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Court of Appeal, First District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Gary Donald RUSTER, Defendant and Appellant.

Cr. 12525.

Decided: January 27, 1975

Jimmie E. Tinsley, San Francisco (Court-appointed), for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Ronald E. Niver, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Defendant Gary Donald Ruster appeals from judgments of conviction entered on jury verdicts finding him guilty of grand theft (count 1) and forgery (counts 2–14). Count 15 of the indictment charged the defendant with perjury but was dismissed during the course of the trial.

The facts upon which the indictment was founded may be summarized as follows: On the afternoon of January 19, 1972 defendant presented a weekly questionnaire form to an attendant at the Human Resources Development (HRD) office in San Jose, establishing his eligibility for unemployment insurance; this form was completed and signed in the name ‘Gary Roster,’ social security No. XXXXXXXXX. Upon presentation of the questionnaire he was given a pay certification card for $65 which defendant signed as Gary Roster and took to a cashier's window in the same office. A counter supervisor of HRD noticed that defendant appeared to resemble a photograph posted on the office bulletin board as one wanted by the department for questioning concerning possible violations of the Unemployment Insurance Code; the supervisor instructed the cashier to stall the defendant until he could summon a department investigator. While defendant was still at the cashier's window, but after he had received the $65, the investigator approached defendant and identified himself as an investigator. Thereupon defendant turned and ran toward the exit. He was apprehended inside of the building, taken to an office and questioned by the HRD investigator. After receiving identification material from the defendant he was asked ‘why he was running.’ To this defendant replied, ‘I don't know, scared, I guess' or something similar. Then defendant volunteered this statement: ‘How did you catch me so soon?’ The defendant was detained at the HRD office until the arrival of police about ninety minutes subsequent to his detention. The identification received by the department investigator was a California driver'a license in the name of Gary Donald Ruster, a Teamsters card in the name of Gary Ruster showing his address as Local 85, San Francisco, and a social security card bearing No. XXXXXXXXX. Defendant was questioned for less than an hour while awaiting arrival of the police; during this time he was advised of his constitutional rights and signed a ‘Miranda waiver’ (there is no Miranda issue on this appeal). During the questioning at the HRD office the investigator noticed nothing unusual or abnormal in the appearance of the defendant nor in his ability to respond to the questions.

At the police station defendant was again warned as to his constitutional rights and further questioned. During the police interrogation, lasting about an hour, defendant appeared nervous, high-strung and short of breath; the latter appearing to the officer as approaching a state of hyperventilation. The officer attempted to put defendant at ease by removing his handcuffs, words of reassurance and providing a paper bag, a commonly known aid to relieve hyperventilating persons. The attempt to relieve the hyperventilation preceded the questioning. The officer's general description of the defendant's demeanor and appearance during the questioning was stated by him as being rational, though scared, but no more scared than four or five hundred others that he had questioned under similar circumstances. During this interrogation defendant gave consent to a search of his automobile. In the trunk of the automobile the police found a tool-box containing nine manila envelopes each bearing a different name and social security number, with indications of dates and times at which appearances were to be made at various HRD offices where claims had been filed. Each envelope contained literature and cards issued by HRD. Some but not all of the envelopes indicated that payments in varying amounts had been paid on the claims indicated. Through the lead of a social security number found on one of these envelopes it was discovered that the various names on the envelopes were names of students at the University of California Medical School who had never filed claims for unemployment insurance. The defendant was booked on the day of his arrest and later freed on bail.1 On March 22, 1972, a search warrant was issued out of Santa Clara County directing search of defendant's automobile, home and an attached garage in San Mateo County. The alleged location of the home was based upon information given by defendant at the time of his arrest concerning his place of residence, later verified by independent investigation. In the resultant search various documents were seized and later introduced in the trial as Exhibits 58 through 82. These exhibits are generally described as Teamsters' cards and papers bearing various names other than Ruster, various documents bearing varying social security numbers, blank Teamsters' cards, blank Treasury Department applications for social security cards, a California driver's license in the name of David Samuel Livingston bearing defendant's photograph and his true home address, and items of correspondence from HRD addressed to names other than Ruster or Roster and also addressed to post office boxes.

