PEOPLE v. SEPULVEDA

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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Tina SEPULVEDA, Defendant and Appellant.

No. E007847.

Decided: April 26, 1991

Marilee Marshall, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Raquel M. Gonzalez, Nancy L. Palmieri and Peter Quon, Jr., Deputy Attys. Gen., for plaintiff and respondent.

OPINION

Defendant was convicted of four counts of food stamp and welfare fraud in violation of Welfare and Institutions Code section 10980, subdivision (c)(2) and nine counts of perjury in violation of Penal Code section 118. She was sentenced to a total term of five years and four months. On appeal she contends that (1) Welfare and Institutions Code section 10980, subdivision (c)(2) is unconstitutionally vague on its face and as applied to her and violates due process; (2) the court erred in excluding the testimony of her psychiatrist offered in support of her necessity defense; (3) the perjury convictions are precluded either because there is no authorization for making monthly inquiry into defendant's eligibility under oath or because Welfare and Institutions Code section 10980 provides specific penalties for false statements made to obtain aid thereby precluding application of the general perjury statute; and (4) Penal Code section 6541 was violated in the court's sentencing.

I

FACTS

Between November of 1986 and September 1987, defendant received Aid to Families with Dependent Children (AFDC) and food stamps. During this time period she failed to report income she was receiving from employment. Specifically, on the monthly eligibility reports she was required to submit under penalty of perjury, defendant stated that she had received no income during the months of January, February, March, April, May and June of 1987. As a result she received $2,592 in AFDC and $747 in food stamps she was not entitled to receive. Based on these facts, she was charged with and convicted of a violation of section 10980, subdivision (c)(2) for receiving more than $400 in AFDC funds by means of false statements (count 1) and a violation of the same section for receiving more than $400 in food stamps by means of false statements (count 2). Additionally in counts 5, 6, 7, 8, 9, and 10 defendant was charged with and found guilty of committing perjury in the monthly eligibility reports she submitted on February 1, 1987, March 1, 1987, April 1, 1987, May 1, 1987, June 1, 1987 and July 1, 1987, respectively.

The remaining counts involve acts of fraud and perjury committed between February of 1988 and July of 1989. During this time period, defendant failed to report that her two minor children were no longer living with her. As a result she received AFDC funds to which she was not entitled in the sum of $11,272.50 and was overpaid food stamps in the amount of $1,272. Accordingly she was charged with and convicted of two violations of section 10980, subdivision (c)(2) for fraudulently obtaining more than $400 in AFDC and food stamps, respectively (counts 3 and 4). She was also charged with and convicted of committing perjury on March 1, 1988, by falsely representing in the monthly eligibility report that no one had moved out of her home in February of 1988 (count 11) and committing perjury on August 24, 1988, by stating on an application for renewal of aid that her sons, Kenneth and Justin, were living with her (counts 12 and 13 respectively).

II

INSTRUCTIONAL ERROR***

III

CONSTITUTIONALITY OF SECTION 10980, SUBDIVISION (c)(2)

Defendant contends that section 10980, subdivision (c)(2) is unconstitutionally vague on its face and as applied to her in essence because the statute fails to give reasonable notice that a person such as defendant could be charged with more than one felony for receiving more than $400 in AFDC funds and more than $400 in food stamps during two separate time periods. We disagree.

“[D]ue process requires a statute to be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.” (Burg v. Municipal Court (1983) 35 Cal.3d 257, 269, 198 Cal.Rptr. 145, 673 P.2d 732.) With respect to the first standard, here the statute clearly advises a person such as defendant that receiving over $400 in aid by means of false statements is a felony and thus to that extent the statute clearly put a reasonable person on fair notice of what conduct is prohibited. Moreover, “the Supreme Court has established that a statute will not be held void for vagueness at the behest of a defendant whose conduct falls clearly within its bounds.” (People v. Camillo (1988) 198 Cal.App.3d 981, 996, 244 Cal.Rptr. 286, citing Bowland v. Municipal Court (1976) 18 Cal.3d 479, 492, 134 Cal.Rptr. 630, 556 P.2d 1081.) Defendant's conduct clearly fell within the parameters of section 10980, subdivision (c)(2). Finally we are unaware of any authority which states that a statute is unconstitutionally vague because it fails to advise a person whether she is guilty of one or more felonies.

Nor do we believe section 10980 violates due process by failing to provide adequate guidelines for enforcement. A law may be found unconstitutional if it “‘․ impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with all the attendant dangers of arbitrary and discriminatory application.”’ (People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 390, 250 Cal.Rptr. 515, 758 P.2d 1046, quoting Grayned v. City of Rockford (1972) 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222, fn. omitted.) A defendant cannot be charged with or convicted of a felony under section 10980 unless he or she obtained aid in excess of $400 by means of false statements or misrepresentation which were made with the intent to defraud. Accordingly, we concur in the court's holding in People v. Camillo, supra, 198 Cal.App.3d 981, 996, 244 Cal.Rptr. 286 that section 10980 provides “a very precise standard for law enforcement.”

