narrowest holding of Alvarez. (See Alvarez, supra, 132 S.Ct. at pp. 2151–2152.) Justice
Breyer’s two-person concurring decision in Alvarez (applying the intermediate test) was
that narrowest ground, opining with Justice Kennedy’s four-person plurality for a six-
vote judgment. When a fragmented court decides a case, and no single rationale enjoys
the assent of five Justices, “ ‘the holding of the Court may be viewed as that position
taken by those Members who concurred in the judgments on the narrowest grounds.’ ”
(Marks v. U.S. (1977) 430 U.S. 188, 193 (Marks).) Amicus curiae American Civil
Liberties Union (ACLU) asserts the strict scrutiny test is warranted, but fails to explain
why the Marks rule does not apply.8


       8
         The ACLU states: “On its face, [section] 31 criminalizes speech based on its
content—whether it is false or not. Therefore it is a content-based regulation,” citing to
Reed v. Town of Gilbert (2015) 135 S.Ct. 2218, 2226–2227 (Reed). In Reed, the high
court observed: “Our precedents have also recognized a separate and additional category
of laws that, though facially content neutral, will be considered content-based regulations
of speech: laws that cannot be ‘ “justified without reference to the content of the
regulated speech,” ’ or that were adopted by the government ‘because of disagreement
with the message [the speech] conveys,’ [citation]. Those laws, like those that are
content based on their face, must also satisfy strict scrutiny.” (Reed, at p. 2227.) Under
Reed, content-based speech can be curtailed by narrowly drawn statutes that are tailored
to serve a compelling state interest. Here, DUI investigations and investigations of motor

                                              12
       Even without considering Marks, we believe section 31 is a content-neutral
provision. A statute may be content neutral if it “ ‘serves purposes unrelated to the
content of the expression,’ . . . ‘. . . even if it has an incidental effect on some speakers or
messages but not others.’ ” (Los Angeles Alliance for Survival v. City of Los Angeles
(2000) 22 Cal.4th 352, 368, quoting Ward v. Rock Against Racism (1989) 491 U.S 781,
791 (Ward).) For example a city may place restrictions on solicitations for immediate
donations if it is “predominately . . . addressed to the inherently intrusive and potentially
coercive nature of that kind of speech, and not to the content of the speech.” (Los
Angeles Alliance for Survival v. City of Los Angeles, at p. 373.) Or an injunction may
issue where one company misappropriates another company’s property even where the
misappropriation concerns constitutionally protected computer code. (DVD Copy
Control Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 878 (Bunner).) The Legislature’s
purpose in adopting a statute is the “controlling consideration” in evaluating whether a
statute is content neutral. (Ward, at p. 791.)
       Here, properly construed, section 31 is addressed towards a purpose other than the
transmission of a particular message. It is directed towards false representations, but only
to the extent these falsities have the potential to corrupt an official investigation.
Similarly, in Bunner, the injunction was not aimed at any particular subject matter, only
at trade secrets generally. Here, section 31 does not focus on any particular subject as
Alvarez did; it does not endorse a particular view. It only targets falsehoods when uttered
to an officer engaged in the performance of his or her duties.
       B. Section 31 Survives Intermediate Scrutiny
       When a regulation is content neutral, imposing only an incidental burden on
speech, the intermediate level of scrutiny is applicable. (Turner, supra, 512 U.S. at
p. 662.) Under this test, a restriction on expressive activity will be deemed valid if “ ‘it


vehicle collisions are both compelling state interests. These events must be investigated
and truthful information is critical to making proper determinations. While we do not
believe strict scrutiny applies, to the extent the investigative process implicates free
speech at all, we would find section 31 passes constitutional muster under Reed.

