IN RE: Kathleen SANDS on Habeas Corpus.

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

IN RE: Kathleen SANDS on Habeas Corpus.

Cr. 7621.

Decided: February 25, 1976

Frank L. Williams, Jr., Public Defender, Orange County, by Kenneth Cook, Deputy Public Defender, for petitioner. Warren D. Weinstein, Daniel S. Brunner, Legal Aid Foundation, Long Beach, and Albert H. Meyerhoff, Marysville, Ralph Santiago Abascal, San Francisco, California Rural Legal Assistance, as amici curiae on behalf of petitioner. Evelle J. Younger, Atty. Gen., and Patricia D. Benke, Deputy Atty. Gen., for respondent.

OPINION

Petitioner was convicted in the municipal court of welfare fraud (violation of Welfare and Institutions Code, section 11482). She appealed to the appellate department of the superior court. The judgment was affirmed.

On petition for writ of habeas corpus addressed to this court, she contends that under this section and its companion section (Welfare and Institutions Code, section 11483)1 an attempt to obtain civil restitution is a necessary prerequisite to criminal prosecution. Admittedly, no attempt to obtain civil restitution had been made prior to the filing of criminal charges.

Welfare and Institutions Code, section 11482 provides in substance that any person who, with intent to deceive, makes a false statement to obtain aid is guilty of a misdemeanor.

Welfare and Institutions Code, section 11483 provides in substance that when one has by means of a false statement obtained aid for a child not in fact entitled thereto, the offense shall be punished either as a felony or as a misdemeanor depending upon the amount obtained. That section contains the following provision which is the bone of contention: ‘All actions necessary to secure restitution shall be brought against persons in violation of this section as provided in Sections 12250 and 12850.’ Those sections (see fn. 1 above) provide in pertinent part: ‘It is the intent of the Legislature that restitution shall be sought by request, civil action, or other suitable means prior to the bringing of a criminal action.’

Petitioner would have us read this provision as precluding criminal prosecution by reason of the failure of the welfare authorities or the prosecutor to undertake civil remedies prior to the commencement of criminal proceedings. We do not construe this section in the manner suggested.

The section merely states the obvious, i. e., that the Legislature would prefer, for the protection of public coffers, that restitution be attempted rather than the institution of criminal proceedings. In other words, all other things being equal, the State would rather have its money than its pound of flesh. However, there is nothing mandatory in the section. It is simply what it says—a statement of public policy. If the Legislature had meant that restitution be a necessary prerequisite to criminal prosecution, it could have done so very easily by simply stating that ‘restitution shall be sought prior to the bringing of a criminal action.’

Actually, such a provision was at one time presented to the Legislature and rejected. Sections 12250 and 12850 were enacted in 1957. At that time an amendment was introduced (SB 1389) which provided that civil action be brought first and that criminal action be resorted to ‘only after civil action proves unsuccessful.’ However, this language was amended out before final passage of sections 12250 and 12850.

A contention similar to that made in this case was made in Madrid v. Justice Court, 52 Cal.App.3d 819, 125 Cal.Rptr. 348 (hg. den. Jan. 17, 1976), in which restitution efforts had already commenced before criminal proceedings were instituted. Madrid held that the making of restitution or entering into an agreement to make restitution would not constitute a bar to criminal prosecution under this section. Madrid noted that since restitution had never been a bar to criminal prosecution it doubted that the Legislature could constitutionally establish a class of crimes in which restitution of public moneys taken with criminal intent would bar criminal prosecution. If, under Madrid, criminal proceedings can be instituted after restitution has actually been made, it would be an odd result indeed if this court were to hold that criminal proceedings could not be instituted because efforts on restitution had not been attempted.

We find unpersuasive petitioner's contention that under the rationale of Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287; Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349; and Randone v. Appellate Department, 5 Cal.3d 536, 96 Cal.Rptr. 709, 488 P.2d 13, there is somehow mandated some kind of administrative hearing to provide a meaningful opportunity to be heard on the retention of the necessities of life prior to criminal proceedings involving one on public welfare. Elaborate procedures for such hearings prior to discontinuance of welfare exist. Whether they comport with Goldberg, Sniadach and Randone we need not decide. However, we cannot, under a guise of constitutional interpretation, torture the rationale of those cases into a holding that such an administrative hearing is a necessary prerequisite to a criminal prosecution for welfare fraud.

Reduced to its essentials, this provision of Welfare and Institutions Code, section 11483 is not a procedural mandate designed to protect a criminal defendant. Neither this statute nor the Constitution gives the welfare recipient a license to steal.

Petitioner relies on footnote 8 of Ogdon v. Workmen's Comp. Appeals Bd., 11 Cal.3d 192, 201, 113 Cal.Rptr. 206, 520 P.2d 1022. The language in that case, however, merely restates the last paragraph of section 11483. It does not in any way interpret that paragraph.

This court issued its alternative writ to explore the above issue only. The petitioner also asks that we review two evidentiary rulings made by the municipal court. As indicated, these were the subject of an appeal and the appellate department of the superior court found against petitioner on each. While the function of the writ of habeas corpus has been expanded greatly in recent years, it is still not a substitute for appeal. It is not a proper vehicle to review alleged errors which could have been, in this case actually were, raised on appeal. Therefore, we decline again to review these matters which have once been reviewed by the proper reviewing authority.

The order to show cause is discharged. The writ denied.

FOOTNOTES

1.  Horrendous problems of statutory construction and constitutional interpretation are involved in meshing Welfare and Institutions Code, section 11482 into Welfare and Institutions Code, section 11483. Because the proper interpretation of section 11483 is a matter of statewide concern and because all parties have briefed the matter at length, we accept for the purpose of this opinion the approach taken by amici curiae to the effect that section 11482 sets forth the elements of welfare fraud, while section 11483 prescribes the penalties. Thus, to avoid a problem of equal protection of the laws, we apply the provisions of section 11483 to section 11482 of which petitioner was convicted. So, too, while the parties are in disagreement as to just how this occurs, they agree that the language in section 11483 mandating that such action be brought as provided in Welfare and Institutions Code, section 12250 and section 12850 is operative within section 11483 although these sections were subsequently repealed, but restated concurrent with that repeal by Welfare and Institutions Code, section 13200.

GARDNER, Presiding Justice.

KAUFMAN and McDANIEL, JJ., concur.