Testimony offered at the trial on behalf of the People included proof that the defendant had received thirteen payments of $65 each under the name of Gary Roster, between May 11, 1971 and September 21, 1971; that the defendant had signed the weekly questionnaire cards preliminary to said payments as Gary Roster; that as Gary Ruster defendant had received $1,400 unemployment benefits from April 1970 to August 30, 1971 under a different social security number. At the trial defendant offered no evidence except upon diminished capacity, choosing not to testify on his own behalf. As revealed in counsel for defendant's opening statement the commission of the unemployment insurance frauds charged was admitted but was attempted to be excused as the product of ‘self-destructive compulsion’ as described by counsel and the psychiatric defense testimony; in other words, as is emphasized by appellant on this appeal, the defense of irresistible impulse. The perjury charge which was dismissed by the court during trial, as above indicated, involved an affidavit made by defendant to qualify him for the services of the public defender.

Appellant Was Improperly Convicted Under Penal Code Sections 470 and 484

Appellant's first contention is that penalties for all unemployment insurance fraud offenses have been codified into Unemployment Insurance Code sections 2101–2113,2 and that therefore it was improper to prosecute and convict defendant under the general provisions of Penal Code sections 470 and 484. This contention was recognized as valid in principle in 1951 in the case of People v. Haydon, 106 Cal.App.2d 105, 234 P.2d 720, where the court decided that predecessor legislation on the subject of punishment for unemployment insurance fraud as found in the Unemployment Insurance Act (Stats.1935, ch. 352, p. 1226; amended Stats.1943, ch. 1111, p. 3051) repealed pro tanto general provisions of the Penal Code. In 1953 the Legislature incorporated the Unemployment Insurance Act into a new statute creating the Unemployment Insurance Code (Stats.1953, ch. 308, p. 1457 et seq.); in this transition the former section 101(a) of the act, as interpreted in Haydon, became, without any substantial change, section 2101 of the code. In arriving at its decision the court in Haydon stressed two principles: 1) legislative intention, i. e., it was apparent that the Legislature intended that all unemployment insurance offenses be prosecuted under the act so that, as misdemeanors, a portion of the fines would go into the unemployment fund (106 Cal.App.2d at p. 108, 234 P.2d 720); and 2) the rule of clemency, which requires the imposition of the less severed penalty where it is imposed by the later of two statutes covering the same offense (106 Cal.App.2d at p. 111, 234 P.2d 720).3 Whereas the previous provisions regarding the disposition of the fines has been changed by enactment of the code, such money still insures to the fund for the cost of administration of the program (Unemp.Ins.Code, §§ 1558, 1585); therefore the rationale of the Haydon decision is still applicable to this case.4 The rule of People v. Haydon has been followed in People v. Koch, 4 Cal.App.3d 270, 84 Cal.Rptr. 629 and People v. Bogart, 7 Cal.App.3d 257, 86 Cal.Rptr. 737.

Respondent urges that People v. Haydon is not applicable in this case because as interpreted in People v. Lustman, 13 Cal.App.3d 278, 91 Cal.Rptr. 548, the rule applies only to attempts. A careful reading of Haydon clearly establishes that its decision was not confined to attempts; the facts as recited in the first paragraph of the opinion state that the defendant ‘received payment’ on the fraudulent claim. It is therefore our opinion People v. Lustman should not be considered as controlling in the case at bench. Respondent also relies on People v. Dale, 239 Cal.App.2d 634, 49 Cal.Rptr. 253 as being critical of the rule of People v. Haydon. We accord People v. Dale no weight as an authority because its reference to Haydon is not only dictum, having previously held the appeal from the guilty plea to be without merit under the rule of People v. Adamson, 34 Cal.2d 320, 326, 210 P.2d 13 (unrelated to the issue here), but also because its criticism is based on People v. Ryerson, 199 Cal.App.2d 646, 19 Cal.Rptr. 22, which in our opinion has been impliedly overruled by People v. Gilbert, 1 Cal.3d 475, 82 Cal.Rptr. 724, 462 P.2d 580.5 We conclude therefore that defendant should not have been charged and prosecuted for violation of Penal Code sections 484 (count 1) and 470 (counts 2–14 inclusive) but should have been charged with violation of Unemployment Insurance Code section 2101 as to each particular incident.

Since in our opinion this error does not require reversal on all counts, as will be later discussed, we go on to discussion of other contentions raised by appellant in his briefs.