                                               13
furthers an important or substantial governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the furtherance of that
interest.’ [Citation.] [¶] To satisfy this standard, a regulation need not be the least
speech-restrictive means of advancing the Government’s interests. ‘Rather, the
requirement of narrow tailoring is satisfied “so long as the . . . regulation promotes a
substantial government interest that would be achieved less effectively absent the
regulation.” ’ ” (Turner, at p. 662.)
       There can be little doubt that false statements made to peace officers acting within
the scope of their duties under the Vehicle Code have the potential to disrupt official
investigations. The Legislature responded to this problem by appropriately crafting a
statute that criminalizes false statements that impede officers from carrying out their
official duties under provisions of the Vehicle Code. The section furthers a substantial
government interest and is certainly not an example of the government “orchestrat[ing]
public discussion through content-based mandates,” as discussed at length in Alvarez,
supra, 132 S.Ct. at page 2550. The potential cognizable harm attendant to the utterance
of false evidence during a criminal investigation, or even made in the context of private
insurance claims, is as serious as the harm attendant to falsely representing that one is
speaking on behalf of the government and perjury, both recognized by the Alvarez
plurality as unprotected speech.
       Defendant finds fault with some of section 31’s terminology, which he describes
as overbroad. Specifically, section 31 does not explicitly limit actionable false statements
to statements that are material to an officer’s investigation. As we will discuss in more
detail below, when properly construed the statute’s perceived flaw is rendered moot.
Once section 31 is read as containing a materiality requirement, all constitutional
standards are met. Further, unlike the Stolen Valor Act, section 31 does not target
“falsity alone” (Alvarez, supra, 132 S.Ct. at p. 2545), nor does it prohibit speech on “one
subject in almost limitless times and settings” (id. at p. 2547). Rather, the statute’s reach
is limited to a specific setting (statements made “to a peace officer”) where a false


                                             14
statement is offered for a particular purpose (“while in the performance of his duties”).
(See § 31.) Thus, it is much more akin to the categories of false speech that the plurality
reaffirmed the government could criminalize without running afoul of the First
Amendment: false statements to federal officials, perjury, and impersonating government
officials. (Alvarez, at pp. 2545–2546.) Alvarez simply does not stand for the proposition
that the First Amendment categorically protects unsuccessful attempts to undermine a
government-initiated investigative process by the assertion of false statements.
       Section 31 also is unrelated to the suppression of free speech and does not target
more speech than necessary. Notably, title 18 United States Code section 1001 is
analogous in its scope to section 31. As noted in Alvarez, supra, 132 S.Ct. at pp. 2561–
2562, this statute makes it a crime to “ ‘knowingly and willfully’ ” make any materially
false, fictitious, or fraudulent statements or representations “in ‘any matter within the
jurisdiction of the executive, legislative, or judicial branch of the Government of the
United States.’ ” This bar on false statements is not limited to statements taken under
oath. (Alvarez, at p. 2561, conc. opn. of Breyer, J.) Similarly to 18 United States Code
section 1001, section 31 only prohibits intentional deceit to a peace officer about an
investigation undertaken pursuant to provisions of the Vehicle Code. While the false
statements in Alvarez received constitutional protection, the statements at issue were
quite broad because the Stolen Valor Act also prohibited false statements made in private.
(Alvarez, at p. 2547.) Here, the speech targeted by section 31 is much narrower in scope.
       Furthermore, title 18 United States Code section 1001 has survived constitutional
scrutiny from federal courts. In Clipper Exxpress v. Rocky Mountain Motor Tariff
Bureau, Inc. (9th Cir. 1982) 690 F.2d 1240 (Clipper Exxpress), the Ninth Circuit
discussed whether First Amendment protections extended to false statements made to an
administrative or adjudicatory body. The appellate court considered the Clipper Exxpress
defendant’s contention that if the First Amendment did not extend to such false
statements, “robust debate would be chilled.” (Clipper Exxpress, at p. 1262.) The Ninth
Circuit rejected this argument, recognizing that restrictions on false statements and
imposition of criminal liability for such falsities may sometimes “hamper debate,” but


