Hedgecock

I concur in the majority opinion except for part A.l of the discussion, which concerns the definition of materiality in prosecutions for perjury under the Political Reform Act of 1974. In my view, the first of the majority’s two definitions is so subjective that it will be difficult to apply fairly or predictably. According to the majority, “an omission or misstatement of fact is material if there is a substantial likelihood that a reasonable person would consider it important in evaluating (1) whether a candidate should be elected to, or retained in, public office, . . .” (Maj. opn., ante, at pp. 406-407.) The problem is that a reasonable person may properly consider anything to be important in evaluating whether a candidate should be elected to public office. The law gives citizens, acting in the capacity of voters, absolutely unrestricted and unreviewable discretion to vote for or against a candidate for any reason whatsoever, even for an invalid reason (e.g., race, sex, religion) that would offend constitutional principles if used as the basis for another decision. A juror asked to apply this standard to determine whether a candidate’s omission from a disclosure statement was…

I concur in part B of the majority opinion and the disposition thereunder: reverse and remand for the trial court to exercise discretion to determine whether an evidentiary hearing is necessary to resolve the juror misconduct claim and, if so, whether jurors should be subpoenaed to testify at such a hearing. (Maj. opn., ante, at pp. 411-421.)

1 respectfully dissent from the analysis and conclusions reached in part A of the majority opinion, which holds that the materiality element of the offense of perjury, when prosecuted pursuant to the Political Reform Act of 1974 (hereafter the Act), must be determined by the jury. (Maj. opn., ante, at pp. 403-411.)

*424 Materiality as an “Element” of Perjury

The majority opinion asks: “in a perjury prosecution based on errors or omissions in disclosure statements required by the Act, is the materiality of the errors or omissions an element of the offense to be determined by the jury?” (Maj. opn., ante, at p. 399.) The majority then endeavors to demonstrate, assertedly as a question of first impression, why “materiality” is in fact an “element” of the offense of perjury when authorized under the Act. 1 An entire section of the opinion is…

Defendant Roger Hedgecock, formerly Mayor of the City of San Diego, was convicted by a jury of one count of conspiracy to violate state and local financial disclosure laws and twelve counts of perjury based on errors or omissions by him in disclosure statements required by the Political Reform Act of 1974 (Gov. Code, § 81000 et seq. [the Act]). We granted review to address two questions.

First, in a perjury prosecution based on errors or omissions in disclosure statements required by the Act, is the materiality of the errors or omissions an element of the offense to be determined by the jury? We conclude that it is, and that in this case the trial court’s failure to submit the materiality issue to the jury requires reversal of defendant’s perjury convictions but not his conspiracy conviction.

Second, does a trial court have discretion to grant an evidentiary hearing on a new trial motion based on jury tampering or jury misconduct, and to have jurors called to testify at the hearing? We hold that, consistent with the practice predominating in the federal and state courts, a trial judge has such discretion. Because of the trial court’s erroneous belief in this case that…

I join in the second part of Justice Eagleson’s concurrence and dissent concluding that there is no basis presented for departing from the long held rule that materiality in a perjury prosecution is an issue for the court to determine. In all other respects, I join in the majority opinion.

Defendant Roger Hedgecock, formerly Mayor of the City of San Diego, was convicted by a jury of one count of conspiracy to violate state and local financial disclosure laws and twelve counts of perjury based on errors or omissions by him in disclosure statements required by the Political Reform Act of 1974 (Gov. Code, § 81000 et seq. [the Act]). We granted review to address two questions.

First, in a perjury prosecution based on errors or omissions in disclosure statements required by the Act, is the materiality of the errors or omissions an element of the offense to be determined by the jury? We conclude that it is, and that in this case the trial court's failure to submit the materiality issue to the jury requires reversal of defendant's perjury convictions but not his conspiracy conviction.

Second, does a trial court have discretion to grant an evidentiary hearing on a new trial motion based on jury tampering or jury misconduct, and to have jurors called to testify at the hearing? We hold that, consistent with the practice predominating in the federal and state courts, a trial judge has such discretion. Because of the trial court's erroneous belief in…