The Search of the Automobile on the Day of Arrest

The police base their right to search the defendant's automobile on the day of arrest upon the verbal consent of defendant during his interrogation at the police station. On this appeal defendant-appellant does not deny the giving of consent but attacks it on the ground that circumstances under which it was given compel the conclusion that the consent was involuntary. At the Penal Code section 1538.5 hearing the police officer receiving the consent personally testified and was cross-examined concerning this entire episode; in addition, a tape of the actual conversation concerning the search of the automobile was played for the court. The defendant did not take the stand to give his version. As set forth earlier, the police officer's testimony can be summarized generally as follows: defendant was rational, though scared, and the hyperventilating had no effect upon defendant's ability to understand the nature of the interrogation nor to intelligently respond to the questions. After reviewing the record we find no evidence of any coercion, subtle or otherwise, on the part of the police. More important, the trial judge who saw and heard the witness and listened to the tape found no evidence of police coercion, which is essentially a question to be determined by the trier of facts. We believe there is no merit to the claim that defendant's consent was not voluntary. (See People v. Ward, 27 Cal.App.3d 218, 103 Cal.Rptr. 671; People v. McClure, 39 Cal.App.3d 64, 113 Cal.Rptr. 815.)

Having decided that the consent to search the automobile was voluntarily given, there is no need to discuss the contention that it was made without probable cause.

The Validity of the Search Warrant

Appellant contends that the search warrant was invalid because it was issued by a magistrate in Santa Clara County for the search and seizure of property in San Mateo County. His contention is based primarily upon the provisions of section 1528 of the Penal Code: ‘. . . he [the magistrate] must issue a search warrant . . . to a peace officer in his county, commanding him forthwith to search . . .’; upon section 1534 of the Penal Code providing for the return of the warrant to the magistrate or his court, and upon section 1541 of said code which recognizes that a magistrate of a county other than that in which the offense is triable may issue such a warrant.6 In the case before us the search warrant was issued by a judge of the superior court in Santa Clara after the defendant had been arrested and admitted to bail but before the return of the indictment upon which he was prosecuted. The warrant was entitled ‘In the Superior Court of the State of California in and for the County of Santa Clara’; it was directed to ‘any Sheriff, Constable, Marshal, Policeman or Peace Officer in the County of Santa Clara or County of San Mateo.’ The warrant was delivered to a criminal investigator in the office of the District Attorney of Santa Clara County. The criminal investigator executed the warrant and searched the home of the defendant, a detached garage and his automobile as directed in the warrant. Present at this search in San Mateo County were two San Mateo policemen whose presence had been previously arranged for by the investigator.

Appellant argues that because Penal Code section 1528 provides that the magistrate must issue the warrant to ‘a peace officer in his county’ a search pursuant thereto must be confined to the county in which the issuing magistrate sits, in this case Santa Clara. Respondent argues that since the court of the issuing magistrate is the superior court which has state-wide effective process, the appellant's contention is without merit. Respondent's contention ignores a fundamental principle of law that when a magistrate issues a search warrant he is not acting as a judge of any particular court but rather as one who derives his powers from Penal Code section 1523 et seq. (People v. Superior Court (Scofield) 249 Cal.App.2d 727, 735, 57 Cal.Rptr. 818; People v. Newton, 222 Cal.App.2d 187, 189, 34 Cal.Rptr. 888.) On the other hand appellant's contention that the requirement that the warrant be directed to a peace officer in the magistrate's county impliedly requires that its execution be confined to that county, ignores other provisions of the Penal Code as follows: Penal Code section 1524(4) provides, ‘The property or things . . . may be taken on the warrant from any place . . .’ without qualification or limitation: Penal Code section 830.1(a) provides that a sheriff, policeman, marshal or constable of a city, county or judicial district has authority as a peace officer in any place in the state as to ‘any public offense committed . . . within the political subdivision which employs him’; Penal Code section 830.3(b) provides that a district attorney's investigator, as a peace officer, has the same state-wide authority as given to the peace officers mentioned in Penal Code section 830.1; Penal Code section 1530 provides that a search warrant may be served by none other than the officers mentioned in the warrant ‘except in aid of [such] officer on his requiring it, he being present and acting in its execution’; Penal Code section 1536 provides that the property taken must be retained in the custody of the executing officer subject to the order of the magistrate's court or the order of any other court in which the offense is triable; and Penal Code section 1541 provides that upon the return of the warrant the issuing magistrate, if he provides that ‘The authority of a peace officer ‘must at once file such warrant and return . . . with the clerk of the court having power to so inquire.’