                                             15
that “this possibility does not require that all such statements be immunized from
liability.” (Ibid., citing to New York Times Co. v. Sullivan (1964) 376 U.S. 254.)
VII.   Construed as Including a Materiality Requirement, Section 31 Comports with
       Due Process.
       The People offer to concede that without the addition of a materiality requirement,
section 31 is unconstitutional. Similarly, the ACLU stresses that section 31, as currently
worded, is flawed because it “is not limited to ‘material’ falsehoods” and “there is no
necessary connection between the prohibited false information and whether law
enforcement resources will be used to disprove it.” Like the People, the ACLU notes that
without a materiality provision, section 31 “burdens far more speech than is necessary to
further the government’s interest in preventing the waste of resources to disprove false
statements made to an officer during performance of the officer’s duties.” The ACLU
goes on to state: “A narrower statute that criminalizes only materially false information
would achieve any compelling government interest in preventing waste of investigative
resources.”
       We agree the statute runs afoul of due process principles unless it is read to
include the element of materiality: “It is true . . . that enactments ‘which are over-broad
are unconstitutional’ [citation]. It is also true that a statute which is overly broad in its
terms or coverage amounts to denial of due process because it fails to provide a proper
definition of the crime intended to be established.” (American Civil Liberties Union v.
Board of Education (1963) 59 Cal.2d 203, 219.) “ ‘The Fourteenth Amendment to the
United States Constitution and article I, section 7 of the California Constitution, each
guarantee that no person shall be deprived of life, liberty, or property without due process
of law. This constitutional command requires “a reasonable degree of certainty in
legislation, especially in the criminal law . . . .” [Citation.] “[A] penal statute [must]
define the criminal offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not encourage arbitrary
and discriminatory enforcement.” ’ [Citation.] If a criminal statute is not sufficiently
certain and definite, it is unconstitutionally vague and therefore void. A criminal statute


                                               16
is unconstitutionally vague on its face only if it is ‘ “impermissibly vague in all of its
applications.” ’ ” (People v. Maciel (2003) 113 Cal.App.4th 679, 683.)
       In construing section 31, we may rely on principles of “constitutional avoidance”:
“The doctrine of constitutional avoidance ‘command[s] courts, when faced with two
plausible constructions of a statute—one constitutional and the other unconstitutional—to
choose the constitutional reading.’ ” (Voisine v. United States (2016) ___ U.S. ___
[136 S.Ct. 2272, 2290]; see United States v. Harris (1954) 347 U.S. 612, 618.)
Additionally, it is settled that courts may construe statutes in a manner that renders them
constitutional. In People v. Chandler (2014) 60 Cal.4th 508, 525, the court construed the
statute for the crime of attempted criminal threat to require proof that the defendant had a
subjective intent to threaten and that the intended threat under the circumstances was
sufficient to cause a reasonable person to be in sustained fear, even though the statute on
its face would not require the latter element. And in In re Kay (1970) 1 Cal.3d 930, 942
(Kay), the court construed the statute that facially criminalized any disruption of a public
meeting as imposing criminal sanctions only when the defendant’s activity itself—and
not the content of the activity’s expression—substantially impaired the effective conduct
of the meeting.
       Here, the People place weight on the 1965 document authored by the Legislative
Counsel, predicting that courts would read a materiality element into section 31. Counsel
believed this judicial intervention would save the statute from overbreadth. (Legis.
Counsel, Rep. on Sen. Bill No. 123, supra, p. 2.) The People cite to numerous cases
where the opinion of the Legislative Counsel is one of deference in judicial review.
Defendant argues before us that no deference is warranted because the referenced
document was authored after the Legislature passed section 31. He further claims all the
cases referenced by the People deal with prior opinions before the statute was enacted.
Yet the section has been the law for roughly 50 years. The letter in question followed
shortly after the statute was passed. In light of the presumption of validity and the desire
to avoid constitutional hurdles, and the age of the statute, it is entirely reasonable to
conclude the failure of the Legislature to amend the statute reflects its view that the


