People v. Gilbert

• Decision Date: 23 December 1969
• Docket Number: Cr. 12696
• Court: California Supreme Court
• Parties: , 462 P.2d 580 The PEOPLE, Plaintiff and Respondent, v. Sherry Lee GILBERT, Defendant and Appellant.

Page 724

82 Cal.Rptr. 724

1 Cal.3d 475, 462 P.2d 580

The PEOPLE, Plaintiff and Respondent, v. Sherry Lee GILBERT, Defendant and Appellant.

Cr. 12696.

Supreme Court of California In Bank.

Dec. 23, 1969.

Thomas W. Cochran, Long Beach, for defendant and appellant.

Richard E. Erwin, Public Defender (Ventura), Harkjoon Paik, Deputy Public Defender, James Don Keller, Dist. Atty., San Diego, and Albert L. Wells, Deputy Dist. Atty., as amici curiae on behalf of defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Bruce Wm. Dodds, Deputy Atty. Gen., for plaintiff and respondent.

Mary Gell and James H. Miller, San Diego, as amici curiae on behalf of plaintiff and respondent.

TOBRINER, Justice.

Defendant appeals from a judgment of the Superior Court of Los Angeles County convicting her of fraudulently obtaining more than $200 in Aid to Families with Dependent Children (hereinafter AFDC) payments, in violation of section 484 of the Penal Code. We conclude that the special provision of the Welfare and Institutions Code dealing with welfare fraud (§ 11482) precludes prosecution of such fraud under the older general theft provision of the Penal Code (§ 484). Since this conclusion requires reversal of defendant's conviction, we do not determine the constitutionality of the manner in which the trial court and the Department of Social Welfare calculated the amount of the overpayment which defendant received.

Facts

During the later part of 1965 and the early part of 1966, defendant, together with her child by a previous marriage, received assistance from the County of Los Angeles under the AFDC program, Welfare and Institutions Code sections 11200--11488. In order to obtain that assistance defendant signed an affirmation of eligibility on May 30, 1965, and November 16, 1965. Defendant knew that she was required to notify welfare authorities of any change of circumstances which might affect her eligibility, including the presence in her home of a man with whom she was living.

From December 1965 until March 15, 1966, one Clifford Branch lived in defendant's home and maintained an admittedly intimate relationship with her. During this period Branch's gross monthly income exceeded $800. Defendant failed to report Branch's presence in her home. After welfare authorities discovered defendant's relationship with Branch, she was charged with grand theft. Following a nonjury trial, defendant was convicted of fraudulently obtaining more than $200.

The method by which the trial court calculated the overpayment of $200 is somewhat unclear. Under the facts of this case defendant received an overpayment of one dollar for every dollar of unreported net income which she obtained from Branch. The trial court may have concluded that defendant received an overpayment in excess of $200 because of Branch's admission that he had given defendant a total of $375 to cover his share of their living expenses. In light of current Department of Social Welfare (hereinafter DSW) regulations, Branch's admission does not suffice to support the conclusion that defendant received a net income from Branch in excess of $200. ¹

The trial court may also have estimated the overpayment, however, by relying on the conclusive presumptions established by the DSW for computing welfare grants. ² Section 11351 of the Welfare and Institutions Code ³ imposes on a man in Branch's position an obligation to support defendant and her children while living with defendant; DSW regulation 44--133.5 ⁴ conclusively presumes that all Branch's income less certain specified deductions and expenses, was available for the support of defendant and her child.

Welfare 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 money exceeding $200 in value constitutes grand theft, a felony. (Pen.Code, § 487.1.) Section 11482 of the Welfare and Institutions Code provides: 'Any person other than a needy child, who willfully and knowingly, with intent to deceive, makes a false statement or representation or knowingly fails to disclose a material fact to obtain aid, or who, knowing he is not entitled thereto, attempts to obtain aid or to continue to receive aid to which he is no entitled, or a larger amount than that to which he is legally entitled, is guilty of a misdemeanor.'

As we stated in In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593, 594: '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.' (See Warne v. Harkness (1963) 60 Cal.2d 579, 588, 35 Cal.Rptr. 601, 387 P.2d 377; Division of Labor Law Enforcement v. Moroney (1946) 28 Cal.2d 344, 346, 170 P.2d 3; People v. Swann (1963) 213 Cal.App.2d 447, 28 Cal.Rptr. 830; People v. Silk (1955) 138 Cal.App.2d Supp. 899, 291 P.2d 1013.) Since sections 484 and 11482 involve different penalties (see Pen.Code, §§ 19, 487.1, 489), defendant urges that section 11482 is a special statute which precludes prosecution under the more general theft statute.