From the foregoing it should be employs him”. of Penal Code section 830.1 (Stats.1968, ch. 1222, p. 2302) there is no logical basis for concluding that a search warrant cannot be executed outside of the county in which it was issued, if the offense is triable therein.7 It is apparent also that in the schematic statutory structure relative to search warrants special consideration is given to the county in which the offense is triable (see Pen.Code, §§ 1536, 1541). Since search warrants were unknown to the early common law and the grounds and conditions under which they may be issued are purely statutory (44 Cal.Jur.2d, Rev., Searches and Seizures, § 10, p. 24) we must decide the question of the validity of the search warrant before us on the statutes applicable thereto as in effect at the time of its issuance (i. e. part 2, title 12, ch. 3, Pen.Code, §§ 1523–1542 inc.; part 2, title 3, ch. 4.5, § 830 et seq.). They were then (March 22, 1972) and are now as above indicated. In doing so we give great emphasis to the following facts: the warrant was issued in a county where the offense was triable; said county had obtained custody and jurisdiction over the person of the owner of the property seized by his arrest and admission to bail before the warrant issued. Under such circumstance we see no reason to hold that the warrant in this case was invalid because issued in the County of Santa Clara for search and seizure of property in San Mateo County. The direction in the search warrant to peace officers in San Mateo County can be considered as surplusage.

In arriving at this conclusion we are aware of the cases of Aday v. Superior Court, 55 Cal.2d 789, 13 Cal.Rptr. 415, 362 P.2d 47, and People v. Grant, 1 Cal.App.3d 563, 81 Cal.Rptr. 812. In both these opinions we find language expressive of the concept that a search warrant should be issued only in the county where the property is located because such limitation provides the owner with a readily accessible forum, without the necessity of crossing county lines, if he wishes to challenge the validity of the warrant under sections 1539 and 1540 of the Penal Code. Aday v. Superior Court, supra, can be distinguished because the real basis of the decision was a procedural one, i. e., the Alameda County order was an improper interference with the pending proceedings in Fresno County where the magistrate had already acquired jurisdiction and custody of the property in question by the execution of the warrant which he issued. Further Fresno was as well as Alameda County a county in which the offense was triable. No proceedings whatever were pending in Alameda County, the purpose of the order issued therefrom being to obtain the property seized in Fresno to present the same to the Alameda County Grand Jury. In People v. Grant, supra, where the search was made in a county other than the one issuing the search warrant, the court held the arrest and search to be valid without a warrant because the peace officers had reason to believe, from the contents of the search warrant in their possession, that they were in ‘hot pursuit’ of one believed to be the perpetrator of a recently committed felony in their county.8 In neither of the above situations had the victim of the search and seizure been previously arrested for the offense related to the search. We can appreciate some practicality in the rule of convenience referred to in Aday and Grant where the property of strangers to the criminal investigation is involved but we see no merit in its application to a defendant who at the time of search is personally subject to the jurisdiction of the issuing county; further, said cases can be distinguished from the case at bench on the ground that they are rulings affecting incidents occurring prior to the 1968 enactment of Penal Code section 830.1.

Defendant further contends that the search warrant was invalid because it was based on the hearsay statements of the district attorney's investigator. We have examined the record and have determined that the affidavit in support of the warrant was sufficient to meet the ‘two-pronged test’ of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. There is detailed factual matter relating circumstances from which it could be reasonably concluded that the items to be seized were in the places where they were claimed to be: the hearsay statements are inter-police and inter-departmental communications which are considered as trustworthy and reliable under the well-established ‘official channels' rule. (See People v. Gardner, 252 Cal.App.2d 320, 325, 60 Cal.Rptr. 321; People v. Schellin, 227 Cal.App.2d 245, 251, 38 Cal.Rptr. 593; People v. Terry, 12 Cal.3d 362, 394, 85 Cal.Rptr. 409, 466 P.2d 961.)

