People v. Samuel

• Decision Date: 27 September 1966
• Docket Number: Cr. 5333
• Citation: 245 Cal.App.2d 210,53 Cal.Rptr. 887
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Viola SAMUEL, Defendant and Appellant.

Page 887

53 Cal.Rptr. 887

245 Cal.App.2d 210

The PEOPLE of the State of California, Plaintiff and Respondent, v. Viola SAMUEL, Defendant and Appellant.

Cr. 5333.

District Court of Appeal, First District,

Division 1, California.

Sept. 27, 1966.

John D. Nunes, Public Defender of Alameda County, Richard M. Bryan, Asst. Public Defender, Oakland, for appellant.

Thomas C. Lynch, Atty. Gen. of State of California, Albert W. Harris, Jr., Asst. Atty. Gen., Clifton R. Jeffers, Deputy Atty. Gen., San Francisco, for respondent.

SIMS, Justice.

Defendant has appealed from a 'judgment' (order admitting her to probation) following her conviction under an information which charged her with four separate offenses arising out of her applications for and her receipt of payments under the aid to families with dependent children program. ¹

In the first count she was charged with grand theft (Pen.Code §§ 484 and 487, subd. (1)) in that from November 18, 1963 through April 1964 she unlawfully took $657 from the County of Alameda. On this count she was convicted by verdict of the jury of petty theft (Pen.Code §§ 484 and 488) as an included offense. The jury found her guilty as charged in the second count of grand theft in unlawfully taking $665 from the county during the period from April 15, 1964 through September 30, 1964. A verdict of guilty of violation of section 1577 of the Welfare and Institutions Code of the State of California, ² an included offense, was returned to the third count which had charged violation of section 1550 of that code ³ in connection with an application executed by her on November 18, 1963. On the fourth count, the jury returned a verdict of guilty as charged of violation of section 449.4 of the Welfare and Institutions Code ⁴ in connection with an application executed by her on April 15, 1964.

Defendant contends that the evidence is insufficient to support the convictions, and that the court erred in delivering a portion of its charge prior to the conclusion of the taking of evidence between the direct and cross-examination of the defendant. It is concluded that the convictions are not sustained by sufficient competent evidence on issues which are relevant and material under the applicable statutes and regulations. It may be assumed that any irregularity in the manner in which the jury was instructed, whether erroneous or not, will not occur in the event of retrial, and no determination is made on that issue.

Defendant postulates that the issue on each of the charges is whether or not she falsely and fraudulently represented that she and her husband were separated and living apart. From this bastion she convincingly asserts that there can be no conviction of making false representation of absence and separation without proof of cohabitation and the maintenance of a normal family relationship between the mother and the father.

In addition to the foregoing issue the third and fourth counts each charge that she stated that she 'would report any information * * * concerning the whereabouts or return to the home of the absent father when in fact she had no intent to do so.' The type of theft involved or the manner in which it allegedly was committed does not appear from the language used in the first two counts. From the record it is clear that these charges are based upon obtaining welfare funds through false representations or concealment and fall within the definition of theft by false pretenses. (See People v. Darling (1964) 230 Cal.App.2d 615, 617, 41 Cal.Rptr. 219.)

'To support a conviction of theft for obtaining property by false pretenses, it must be shown: (1) that the defendant made a false pretense or representation, (2) that the representation was made with intent to defraud the owner of his property, and (3) that the owner was in fact defrauded in that he parted with his property in reliance upon the representation. (Citations.)' (Perry v. Superior Court (1962) 57 Cal.2d 276, 282--283, 19 Cal.Rptr. 1, 5, 368 P.2d 529, 533.) Since the representations allegedly relied upon are not set forth in the theft charges, the issues may extend beyond that postulated by defendant, and beyond the charges in the perjury counts.

