1

Filed 6/23/22 P. v. McNamara CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Appellant,

v.

KYLE MATHEW MCNAMARA,

Defendant and Respondent.

 A162828

 (Mendocino County Super. Ct.

 No. SCUK-CRCR-2020-36934-

 001)

The People appeal from a trial court order denying their motion to 

reinstate a charge of perjury against defendant Kyle Mathew McNamara.

We affirm.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

On November 6, 2020, McNamara was arrested for driving under the 

influence (DUI). The arresting officer drove McNamara to a friend’s house 

and issued a citation.1 McNamara signed the citation, thereby agreeing, 

“without admitting guilt,” to appear at an arraignment on December 8, 2020. 

(Boldface and capitalization omitted.)

1 McNamara was cited under Vehicle Code section 23152, 

subdivisions (a) and (b). All subsequent citations are to the Penal Code 

unless otherwise indicated.
2

Ten days after his arrest, but before the DUI arraignment, McNamara 

sought to terminate his probation in two separate misdemeanor cases. In an 

accompanying handwritten declaration, which he signed under penalty of 

perjury, McNamara stated he had “had no trouble with the law in the last 

2 years 9 months or problems with probation.” 

After McNamara was arraigned on the DUI charges, the Mendocino 

County District Attorney charged him with perjury, a felony, based on the

theory that the declaration’s statement that he had “had no trouble with the 

law” in almost three years was false.2 A preliminary hearing on the perjury 

charge was held in May 2021. The officer who arrested McNamara for the 

DUI testified, and a copy of the citation was introduced into evidence. The 

officer testified that, while he could not recall the exact language he used, he 

advised McNamara that signing the citation “was not an admission of guilt”

and “he ha[d] not been charged at that time.” In response to a defense 

question whether the officer told McNamara that “he was not in any trouble,” 

the officer answered: “Verbatim, I do not remember.” The magistrate also 

took judicial notice of the files in the two cases in which McNamara had 

sought to terminate his probation.3

At the conclusion of the preliminary hearing, the magistrate dismissed 

the perjury charge. After observing that one of perjury’s elements is that “the 

defendant willfully stated that information was true, even though he knew it 

was false,” the magistrate continued, “Now, in interpreting that, the Court is 

going to make the following factual finding. It doesn’t appear to me that 

2 The perjury charge was brought under section 118, subdivision (a). 

3 The files in the two misdemeanor cases are not part of the record

before us. The record does not reveal if McNamara’s request to terminate 

probation was contested, but the People represented below that it was 

granted on November 23, 2020. 
3

[McNamara] knew the information in his declaration was false. [¶] He was 

given a—he signed a citation indicating that he is not admitting guilt, and 

that he is just simply agreeing to appear in court. [¶] He’s presumed 

innocent, so it’s a reasonable interpretation of his statement to believe that 

he’s not in trouble with the law. [¶] He hasn’t been convicted.” The 

magistrate opined that “this is a hyper-technical prosecution for perjury” and 

dismissed the charge based on the lack of evidence that McNamara knew the 

statement was false. 

The People then filed a motion in the trial court to reinstate the charge. 

The motion was denied, and this appeal followed.

II.

DISCUSSION

A. General Legal Standards

Preliminary hearings are presided over by magistrates.4 (See Cal. 

Const., art. I, § 14; § 739.) “A magistrate’s function at a felony preliminary 

hearing is to determine whether there is ‘sufficient cause’ to believe [the] 

defendant guilty of the charged offense. (§§ 871, 872, subd. (a).) ‘Sufficient 

cause’ means ‘ “reasonable and probable cause” ’ or ‘a state of facts as would 

lead a [person] of ordinary caution or prudence to believe and conscientiously 

entertain a strong suspicion of the guilt of the accused.’ ” (People v.

Abelino (2021) 62 Cal.App.5th 563, 573 (Abelino).)

