People v. Durrett

• Citation: 164 Cal.App.3d 947,210 Cal.Rptr. 874
• Decision Date: 20 February 1985
• Docket Number: Cr. F3445
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Beverly Jo DURRETT, Defendant and Appellant.

Page 874

210 Cal.Rptr. 874 164 Cal.App.3d 947 The PEOPLE, Plaintiff and Respondent,
v.
Beverly Jo DURRETT, Defendant and Appellant. Cr. F3445. Court of Appeal, Fifth District, California. Feb. 20, 1985.
Hearing Denied April 18, 1985. ^*

Page 875

[164 Cal.App.3d 950] Donnalee H. Huffman, Bakersfield, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Lisa Lewis Dubois and James Ching, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

PAULINE DAVIS HANSON, Acting Presiding Justice.

An information was filed in Kern County Superior Court charging appellant with felony welfare fraud in violation of Welfare and Institutions Code section 11483, subdivision (2), and misdemeanor acquisition and use of food stamps in violation of Penal Code section 396. Appellant pleaded not guilty to both counts.

Appellant filed a nonstatutory motion to dismiss the complaint on the ground "the

Page 876

complaint could not be commenced where [the] prosecution did not review or consider restitution prior to institution of the criminal charges." After a hearing on appellant's motion, the motion was denied.

Appellant filed a petition for writ of prohibition in this court seeking to set aside the information; we denied the writ.

Appellant then changed her plea to guilty as to the first count. The change of plea was conditioned on being sentenced to felony probation, with service [164 Cal.App.3d 951] of not more than six months in county jail, restitution of $1,870, and the issuance of a probable cause certificate for the purpose of appeal. The second count of the information was dismissed.

Appellant was sentenced to three years' probation on the condition she spend 90 days in county jail. She was ordered to pay $1,870 restitution. The court found good cause for issuance of a certificate of probable cause.

FACTS

Margaret Sweat, a Kern County welfare investigator who works on cases of suspected fraud involving Aid to Families with Dependent Children (AFDC), was in charge of the investigation of appellant's case. By letter dated October 8, 1982, Sweat requested restitution of an overpayment in AFDC from appellant. The letter stated appellant was overpaid $1,643 from May to September 1982, and the circumstances causing the overpayment were: "Your failure to report daughter left the home in March 1982 and did not return until July 1982, and failure to report the allegedly absent father was in the home as of June 1982." The letter requested payment or a satisfactory plan for repayment within 30 days; it was sent by certified mail with return receipt requested. Sweat testified the receipt was not signed by appellant and the letter was not returned to the welfare office. Appellant testified she never received a letter by registered mail from the welfare department.

After 30 days, Sweat began to compile information on the case to send to the district attorney. Before submitting the case to the district attorney's office, Sweat made personal contact with appellant and handed her the demand letter. A few days later, appellant went to the welfare office and signed a reimbursement agreement to repay $1,905 (an AFDC overpayment of $1,643 plus food stamp overissuance of $262) in payments of $100 per month, payable on the 15th of each month beginning December 15, 1982.

On December 3, 1982, Sweat sent a memo to the district attorney's office stating appellant had signed a reimbursement agreement but had not made any payments as of that date. Sweat did not state in the memo that payment was not due until the 15th of December. Sweat claimed, however, that she sent a copy of the reimbursement agreement with the memorandum. ¹ Appellant[164 Cal.App.3d 952] was arrested on December 13, 1982.

Appellant admitted making no payments to the welfare department under the restitution agreement as of the date of the hearing (April 27, 1983), but testified she had the money on the 15th of December to make that payment.

Kern County Deputy District Attorney Barton H. Hegeler's declaration stated that he reviewed the documents concerning appellant on December 10, 1982, and determined a complaint should be issued. Hegeler further declared it was his practice to review carefully each request for a complaint to determine whether a felony or misdemeanor complaint should issue, or whether a complaint should issue at all. A complaint was executed on December 13, 1982, sworn by Margaret Sweat.

Page 877

DISCUSSION

I

Appellant pleaded guilty after her nonstatutory motion to dismiss was denied. The initial question on appeal is whether appellant's contention of error in the denial of her motion to dismiss survives her guilty plea.

Penal Code section 1237.5 provides:

"No appeal shall be taken by defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where:

"(a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings; and

"(b) The trial court has executed and filed a certificate of probable cause for such appeal with the county clerk."

Welfare and Institutions Code section 11483 ² requires in cases of [164 Cal.App.3d 953] welfare overpayments, that a demand for restitution be made and considered by the district attorney prior to bringing charges. The purpose of the demand is to give some limited protection to those charged with welfare fraud, allowing for an early opportunity to make restitution and possibly obtain favorable consideration from the prosecuting authorities. After restitution has been sought, the prosecutor must evaluate the circumstances of the case, including the nature of the accused's response to the demand for restitution. If the restitution requirement has been met, the district attorney may prosecute even though the accused has agreed to pay and is making payments or has made full restitution. (People v. Sims (1982) 32 Cal.3d 468, 475-476, 186 Cal.Rptr. 77, 651 P.2d 321; People v. McGee (1977) 19 Cal.3d 948, 964-966, 140 Cal.Rptr. 657, 568 P.2d 382; People v. Isaac (1976) 56 Cal.App.3d 679, 682, 128 Cal.Rptr. 872, disapproved on another ground in People v. Jenkins (1980) 28 Cal.3d 494, 503, 170 Cal.Rptr. 1, 620 P.2d 587; Madrid v. Justice Court (1975) 52 Cal.App.3d 819, 824, 125 Cal.Rptr. 348.)

The question of whether the state has failed to seek restitution before bringing charges concerns a statutory procedural defense properly resolved prior to trial by a motion to set aside the information. The question " 'relates not to the guilt or innocence of the accused,' " but to the statutorily defective institution of the prosecution. (People v. McGee, supra, 19 Cal.3d 948, 968, and fn. 9, 140 Cal.Rptr. 657, 568 P.2d 382.) Failure to seek restitution thus serves as a bar to prosecution.

The restitution requirement of section 11483 is a codification of legislative intent to provide protection for individuals accused of welfare fraud and not a codification of any constitutional requirement. Further, the restitution issue does not implicate jurisdiction.

"Jurisdiction in the fundamental sense 'is essentially the power or authority conferred upon a court to decide a given type of case.'...