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District Court of Appeal, Fourth District, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Tressie NEAL, etc., Defendant and Appellant.*

Cr. 1277.

Decided: June 30, 1960

J. M. Lopes, Visalia, for appellant. Stanley Mosk, Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for respondent.

The defendant was convicted, after a jury trial, of the crime of grand theft, a violation of section 487 of the Penal Code. This appeal is taken from the order granting probation and from the order denying a motion for a new trial. The indictment alleged that the defendant ‘did * * * take checks of the value of $1,811.00, which were the property of the county of Tulare, State of California, between the first day of October, 1958 and the thirtieth day of April, 1959.’ Essentially, defendant was charged with grand theft in that she received welfare payments under the ‘Aid to Needy Children’ program which she would not have received had she not concealed the fact that a man with steady employment was living in her home, ‘assuming the role of a spouse,’ and contributing financially toward payment of the household expenses.

The evidence disclosed that defendant had been on welfare periodically since 1948. In November, 1950, a Tulare County Welfare Department case worker called on defendant at her home and discovered that a Mr. Neal was living in her home. Defendant told the case worker that she and Mr. Neal planned to be married after his divorce became final and described Mr. Neal's employment and monthly income. The case worker told defendant that she was required to inform the Welfare Department of any changes in the family income or family status and explained to her that anyone moving into the home would affect her family budget. Subsequently, the amount of defendant's welfare payments was sharply decreased.

Later, on September 7, 1956, defendant signed another Application for Aid to Needy Children. The Welfare Department employee who received the application read to defendant a portion of the form which listed the changes in family circumstances which were required to be reported by persons receiving aid. Among the circumstances which were to be reported were changes of income and changes in the number of persons living in the home. Defendant was also given a copy of this form. In October 1957, a social worker for the Welfare Department interviewed defendant in the course of conducting the yearly re-investigation on eligibility for assistance. At this time the social worker discussed in detail with defendant the necessity of reporting all changes in family income, changes in family composition and whether anybody else moved into the home. Again, on October 21, 1958, a social worker conducted an annual re-investigation of defendant's eligibility and income. Defendant was again advised that it was her duty to inform the department as to income received and the number of persons living in the household. Defendant said she planned to marry Mr. Shirley in April 1959, and stated that Mr. Shirley lived in a trailer court. Defendant signed a ‘Statement of Facts Relating to Eligibility’ and said under oath that the statements made to the worker were true and agreed to inform the department of any changes that might occur in the family. At that time she did not list Mr. Shirley under part ‘J’ of that form which was captioned, ‘List any unrelated adults living with family,’ nor did she list any income received from Mr. Shirley under part ‘K’. It was explained to defendant that she should report all income from whatever source and she informed the worker that her only income was the money received from the Welfare Department and the occasional earnings of two children. The social worker then computed a budget, taking into consideration the reported income of the family unit. This budget was the basis from which the amount of the welfare checks sent to defendant was determined. During subsequent contacts in November 1958 and January 1959, defendant reported income of her children and the fact that one child was leaving the home but she did not report that Mr. Shirley was living in the home and contributing part of his income to support defendant and her family. Had the social worker known these facts, her budget figures would have been different and the welfare checks sent to defendant would have been smaller.

On April 14, 1959, the social worker again visited defendant's home and found Mr. Shirley there, fully dressed but wearing bedroom slippers. Defendant did not divulge that Mr. Shirley had been living in the home prior to the visit. The social worker recommended that a night check be conducted on defendant's home and this was done on April 16, 1959. The investigators found Mr. Shirley occupying the bed in defendant's bedroom. Defendant stated that Mr. Shirley had been making the home his residence for at least six months and that he had contributed twenty to thirty dollars per month for the household expenses for at least six months and probably longer. On April 23, 1959, defendant called the Welfare Department and reported that she had married Mr. Shirley on the previous day. On April 24, 1959 she signed a written statement in the presence of Welfare Department social workers in which she admitted that Mr. Shirley had contributed a total of $584.96 toward the support of herself and her family within the preceding six or seven months and that Mr. Shirley had spent nights at her house on occasion, starting in October, 1958.

A neighbor who lived across the street from defendant testified that between October 1, 1958 and April 30, 1959 she frequently observed an automobile identified as Mr. Shirley's parked in front of defendant's home, both in the mornings and evenings. During this same period the neighbor saw a man identified as Mr. Shirley about the home on many occasions. Mr. Shirley's employer testified that between October 1, 1958 and April 30, 1959, Mr. Shirley had been steadily employed in construction work, and the pay record of Mr. Shirley for the period between October 1, 1958 and April 30, 1959, showing both his gross earnings and deductions, was admitted in evidence. The court took judicial notice of State Social Welfare Board Regulation No. C–155 which provides in substance that a stepfather is responsible for the support of the mother of a needy child when living in the home with the child and the child's mother, and that a man living in the home of a needy child, assuming the role of a spouse to the mother of the needy child, has the same responsibility as that of a stepfather for the support of the mother and the needy children. The court also took judicial notice of State Social Welfare Board Regulation No. C–212.62 which provides that the income of a stepfather or other man in the home assuming the role of spouse to the mother of the eligible needy children to be used in determining his ability to contribute to the support of the needy children is his takehome pay plus his income from all other sources. A Social Work Supervisor testified that during the period here involved there was in existence a regulation that required a recipient of Aid to Needy Children to report changes in the number of persons in the recipient's home, and there was in existence a regulation requiring the recipient to report the income of unrelated adults living in the home. A social worker testified that she re-computed defendant's budget in the light of the additional information discovered regarding Mr. Shirley's income, the fact that he lived in defendant's home between October 1, 1958 and April 30, 1959, and his contributions toward the support of defendant and the eligible children, and in this re-computation determined that defendant had been over-paid $1,811 during the period between October 1, 1958 and April 30, 1959.

