Opinion
F075124
04-28-2020
THE PEOPLE, Plaintiff and Respondent, v. JAIME RAE LEE, Defendant and Appellant.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF311532)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Brett R. Alldredge, Judge. Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Jaime Rae Lee appeals her convictions for welfare fraud and perjury on grounds of instructional error. We affirm all of her convictions. Lee also contends the trial court erred in failing to stay, under Penal Code section 654, the sentences on her perjury convictions. We agree and direct the trial court to stay these sentences.
PROCEDURAL HISTORY
Lee was charged, in a fourth amended information filed in the Tulare County Superior Court, with one count of welfare fraud occurring between March 1, 2011, and August 31, 2014 (to the tune of approximately $18,000) (Welf. & Inst. Code, § 10980, subd. (c)(2); count 1), and 12 counts of perjury by false application (Pen. Code, § 118; counts 2-13). A jury convicted Lee of all counts. Lee was sentenced to the middle term of two years' imprisonment on the welfare fraud count and concurrent terms of two years' imprisonment on the perjury counts.
FACTS
The parties' briefs detail the evidence adduced at trial and, given the limited nature of Lee's challenges on appeal, we summarize the factual background only briefly.
A. CalWORKs and CalFresh Program Requirements and Application Process
Testimony of Janet Jones
Janet Jones, a veteran employee and supervisor in the Tulare County Health and Human Services Agency (HHSA), testified for the People. Jones testified that Lee received CalWORKs (cash aid) and CalFresh (food aid) benefits from March 2011 to 2015. Jones addressed the requirements of the CalWORKs and CalFresh programs, which are administered by the HHSA.
CalWORKs is a cash aid program that assists families in need with housing, utilities, medical, and food expenses. CalFresh, previously known as Food Stamps, is a nutritional supplement program that provides food assistance. Applicants for both programs submit a "Statement of Facts" that documents family income, household composition, property holdings, residential address, and health status. Applicants are advised and reminded that they are responsible for providing complete and accurate information in applying for benefits. Completed applications are reviewed with the applicant to ensure accuracy. Application paperwork submitted by applicants is signed under penalty of perjury and is the basis for determining eligibility for benefits and benefit amounts.
Aid recipients must renew their applications for cash aid and food assistance annually. The renewal process mirrors the original application process, with the applicant required to provide personal and financial information for purposes of determining benefits eligibility and amounts. In addition to annual renewals, applicants submit status reports during the course of the year. These submissions are also completed under penalty of perjury.
Jones clarified that one of the factors that determines eligibility for cash aid and food assistance is "[h]ousehold composition." Regarding cash aid, eligibility can turn on the fact that a child is in the home, as one purpose of cash aid is to lessen the "deprivation" to which children are subjected when the responsible parent is deceased, absent, unemployed, or disabled. Jones added, with specific reference to Lee's case, that Lee's eligibility for cash aid hinged on her representation that a child was part of her household: "And so everything focuses around the child. We have to establish deprivation on this child to make [Lee] even ... eligible." As for food assistance, Jones noted that, as a general matter, "[a] parent would be responsible for a child ... [and] a parent most of the time would be considered part of the same household as a child, [as when] [t]hey purchase and prepare their food together." Therefore, without a child in the home, the benefit amount is "[l]ess."
Jones was shown various documents submitted by Lee, during the relevant period, to establish her eligibility for benefits. Jones reiterated: "[Household composition] is one of the main factors on who is eligible for benefits, how many benefits are received, whether it's cash aid or CalFresh or Medi-Cal." Jones discussed various application and update documents completed by Lee, in which Lee indicated that she and her daughter, Jade, lived together and were part of the same household for purposes of benefits eligibility. Jones pointed out that the information provided to the agency by Lee was "[v]ery important to the benefit amount" calculated for Lee. Jones also noted that various documents showed that Lee had declared under penalty of perjury that she provided accurate information to the agency and understood that the information would be used to calculate the amount of benefits she would receive.