“ ‘Within the framework of [the magistrate’s] limited role, . . . the 

magistrate may weigh the evidence, resolve conflicts, and give or withhold 

4 Magistrates have limited powers conferred mostly by statute. “ ‘[A]

superior [court] judge, when sitting as a magistrate, possesses no other or 

greater powers than are possessed by any other officer exercising the 

functions of a magistrate.’ ” (People v. Richardson (2007) 156 Cal.App.4th 

574, 584.)
4

credence to particular witnesses.’ ” (People v. Slaughter (1984) 35 Cal.3d 629, 

637.) But “the magistrate is not a trier of fact. [The magistrate] does not 

decide whether [the] defendant committed the crime, but only whether there 

is ‘ “some rational ground for assuming the possibility that an offense has 

been committed and the accused is guilty of it.” ’ [Citation.] If the record 

shows strong and credible evidence of [the] defendant’s guilt, the magistrate 

may reasonably assume the possibility of [the defendant’s] guilt. Thus in 

many cases [the magistrate] will not find it necessary to resolve all conflicts 

in the evidence, in order to find probable cause to hold the defendant for trial.

The magistrate’s power to decide factual disputes exists to assist . . . [the]

determination of sufficient cause [citation]; if [the magistrate] can determine 

that issue without resolving factual conflicts, [the magistrate] may do so.”

(Id. at pp. 637–638.)

When a magistrate dismisses a charge after the preliminary hearing, 

the prosecution may file a motion before the trial court to reinstate it. 

(§ 871.5, subd. (a).) If the motion is denied, the People may appeal the ruling. 

(§ 871.5, subd. (f).) On appeal, we disregard the trial court’s ruling and 

review the magistrate’s ruling. (Abelino, supra, 62 Cal.App.5th at p. 574.)

The standard we use to review the magistrate’s ruling depends on 

whether the ruling turned on a factual or legal determination. “In the 

context of dismissal of charges at a preliminary hearing, a court makes a

factual finding when, after resolving evidentiary disputes and/or assessing 

witnesses’ credibility, it determines there is no evidentiary support for one or 

more elements of a charge. Conversely, a court makes a legal conclusion 

when it accepts the prosecution’s evidence, but determines there is

insufficient evidentiary support for one or more elements of a charge.” 

(People v. Rowe (2014) 225 Cal.App.4th 310, 318 (Rowe), italics added.) We 
5

review factual findings for substantial evidence and legal conclusions de 

novo. (People v. Slaughter, supra, 35 Cal.3d at p. 638.) 

B. The Magistrate Properly Dismissed the Perjury Charge Because

Probable Cause Was Not Shown as a Matter of Law.

In relevant part, section 118 provides that “[e]very person who . . .

declares . . . under penalty of perjury . . . and willfully states as true any 

material matter which [the person] knows to be false . . . is guilty of perjury.” 

(§ 118, subd. (a).) A false statement is “material” in the context of a judicial 

proceeding if it could have influenced the outcome. (People v. Hedgecock

(1990) 51 Cal.3d 395, 404–405.) The crime requires proof that the defendant 

knew the statement was false and had “the specific intent to declare falsely 

under oath or penalty of perjury.” (People v. Viniegra (1982) 130 Cal.App.3d 

577, 584, italics omitted; People v. Hagen (1998) 19 Cal.4th 652, 663; see 

CALCRIM No. 2640.) 

As we have said, in dismissing the perjury charge the magistrate stated 

it made “the following factual finding. It doesn’t appear to me that 

[McNamara] knew the information in his declaration was false. [¶] He . . .

signed a citation indicating that he is not admitting guilt, and that he is just 

simply agreeing to appear in court.” 