Defendant testified that at the time she made the statement to the investigators on April 16, 1959 she was upset and that she signed this statement without understanding its meaning. Defendant also testified that she was upset and nervous at the time she signed the statement in the presence of the social workers on April 24, 1959 and that some of the computations in that statement were not correct. However, defendant admitted that between October, 1958, and April, 1959 she received approximately $200 from Mr. Shirley and admitted that she did not report this to the Welfare Department until April 16, 1959 when the investigators visited her home. Defendant testified that Mr. Shirley did not live in her home but that he did stay there on occasion when he was too tired to travel back to his residence after spending the evening visiting in defendant's home. Defendant admitted that Mr. Shirley's automobile was often parked in front of her home but contended that he merely loaned the car to her to enable her to take care of household errands. One of defendant's neighbors testified on her behalf to the effect that she was frequently a vistor in defendant's home; that Mr. Shirley occasionally visited the home but that on only one occasion did the witness see him there in bed. This witness also testified that defendant frequently borrowed Mr. Shirley's car for her own use. Mr. Shirley testified that prior to his marriage to defendant in April, 1959, he did not live at her home, but stayed there at night occasionally. He did not assume the role of the head of the family of defendant as his previous divorce was not final and he had children by his former marriage and paid alimony and child support money. He stated that he loaned defendant his car and admitted that between October 1, 1958 and April 30, 1959 he had contributed about $400 to defendant. He also testified that out of this amount defendant purchased some inexpensive items for him and that she often performed errands for him.

Defendant contends that there is insufficient evidence to sustain the verdict. The elements of grand theft by false pretenses are: (1) An intent to defraud; (2) an actual fraud perpetrated; (3) use of false pretenses to perpetrate the fraud; and (4) reliance upon the fraudulent representations in parting with the money or other property. People v. Frankfort, 114 Cal.App.2d 680, 697, 251 P.2d 401; People v. Baird, 135 Cal.App.2d 109, 114, 286 P.2d 832.

In considering the sufficiency of the evidence we cannot reweigh the evidence but will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by the jury to warrant the finding of guilt. We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict. People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778; People v. Daugherty, 40 Cal.2d 876, 256 P.2d 911. Here the evidence discloses that the defendant made false representations as to fact in not listing Mr. Shirley as an unrelated adult living with her family in the statement given to the social worker on October 21, 1958. Further, she failed to report the income she received from Mr. Shirley. In addition, the evidence is sufficient to support the inference that on October 21, 1958 when defendant promised to report changes in income and the number of persons occupying the home, she had a present fraudulent intent not to perform this promise. A promise made with an intent not to perform is a false pretense. People v. Weitz, 42 Cal.2d 338, 343, 267 P.2d 295; People v. Ashley, 42 Cal.2d 246, 262, 267 P.2d 271. It is also clear that there was reliance upon the fraudulent representations in parting with the money. The social worker who interviewed defendant on October 21, 1958 testified that had she known that Mr. Shirley was living in the home and contributing part of his income toward the support of defendant and her children, the budget figures would have been different, and that defendant's welfare checks included an overpayment of $1,811 as a result thereof. This amounted to a fraud against the county of Tulare and the requisite intent to defraud may be inferred from the surrounding circumstances. People v. Frankfort, supra, 114 Cal.App.2d 680, 251 P.2d 401. Defendant admitted in her testimony that she knew that she should report if anyone moved into her house and that she should report all income received by her. Since there was evidence proving every element of the offense, there was sufficient evidence to support the verdict.

Defendant's contention that the court erred in admitting into evidence the pay record of Mr. Shirley is similarly without merit. There was evidence from which the jury could have concluded that Mr. Shirley was living in defendant's home and assuming the role of spouse to defendant. Under then existing regulations, the Welfare Department considered the income of such a person in computing the amount of the welfare checks. Defendant was aware of these regulations and the evidence of Mr. Shirley's income tended to show her motive in concealing the fact that Mr. Shirley was living in her home and to prove that the concealment was intentional rather than accidental.

Additionally, defendant has failed to show how the introduction of this document prejudiced her. Other evidence showed that Mr. Shirley was employed and a natural inference would be that he had income. The defendant must show that the error, if any, was prejudicial. People v. Massey, 151 Cal.App.2d 623, 649, 312 P.2d 365; People v. Horowitz, 70 Cal.App.2d 675, 704, 161 P.2d 833.