Evidence of Other Crimes

During the course of the trial certain evidence was admitted by the court which established that in addition to the offenses charged the defendant had received payments illegally from HRD by using names and social security numbers of various medical students. Defendant complains of this as prejudicial on the ground that these incidents were not part of a common scheme or plan because names other than Roster or Ruster were used, a different employer's name was used and it was not shown that defendant had a social security card in the names used. These appear to be minor variances when weighed against the other facts established by said evidence which do fit into the common scheme or plan requirements of the rule of admissibility. (Evid.Code, § 1101(b).) The admissibility of evidence of the other offenses was particularly appropriate in his case when intent became the principal issue in the case because of defendant's reliance upon diminished capacity as his defense. (See People v. Kelley, 66 Cal.2d 232, 243, 57 Cal.Rptr. 363, 424 P.2d 947; People v. David, 12 Cal.2d 639, 647, 86 P.2d 811; Witkin, California Evidence (2d ed.) p. 303, § 345.) On the authority of People v. David, supra, the court in People v. Asher, 273 Cal.App.2d 876, 913, 78 Cal.Rptr. 885 particularly approved of the admissibility of other offenses to rebut the defense of diminished capacity.

The Diminished Capacity Defense

Appellant argues that the testimony of all expert witnesses, including the expert called by the People, conclusively established that he could not form the specific intent to commit the crime because of diminished capacity; that since such evidence was not contradicted the defense was established as a matter of law. His argument disregards other evidence presented in the case by the People; for example: the circumstances occurring on the day of the arrest as related by eyewitnesses; the evidence found in his car on that day, and later at his home and in his car; the records of HRD introduced at the trial. In people v. Coogler, 71 Cal.2d 153, at page 166, 77 Cal.Rptr. 790, at page 797, 454 P.2d 686, at page 693, a similar argument was answered as follows: ‘Although unanimity of expert opinion carries persuasive value . . . a jury, under certain circumstances, can properly reject such opinions. As we recently explained in People v. Bassett (1968) 69 Cal.2d 122, 70 Cal.Rptr. 193, 205, 443 P.2d 777, 780, ‘The chief value of an expert's testimony in this field . . . rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion . . ..’' Boiled down, the ‘material’ on which Dr. Mitchell, defendant's principal expert witness, based his opinion was statements of the defendant; particularly, he relied heavily on a letter written by the defendant on April 18, 1972 relating that he heard a voice which he believed to be God ‘that tells me to do these acts.’ Aside from the doctor's repetition of these statements on the stand as the basis of his opinion there is no evidence in the record on this alleged motivation which is the sole defense in this case. The defendant did not testify that he was so motivated. His statements to the physician are not evidence of their truth. (People v. Brown, 49 Cal.2d 577, 586, 320 P.2d 5.) Neither are they admissible under Evidence Code section 1250 because that statute refers to the state of mind of the declarant at the time of the declaration; all of these statements were made on and after April 18, 1972 (the date of the letter), months after the arrest. The statements are not admissible under section 1252 of the Evidence Code as evidence of a state of mind as of a time preceding the declaration because made under circumstances indicating lack of trustworthiness.9 (See Witkin, California Evidence (2d ed.) §§ 553, 554, 557.) In summary, contrary to defendant's contention that the defense of irresistible impulse was proven as a matter of law, it is based on very weak evidence.

Defendant cannot be heard to complain, in any event, because the issue was presented to the jury under appropriate instructions and their finding that the diminished capacity defense was not applicable in this case is implied in their guilty verdict. On this subject the court instructed the jury by giving CALJIC 3.3510 as requested by the People. Counsel for defendant did not ask for any other version of his diminished capacity defense, but now complains on appeal that the trial judge should have given sua sponte an instruction similar to CALJIC 8.78 (1973 Supp.Service Pamph. No. 2) modified to suit the case. We consider defendant's argument to be untenable for the following reasons: The instruction (CALJIC 8.78 had not been published at the date of the trial; and it is designed for use only with CALJIC 8.77 (pertaining to intentional homicide cases);11 bearing in mind that irresistible impulse is never a complete defense (People v. Gorshen, 51 Cal.2d 716, 336 P.2d 492; People v. Poddar, 10 Cal.3d 750, 111 Cal.Rptr. 910, 518 P.2d 342; People v. Noah, 5 Cal.3d 469, 96 Cal.Rptr. 441, 487 P.2d 1009) the jury was adequately and properly instructed by the instructions given on this issue.

