Opinion
C087988
05-06-2020
THE PEOPLE, Plaintiff and Respondent, v. ASHLEY LYNN DRAIN HAMPTON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. STK-CR-FE-2015-0006218)
A jury found defendant Ashley Lynn Drain Hampton guilty of, among other offenses, grand theft, welfare fraud, and false statements made to receive aid, based on CalFresh applications that misstated her household status and income. Defendant now argues that: (1) the grand theft conviction must be reversed because it is duplicative of the welfare fraud conviction; and (2) the false statement conviction must be reversed because it is a lesser included offense of welfare fraud. We reverse and dismiss the grand theft conviction, remand for resentencing based on sentencing errors in the record, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant received CalFresh benefits based on a representation that she and her husband were not living in the same household. He was, in fact, living in the same apartment as defendant and her three children, and was employed. In total, defendant received $7,003 in overpayments based on this misrepresentation. Defendant also ran for election to a position in a nearby school district and misrepresented her residential address.
Ultimately, a jury found defendant guilty of grand theft (Pen. Code, § 487; count 1), felony welfare fraud (Welf. & Inst. Code, § 10980, subd. (c)(2); count 2), perjury (Pen. Code, § 118; counts 3, 7, 8, 9, & 10), false statements to receive aid (§ 10980, subd. (a); count 4), fraudulent voter registration (Elec. Code, § 18100; counts 5 & 11), and filing a false declaration of candidacy (Elec. Code, § 18203; count 6). The trial court used one of the perjury counts (count 7) as the principal term for sentencing the election fraud counts and stayed imposition of the sentences for the other election fraud counts under Penal Code section 654. For the welfare fraud counts, the court used a separate perjury count (count 3) as the principal term and stayed imposition of the sentences for counts 1, 2, and 4 under Penal Code section 654. The court suspended imposition of a one-year six-month sentence, and placed defendant on five years of probation, with three months of the total sentence suspended for 200 hours of community service.
Undesignated statutory references are to the Welfare and Institutions Code.
DISCUSSION
1.0 Grand Theft as a Duplicative Conviction
Defendant contends, and the People concede, that the trial court erred in failing to dismiss her grand theft conviction (count 1) because it reflects the same conduct as her welfare fraud conviction (count 2), and the welfare fraud statute is a specific statute, while the grand theft statute is a general statute. We accept the People's concession.
In People v. Gilbert (1969) 1 Cal.3d 475, our Supreme Court held that a welfare recipient could not be prosecuted for grand theft based on fraudulent receipt of welfare benefits because the welfare fraud statute, formerly section 11482 (the predecessor to § 10980), was a specific statute that prevailed over the more general provisions of grand theft in Penal Code section 484. (Gilbert, at p. 481.) The Legislature subsequently rearranged the statutory scheme for welfare fraud with the express purpose of eliminating the need to file multiple types of charges for a single fraudulent act, consistent with the Gilbert analysis. (People v. Preston (1996) 43 Cal.App.4th 450, 456.) Here, the theory of the prosecutor's case for the grand theft charge relied on the same conduct as the welfare fraud charge -- defendant's misrepresentations to the county about her eligibility for aid. A conviction under both the general statute and the specific statute for the same conduct is impermissible. (Gilbert, at p. 481.) We will modify the judgment by dismissing count 1.
2.0 False Statements to Receive Aid as a Lesser Included Offense
Defendant argues that she should not have been convicted for both felony welfare fraud (§ 10980, subd. (c)(2); count 2) and false statements to receive aid (§ 10980, subd. (a); count 4) because false statements to receive aid is a lesser included offense of welfare fraud. Both convictions arose out of the same course of conduct, she asserts, and thus the conviction for the lesser included offense should be reversed.
"In California, a single act or course of conduct can lead to convictions 'of any number of the offenses charged.' [Citations.] However, a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. [Citations.] [¶] There are two tests for determining whether one offense is necessarily included in another: the 'elements' test and the 'accusatory pleading' test. [Citation.] We apply the 'elements' test here because this case involves the conviction of multiple alternative charged offenses. 'Courts should consider [both] the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes.' [Citation.] Under the 'elements' test, we look strictly to the statutory elements, not to the specific facts of a given case. [Citation.] We inquire whether all the statutory elements of the lesser offense are included within those of the greater offense. In other words, if a crime cannot be committed without also committing a lesser offense, the latter is a necessarily included offense. [Citations.]" (People v. Ramirez (2009) 45 Cal.4th 980, 984-985.)
Section 10980, subdivision (a) provides: "Any person who, willfully and knowingly, with the intent to deceive, makes a false statement or representation or knowingly fails to disclose a material fact in order to obtain aid under the provisions of this division or who, knowing he or she is not entitled thereto, attempts to obtain aid or to continue to receive aid to which he or she is not entitled, or to receive a larger amount than that to which he or she is legally entitled, is guilty of a misdemeanor, punishable by imprisonment in a county jail for a period of not more than six months, by a fine of not more than five hundred dollars ($500), or by both imprisonment and fine."