During the three-and-a-half year period relevant to the welfare fraud charge at issue, Lee reported one time that her daughter was temporarily living with Lee's aunt, Charlene, while Lee "look[ed] for a place to rent" for the two of them (herself and her daughter). Jones explained that had Lee reported that her daughter was living outside the household for longer periods, it would have affected her benefits. Specifically, Jones noted: "With CalFresh, her food stamps, it would make the amount she got less. [¶ ] With CalWORKs, the cash aid, she ... would not [have been] eligible. [¶ ] Part of getting cash aid with CalWORKs is you have to have a child in the home. So not only does it affect the grant amount for that child, but it affects the amount [Lee] would get for herself because she wouldn't be eligible without any children."
The prosecutor and Jones had the following exchange:
"Q. Once someone is on aid and they're receiving it, [based on the] quarterly reports, if I'm understanding correctly, [agency staff] will make determinations periodically on whether those benefits increase or decrease depending on the information provided?
"A. Absolutely, yes.
"Q. And so specifically with CalFresh, how would the reporting of someone in or out of the household impact the benefits for CalFresh?
"A. If someone is eligible and moves in, they would get more benefits. If someone has moved out, they would get less benefits.
"Q. And with CalWORKs, would the same principle apply?
"A. Pretty much, yes. We would also look at what income the person would have, you know. There's other things that determine if they're eligible, but yes, it would make a big difference."
Testimony of Other HHSA Employees
Luis Barraza, counselor at the Tulare County HHSA office in Porterville, testified about the benefit application process as well as paperwork submitted by Lee to the agency. Patricia Estrada, a counselor at the Tulare County HHSA District Office in Visalia also testified. Estrada testified that Lee herself was "timed out" from receiving CalWORKs benefits in an adult capacity as of October 31, 2012 (adults can receive cash aid for a maximum period of 48 months). Thereafter, Lee continued to receive CalWORKs for her daughter (whom she reported as being part of the same household). Estrada noted that Lee represented she was actively looking for employment but had been reduced to borrowing money from family and friends to meet household needs.
Lori Fay, a Resource Specialist for Tulare County HHSA, testified that her job duties included computing overpayment of benefits. Fay explained that for the CalFresh program, benefits were calculated based on the number of people in the household who buy and prepare food together. In shared custody situations, a child was considered part of the household in which the child took most of his or her meals (the child would not be considered part of the other household for purposes of CalFresh benefits). Based on documents from the special investigations division, Fay calculated overpayments to Lee between November 2011 and June 2012, and between August 2012 and August 2014, on the premise that Lee's daughter was not part of Lee's household during these periods. The total overpayment of both CalWORKs and CalFresh benefits was approximately $18,000.
B. Living Arrangements of Lee's daughter, Jade
At the time of trial, Lee's daughter, Jade, was 11 years old. Lee's great aunt, Charlene, testified that Jade had lived, since infancy, with Charlene and Charlene's husband, David. Charlene further stated that, during the 2011-2014 period, Jade similarly lived with Charlene and David most of the time, with the couple regularly feeding her and providing for her needs. Charlene would transport Jade to school, volunteer at the school, and go to parent-teacher conferences.
David testified along the same lines as Charlene. David said that Jade had lived with Charlene and him all her life—approximately 10 or 11 years. In all this time, Jade had spent "two months at the most" with Lee; the rest of the time, she had lived with Charlene and David. From 2011 to 2014, Jade stayed "[e]very night" with Charlene and David, except for "a few occasions that she stayed with [Lee]." Charlene and David would provide for Jade's needs.
C. Defense Evidence
Michael F. testified that he went to high school with Lee. In 2011, Michael would see Jade at Lee's house on weekends (during the week, Jade would usually stay with Charlene and David). In 2013 and 2014, Michael saw Jade only a couple of times.
Mary C. testified that she was a good friend of Lee. Mary said she visited Lee at home regularly and would see Jade there. However, she could not state with specificity when these visits occurred or where Lee's residence was located.
Mariela C. testified that Lee lived across the street from Mariela's house during the spring of 2013. She recalled that Lee would take Jade to school and bring her back; Jade would also play outside with other kids. Mariela had never actually met Lee personally.
DISCUSSION
I. Instruction on Welfare Fraud Charge
Lee argues the trial court committed prejudicial error "when it failed [sua sponte] to instruct the jury on the laws and regulations governing [Lee's] entitlement to [CalWORKs and CalFresh] benefits." (Unnecessary capitalization omitted.) We disagree.
