People v. Keehley

• Decision Date: 31 July 1987
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Darlene KEEHLEY, Defendant and Appellant. D004082.

Page 5

239 Cal.Rptr. 5

193 Cal.App.3d 1381

The PEOPLE, Plaintiff and Respondent, v. Darlene KEEHLEY, Defendant and Appellant.

D004082.

Court of Appeal, Fourth District, Division 1, California.

July 31, 1987.

Review Denied Nov. 10, 1987.

Estelle A. Schleicher, Sacramento, under appointment by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., William M. Wood and Raquel M. Gonzalez, Deputy Attys. Gen., for plaintiff and respondent.

WIENER, Associate Justice.

Defendant Darlene Keehley appeals after a jury convicted her of one count of welfare fraud (former Welfare & Inst. Code, § 11483, subd. (2)), two counts of perjury (Pen.Code, § 118) and one count of unauthorized possession of food stamps (former Pen.Code, § 396). The perjury counts were alleged to have occurred on the specific dates of December 22, 1982, and January 1, 1983. Keehley's principal contentions involve her asserted statute of limitations defense. As to the welfare fraud and food stamp counts, we conclude that they are continuing offenses such that the statute of limitations does not begin to run until the offense is completed. Here, the undisputed facts show that these two offenses were not completed until at least June 1983. Thus, the prosecution which was filed on April 3, 1985, was well within the three-year statute of limitations. (See Pen.Code, § 800.) As to the perjury counts, a similar rationale cannot apply because perjury is not a continuing crime. The instances of perjury charged by the prosecutor, however, also fall well within the limitations period. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 8, 1979, Keehley submitted an application for welfare assistance to the San Diego County Department of Social Services (DSS). She requested Aid to Families with Dependent Children (AFDC), Medi-Cal benefits and food stamps on behalf of her two dependent children, Charlene DSS determined Keehley was eligible for the requested benefits, which she began receiving shortly thereafter. She received AFDC cash payments and food stamps from January 1979 through June, 1983. During this period, she filed monthly income report forms with the DSS in which under penalty of perjury she failed to state she was receiving Social Security benefits. Each December she was required to complete AFDC renewal forms, also under penalty of perjury. In these forms Keehley stated she was not receiving Social Security benefits. The two perjury counts were based on an AFDC renewal form filed December 22, 1982 and a monthly income report form filed January 1, 1983.

and Doreen. As part of the application process, Keehley falsely indicated [193 Cal.App.3d 1384] that she was not receiving Social Security benefits. She then signed the application under penalty of perjury.

Keehley's roommate ¹ testified he accompanied her to the DSS offices on one occasion in early 1980 or 1981 and informed personnel there that she was receiving Social Security benefits. According to the DSS, the first time county officials were aware of the unreported Social Security income was in June 1983.

DISCUSSION

I

The principal issue in this case is how the statute of limitations is to be applied to the crimes of welfare fraud, unauthorized possession of food stamps and perjury. If the limitations period began to run on any of the charged crimes more than three years prior to the filing of the complaint in April 1985, the prosecution may be barred. ²

With respect to perjury, the offense is the false swearing; each successive false swearing constitutes a separate and distinct offense. (See People v. Viniegra (1982) 130 Cal.App.3d 577, 583, 181 Cal.Rptr. 848; see also Trigg v. Superior Court (1975) 49 Cal.App.3d 685, 122 Cal. Rptr. 634.) Although the district attorney may have been barred from charging perjuries which occurred before April 1982, there is nothing impermissible about charging the two offenses specified in this complaint, which allegedly were committed in December 1982 and January 1983.

The welfare fraud and food stamp charges, however, are of a different nature. The People contend that Welfare and Institutions Code section 11483 and former Penal Code section 396 define "continuing offenses," contemplating as the actionable crime what may be a continuing course of conduct. In the case of continuing offenses, only one violation occurs even though the proscribed conduct may extend over an indefinite period. (See People v. Zamora (1976) 18 Cal.3d 538, 560, fn. 21, 134 Cal.Rptr. 784, 557 P.2d 75; Braverman v. United States (1942) 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23.) On the other hand, the limitations period does not commence as to continuing offenses until the entire course of conduct is complete. (Zamora, supra; 1 Wharton, Criminal Law (Torcia ed. 1978) § 90, p. 416; 2 LaFave & Israel, Criminal Procedure (1984) § 18.5, p. 425.)

Former Penal Code section 396 ³ clearly contemplates that a course of While its language is not as clear, we reach a similar conclusion with respect to Welfare and Institutions Code section 11483. ⁴ The focus of the statute is on the "fraudulent device" utilized by the recipient to obtain the aid and not on the number of times the same "device" is used to garner benefit checks as part of an overall plan or scheme. As the court explained in Bramblett v. United States (D.C.Cir.1956) 231 F.2d 489, 491, confronted with a similar issue involving the interpretation of a federal statute, "[D]oubts should be resolved in favor of a construction that avoids subjecting an offender to multiple convictions by reason of a single unified pattern of behavior even though the behavior continues over a period of time."

conduct may satisfy the statute's prohibition. In defining the difference between a misdemeanor and felony violation, the statute allowed "the cumulative face value of the food stamps used ... over any period no longer than two years ..." to be considered. In this context, food stamps acquired at different times but pursuant to a common plan or scheme constitute a single violation.

This conclusion is supported by language in People v. Woods (1986) 177 Cal.App.3d 327, 222 Cal.Rptr. 868. Woods involved a defendant who participated in a scheme in which a codefendant used 12 fictitious identities to perpetrate a welfare fraud. In affirming defendant's conviction on 12 counts of violating section 11483, the court emphasized that "the prosecution did not charge a separate count for each and every welfare check which was cashed." ⁵ (Id. at p. 331, 222 Cal.Rptr. 868; Cf. People v. Richardson (1978) 83 Cal.App.3d 853, 866, 148 Cal.Rptr. 120.)

We recognize that this language in Woods can only accurately be characterized as a suggestion in dicta that a separate count of welfare fraud cannot be charged for each check cashed. Nonetheless, this suggestion comports not only with our common sense view of the purpose of the statute but also with the apparent positions of two district attorney's offices as reflected by their filing practices in this case and Woods.

Our conclusion that welfare fraud as practiced in this case is a continuing offense is a two-edged sword. Although it precludes the prosecutor from charging multiple counts where the defendant has pursued a single course of conduct, it also prevents the defendant from invoking the bar of the statute of limitations as long as the completion of the course of conduct lies within the statutory period. (See ante, p. 7). Here, because it is undisputed Keehley's course of fraudulent conduct was not completed before June 1983, the...