Although we believe the statute provides adequate standards for law enforcement, a question remains as to whether the Legislature intended all aid obtained pursuant to a single fraudulent act and intent to be combined and charged as one felony or whether separate felonies can be charged based on the type of aid received as was done in this case. Based on our review of legislative materials taken from the California State Archives of which we take judicial notice, we believe that the Legislature intended to eliminate the charging of separate felonies based on the type of aid obtained and intended that all aid received from a single fraudulent act be aggregated into one felony charge.

Prior to the addition of section 10980, “welfare fraud” was punishable under a variety of different statutes including sections 11054, 11482, 11483 and 14014 of the Welfare and Institutions Code and sections 396, 396.5 and 484 of the Penal Code. As a result, “[t]he same fraudulent act frequently violate[d] several of these overlapping statutes causing some unnecessary complaints to be processed.” (Enrolled Bill Report, September 17, 1984.) The purpose of section 10980 was to “create a specific ‘Welfare Fraud Statute’ under which a single fraudulent act involving more than one welfare program can be prosecuted, eliminating the need for multiple actions to be taken against a recipient who committed fraud.” (Assembly Human Services Committee--Minority, August 28, 1984.) Thus the purpose of the Legislature in enacting section 10980 was to consolidate the various welfare fraud provisions and eliminate the filing of multiple actions based on the type of welfare obtained when the various types of aid obtained were pursuant to a single fraudulent act. Accordingly defendant should not have been charged with and convicted of separate felonies for AFDC and food stamps fraud which are based on the same fraudulent act. However, defendant was properly charged with and convicted of separate felonies for fraud committed by different acts. Thus, it was error to charge defendant with two felonies for the fraud committed during the time period from November 1986 through September 1987 and two additional felonies for the fraud committed from February 1988 through July 1989. We reverse, therefore, the convictions on counts 2 and 4. Defendant, however, was properly charged with one felony for each time period since the fraud was committed by different acts.2

IV

PERJURY CONVICTIONS

Defendant contends that all of the perjury convictions either must be set aside or reduced to misdemeanors because section 10980 which sets forth specific penalties for false statements made to obtain aid is a specific or special statute which precludes punishment under the more general perjury statute, section 118. She also contends the perjury convictions for false statements in the monthly eligibility reports referred to in counts 5 through 9 must be set aside because section 11265.1 does not authorize inquiry under oath.

The general rule is that where a special or specific statute covers much of the same ground as a more general statute such that one cannot violate the specific statute without also violating the more general statute, prosecution under the general statute is precluded. (People v. Jenkins (1980) 28 Cal.3d 494, 505, 170 Cal.Rptr. 1, 620 P.2d 587.) However, as the Jenkins court noted, this rule is “designed to ascertain and carry out legislative intent.” (Ibid.) If there is evidence that the Legislature did not intend to preclude application of the general statute, the rule does not apply.

The question here, i.e., whether the Legislature intended section 10980 to preclude prosecution under section 118, is nearly identical to the question resolved by the court in Jenkins. In fact, application of the Jenkins analysis leads us to the same conclusion reached in that case, i.e., that prosecution under section 118 is not precluded by section 10980.

In Jenkins the court held that section 11483,3 the predecessor to section 10980, did not preclude perjury convictions under section 118. This was so even though one could not violate section 11483 without also violating section 118. In reaching this conclusion the court focused on the language in sections 11054 and 11265.

Section 11054 specified that while all applicants for benefits as provided in part 3 of division 9 must submit an affirmation of eligibility, only applicants for AFDC benefits must complete a declaration under penalty of perjury regarding eligibility. The section also expressly stated that any person signing a statement of eligibility which contains such a declaration is subject to the penalty prescribed for perjury in the Penal Code. Based on this language in section 11054, the court held that “[t]he conclusion is unavoidable that section 118 has been incorporated into the AFDC program by virtue of section 11054, at least as to initial applications for benefits.” (People v. Jenkins, supra, 28 Cal.3d 494, 506, 170 Cal.Rptr. 1, 620 P.2d 587.)

Section 11265, which pertains only to persons receiving AFDC benefits, requires the county to obtain a new certificate of eligibility annually and permits the county to obtain the certificate at other intervals. This section specifically requires the information for the certificate of eligibility to be provided under penalty of perjury. After reviewing the legislative history for section 11265, the court held that based on this history, “the conclusion appears unavoidable that the Legislature intended the perjury provisions of the Penal Code to be available as an alternative charge for misstatements made in connection with annual redeterminations and monthly eligibility reports.” (Id., at p. 508, 170 Cal.Rptr. 1, 620 P.2d 587.)