The statute governing the welfare fraud charge, Welfare and Institutions Code section 10980, subdivision (c), makes it a criminal offense for a person to "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, [obtain or retain] aid under the provisions of this division for himself or herself or for a child not in fact entitled thereto." The offense is a felony if "the total amount of the aid obtained or retained is more than nine hundred fifty dollars ($950)"; otherwise it is a misdemeanor. (Welf. & Inst. Code, § 10980, subd. (c)(1) & (2).)
The court gave the following instruction on the welfare fraud charge:
"Defendant is charged in Count 1 of the information with the crime of Welfare Fraud, a violation of Section 10980(c)(2) of the Welfare and Institutions Code.
"Every person who willfully and knowingly, with the intent to deceive, by false statement or representation or other fraudulent device, obtains or retains cash aid from the CalWORKs program, and/or Supplemental Nutrition Assistance Program (SNAP) benefits from the CalFresh Program, to which they are not entitled, where the total value of such aid exceeds $950, is guilty of the crime of felony Welfare Fraud.
"In order to prove this crime, each of the following elements must be proved:
"1. A person made a false statement or representation or failed to disclose a material fact, or used impersonation or some other fraudulent device; and
"2. The person acted willfully and knowingly, with the specific intent to deceive; and
"3. As a result of the false statement or representation or failure to disclose or other fraudulent device, aid of a value greater than $950 was obtained or retained; and
"4. The aid was obtained for or retained by someone not entitled to it.
"In regard to element number three, you are further instructed that monthly overpayments can be combined in order to find the defendant
guilty of welfare fraud (i.e., either any single occurrence or any combination of months adding to a sum of more than $950.)
"In regard to element number four, you are further instructed that the prosecution does not have an obligation to prove non-entitlement upon all possible grounds. And it is not a defense to show entitlement upon some other ground other than that for which the aid was obtained."
Lee now argues:
"Welfare and Institutions Code section 10980, subdivision (c) criminalizes fraud where the defendant 'obtained or retained aid under the provisions of this division for himself or herself or for a child not in fact entitled thereto[.]' The [instruction given by the trial court] sets out the familiar [elements] of fraudulent misrepresentation/concealment. It also correctly instructs the jury that lack of entitlement to benefits but for the fraud is an element of welfare fraud. (People v. Ochoa (1991) 231 Cal.App.3d 1413, 1416.) The instruction is correct, as far as it goes. However, it does not go far enough. On a record very similar to this, Ochoa, held that the failure to instruct the jury on the statutes and regulations that governed the defendant's entitlement to benefits was reversible error. (Id. at pp. 1422-1423.)"We reject the contention that, under People v. Ochoa, supra, 231 Cal.App.3d 1413 (Ochoa), the trial court incorrectly instructed the jury on welfare fraud. Lee misinterprets Ochoa's ruling, and, in any event, Ochoa is distinguishable.
In Ochoa, the defendant was convicted of welfare fraud (Medi-Cal), food stamp fraud, and perjury. (Ochoa, supra, 231 Cal.App.3d at p. 1415.) The alleged fraud centered on the defendant's failure to disclose, in her application paperwork, that she owned a house that was rented out and from which she received rental income. (Id. at pp. 1416-1417.) An employee of the San Bernardino County Department of Public Social Services (DPSS) testified as an expert on the regulations governing entitlement to the relevant benefits and opined that the defendant had been overpaid. (Id. at pp. 1417-1418.) The employee noted that the defendant was not entitled to any benefits at all on account of the equity in her rental house, and, at a minimum, given the rental income she received, she was not entitled to the amount of benefits she actually obtained. (Ibid.) The defendant "asserted as a defense" that, at the time she applied for the benefits, "she was entitled by law to welfare and food stamp assistance." (Id. at p. 1418, italics added.) In support of this theory of defense, the defense called as a witness a private welfare benefits counselor. The private benefits counselor opined that the defendant was entitled to the benefits irrespective of the equity in her rental house, to the extent the rental income from the house was used to make the mortgage payments on the house. (Ibid.) The defense also presented evidence that the defendant used the rental income from her rental house to pay the mortgage on that house. (Id. at pp. 1418-1419.)
