PEOPLE v. GILBERT (1968)

In a nonjury trial appellant was convicted of grand theft, section 487 of the Penal Code by unlawfully taking Los Angeles County payments of aid to dependent children between the first day of December 1965, and the fifteenth day of March 1966. By stipulation the cause was submitted on the transcript of the preliminary hearing, together with additional evidence. Proceedings were suspended and appellant was granted probation on condition that she spend the first six months in county jail.

Appellant made application for aid to Families with Dependent Children under the provisions of Welfare and Institutions Code, sections 11200–11488. She signed an Affirmation of Eligibility in applying for such aid on May 30, 1965 and November 16, 1965.

The facts clearly show that appellant misrepresented her eligibility for aid with the intent that she should receive money to which she was not entitled and, in fact, was overpaid more than $600 because of these misrepresentations.

Clifford Branch lived with appellant from December 1965 until March 15, 1966. During that period, while receiving gross earnings of $800 per month, Branch contributed money for rent and the purchase of food, totalling $125 per month. Living with appellant and Branch was appellant's child by a previous marriage.

Appellant with one dependent child was not eligible for aid when a male with Branch's earnings maintained a ‘spouse-like relationship’ with appellant.

Appellant does not contend that the evidence was insufficient to show that defendant signed eligibility statements which were untrue.

Appellant contends that she was improperly prosecuted under Penal Code, section 487; she should have been prosecuted only for misdemeanor violations of the Welfare and Institutions Code.

Section 11482 of the Welfare and Institutions Code states as follows: ‘Any person other than a needy child 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, or who, knowingly is not entitled thereto, attempts to obtain aid or to continue to receive aid to which he is not entitled, or a larger amount than that to which he is legally entitled, is guilty of a misdemeanor.’ (Emphasis added.)

Section 11483 goes on to state: ‘Whenever any person has, by means of false statements or representation or by impersonation or other fraudulent device, obtained aid for a child not in fact entitled thereto, the person obtaining such aid shall make restitution and all actions necessary to secure restitution may be brought against him.’

Section 13800 of the Welfare and Institutions Code provides as follows: ‘Any person who, knowing he is not entitled thereto, obtains or attempts to obtain aid to which he is not entitled, or a larger amount than that to which he is legally entitled is guilty of a misdemeanor.’

It is apparent that these sections cover cases where recipients receive aid to which they are not entitled. Prior to the 1965 legislative changes it would be clear that upon these facts, appellant violated section 487 of the Penal Code. (People v. Shirley, 55 Cal.2d 521, 11 Cal.Rptr. 537, 360 P.2d 33, 42 A.L.R.2d 413.) But, of course, Shirley does not mention the 1965 changes in the Welfare and Institutions Code which make it clear that the Legislature intended to remove this type of violation from the general law.

In the case of People v. Smith, 248 Cal.App.2d 134, 56 Cal.Rptr. 258, the defendant was charged with three counts of felony perjury in violation of section 118 of the Penal Code and section 1550 of the Welfare and Institutions Code (now sections 11050 and 11054 of the Welfare and Institutions Code).

A demurrer was sustained to the Information on the ground that the defendant could not be prosecuted under the general perjury statute of the Penal Code since section 11265 of the Welfare and Institutions Code applies specifically to the crimes charged and makes the same misdemeanors and not felonies.

The defendant had been receiving aid from Los Angeles County for the support of two children, and on April 1, 1963, October 17, 1963 and April 23, 1964, she signed under oath as required by section 11265, ‘Statements of Facts Relating to Eligibility for Aid to Needy Children’ which was similar to the statements of eligibility contained in the instant case. The sole question on appeal was whether she could be prosecuted for felony perjury under section 118 of the Penal Code and section 1550 of the Welfare and Institutions Code or as respondent contended only for violation of section 1563 of the Welfare and Institutions Code which is now section 11265 of that code.

This court said in part at pages 136–137, 56 Cal.Rptr. at page 259:

‘When the facts of an offense defined in a general statute parallel the acts proscribed by a speciific statute, there cannot be a prosecution for violation of the general statute. (People v. Swann, 213 Cal.App.2d 447, 449, 28 Cal.Rptr. 830.) In In re Williamson, 43 Cal.2d 651, 654, 276 P.2d 593, the court held that where the general statute would include the same matter as the special act, and thus conflict with it, the special act will be regarded as an exception or qualification of the general one, whether passed prior or subsequent to the general statute * * *

‘In People v. Silk, 138 Cal.App.2d Supp. 899, 291 P.2d 1013, the defendant, in applying for aid under the Old Age Pension Act, failed to disclose he was receiving social security payments from the United States government. He was charged with violation of section 484 of the Penal Code (theft) instead of the penalty provision of the Pension Act (§ 2007 of the Welf. & Inst.Code). The court held the prosecution under section 484 improper, stating at pages 901, 902, 291 P.2d at page 1015: ‘The conflict between the general and specific law which is controlling here also appears from the fact that proof of such violation would meet the issues of the complaint drawn under section 484 of the Penal Code, excepting only for the rule that the specific statute controls over the general. Since the material proof was exclusively a specific violation of section 2007, that section controls to the exclusion of Penal Code, section 484.’' The court then went on to quote from and analyze the 1961 report of the Senate Fact-Finding Committee on Labor and Welfare, Aid to Needy Children Program. A rehearing was denied by this court on February 23, 1967, and a hearing in the Supreme Court was denied March 22, 1967. The rule of People v. Smith, supra, is applicable herein.

The judgment is reversed.

FOOTNOTES

FOOTNOTE.  

NUTTER, Associate Justice pro tem.* FN* Appointed by the Chairman of the Judicial Council.

ROTH, P. J., and FLEMING, J., concur.