People v. Davis

• Decision Date: 26 October 1978
• Docket Number: Cr. 31786
• Citation: 85 Cal.App.3d 916,149 Cal.Rptr. 777
• Parties: The PEOPLE, Plaintiff and Respondent, v. Marilyn DAVIS aka Marilyn Patterson, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 777

149 Cal.Rptr. 777

85 Cal.App.3d 916

The PEOPLE, Plaintiff and Respondent, v. Marilyn DAVIS aka Marilyn Patterson, Defendant and Appellant.

Cr. 31786.

Court of Appeal, Second District, Division 4, California.

Oct. 26, 1978.

Roblin J. Williamson, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Linda C. Johnson, Deputy Attys. Gen., Los Angeles, for plaintiff and respondent.

JEFFERSON, Associate Justice.

By an information filed in 1973, defendant Marilyn Davis was charged in case no. A183720, with committing the offense of fraudulently obtaining financial aid in excess of $200 from the County of Los Angeles for nonexistent children in violation of Welfare and Institutions Code section 11483. ¹

Defendant entered a plea of not guilty, and then withdrew that plea and pleaded nolo contendere. Defendant personally waived her right to ajury trial, the right to confront witnesses and the right to present witnesses on her own behalf. ² Counsel joined. Defendant was granted probation.

By an information filed in 1974, defendant was charged, in case no. A311120, in count I, with committing the offense of grand theft, a violation of Penal Code section 487. In count II, defendant was charged with committing the offense of fraudulently obtaining financial aid for children Reginald Patterson, Janell Patterson, Vermitia Patterson and Joseph Patterson, in excess of $200, when said children were not in fact eligible for such aid, in violation of Welfare and Institutions Code section 11483.

Defendant entered a plea of not guilty. The case was called for trial on November 4, 1975. Defendant personally and her counsel waived trial by jury. Defendant's motion to dismiss count I of the information, pursuant to Penal Code section 995, was denied. Trial commenced on November 14, 1975. Defendant was represented by an attorney who appeared on her behalf, pro bono. ³

After trial had commenced, the information was amended to allege that defendant had suffered five prior felony convictions. Defendant was rearraigned and denied the priors.

Trial in this matter was not completed until June 14, 1977, some Nineteen months after the trial had begun; proceedings were held on at least Nineteen different occasions during this period. Continuances of trial were obtained by defendant for a variety of reasons, among which were her illness, her failure to appear, her counsel's failure to appear due to other commitments, his illness, and for other reasons not apparent in the record.

Defendant was found not guilty as to count I of the information, and guilty as to count II. The court found three of the allegations of prior felony convictions to be true, and two untrue. During her lengthy trial, defendant was charged with violating her probation in case no. A183720, due to her failure to appear for proceedings in the second case. The probation violation matter was continued so that it would trail proceedings in case no. A311120.

On August 19, 1977, defendant was sentenced in both cases to state prison for the terms prescribed by law, the sentences to be served concurrently.

Defendant has filed a notice of appeal which purports to appeal from the judgments rendered in both cases.

With respect to the judgment rendered in 1973 in case no. A183720, her purported appeal therefrom has not been filed in timely fashion (Pen.Code, § 1237), as her court-appointed appellate attorney concedes. Defendant has written a letter to this court, filed on June 7, 1978, in which she attempts to raise the issue of less than full advisement of the consequences of her waiver of rights in making a plea of nolo contendere in the first case; we may not consider that issue here. Neither defendant nor her appellate counsel has raised any issue claiming impropriety in the revocation-of-probation proceedings of the first case. The appeal from the judgment rendered in case no. A183720 must therefore be dismissed.

What remains before us is the appeal from the judgment rendered in the second case case no. A311120. Our discussion will concern the issues raised by defendant's appellate counsel in his opening and supplemental opening briefs and an issue discussed in oral argument followed by written points and authorities admitted by the parties.

I The Factual Background

Defendant was convicted on count II of the information, of fraudulently obtaining Aid to Families With Dependent Children (hereinafter, AFDC) for four nonexistent children Reginald, Janell, Vermitia and Joseph Patterson. Thus, the burden placed on the prosecution at trial was to establish a negative fact the nonexistence of the claimed-to-exist four Patterson children. Much of the evidence adduced below was circumstantial and directed toward the resolution of this crucial factual issue.

