People v. Harper, Cr. 21598

• Court: California Court of Appeals
• Citation: 175 Cal.Rptr. 146,121 Cal.App.3d 283
• Decision Date: 02 July 1981
• Docket Number: Cr. 21598
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Nadine HARPER, Defendant and Respondent.

Page 146

175 Cal.Rptr. 146 121 Cal.App.3d 283 PEOPLE of the State of California, Plaintiff and Appellant,
v.
Nadine HARPER, Defendant and Respondent. Cr. 21598. Court of Appeal, First District, Division 2, California. July 2, 1981.
As Modified on Denial of Rehearing July 31, 1981.
Hearing Denied September 2, 1981.

[121 Cal.App.3d 285]

Page 147

George Deukmejian, Atty. Gen. of the State of California, Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, Edward P. O'Brien, Asst. Atty. Gen., Gloria F. DeHart, Mary A. Roth, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.

Thomas J. Ferrito, Los Gatos, for defendant and respondent.

TAYLOR, Presiding Justice.

On this appeal by the People from an order granting defendant Harper's pretrial non-statutory motion to dismiss an information charging her with two felony counts of welfare fraud pursuant to former Welfare and Institutions Code section 11483, subdivision (2)), the contentions are that: 1) there is no requirement in welfare fraud cases that the People must demonstrate compliance with the second part of the two-pronged procedure for restitution mandated by People v. McGee, 19 Cal.3d 948, 140 Cal.Rptr. 657, 568 P.2d 382; and 2) there is no requirement that a reasonable time pass before a criminal welfare fraud complaint can be filed after a demand for restitution has been made. For the reasons set forth below, we have concluded that the order must be affirmed.

The pertinent facts as revealed by the record are not in dispute. A civil demand letter notifying defendant of an overpayment of $6,324 and requesting discussion was mailed on April 27, 1979, by the Department of Social Services (Department). On May 1, 1979, defendant agreed to repayments at the rate of $100 per month. A criminal complaint was executed on May 31, 1979, and filed on June 4, 1979. A civil complaint was filed in August 1979. Defendant allowed default judgment to be taken on the condition that it not be executed if she paid $100 per month. On April 29, 1980, defendant was charged by information with two counts of welfare fraud (Welf. & Inst. Code., § 11483, subd. (2)).

The record indicates that prior to the receipt of the civil demand letter, defendant had repaid $100 to the county food stamp program. The Department's representative, Ms. Harms, accepted defendant's statement that her budget would permit restitution payments of $100 a [121 Cal.App.3d 286] month. At the time of the preliminary examination on April 17, 1980, defendant, although employed as a teacher, continued to be eligible for an AFDC grant of approximately $35 a month. Ms. Harms testified that defendant had faithfully honored her agreement to pay $100 a month. ¹

The district attorney admitted that: 1) no review or consideration of defendant's attempts at restitution had been made prior to the filing of the criminal complaint; and 2) criminal complaints were filed in welfare fraud causes involving amounts such as the $6,000 here involved.

Page 148

The court below concluded that although the civil demand letter satisfied the first prong of McGee, the People's admitted failure to consider and evaluate that defendant's efforts provided a sufficient ground for the granting of defendant's motion pursuant to the second prong of People v. McGee, supra, 19 Cal.3d 948, 965, 140 Cal.Rptr. 651, 568 P.2d 382.

In People v. McGee, supra, our Supreme Court reviewed the purpose of Welfare and Institutions Code section 11483, subdivision (2). ² The court held that the Legislature intended that the restitution requirement of subdivision 2 be given a mandatory effect and that the state could [121 Cal.App.3d 287] not bring a criminal action for AFDC fraud until it had sought restitution (People v. Jenkins, 28 Cal.3d 494, 508, 170 Cal.Rptr. 1, 620 P.2d 587). The court, 19 Cal.3d at page 956, 140 Cal.Rptr. 651, 568 P.2d 382, emphasized that the Legislature acted in the light of the unique circumstances of those receiving welfare benefits and the fact that since welfare benefits provided only the most minimum standard of living, fraud was often committed simply to obtain food and common household items viewed as necessities by most members of our society. The court then (at p. 965, 140 Cal.Rptr. 651, 568 P.2d 382) mandated a two-pronged "case-by-case" approach for restitution procedures: 1) to give the defendant an opportunity to comply with the demand for restitution; and 2) to give the prosecution an opportunity to evaluate the case in the light of the repayment. The court further held (at pp. 967-968, 140 Cal.Rptr. 657, 568 P.2d 382) that a claim of defective compliance must be raised and resolved in the trial court by a pretrial non-statutory motion to dismiss. Where, as here, the accusation relates to a felony violation, the procedural defense is properly determined by the superior court (Robinson v. Municipal Court, 92 Cal.App.3d 409, 411, 154...