Defendant also urges that the court erred in taking judicial notice of and instructing the jury concerning State Social Welfare Board Regulations No. C–155 and No. C–212.62. The provisions of these regulations pertinent to this case provide, in effect, that where a man is living in the home of a needy child and assuming the role of spouse to the mother of the needy child, his income may be considered in determining the amount of support which is available to the needy child. Defendant contends that these regulations are invalid because they are inconsistent with Civil Code section 55 (solemnization necessary for a valid marriage) and Civil Code section 209 (husband is not required to support his wife's children by a former marriage.) Defendant's argument overlooks the fact that these regulations do not purport to state rules of property or to regulate the solemnization of marriages. The State Board of Social Welfare has the authority to make rules and regulations for the maintenance, care of, and administration of aid to needy children. Welfare and Institutions Code sections 1560, 103, 103.1. This is social legislation which is to be liberally construed to achieve its objectives. Merced County v. Dept. of Social Welfare, 148 Cal.App. 540, 307 P.2d 46; Welfare and Institutions Code section 1507. In Kelley v. State Board of Social Welfare, 99 Cal.App.2d 865, 222 P.2d 925, an applicant for old age aid contended that the Board of Social Welfare erroneously ruled that his wife's earnings were to be considered in determining his entitlement to aid, despite the fact that he had executed a written agreement which provided that her earnings were to be her separate property. The court held that, although spouses may by agreement convert community earnings into separate property insofar as they are personally concerned, such agreements are not binding upon the State Board of Social Welfare in determining the amount of aid to be awarded an applicant.

Under the ‘Aid to Needy Children’ program, in order for the family to receive aid the children must be both deprived of the ‘support’ of one or more parents and be in ‘need’. Welfare and Institutions Code section 1500. If they are not in fact in need, regardless of who is paying for their support, they are not entitled to aid. A vexing abuse of the program arises where the children and their mother live in a home with a man who is not married to the mother and although not regularized by marriage, the relationship is a stable one wherein the man has an income and contributes to the household expenses despite the fact that he has no obligation in law to support the mother and children. Normally the amount of money actually contributed by the man in the house towards the support of the children is impossible to ascertain by independent investigation. The children may not actually be in ‘need’, but may, nevertheless, receive substantial assistance payments from the government. The regulations upon which the instructions were based were promulgated to meet this situation.

Such regulations, not conflicting with the general law, and designed to assist in the determination of ‘need’, in particular welfare cases, are proper and within the power of the agency to issue. Welfare and Institutions Code section 1560; Merced County v. Dept. of Social Welfare, 148 Cal.App. 540, 307 P.2d 46.

Even if the regulations were invalid, it would not affect the defendant's conviction of theft. Relying on defendant's false pretenses the county paid her certain funds. Had she disclosed the true facts she would not have received aid. A similar contention was presented in United States v. Kapp, 302 U.S. 214, 58 S.Ct. 182, 82 L.Ed. 205. The defendants were charged with conspiring to defraud the United States by making false statements in order to obtain certain payments from the government and they demurred to the indictment on the grounds that the statute under which the payments would have been made had been found to be unconstitutional and void. Chief Justice Hughes, speaking for the court, said, 302 U.S. at pages 217–218, 58 S.Ct. at page 184:

‘Such a construction is inadmissible. It might as well be said that one could embezzle moneys in the United States Treasury with impunity if it turns out that they were collected in the course of invalid transactions. (citation) Appellees were not indicted for a conspiracy to violate the Agricultural Adjustment Act [7 U.S.C.A. § 601 et seq.] but for a conspiracy to violate the statute protecting the United States against frauds. It is cheating the government at which the statute aims and Congress was entitled to protect the government against those who would swindle it regardless of questions of constitutional authority as to the operations that the government is conducting. Such questions cannot be raised by those who make false claims against the government.’

In the case of People v. Howard, 135 Cal. 266, 67 P. 148, defendant was convicted of attempting to obtain money under false pretenses. He had falsely represented that he had killed 12,000 squirrels in Tulare County and presented 12,000 squirrel tails in support of his claim for a bounty. The ordinance authorizing the payment of the bounty was found to be invalid and the claim was refused. Defendant contended that, since the ordinance was invalid, he could not be punished. The court held that the illegality of the ordinance was immaterial, since it was the false pretense used with intent to defraud the county that constituted the crime charged. Similarly, in the instant case the defendant obtained money by false pretenses in that she stated that no other adult was living in the home and concealed the fact that she was receiving income from Mr. Shirley. The defendant in her testimony admitted receiving $200 from Mr. Shirley and he testified that he gave her $400. By her own admission, defendant did not inform the Welfare Department of this income. Since defendant admitted the facts constituting the gravemen of the offense, little prejudice could result from the giving of the instructions complained of.

Defendant's remaining contention refers to her motion to set aside the indictment. It is a matter not contained in the record on appeal, is not supported by citation of authority, and is found to be without merit.

Order granting probation and order denying motion for a new trial affirmed.

GRIFFIN, Presiding Justice.

SHEPARD and COUGHLIN, JJ., concur.