The Trial Court Did Not Abuse Its Discretion in Excluding Medical Records

The defendant-appellant further complains that the trial court abused its discretion in denying admission of the San Mateo County Mental Health file pertaining to the defendant. The record shows that this file was used by Dr. Miller and he read from it extensively while testifying throughout 211 pages of the transcript. Before ruling the court examined the offered medical records and noted: they were of questionable relevancy because they dated back to 1952; there were repeated references to homosexual contacts, illegal entrances to Stanford and Davis (U.C.) medical schools. To the extent that the doctor had already read from the records and given his interpretations and opinions thereon they were already in the record as the basis for his conclusions. Therefore we hold that the court did not abuse its discretion in denying the offer. It is matter of common knowledge that such records contain so many technical terms and abbreviations that they cannot be intelligently understood by the layman without professional help in their interpretation. The trial court did not commit error in this regard. (See Evid.Code, § 352; People v. Holt, 28 Cal.App.2d 343, 104 Cal.Rptr. 572 [court has wide discretion in such matters]; see also People v. Delgado, 32 Cal.App.2d 242, 108 Cal.Rptr. 399 [trial court's ruling will not be reversed absent a clear showing of abuse].)

The Prosecutor Did Not Commit Prejudicial Misconduct During the Trial

Defendant-appellant finally complains of misconduct of the district attorney committed during the examination of the expert witnesses and during his arguments to the jury. In reviewing the record we find no indication of bad faith in the asking of questions of the witnesses. (See People v. Chojnacky, 8 Cal.3d 759, 106 Cal.Rptr. 106, 505 P.2d 530.) With reference to the alleged misconduct during argument we find nothing that exceeds the boundaries of fair and reasonable comment. Nor do we find any objection by counsel at trial to the conduct now complained of. We believe the defendant's position in this case comes clearly within the rule of People v. Mitchell, 63 Cal.2d 805, at page 809, 48 Cal.Rptr. 371, at page 374, 409 P.2d 211, at page 214, where the court said: ‘Misconduct in argument may not be assigned on appeal if it was not assigned at the trial, unless the misconduct contributed to the verdict or was so unredeemable that nothing whatever would have cured it.’ (See also People v. Varnum, 70 Cal.2d 480, 75 Cal.Rptr. 161, 450 P.2d 553.)

The Cause Should Be Remanded for Further Proceedings

Our holding that the defendant should have been prosecuted and convicted under the provisions of the Unemployment Insurance Code poses a procedural problem, i.e., should the cause be reversed for a new trial or is there an alternative.

Counts 2 through 15 are practically identical save for dates,12 a typical count being count 4 which reads as follows: ‘The Grand Jury . . . accuses Gary Donald Ruster of a Felony, to wit: a violation of California Penal Code Section 470 (Forgery), in that on or about the 21st day of September, A.D., 1971 in the County of Santa Clara . . . defendant did wilfully and unlawfully utter and pass as true and genuine a pay certification card for payment of $65.00, with knowledge that said card was false and forged, with the intent to defraud the Department of Human Resources Development.’ Section 2101 of the Unemployment Insurance Code provides: ‘It is a misdemeanor to willfully make a false statement or representation or knowingly fail to disclose a material fact to obtain . . . any benefit or payment . . . under . . . the provisions of this division.’ Since ‘division’ refers to the Unemployment Insurance Code (section 1); since section 301 of the code (as applicable at the time of the offenses charged) provided that the Department of Human Resources Development was charged with the duties and responsibilities of administering the code; and since section 128 of the code defines ‘benefits' as ‘the money payments payable to an individual, pursuant to this division, with respect to his unemployment and includes unemployment compensation benefits' (emphasis added), it should be apparent that counts 2 through 15 specifically state facts constituting the crime of violating the provisions of Unemployment Insurance Code section 2101. See In re Culver, 187 Cal. 437 at page 440, 202 P. 661, 663, where the court stated the rule as follows: ‘A court take judicial notice of the statutes of the state and it is unnecessary that their titles or terms be set forth in the complaint. If the facts stated constitute a crime under a particular law, an allegation in a complaint that the acts in question are a violation of another and different law may be disregarded as immaterial, for it does not alter the nature of the acts charged nor prevent them from constituting a crime.’ (To the same effect see Homan v. Board of Dental Examiners, 202 Cal. 593, 262 P. 324; People v. Eppinger, 105 Cal. 36, 38 P. 538; People v. Labrum, 25 Cal.App.3d 105, 101 Cal.Rptr. 602.