Section 11054 remains as it was in 1980 when the court decided in Jenkins. Accordingly, to the extent Jenkins relied on section 11054 for its holding that perjury convictions are not only not precluded but to the contrary are expressly authorized by that section “at least as to initial applications for [AFDC] benefits,” our conclusion must be the same. (Id., at p. 506, 170 Cal.Rptr. 1, 620 P.2d 587.)

Only two statutory changes have occurred since Jenkins which have any relevance to this issue. First section 10980 was added making the misdemeanor and felony penalties applicable to false statements made in obtaining any type of aid provided for in division 9. Accordingly the misdemeanor and felony penalties are no longer limited to fraud in obtaining AFDC benefits. Clearly this change does not affect the holding in Jenkins.4

The other change pertinent to our discussion is the addition of section 11265.1 which defendant argues does not allow inquiry into monthly eligibility to be made under oath. As we explain, we find no evidence that the Legislature intended to preclude perjury convictions for false statements made under oath in connection with monthly eligibility reports.

Section 11265.1 was added in 1982 and at that time stated “In addition to the requirement for the annual redetermination of eligibility, the department shall establish regulations consistent with federal law to implement a recipient monthly reporting system for use in determining monthly eligibility and the amount of the grant. The department shall define what constitutes a complete report and shall specify the deadlines for submitting a complete report, as well as the consequences of, and good cause for, failure to submit a complete report.” (Stats.1982, ch. 327, p. 1547, § 206, eff. June 30, 1982.)

Again the legislative materials from the California State Archives provide guidance. From those materials it appears that section 11265.1 was added to eliminate a court imposed rule that obligated the county to make personal contact with the recipient before benefits could be terminated as a result of the recipient's failure to submit a complete and timely monthly report. Apparently in an unpublished opinion entitled Balderos v. Woods the court had held that, since the sole authority for monthly reports was found in section 11265 regarding annual redeterminations, the monthly reporting system was bound by the same requirement for personal contact before aid is terminated as is the yearly reassessment system. In order to provide clear statutory authority for the monthly reporting system established by the Department of Public Social Services separate from the authority for annual redeterminations under section 11265, section 11265.1 was added authorizing the department to establish regulations governing monthly reports.

Section 11265.1 was amended later in 1982 by chapter 714. Section 1 of this chapter added the requirement that “[t]he department shall adopt fair and equitable regulations implementing the monthly reporting requirement.” Section 2 of chapter 714 stated “[e]ach adult member of the family shall provide, under penalty of perjury, the information necessary to complete the report.” Section 2 was only to become operative if Senate Bill 1325 which was a clean up bill to the Budget Trailer Bill was also passed and was chaptered first. Senate Bill 1325 apparently was not passed and chaptered first and therefore section 2 did not become operative. Defendant contends that this means the Legislature did not intend to authorize the county to require monthly reports to be submitted under penalty of perjury. We disagree.

The obvious purpose of section 11265.1 was to authorize the department to adopt state-wide regulations to implement a monthly reporting system. Nothing on the face of this section indicates an intention to dictate the form, contents or other requirements of the monthly report. Rather the Legislature expressly authorized the department to delineate these requirements.

In order to sustain a conviction for perjury, plaintiff must establish that the oath is either required or authorized by law. The oath requirement need not be found in a statute and may be called for by a local ordinance or a validly adopted administrative regulation. (People v. Ziady (1937) 8 Cal.2d 149, 157-158, 64 P.2d 425.) The department's regulations calling for monthly reports under penalty of perjury provide sufficient authority to sustain the perjury convictions.

Further, we discern no intent to preclude the department from requiring monthly eligibility reports to be submitted under penalty of perjury from the fact that language which would have expressly required monthly reports to be made under penalty of perjury was not added. Nothing in the legislative materials we have reviewed offers any explanation as to why section 2 of chapter 714 was tied to S.B. 1325. The failure of section 2 to become operative was the result of the Legislature's rejection of S.B. 1325 and does not necessarily mean the Legislature intended to limit the department's ability to require monthly reports under penalty of perjury. The department was given the authority to determine what information the recipient must submit each month and the form in which it is to be submitted. The failure of section 2 to become operative did not restrict that authority.

V-VI†

VII

SECTION 654

Defendant contends and the Attorney General concedes that section 654 precludes punishment for both welfare fraud and perjury. The parties differ, however, in their determination of which counts are subject to a stay because of section 654. Consistent with her argument that section 10980 must be read to require that both types of aid obtained during both time periods be aggregated into one felony charge, defendant contends that section 654 prohibits punishment for all of the welfare fraud counts and all of the perjury counts. Although defendant's argument is not clear in this regard, it appears she believes she can only be sentenced on one count out of the thirteen. The Attorney General contends that the only section 654 violation was sentencing defendant on both count 1 (AFDC fraud during the time period of November 1986 through September 1987) and count 5 (perjury committed on February 1, 1987). Neither party's analysis is correct.