                                              17
statute is compatible with the Legislative Counsel’s opinion.9 In any event, applying the
doctrine of constitutional avoidance by reading section 31 to contain a materiality
provision serves the mandatory presumption the Legislature intends to enact a valid
statute. (See Kay, supra, 1 Cal. at p. 942; Pacific Legal Foundation v. Brown (1981)
29 Cal.3d 168, 180.)10
       Properly construed, the speech targeted by section 31 is narrow. Unlike the Stolen
Valor Act, section 31 does not prohibit a certain type of false statement regardless of its
setting, whether it is taken in the context of a personal conversation or whether it is
uttered within the public domain. We conclude the statute prohibits deceit only as to a
material fact pertinent to an investigatory matter undertaken by a peace officer pursuant
to the Vehicle Code. Further, the statute plainly articulates that the speaker must have the
intention to deceive because the speaker must know the false nature of the statement he
or she is making to the peace officer.
VIII. The Jury Should Have Been Instructed Regarding Materiality
       We have concluded that for the purposes of criminal prosecution, as was
undertaken here, the People are required to prove the alleged misstatement was material
in order to comport with due process standards. It follows that the jury here should have
been instructed on the element of materiality. However, we do not believe retrial is
warranted as any error in failing to properly instruct the jury was harmless beyond a
reasonable doubt.
       We also note it appears the appellate division rescinded its original opinion
because it was uncomfortable in defining the standard for materiality, preferring instead
to leave that determination to the Legislature. We believe materiality must be defined by

       9
        Significantly, section 20 provides: “It is unlawful to use a false or fictitious
name, or to knowingly make any false statement or knowingly conceal any material fact
in any document filed with the Department of Motor Vehicles or the Department of the
California Highway Patrol.” (Italics added.) This statute was enacted in 1959 (Stats.
1959, ch. 3, p. 1524).
       10
          Defendant does not address the statutory principles of constitutional avoidance.
This is a significant omission in his briefing.

                                             18
an objective standard. In a civil context, our Supreme Court has stated that under
California law, a misrepresentation is material if “ ‘a reasonable man would attach
importance to its existence or nonexistence in determining his choice of action in the
transaction in question’ . . . .” (Engalla v. Permanente Medical Group, Inc. (1997)
15 Cal.4th 951, 977 (Engalla), quoting Rest.2d Torts, § 538, subd. (2)(a), italics added.)
The court also held materiality is a question of fact for the jury, “unless the ‘fact
misrepresented is so obviously unimportant that the jury could not reasonably find that a
reasonable man would have been influenced by it.’ ” (Engalla, at p. 977, quoting
Rest.2d Torts, § 538, com. e, p. 82, italics added.) In a criminal law case involving
perjury, courts have held: “An instruction that informs the jury that a false statement is
material if it could probably influence the outcome of the proceeding is much more
consistent with the definition of ‘material’ . . . . This instruction conveys the requirement
that the false statement must be important to the matter under discussion. It also conveys
to the jury that false statements on matters not pertinent to the proceeding do not
constitute perjury.” (People v. Rubio (2004) 121 Cal.App.4th 927, 933.)
       In the context of 18 United States Code section 1001, the legal standard of
materiality is well settled: “Deciding whether a statement is ‘material’ requires the
determination of at least two subsidiary questions of purely historical fact: (a) ‘what
statement was made?’ and (b) ‘what decision was the agency trying to make?’ The
ultimate question: (c) ‘whether the statement was material to the decision,’ requires
applying the legal standard of materiality . . . to these historical facts.” (United States v.
Gaudin (1995) 515 U.S. 506, 512.) “ ‘The statement must have a “natural tendency to
influence, or [be] capable of influencing, the decision of the decisionmaking body to
which it was addressed.” ’ [Citations]. The government is not required to prove that the
statement had actual influence. ‘The false statement must simply have the capacity to
impair or pervert the functioning of a government agency.’ [Citations.] The statement
does not have to be relied upon and can be material even if it is ignored and never read.”
(United States v. Boffil-Rivera (11th Cir. 2010) 607 F.3d 736, 741–742, italics added.)



