PEOPLE v. JENKINS

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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Appellant, v. Margie JENKINS, Defendant and Respondent.

Cr. 9725.

Decided: June 27, 1980

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert F. Tyler, James Ching, Eddie T. Keller, and James T. McNally, Deputy Attys. Gen., for plaintiff and appellant. Quin Denvir, State Public Defender, Richard E. Shapiro and Michael G. Arkelian, Deputy State Public Defenders for defendant and respondent.

The sole question presented by the People's appeal is whether defendant may be prosecuted for both perjury (Pen.Code, s 118) and welfare fraud (Welf. & Inst.Code, s 11483) for allegedly obtaining welfare benefits by making false statements under oath or whether the welfare fraud provision is a special statute which conflicts with and supplants the general perjury statute.

An information was filed in the superior court on December 20, 1977, charging defendant with one count of welfare fraud and one count of perjury. Defendant filed a motion to dismiss the information as to the perjury count (Pen.Code, s 995), and the court granted the motion on March 20, 1978. The People timely appealed. (Pen.Code, s 1238, subd. (a)(1).)

The People assert that it is proper to charge and prosecute defendant for a violation of Penal Code section 118 as well as the lesser offense of violating Welfare and Institutions Code section 11483.

Although Welfare and Institutions Code sections 11482, 11483 and former sections 122501 and 128502 were to be construed together, section 11483 does not bar prosecution for perjury pursuant to section 118 of the Penal Code. (People v. Batten (1978) 86 Cal.App.3d 848, 849-850, 150 Cal.Rptr. 567; see People v. Isaac (1976) 56 Cal.App.3d 679, 683, 128 Cal.Rptr. 872.)

A special statute does not supplant a general statute unless all of the requirements of the general statute are covered by the special statute. Welfare and Institutions Code sections 11482 and 11483 as special statutes do not supplant Penal Code section 118 in this instance. Penal Code section 118 requires that false statements be made under oath or penalty of perjury. By contrast, Welfare and Institutions Code section 11482 applies to any false statement made to secure or continue aid whether made under oath or penalty of perjury or not. A violation of the perjury statute thus requires an element not embraced by the special statute. (See People v. Barrowclough (1974) 39 Cal.App.3d 50, 55, 113 Cal.Rptr. 852.)

Welfare and Institutions Code section 11265, subdivision (b), requires that applications for continuing aid be made under penalty of perjury, thus making Penal Code section 118 applicable to this case. Defendant filed annual applications for continuing aid under penalty of perjury which are the bases for the perjury count.

We conclude that Penal Code section 118 and the conduct proscribed by it is not dependent upon a violation of section 11483. The latter section is limited to obtaining aid by use of a false statement, while section 118 involves any false statement but made under oath or penalty of perjury. (People v. Batten, supra, 86 Cal.App.3d at pp. 849-850, 150 Cal.Rptr. 567; People v. Isaac, supra, 56 Cal.App.3d at pp. 683-684, 128 Cal.Rptr. 872.)

The judgment (order granting defendant's motion to dismiss the perjury count) is reversed and remanded with directions to the trial court to vacate the dismissal.

FOOTNOTES

1.  Repealed by Statutes 1973, chapter 1216, section 36, page 2903, urgency, effective December 5, 1973.

2.  Repealed by Statutes 1974, chapter 75, section 12, page 170, urgency, effective March 14, 1974.

EVANS, Associate Justice.

PUGLIA, P. J., concurs. BLEASE, J., concurs in the result.