The People have adopted a scatter-gun approach to meet defendant's contention. It is suggested (1) that the evidence is sufficient to show the falsity of the representation that defendant and her husband were not living together, and the related fraud in promising to but failing to disclose the true situation, (2) that the evidence supports a finding of lack of absence and separation because there was no 'disassociation' as that term is used in defining eligibility of the child for assistance because of the continual absence of a parent from the home, and (3) that the evidence supports a finding that the defendant made written and oral representations that she would report immediately any change in living plan, employment, income, gifts and property and any relationship with any man whether living in the house or not with the intent (presumably demonstrated by her subsequent conduct) not to report any changes in her family status and her relationship with any man.

The facts:

Defendant met Ronnie Samuels while she was attending the University of California at Berkeley in the spring of 1962. He visited her twice at her home in Long Beach in the summer of that year and she went out with him again on returning to the University in the fall. She was on probation because of poor grades in her first year and sensing that she was in danger of flunking out she made arrangements to and did drop out in the fall semester.

In December 1962 she discovered she was pregnant as a result of intimate relations with Ronnie the previous October. She arranged for a marriage in February, but Ronnie refused, saying he was never going to get married. Subsequently, defendant and her mother prevailed upon Ronnie to go through a marriage ceremony in Long Beach on April 7, 1963.

After the wedding the couple drove back to Richmond with a friend of defendant. Ronnie led defendant to believe that the expected child was her burden and told her she could apply for aid. He returned to an address in San Francisco where he had been living for the past four years. Defendant stayed with her friend in Richmond for about a week and then moved into a nearby apartment. In July 1963 she applied for aid for her child from the Contra Costa County Welfare Department. On August 1, 1963 the child was born, and that month defendant moved to Alameda County to be closer to her father's relatives in East Oakland. She was granted aid by Contra Costa County and received payments of approximately $140 per month through November 1963, although delivery of one check was held up because of her failure to keep a requested appointment.

In connection with the transfer of her application for aid to Alameda County she was interviewed by a representative of that county on November 18, 1963 at her new address. At this first meeting defendant's eligibility and budget were discussed. The social worker explained that the basis of her eligibility was 'because her husband, also the baby's father, was absent. This was the important point in her case, and we covered it quite thoroughly.' Defendant told the worker that there was not a natural marital relation, that she and her husband 'had not lived together continuously,' and that they had never lived together. Their marriage was not successful, according to defendant, because it was only to legitimize the baby.

At this time defendant signed two printed forms to obtain aid. Exhibit 1 is entitled 'Applicant's Statement.' It states that a recipient has these responsibilities: '1. To report immediately any change in living plan, employment, other income, gifts, and property,' and '2. To report immediately, and to explain to my social worker, any relationship with any man whether living in my home or not.' A budget and grant of $131 per month was stated. Exhibit 1 also read: 'I further understand that failure to follow any of the above could result in my case being discontinued and further action being taken regarding aid for which I was not eligible.' Those are the substance of her representations on that form. They appear over her witnessed signature without any jurat.

Exhibit 2 is entitled 'Statement of Facts Relating to Eligibility for Aid to Needy Children.' In relevant part it read, 'I hereby make the following statement of facts relating to eligibility for Aid to Needy Children,' and thereafter under 'Deprivation Status' defendant indicated that she was separated from Ronnie. At the end of the form above her signature this warning appears: 'Any person who signs this statement and who wilfully states as true any material matter which he knows to be false is subject to the penalties prescribed for perjury in the Penal Code by the State of California. Sec. 1550 of the W & I Code. I will notify the county welfare department of any real or personal property transactions, change in income or other financial conditions, marriage of any of the above children or remarriage of either parent of these children, of any change in address, or if a parent is absent from the home, any information regarding his address or whereabouts or his return to the home. I solemnly swear or affirm that the statements made herein are true and correct to the best of my knowledge and belief. I am aware that it is unlawful to give false information.'

It appears that prior to executing these applications the defendant had indicated to the landlord when she rented the apartment in Oakland that her husband would be living with her. She also had accompanied her husband to financial counselors in San Francisco and signed documents with him there in which each gave the Oakland address. On October 24, 1963 defendant had joined her husband in signing an application for credit in his name at the Oakland address with ...