PEOPLE v. McGEE

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Evelyn McGEE et al., Defendants and Appellants.

Cr. 8112.

Decided: March 11, 1976

Appellate Defenders, Inc. by Paul Bell and Theodore E. Davis, San Diego, under appointment by the Court of Appeal, for defendants and appellants. Evelle J. Younger, Atty. Gen., Karl J. Phaler and Patricia D. Benke, Deputy Attys. Gen., for plaintiff and respondent.

Evelyn and Earnest McGee appeal judgments convicting them of fraudulently obtaining aid and conspiring to commit welfare fraud (Welf. & Inst.Code § 11483). They were granted probation on conditions.

On December 24, 1974, the McGees were charged by an information which did not allege restitution had been sought from them before criminal charges were brought. On that basis they filed a demurrer, which was overruled.

The McGees contend criminal liability under Welfare and Institutions Code section 11483 is conditioned on prior attempts at restitution. Section 11483 provides:

‘Whenever any person has, by means of . . . fraudulent device, obtained aid for a child not in fact entitled thereto, the person obtaining such aid shall be punished as follows:

‘. . .

(2) If the amount obtained or retained is more than two hundred dollars ($200), by imprisonment in the state prison . . . or . . . in the county jail.

‘All actions necessary to secure restitution shall be brought against persons in violation of this section as provided in Sections 12250 and 12850.‘

Sections 12250 and 12850 state: ‘It is the intent of the Legislature that restitution shall be sought . . . prior to the bringing of a criminal action. ‘ Although sections 12250 and 12850 were repealed in 1973, they remain operative as incorporated by reference in Welfare and Institutions Code section 11483 (Palermo v. Stockton Theatres, Inc., 32 Cal.2d 53, 58–59, 195 P.2d 1; Madrid v. Justice Court, 52 Cal.App.3d 819, 823, 125 Cal.Rptr. 348).

However, attempted restitution is not included within the elements of welfare fraud and it is not a prerequisite to prosecution. As restitution is referred to in the last paragraph of section 11483, it indicates a legislative preference public agencies seek recovery of funds as a first recourse. No consequence for deviating from this procedure is prescribed, and where a statute provides no means for enforcement, its requirements may be considered directory rather than mandatory (Gowanlock v. Turner, 42 Cal.2d 296, 301, 267 P.2d 310; Adler v. City Council, 184 Cal.App.2d 763, 774, 7 Cal.Rptr.805).

Moreover, the Welfare and Institutions Code is to be administered with the objective of safeguarding public funds as well as the needs of the applicant (Welf. & Inst.Code § 11004; People v. Samuel, 245 Cal.App.2d 210, 231, 53 Cal.Rptr. 887). The Legislature may have believed recoupment of wrongfully disbursed funds would be facilitated by attempting it before hampering the recipient with criminal prosecution. This strategy was designed to protect public funds rather than to afford a procedural defense to those who defraud society.

No right of the McGees has been impaired by the omission of attempted restitution. Even if the outcome of such an attempt were the making of full restitution, criminal action would not have been barred (Madrid v. Justice Court, supra, 52 Cal.App.3d 819, 825, 125 Cal.Rptr. 348; People v. Holmes, 5 Cal.App.3d 21, 25, 84 Cal.Rptr. 889).

Judgments affirmed.

GERALD BROWN, Presiding Justice.

AULT, J., and COUGHLIN,* J., Assigned, concur.

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