Defendant-appellant was aware at all times that he was being tried for his activities in collecting fraudulent unemployment insurance. For example, very early in the proceedings defendant moved under section 995 of the Penal Code to quash count 1 (grand theft) and counts 2 through 15 (forgery) on the same grounds as urged on this appeal; further, at the trial upon request of counsel for the defendant the trial court instructed the jury that section 2101 of the Unemployment Insurance Code was a lesser included offense of each of the first 15 counts. Whether or not the Penal Code section 995 motion should have been granted is immaterial here because under the rule of Kellett v. Superior Court, 63 Cal.2d 822, 48 Cal.Rptr. 366, 409 P.2d 206, the superior court had jurisdiction to try counts 2 through 15 as misdemeanors together with count 16 (perjury). (See also Richard H. Bein, Implementation of Kellett's Command: Joinder of Misdemeanors and Felonies in Superior Court, 7 San Diego Law Rev. (1970) p. 1.) Analogous to the situation at bench is People v. Labrum, 25 Cal.App.3d 105, at page 110, 101 Cal.Rptr. 602, at page 606, where, the court said: ‘In the Marshall opinion, supra,13 the California Supreme Court expanded the definition of a lesser included offense to include any lesser crime embraced within the specific allegations of the accusatory pleadings; the defendant was charged with robbery in violation of Penal Code section 211 and was convicted of taking a vehicle without the owner's consent in violation of Vehicle Code section 503, now section 10851; the high court affirmed the conviction because the allegations of the accusatory pleadings fairly apprised the defendant of the charge. Under Marshall, therefore, the test as to whether a defendant's conviction of a charge not specifically mentioned in the indictment or information is valid depends upon whether the accusatory pleadings gave him notice of every possible theory under which the prosecution was proceeding. . . . The record in this case unequivocally demonstrates that at the time of his trial, defendant was fully apprised of the exact nature of the charge against him, was fully prepared to meet the charge and was accorded a fair and impartial trial.’

In view of the foregoing and the theory under which the case was presented to the jury,14 we conclude that in effect the defendant was convicted in counts 2 through 15 of violations of section 2101 of the Unemployment Insurance Code. In our opinion it would serve no meaningful purpose to reverse all counts for a new trial under such circumstances, when the cause can be remanded for a correction of the record and a resentencing of the defendant as a misdemeanant.15

It is therefore ordered that the judgment of conviction on count 1 is reversed and that the cause be remanded, with directions to the trial court to correct the record to show the defendant convicted of a violation of section 2101 of the Unemployment Insurance Code on each of counts 2 through 15 and to sentence the defendant under said section accordingly.



1.  Later, after March 23, 1972, the date of the search of defendant's home, he was arrested on the perjury charge. He was in custody during trial.

2.  Unemployment Insurance Code section 2101 provides as follows: ‘It is a misdemeanor to willfully make a false statement or representation or knowingly fail to disclose a material fact to obtain, increase, reduce, or defeat any benefit or payment, whether for the maker or for any other person, under any of the following statutes administered by the department: (a) The provisions of this division. . . .’

3.  See also In re Williamson, 43 Cal.2d 651, 654, 276 P.2d 593, 594, as follows: ‘It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.’

4.  Legislative intent to preempt the field by enactment of the Unemployment Insurance Code is further evidence by provision for restitution prior to the filing of charges as set forth in section 2113 of the act (added in 1967) and all of chapter 10, sections 2101–2113 inclusive re ‘Violations.’ By way of analogy see People v. Ali, 66 Cal.2d 277, 57 Cal.Rptr. 348, 424 P.2d 932 (re credit card offenses), People v. Gilbert, 1 Cal.3d 475, 82 Cal.Rptr. 724, 462 P.2d 580 (re Welfare and Institutions Code), People v. Superior Court (Fuller) 14 Cal.App.3d 935, 92 Cal.Rptr. 545 (re Vehicle Code.)

5.  People v. Gilbert, supra, 1 Cal.3d 475 82 Cal.Rptr. 724, 462 P.2d 580 held that section 11482 of the Welfare and Institutions Code precludes prosecution under the theft statute. (Pen.Code, § 484.) The similarity of said section 11482 to section 2101 of the Unemployment Insurance Code is noteworthy. Welfare and Institutions Code section 11482 provides: ‘Any person . . . who willfully and knowingly, with the intent to deceive, makes a false statement or representation or knowingly fails to disclose a material fact to obtain aid . . . is guilty of a misdemeanor.’