Section 10980, subdivision (c) provides, in relevant part: "Whenever any person has, willfully and knowingly, with the intent to deceive, by means of false statement or representation, or by failing to disclose a material fact, or by impersonation or other fraudulent device, obtained or retained aid under the provisions of this division for himself or herself or for a child not in fact entitled thereto, the person obtaining this aid shall be punished as follows: [¶] . . . [¶] (2) If the total amount of the aid obtained or retained is more than nine hundred fifty dollars ($950), by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of 16 months, two years, or three years, by a fine of not more than five thousand dollars ($5,000), or by both that imprisonment and fine; or by imprisonment in a county jail for a period of not more than one year, by a fine of not more than one thousand dollars ($1,000), or by both imprisonment and fine."
Both statutes prohibit the use of false statements, misrepresentations, or failures to disclose material information to obtain aid to which the offender is not entitled. Section 10980, subdivision (c)(2), however, may also be violated through the use of "impersonation or other fraudulent device," to obtain aid, and has the additional requirements that the offender have actually received the aid sought and that the amount of the aid exceed $950. (People v. Ochoa (1991) 231 Cal.App.3d 1413, 1420.) As the People note, one could violate section 10980, subdivision (c)(2) without running afoul of section 10980, subdivision (a) because section 10980, subdivision (c)(2) also prohibits the use of "impersonation or other fraudulent device" in its commission, unlike section 10980, subdivision (a), which only prohibits the use of false statements or misrepresentations. Thus, a person who is not entitled to benefits could impersonate someone who is entitled to benefits, receive the benefit of that aid, and violate section 10980, subdivision (c)(2) without violating section 10980, subdivision (a).
Defendant argues that the phrase "impersonation or other fraudulent device" is merely a way of describing different types of false representations and is thus included within section 10980, subdivision (a)'s prohibition on false statements or false representations. But such an interpretation would read the phrase out of section 10980, subdivision (c)(2) as surplusage; if one statute forbids "a false statement or representation" and a second forbids a "false statement or representation," as well as "impersonation or other fraudulent device," we must give those words effect and infer that the second statute forbids more conduct than the first. (See People v. Johnson (2002) 28 Cal.4th 240, 246-247.) It is possible to violate section 10980, subdivision (c)(2) without violating section 10980, subdivision (a), and we therefore conclude that the latter is not a lesser included offense of section 10980, subdivision (c)(2).
3.0 Remand for Resentencing
Although raised by neither party, in reviewing this case, we note that the trial court failed to impose any sentence on counts 2, 4, 5, 6, 8, 9, 10, and 11, citing section 654. When a court determines that a conviction is subject to section 654, however, it must impose a sentence and then stay the execution of that sentence, the stay to become permanent upon defendant's service of the portion of the sentence not stayed. (People v. Duff (2010) 50 Cal.4th 787, 796; People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198; People v. Alford (2010) 180 Cal.App.4th 1463, 1469 (Alford); People v. Salazar (1987) 194 Cal.App.3d 634, 640.) "This procedure ensures that the defendant will not receive 'a windfall of freedom from penal sanction' if the conviction on which the sentence has not been stayed is overturned." (Salazar, at p. 640.) It is improper to simply stay the imposition of sentence. (Duff, at pp. 795-796; Alford, at p. 1468; 1 Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2019) § 13:10.) The trial court thus imposed an unauthorized sentence by failing to impose a sentence on these counts and then stay execution of that sentence. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327.)
In Alford, this court concluded that the "futility and expense" of remand militated against sending the case back to the trial court for resentencing where this court could determine the sentence that the trial court, in the exercise of its discretion, "undoubtedly" would have imposed. (Alford, supra, 180 Cal.App.4th at p. 1473.) Here, it is not clear how the trial court would have sentenced defendant on these counts. Accordingly, we will remand the matter to allow the trial court to impose sentence on defendant for her convictions on the counts, then stay execution of that sentence under section 654.
DISPOSITION
The conviction on count 1 is reversed, and we modify the judgment to dismiss it. Defendant's sentence is reversed with respect to the trial court's failure to impose an appropriate sentence on counts 2, 4, 5, 6, 8, 9, 10, and 11, and then stay execution of those sentences. The matter is remanded and the trial court is directed to impose full-term sentences for defendant's convictions on counts 2, 4, 5, 6, 8, 9, 10, and 11, then stay execution of those sentences under section 654. The trial court is also directed to amend the order of probation accordingly. In all other respects, the judgment is affirmed.
/s/_________
BUTZ, Acting P. J. We concur: /s/_________
MURRAY, J. /s/_________
RENNER, J.