On appeal, the Ochoa defendant argued that the trial court erred "by refusing to give the jury an instruction pinpointed to her defensive theory that [her rental] house was not available to her as an asset" because the rental income from it was used to pay the mortgage on the house. (Ochoa, supra, 231 Cal.App.3d at p. 1422, italics added.) The Ochoa court noted: "Here, both sides put on expert witnesses to discuss what the regulations meant and the effect, i.e., nonentitlement or entitlement, of applying the regulations to the facts of defendant's circumstances." (Ibid.) Given the dispute over the applicability and interpretation of various regulations in that case, Ochoa emphasized that "[t]he jury should not be presented with conflicting evidence as to what the law is and asked to determine what is the applicable law and what it means." (Ibid., italics added.) Rather, Ochoa clarified, it was "the trial court's duty to determine what the law is, and to instruct the jury on the law, so that the jury can apply the law to the facts, which it determines from the evidence, in order to reach a verdict." (Ibid.)
In contrast to Ochoa, in the instant case there was no dispute as to what law applied or what it meant. Rather, employees from the Tulare County HHSA provided undisputed expert testimony that household composition, specifically the presence of a child in the household, was a factor for purposes of determining eligibility for benefits as well as for calculating the benefit amounts. In Lee's case, at some point she was no longer eligible to receive cash aid through CalWORKs as an adult but could continue to receive it for any child living with her. Furthermore, the amount of cash aid was calculated based on the number of eligible persons in her household. The amount of CalFresh benefits Lee received was also calculated based on the number of eligible persons in her household. On the flip side, this same information was relevant for purposes of calculating overpayment of benefits to Lee during the relevant period.
Patricia Estrada of HHSA testified that adults may only receive cash aid for a finite 48-month period, which Lee had done, rendering her "timed out."
The expert testimony by employees of HHSA clarified the relevance of Lee's representations about household composition (which the agency eventually concluded were false) to the framework for determining the benefits and benefit amounts for which Lee qualified. More specifically, the HHSA employees explained that Lee's representation that her daughter lived with her and was part of her household affected the type and amounts of benefits she received, so that, to the extent the representation was false, Lee would have been overpaid in terms of the benefits she had received. Thus, the expert testimony here did not address the question of which regulations applied and what they meant, as was the case in Ochoa. Rather, the expert testimony simply clarified how the undisputed law related to the particulars of Lee's case, resulting in overpayments.
The expert testimony enabled the prosecution to show that overpayments had occurred and how the overpayment amounts were calculated. (See People v. Wood (1963) 214 Cal.App.2d 298, 304 (Wood) [finding no error where welfare department employees provided expert testimony regarding the factors "which would or could alter the amount of assistance" provided to the defendant, for purposes of showing the existence of overpayments and the amounts thereof]; Ochoa, supra, 231 Cal.App.3d at p. 1423 ["[e]xpert witness testimony regarding welfare regulations is admissible before the jury when the testimony relates to the application of the regulations, such as the calculations of overpayments"].) In short, the expert testimony at issue here was properly admitted under Wood and Ochoa.
The situation addressed in Ochoa is distinguishable in that there the defendant's expert witness posited a different interpretation of the regulations than the People's expert witness, with a view to showing that the defendant was entitled by law to the benefits at issue. Ochoa had a narrow holding: it explained that expert witness testimony on welfare regulations is "not admissible before the jury when it relates to the applicability and interpretation of the regulations regarding nonentitlement." (Ochoa, supra, 231 Cal.App.3d at pp. 1423-1424, italics added.) As explained above, in Ochoa, the meaning of the regulations governing entitlement and nonentitlement was a central disputed issue, requiring the court to interpret the regulations, as a matter of law, for the benefit of the jury. By contrast, here there was no dispute regarding the regulations governing Lee's entitlement or nonentitlement to CalWORKs and CalFresh benefits: Lee's defense did not posit a divergent interpretation of the regulations to show entitlement to the benefits at issue. Instead, the question of Lee's entitlement to benefits turned on where Lee's daughter lived during the relevant period. Since there was no dispute over the applicability and interpretation of the regulations governing entitlement, the court did not have to step in to resolve the issue of which regulations applied and what they meant, thereby obviating the need for a tailored instruction to the jury reflecting the court's resolution of the issue. We therefore reject Lee's argument that the trial court was required sua sponte to instruct the jury on regulations governing Lee's entitlement or nonentitlement to CalWORKs and CalFresh benefits. II. Instruction on Perjury Charge
Lee's reliance on two civil cases, Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953 (Piscitelli) and Daum v. SpineCare Medical Group (1997) 52 Cal.App.4th 1285 (Daum), is also unavailing. Piscitelli addresses a distinctive type of attorney malpractice action involving a "case-within-a case format," which has no application here. (Piscitelli, at p. 976.) Similarly, Daum, a medical malpractice case, addresses issues within a specific legal and factual context that has no application here.