In People v. Phillips (1930) 64 Cal.2d 574, 581, 51 Cal.Rptr. 225, 231, 414 P.2d 353, 359, we explained that a misdemeanor statute prohibiting 'fraudulent misrepresentations as to cures for cancer' foreclosed a felony prosecution for grand theft under section 484 if the conviction for the misdemeanor offense required that the victim 'actually parted with value.' (P. 582, 51 Cal.Rptr. 225, 414 P.2d 353.) Since the relevant portion of section 11482 does contemplate that the victim actually part with value, it does, under the Phillips test, 'include the same matter' as the grand theft statute and thus conflicts with it.

Section 11482 contains two distinct clauses, one dealing with attempts (applying to persons who, knowing they are not entitled thereto, attempt to obtain aid or to continue to receive aid to which they are not entitled, or a larger amount than that to which they are entitled), and the other dealing with false statements made to obtain aid (applying to a person 'who willfully and knowingly, with intent to deceive, makes a false statement or representation or knowingly fails to disclose a material fact to obtain aid'). Thus the clause as to false statements applies only when the statements are made to obtain unauthorized welfare payments. The crucial issue then turns on whether the words 'to obtain aid' mean 'in obtaining aid' or 'in attempting to obtain aid.'

If the clause as to false statements dealt only with statements made in Attempting to obtain aid, that clause would clearly add nothing to the clause as to attempts. 'A cardinal rule of construction is that * * * a construction making some words surplusage is to be avoided.' (Watkins v. Real Estate Commissioner (1960) 182 Cal.App.2d 397, 400, 6 Cal.Rptr. 191, 193.) Since the Legislature chose not to use the term 'attempt' in the clause as to false statements, unlike the clause as to attempts, it must have intended that the two clauses not deal with the same conduct. The penal provisions of the Welfare and Institutions Code dealing with Old Age Security (§ 12250) and Aid to the Needy Disabled (§ 13800) are comparable to section 11482 in that both contain clauses applicable only to persons who Actually obtain unauthorized assistance; we naturally assume that the Legislature intended to treat in a like manner crimes which are virtually indistinguishable.

Inasmuch as the clause as to false statements applies only to statements made In obtaining unauthorized assistance, it follows that any conduct which violated that clause would also constitute a violation of the theft provision of the Penal Code. This overlap of provisions carrying conflicting penalties typifies the kind of conflict which we envisioned in Williamson; it requires us to give effect to the special provision alone in the face of the dual applicability of the general provision of the Penal Code and the special provision of the Welfare and Institutions Code. ⁵ (See People v. Silk, supra, 138 Cal.App.2d Supp. 899, 291 P.2d 1013.)

In light of our conclusion that section 11482 precludes prosecution under the theft statute, and thus that the instant conviction must be reversed, we need not reach the other substantial issues presented by defendant. (Cf. Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 66, 195 P.2d 1; MacLeod v. City of Los Altos (1960) 182 Cal.App.2d 364, 366, 6 Cal.Rptr. 326.) If we were to conclude that defendant could be subjected to prosecution under section 484, we would then be required to fix the amount of the overpayment which she fraudulently obtained. That determination would necessitate inquiry into Branch's duty to support defendant (Welf. & Inst.Code, § 11351) and into the conclusive presumption that she obtained such support (DSW regulation 44--133.5). ⁶ Defendant challenges the constitutionality of both the section and the regulation, and correctly asserts that People v. Shirley (1961) 55 Cal.2d 521, 11 Cal.Rptr. 537, 360 P.2d 33, 92 A.L.R.2d 413, ⁷ did not decide these issues.

Defendant's challenge does indeed raise serious constitutional issues, which we briefly set forth. ⁸ Section 11351 and DSW regulation 44--133.5 are alleged to deny equal protection of law because they single out AFDC recipients and their male friends for special treatment. Section 11351 places a duty of support on a man living with a poor family eligible for AFDC, but not on a man living with an affluent family, or with a poor family ineligible for AFDC, ⁹ or with a poor family receiving assistance under other welfare...