The People argue that the magistrate’s determination amounted to a 

legal conclusion that must be reversed. In the alternative, they argue that, 

even if the determination is construed as a factual finding, it must be rejected 

because it was unsupported by substantial evidence. McNamara responds

that the determination was factual and, regardless, must be upheld under 

any standard of review. We agree with the People that the magistrate’s 

determination was tantamount to a legal conclusion. But we agree with 

McNamara that in light of the uncontroverted evidence, the People failed as a 

matter of law to establish probable cause for the perjury charge.
6

“[D]etermining whether the magistrate made a prohibitive factual 

finding is not always clear cut.” (Abelino, supra, 62 Cal.App.5th at p. 575; see 

People v. Superior Court (Valenzuela) (2021) 73 Cal.App.5th 485, 497 

[distinction does not depend on “ ‘ “magic words” ’ ”]; People v. Superior Court 

(Day) (1985) 174 Cal.App.3d 1008, 1015 [distinction “is clear enough in the 

abstract, but has posed some difficulty in its practical implementation”].) But

as we have said, a magistrate makes a factual finding when it determines 

there is no evidentiary support for one or more elements of a charge after 

resolving evidentiary disputes or assessing witnesses’ credibility. (Rowe,

supra, 225 Cal.App.4th at p. 318.) The magistrate here neither resolved 

evidentiary disputes nor assessed the credibility of witnesses.

The evidence presented to the magistrate was not disputed. It was 

uncontested that McNamara stated in his declaration that he had “had no 

trouble with the law” for the past few years. And it was undisputed that at 

the time of the statement he had been cited for, but not charged with or 

convicted of, DUI. It was in this context that the magistrate determined that 

“a reasonable interpretation of [McNamara’s] statement” was that 

McNamara “believe[d] that he[ was] not in trouble with the law.” Although 

the magistrate couched the comment in factual terms—i.e., a statement 

about what McNamara believed—the magistrate’s ultimate determination is 

more properly characterized as a legal conclusion, because it accepted all of 

the prosecutor’s evidence and deemed it insufficient to support the charge. 

(See Rowe, supra, 225 Cal.App.4th at p. 318; see also People v. Superior Court 

(Valenzuela), supra, 73 Cal.App.5th at pp. 496–497.) 

We agree with the magistrate that the evidence was insufficient as a 

matter of law to establish probable cause to believe that McNamara willfully 

made a statement he knew was false. The statement, given its undisputed 
7

context, was both vague (in the sense that people of ordinary intelligence 

have to guess at its meaning) and ambiguous (in the sense that the phrase 

could have multiple meanings). (See, e.g., People v. French (1933) 

134 Cal.App. 694, 699–700 [defendant’s statement that he was “ ‘in need of 

assistance’ ” could not constitute perjury because it was not a clear 

“statement of fact”].) To some people, “trouble” as used in McNamara’s 

statement might mean any contact with the police, regardless of whether the 

contact resulted in an arrest, citation, charge, or conviction. To others, it 

might mean any contact with the police that resulted in criminal charges 

being filed. And to still others, it might mean interactions with the police 

that resulted in a conviction and sentence. No person of ordinary caution or 

prudence could reasonably infer that a person who was issued a citation, told 

he was not admitting guilt, was not charged, and was presumed innocent, 

willfully lied by thereafter claiming not to have been in trouble with the law. 

We might have reached a different decision had McNamara stated in 

his declaration that he had not been cited by the police, had not been stopped 

by the police, or had not had any contact, encounter, or interaction with the

police. And we might have reached a different decision if at the time of the 

statement McNamara had already been charged with, or convicted of, the 

DUI or another crime. (See, e.g., People v. Paden (1925) 71 Cal.App. 247, 

249–250 [perjury conviction upheld where defendant falsely testified he had 

never been convicted of a felony].) In other words, we do not conclude that 

the statement that one has “had no trouble with the law” can never support a 

perjury charge. Here, however, McNamara’s statement, in the 

uncontroverted context in which it was made, would not lead a person of 

ordinary caution or prudence to reasonably believe and conscientiously 
8

entertain a strong suspicion that he was guilty of perjury.

5 (See Abelino,

supra, 62 Cal.App.5th at p. 573.) 

III.

DISPOSITION

The order denying the People’s motion to reinstate the perjury charge 

is affirmed.

5 In light of our holding, we need not address McNamara’s argument 

that the magistrate’s determination was correct as a matter of law because 

his statement was “fundamentally ambiguous” under federal standards. (See 

United States v. Camper (9th Cir. 2004) 384 F.3d 1073, 1076; United States v. 

Culliton (9th Cir. 2003) 328 F.3d 1074, 1078.) 
9

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Wiss, J. *

*Judge of the Superior Court of the City and County of San Francisco, 

assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.

People v. McNamara A162828