6.  See People v. Grant, 1 Cal.App.3d 563, 569, 81 Cal.Rptr. 812, where the court discusses the pre-1935 law of arrest.

7.  In 1968, when Penal Code section 830.1 was enacted. Penal Code section 817 was repealed in the same act. The effect of this legislation was to remove the rule of law then contained in section 817 from chapter 4 of title 3 of part 2 of the Penal Code entitled ‘The Warrant of Arrest’ and place the same provisions of law, though renumbered. in chapter 4.5 of title 3, part 2 entitled ‘Peace Officers'; thereby, we believe it reasonable to infer, indicating legislative intent that the state-wide authority given to peace officers in 1965 should not be limited to arrests but should apply generally, e. g. to the service of search warrants and other matters within their domain. With such legislative history in mind, we quote from People v. Sandoval, 65 Cal.2d 303, 313, fn. 10, 54 Cal.Rptr. 123, 129, 419 P.2d 187, 193 in corroboration of our conclusion above expressed as follows: ‘If the 1965 amendment to Penal Code section 817 . . . had been in effect when the defendant was arrested, that section would have authorized defendant's arrest even if the officers had not been in fresh pursuit, since the amendment provides that ‘The authority of a peace officer extends to any place in the state . . . as to a public offense . . . which there is probable cause to believe has been committed within the political subdivision that employs him’'If a peace officer desires assistance in another political subdivision he can resort to Penal Code section 1530 which permits him to seek the aid of others, accomplished in this case by the presence of the San Mateo police officers at the scene of the search.

8.  People v. Grant, supra, 1 Cal.App.3d 563, 81 Cal.Rptr. 812 was decided upon events occurring in 1966; at that time Penal Code section 817 was in effect and section 830.1 of the Penal Code had not been enacted.

9.  Dr. Miller testified that the first time he heard about the voices believed to be God was when he received the April 18, 1972 letter written while defendant was in jail. This was several months after his arrest and while he was being examined by Dr. Miller in the preparation of his defense.

10.  CALJIC (3d rev. ed.) 3.35: ‘When a defendant is charged with a crime which requires that a certain specific intent or mental state be established in order to constitute the crime or decree of crime, you must take all the evidence into consideration and determine therefrom if, at the time when the crime allegedly was committed, the defendant was suffering from some abnormal mental or physical condition, however caused, which prevented him from forming the specific intent or mental state essential to constitute the crime or degree of crime with which he is charged.‘If from all the evidence you have a reasonable doubt whether defendant was capable of forming such specific intent or mental state, you must give defendant the benefit of that doubt and find that he did not have such specific intent or mental state.’

11.  The use note for CALJIC 8.78 cites People v. Cantrell, 8 Cal.3d 672, 105 Cal.Rptr. 792, 504 P.2d 1256 as authority for its use and warns that the instruction should be given only if Instruction 8.77 has been previously given. CALJIC 8.77 as above indicated refers to ‘. . . Ability to Premeditate, Deliberate, Harbor Malice or Intent to Kill’ in homicide cases. People v. Cantrell, on which defendant heavily relies, concerns ‘irresistible impulse’ only as it applies to intentional homicide as explained at page 686, 105 Cal.Rptr. at page 794, 504 P.2d at page 1258 of the opinion: ‘Competent testimony to the effect the act of killing resulted from an irresistible impulse due to mental disease is relevant evidence bearing on the issues of intent to kill and malice aforethought.’

12.  Count 2 is the same as count 4 except that the sequence of the language is different and it not only alleges unlawfully uttering and passing but adds the elements of publishing and attempting to pass. Count 3 was amended at trial to refer to the uttering and passing of a ‘continued claim statement’ in substitution of the originally alleged ‘pay certification card.’ We consider these differences as inconsequential.

13.  People v. Marshall, 48 Cal.2d 394, 309 P.2d 456.

14.  That is, on the theory that a violation of section 2101 of the Unemployment Insurance Code is a lesser included offense of those charged. In such a case, the conviction of the greater offense would be a conviction of the lesser included offense. (Pen.Code, § 1023; People v. Greer, 30 Cal.2d 589, 184 P.2d 512.)

15.  See People v. Labrum, 25 Cal.App.3d 105, 101 Cal.Rptr. 602; People v. Ramirez, 27 Cal.App.3d 660, 104 Cal.Rptr. 102.

ARATA,* Associate Justice (Assigned). FN* Retired Judge of the Superior Court assigned by the Chairman of the Judicial Council.

DRAPER, P. J., and HAROLD C. BROWN, J., concur.

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