First, we disagree with defendant's implicit contention that she can only be sentenced on one count. The fraud and the acts of perjury committed during the second time period are separated in time from the first acts of fraud and involved different false statements. Thus it is permissible under section 654 to group the offenses by each separate time period.

Count 1 involves fraud committed during the time period of November 1986 through September 1987 and counts 5, 6, 7, 8, 9 and 10 involve perjury committed during this time period. Accordingly the acts of perjury alleged in counts 5 through 10 were made with the intent to obtain aid. Since section 654 precludes punishment for both the welfare fraud and the perjurious statements made to obtain both types of aid, defendant cannot be punished for both count 1 and also for counts 5 through 10. (People v. Camillo, supra, 198 Cal.App.3d 981, 995, 244 Cal.Rptr. 286.) Similarly count 3 is for fraud committed during the time period of February 1988 through July 1989 and counts 11, 12 and 13 are for perjury committed on March 1, 1988, and August 24, 1988. Accordingly, defendant can be punished for either count 3 or counts 11, 12 and 13.

We do not believe section 654 precludes punishment for each separate act of perjury committed during each time period, even though with respect to each time period, the individual acts of perjury were committed as a means to obtain aid. In an analogous situation involving forgery, the court held section 654 did not preclude punishment for three acts of forgery even though “it might be said that the offenses were incident to the fundamental objective of taking goods from Sears by use of the [stolen] credit card and by forging the sales slips.” (People v. Neder (1971) 16 Cal.App.3d 846, 853-854, 94 Cal.Rptr. 364.) Therein although all of the acts of forgery occurred during the same time period, the court found no section 654 violation because “each forgery was certainly not a means for the accomplishment of any of the others. Nor was it a means to the immediate end of any of the others. Each act of forgery was committed for the taking of certain goods, separate from and unrelated to the goods taken by the other forgeries.” (Id., at p. 854, 94 Cal.Rptr. 364.)

Similarly in the instant case, although all of the acts of perjury during any one time period were made with the intent to defraud both the AFDC and food stamps programs and thus to that extent were incident to these two separate objectives, none of the acts of perjury were otherwise related to each other. Each act of perjury occurred at a different time and was made to obtain specific money and food stamps separate from the other money and food stamps obtained by separate perjurious statements. No act of perjury was incidental to or the means to accomplish any other act of perjury. Accordingly, should the trial court stay the sentence on counts 1 and 3, we do not believe section 654 precludes punishment for each of the acts of perjury during each time period.

VIII

DISPOSITION

The judgment is reversed as to counts 2, 4 and 13 and the matter is remanded with directions to the trial court to resentence defendant on the remaining counts in a manner consistent with this opinion. In all other respects the judgment is affirmed.

FOOTNOTES

1.  Further references in this opinion to sections 118 and 654 shall mean Penal Code sections 118 and 654, respectively. All further other statutory reference shall be to the Welfare and Institutions Code unless otherwise indicated.

FOOTNOTE.  See footnote *, ante.

2.  Defendant contends that all of the various acts, without regard to the type of aid involved, the type of false statement made or the time period within which the false statement was made, should be included in one felony because they were all part of one continuing intent to defraud. We disagree. This intent is “too general an objective to constitute one transaction and preclude punishment for divisible separate offenses.” (People v. Williams (1980) 106 Cal.App.3d 15, 20, 164 Cal.Rptr. 767.)

3.  Section 11483 in essence provided that one who obtained AFDC benefits by means of false statements or misrepresentation was guilty of a misdemeanor or a felony depending upon whether the amount of such benefits received was less or more than $200, respectively.

4.  In fact one could argue that by making the penalties applicable to all types of aid provided in division 9 and not just AFDC fraud, we no longer have a special statute. In Jenkins the issue of specific statute versus general statute arose simply because a person could only be convicted of a misdemeanor or a felony in connection with AFDC fraud and AFDC benefits could only be obtained by submitting a declaration regarding eligibility under penalty of perjury. Thus, “there [were] no situations in which an individual [could] violate section 11483 without also committing perjury.” (Id., at p. 505, 170 Cal.Rptr. 1, 620 P.2d 587.) By taking the welfare fraud penalties out of the chapter dealing with AFDC benefits and making the penalties applicable to all types of aid even those which do not require a declaration under penalty of perjury for eligibility, arguably there may be many situations in which a person could commit welfare fraud without necessarily committing perjury.

FOOTNOTE.  See footnote *, ante.

HOLLENHORST, Acting Presiding Justice.

McKINSTER and McDANIEL††, JJ., concur.