It appears that defendant, using the name Marilyn Patterson, contacted the Department of Public Social Services of the County of Los Angeles (hereinafter, DPSS) in March 1974, by telephone, requesting a home call to her Los Angeles address on Stanley Avenue to discuss an AFDC application. DPSS worker McNeal testified that she visited defendant at the latter's home and commenced processing the application.

No children were seen by McNeal, but defendant advised her there were four Patterson children although there would be some difficulty in verifying the births of the children in Texas. Thereafter, defendant was issued aid under the AFDC program.

Warrant Investigator Ferrell testified that warrants were paid by Los Angeles County to defendant as Marilyn Patterson from April 1974, to July 1974, for AFDC, and additional warrants were issued to defendant as Marilyn Davis for general relief, a form of county assistance which is distinct from AFDC, during the same time period.

Witness Fraser, an examiner of questioned documents for the Los Angeles Sheriff's Department, testified that, after comparison of various prosecution exhibits, I. e., the defendant's welfare applications and the warrants paid by the county after endorsement by the payee, he was of the opinion that the signatures under study had been executed by the same individual.

Sometime in June or July 1974, the DPSS was alerted to the possibility of welfare fraud by defendant. DPSS fraud investigator Mary Zervas testified that she interviewed the defendant in July 1974, concerning verification of the births of the Patterson children alleged to exist in defendant's application for aid. Defendant apparently submitted documentation to prove that the births had occurred in Texas; but subsequent contact by Zervas with Texas authorities led Zervas to conclude that the named Patterson children were nonexistent. Mary Zervas sent letters to defendant in August and September 1974, asserting that defendant had fraudulently received assistance from Los Angeles County in the amount of $2,111.90 by making material misrepresentations.

On the Patterson AFDC application, defendant had given birthdates for the four children, including 1968 for Janell, 1969 for Vermitia and 1970 for Joseph. Landlord Jack Ritof testified that he had rented premises to defendant at 1606 Century Boulevard in Los Angeles from May 1967, to December 1973. He stated that defendant had never appeared pregnant to him although he had seen her often during the better than five years tenancy; no children were seen by him at the Century address. Roland Griggs, a former tenant at the South Stanley address where defendant resided from December 1973, to July 1974, testified that he had never seen any children in residence there.

Counselor Glenn testified that she had been employed by the California Institution for Women as a counselor in September 1973; there she had significant contacts with defendant; defendant advised her that she was single and childless.

Dr. Leroy Weekes, an obstetrician and gynecologist in Los Angeles, testified that he had performed surgery on defendant in June 1970; he remembered the defendant as a woman with "a large fibroid tumor (who) was very desirous of having children." Dr. Weekes stated that defendant was not pregnant during any time while under his care.

DPSS worker Slotnick testified that she had various contacts with defendant in 1971 and 1972, and knew her as Linda Caldwell, an AFDC mother supposedly with one child a child Slotnick never saw in two or three home visits.

DPSS fraud investigator Moody testified that he had investigated defendant on prior occasions and knew her under various names as Linda Caldwell, Marilyn Davis, Carmen Bledsoe and Marilyn Patterson.

DPSS worker Slatter testified that she had processed an AFDC application for defendant in 1975; that defendant represented herself to be Allie Lewis with young children. Defendant advised Slatter that she did not have birth certificates for the Lewis children.

Slatter's supervisor at the DPSS, Davis, testified that she had had several conversations with defendant at the DPSS office regarding birth verifications for the Lewis children, but was told by defendant that the Lewis children had been born in Texas to defendant and a married man and that the birth records were sealed. Defendant had agreed to try to obtain verification, but none was ever forthcoming. Neither Slatter nor Davis ever saw the Lewis children and, when no verification was presented, AFDC aid was terminated.

DPSS worker Gratigny testified that she had several contacts with defendant as Lisa Richardson, an applicant for AFDC aid in 1975. Gratigny had made a home call at a motel in Long Beach, and had seen three children sleeping in bed. Defendant told Gratigny the children had been born in Texas and gave Gratigny some birth verification information.

DPSS worker Smith testified that she had contact with defendant as Carmen Bledsoe in February 1976 (while this trial was...