People v. Ruster

• Citation: 548 P.2d 353,16 Cal.3d 690,129 Cal.Rptr. 153
• Decision Date: 14 April 1976
• Docket Number: Cr. 18553
• Court: United States State Supreme Court (California)
• Parties: , 548 P.2d 353, 80 A.L.R.3d 1269 The PEOPLE, Plaintiff and Respondent, v. Gary Donald RUSTER, Defendant and Appellant.

Page 153

129 Cal.Rptr. 153

16 Cal.3d 690, 548 P.2d 353, 80 A.L.R.3d 1269

The PEOPLE, Plaintiff and Respondent, v. Gary Donald RUSTER, Defendant and Appellant.

Cr. 18553.

Supreme Court of California,

In Bank.

April 14, 1976.

Jimmie E. Tinsley, Los Angeles, under appointment by the Supreme Court, 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 and Ronald E. Niver, Deputy Attys. Gen., for plaintiff and respondent.

CLARK, Justice.

Defendant appeals from judgment entered on jury verdicts convicting him of 1 count of grand theft (Pen.Code, §§ 484, 487, subd. 1) and 14 counts of forgery (Pen.Code, § 470) based on unemployment insurance fraud. He was sentenced to state prison for the term prescribed by law, the terms on the forgery counts to run concurrently with the grand theft term. The principal question presented by this appeal is whether section 2101 of the Unemployment Insurance Code, classifying as a misdemeanor fraudulent representation to obtain unemployment benefits, is a special statute precluding prosecution of such fraud under the general theft and forgery statutes. The judgment must be reversed.

Defendant submitted a questionnaire establishing his eligibility for unemployment benefits to an employee of the Employment Development Department (EDD); he signed the questionnaire 'Gary Roster,' social security number 549940478. Receiving a pay certification card for $65, he signed the same name on that form and presented it to a cashier in the EDD office. A supervisor then noticed that defendant resembled a photograph posted on the office bulletin board of a man wanted by the department for questioning concerning possible violations of the Unemployment Insurance Code. The supervisor instruced the cashier to stall defendant until a EDD investigator could be summoned.

While defendant was still at the cashier's window, but after he received the $65, an investigator approached defendant and identified himself. Defendant ran toward an exit, but was apprehended. He then produced identification indicating he was Gary Ruster, social security number 564560708. Subsequent searches made with his consent or pursuant to warrant produced documents indicating petitioner had received thirteen $65 unemployment insurance payments using the name 'Gary Roster' between May and September of 1971, and had received $1,400 in unemployment insurance benefits by using a false social security number between April of 1970 and August of 1971. His defense at trial was diminished capacity.

The Special Statute Question

Prosecution under a general statute is precluded by a special statute when the general statute covers the same matter as, and thus conflicts with, the special statute. (People v. Gilbert (1969) 1 Cal.3d 475, 479, 82 Cal.Rptr. 724, 462 P.2d 580; In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593.) However, a special statute does not supplant a general statute unless All of the elements of the general statute are included in the special statute. (See People v. Gilbert, supra, 1 Cal.3d at p. 480, 82 Cal.Rptr. 724, 462 P.2d 580; People v. Phillips (1966) 64 Cal.2d 574, 582, 51 Cal.Rptr. 225, 414 P.2d 353; People v. Barrowclough (1974) 39 Cal.App.3d 50, 55, 113 Cal.Rptr. 852.)

(a) Unemployment Insurance Fraud Cannot Be Prosecuted Under Section 484 of the Penal Code

Section 484 of the Penal Code provides in pertinent part: 'Every person who shall . . . knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money . . . is guilty of theft.' Theft of more than $200 in money constitutes grand theft. (Pen.Code, § 487, subd. 1.)

Section 2101 of the Unemployment Insurance Code provides in pertinent part: '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 . . ..' (Italics added.)

The People contend that section 2101 does not include one of the elements of section 484 and, therefore, does not supplant it. The theft statute requires that the fraud victim actually 'part with value.' (See People v. Gilbert, supra, 1 Cal.3d at p. 480, 82 Cal.Rptr. 724, 462 P.2d 580; People v. Phillips, supra, 64 Cal.2d at p. 582, 51 Cal.Rptr. 225, 414 P.2d 353.) Relying on People v. Lustman (1970) 13 Cal.App.3d 278, 91 Cal.Rptr. 548, the People contend section 2101 has no such requirement, but rather, the words 'to obtain' limit the application of the statute to Attempted unemployment insurance fraud.