                                              19
       Where state law is identical or similar to federal legislation, federal decisions are a
guide to the interpretation of state law. (Sabi v. Sterling (2010) 183 Cal.App.4th 916,
943, fn. 17.) In sum, materiality is not subjective to the listener government officer.
Instead it is a review of the potential to influence a listener who happens to be a
government official in the exercise of his or her official action. The test is, “would a
reasonable peace officer find the information relevant and material in his or her
investigation?” In other words, is the false statement objectively capable of influencing
the behavior of the officer?11
IX.    Harmless Error
       There is no standard jury instruction on section 31. The judge, without any
objection by either party, took the statute and drafted an instruction making the elements
listed in the statute as the three elements of the crime. As noted, the jury was not
instructed on the element of materiality. This was error.12 Failure to instruct the jury on
an element of the offense is subject to harmless error analysis under Chapman v.
California (1966) 386 U.S. 18 (Chapman). Under this analysis, we ask “whether it
appears beyond a reasonable doubt that the error complained of did not contribute to the
verdict.” (People v. Magee (2003) 107 Cal.App.4th 188, 194.)
       Both of the questions that defendant falsely answered (“have you been drinking”
and “where are you coming from”) have a materiality feature to them. The question
“have you been drinking” is an obvious and material question in an investigation for
DUI. Even defendant appears to concede the question seeks material information.
However, the trial court here instructed the jury as to both statements and did not require

       11
          This objective focus is compatible with the legal understanding of materiality at
the time section 31 was passed. In particular, the objective standard was applicable to the
crime of perjury at that time. It makes no sense that the Legislature would disregard this
state of affairs and call for a subjective standard with respect to section 31. Materiality as
a concept is generally the same even though there are different enactments or statutes
involved. Defendant provides no sensible basis for contending section 31 would be better
understood using subjective materiality instead of the objective established above.
       12
         We suspect the error indicated was understandable in light of the absence of
appellate guidance interpreting section 31.

                                             20
the jury to disclose which statement formed the basis of its decision to find defendant
guilty. We conclude, however, that the second question is also material and therefore
find the instructional error harmless.
       The question “where have you been” in the context of the investigation is material.
Firstly, the question is relevant to the degree of sobriety (or lack thereof) on defendant’s
part. Does he have the memory and ability to recall where he had been, or is he so
inebriated that he cannot recall such a detail? An answer would help an officer decide
whether he was under the influence, since people in such a state often have difficulty
recalling prior conduct. Also the question would tend to help officers uncover witnesses
and others who might testify for or against the basis for the arrest. A truthful answer
could assist the officers in this regard. Therefore, both false statements at issue in the
present case are objectively material.13
       Finally, we know the court told the jury the false statement had to be proved
beyond a reasonable doubt. The jury was told they had to be unanimous as to the false
statement they found proved. There is no information as to which false statement formed
the basis of defendant’s conviction. However, we have concluded both statements were
material as a matter of law; thus, the failure to instruct on materiality is harmless error
under Chapman.14
                                         DISPOSITION
       The judgment of the appellate division is reversed. Defendant’s conviction is
hereby reinstated.



       13
        See People v. Stanistreet (2002) 29 Cal.4th 497, 503, dealing with false
complaints affecting police conduct in Los Angeles County alone.
       14
          As noted above, we were not provided with the transcript of events in the trail
court. We have some idea of what was argued, however. It appears the People
contended each of the two false statements was material or important in the context of the
case. It also appears defendant’s counsel argued that defendant did not really understand
what was asked because he did not speak English and found the translator confusing.
Essentially, he claimed he did not lie, but instead misunderstood the questions. Yet the
jury rejected that claim with its verdict.

                                              21
                                      _________________________
                                      Dondero, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Banke, J.




A148325 People v. Morera-Munoz


                                 22
Superior Court Appellate Division :            San Francisco County Superior Court

Appellate Division Judges:                     Garrett L. Wong, Presiding Judge,
                                               Donald J. Sullivan and Jeffrey S. Ross,
                                               Associate Judges

Counsel:

       Kamala D. Harris, Attorney General, Gerald A. Engler and Jeffrey M. Laurence,
Assistant Attorneys General, Eric D. Share and Amit Kurlekar, Deputy Attorneys
General, for Plaintiff and Appellant.

      Jeff Adachi, San Francisco County Public Defender, Matt Gonzalez, Chief
Attorney, Christopher F. Gauger, Managing Attorney, for Defendant and Respondent.

     American Civil Liberties Union of Northern California, Alan Schlosser, Novella
Coleman, Angélica Salceda, as Amicus Curiae on behalf of Defendant and Respondent.




A148325 People v. Morera-Munoz


                                          23