In concluding that section 2101 does not preclude prosecution of unemployment insurance fraud under the general theft statute when such fraud is consummated, the Lustman court misread the precedent upon which it relied. Lustman construed People v. Armstrong (1950) 100 Cal.App.2d Supp. 852, 224 P.2d 490 and People v. Haydon (1951) 106 Cal.App.2d 105, 234 P.2d 720, as holding that the predecessor to section 2101 (Unemp.Ins.Act, § 101, subd. (a)) was limited to attempts. ¹

In Armstrong, the defendant was convicted of both unemployment insurance fraud and theft based on the same misconduct. He contended that the offense described by section 101, subdivision (a), was necessarily included within theft and, therefore, that he was being punished twice for the same offense. The Court of Appeal found merit in this contention, observing that 'the corpus delicti (of unemployment insurance fraud) is identical with Attempted theft by false pretenses.' (100 Cal.App.2d Supp. at p. 858, 224 P.2d at p. 494, italics added.) However, because it was not confronted with the question presented here, the Armstrong court had no occasion to consider whether section 101, subdivision (a), while requiring only an attempt, might also cover consummated fraud. The question presented in Haydon was whether section 101, subdivision (a), was a special statute precluding prosecution of unemployment insurance fraud under section 72 of the Penal Code. Section 72 then provided in pertinent part: 'Every person who, with intent to defraud, presents for allowance or for payment to any state board . . . any false or fraudulent claim . . . is guilty of a felony.' The Court of Appeal held that section 72 was supplanted by section 101, subdivision (a). In reaching this concusion, the court was not required to, and did not, determine whether section 101, subdivision (a) applied to completed, as well as attempted, fraud.

Statutes are to be construed so as to effect the intent of the Legislature. (Code Civ.Proc., § 1859; Mercer v. Perez (1968) 68 Cal.2d 104, 112, 65 Cal.Rptr. 315, 436 P.2d 315; Select Base Materials, Inc. v. Board of Equalization (1959) 51 Cal.2d 640, 645, 335 P.2d 672.) To ascertain legislative intent, the court should construe a statute with reference to the whole system of law of which it is a part. (Select Base Materials, Inc. v. Board of Equalization, supra; Stafford v. Los Angeles etc. Retirement Board (1954) 42 Cal.2d 795, 799, 270 P.2d 12; County of Los Angeles v. Frisbie (1942) 19 Cal.2d 634, 639, 122 P.2d 526.) When this principle of statutory construction is followed here, it becomes clear that section 2101 applies to completed, as well as attempted, unemployment insurance fraud and, therefore, that it precludes prosecution of such fraud under section 484.

Section 1263, subdivision (c), of the Unemployment Insurance Code provides: 'The department shall, effective upon the date of the filing of a criminal complaint against an individual prosecuted under Section 2101, suspend the payment of benefits to the individual.' This section makes it clear that section 2101 was intended to apply to individuals who succeed in fraudulently obtaining unemployment benefits, as well as those who merely attempt to do so; if section 2101 applied only to attempts, it would be unnecessary to suspend payments of benefits.

This conclusion is reinforced by other sections in the same division. Section 1375 provides in pertinent part that '(a)ny person who is overpaid any amount as benefits . . . is liable for the amount overpaid unless: (a) The overpayment was not due to fraud, misrepresentation or wilful nondisclosure on the part of the recipient . . ..' Section 2113 provides that in lieu of filing a criminal complaint, the department may accept restitution of overpayments from one who has 'willfully made a false statement or representation . . . to obtain or increase any benefit.' Both sections obviously contemplate that overpayments may actually be made as a result of violations of section 2101.

Finally, section 2113 further provides that no one who has been convicted of violating section 2101 within the preceding three years may be offered an opportunity to restore benefits in lieu of criminal prosecution. If section 2101 applies only to attempts, then one who succeeded in defrauding the department and, thus, was convicted of theft would be eligible within three years to avoid a new prosecution under section 2101 by restoring benefits under section 2113, while one who had previously merely attempted to defraud the department would not be eligible for such treatment. That such a distinction would be unreasonable further demonstrates that section 2101 applies to completed, as well as attempted, fraud.

Our conclusion that section 2101 precludes prosecution of unemployment insurance fraud under section 484 of the Penal Code was anticipated in People v. Bogart (1970) 7 Cal.App.3d 257, 266, 86 Cal.Rptr. 737, and People v. Koch (1970) 4 Cal.App.3d 270, 275, 84 Cal.Rptr. 629. ² People v. Lustman, supra, is disapproved to the extent that it conflicts with the views expressed herein.

(b) Unemployment Insurance Fraud Cannot Be Prosecuted Under Section 470 of the Penal Code

One of the elements of the crime defined by section 470 is signing the name of another, or of a fictitious person to, or otherwise forging,...