Lee next challenges the trial court's instruction to the jury on the perjury charges. She argues her perjury convictions must be reversed because the instruction incorrectly defined "materiality," which is an element of the offense of perjury. We conclude that, while the definition of perjury in the trial court's instruction was not entirely correct, the error was harmless under any standard of prejudice.
The trial court instructed the jury on perjury pursuant to the applicable CALCRIM pattern instruction on perjury, i.e., CALCRIM No. 2640. However, the pattern instruction does not define materiality; rather it provides bracketed language to the effect: "[Information is material if ___<insert appropriate definition; see Bench Notes>.]" The Bench Notes to CALCRIM No. 2640 state, in relevant part, that "[t]he court has a sua sponte duty to define 'material,'" whereby "the court should ... [insert] an appropriate definition in the blank provided."
Here, the court instructed the jury on perjury, pursuant to CALCRIM No. 2640, in part, as follows:
"The defendant is charged in counts 2 through 13 with perjury in violation of Penal Code section 118.
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant declared under penalty of perjury under circumstances in which such declaration was permitted by law;
"2. When the defendant declared, she willfully stated that the information was true even though she knew it was false;
"3. The information was material;
"4. The defendant knew she was making the statement under penalty of perjury;
"5. When the defendant made the false statement, she intended to declare falsely while under penalty of perjury;
"AND
"6. The defendant signed and delivered her declaration to someone else intending that it be circulated or published as true.
"Someone commits an act willfully when he or she does it willingly or on purpose.
"Information is material if there is substantial likelihood that a reasonable person would consider it important in evaluating whether an applicant for cash aid or food stamps, or both, should be considered eligible or continue to be eligible to receive such aid.
"The People do not need to prove that the defendant knew that the information in her statement was material.
"You may not find the defendant's statement was false based on the testimony of [Charlene] alone. In addition to the testimony of [Charlene], there must be some other evidence that the defendant's statement was false. This other evidence may be direct or indirect.
"If the defendant actually believed that the statement was true, the defendant is not guilty of this crime even if the defendant's belief was mistaken." (Unnecessary capitalization omitted.)
Lee challenges only the definition of materiality included in this instruction, which provided: "'Information is material if there is substantial likelihood that a reasonable person would consider it important in evaluating whether an applicant for cash aid or food stamps, or both, should be considered eligible or continue to be eligible to receive such aid." Lee asserts that to establish she was guilty of perjury, "the prosecution had to prove that [her] alleged misstatements or nondisclosures bore on an important aspect of her entitlement to benefits." Lee then contends that "[t]he definition of materiality given is objectionable for two related reasons." First, she posits, "[t]he hypothesized views of the mythical reasonable man or woman are irrelevant to what is material under the law." She next asserts, "[w]ithout proper instructions on the law of what is at stake, the jury is left adrift." Lee explains: "It does not matter if reasonable people sitting around might think it reasonable for the government to know where a welfare recipient's child is at any given time; that common sense judgment does not establish materiality. To establish materiality here, the trial court was required to instruct on the [relevant] statutes and regulations ... [and] erred in failing to do so." Lee concludes: "The failure to define materiality in any useful way was tantamount to failing to submit the element to the jury."
The question of materiality in the instant matter concerns the causal relationship between the false statements made by Lee and the obtaining or retention of public assistance benefits by her. (See, e.g., People v. Hedgecock (1990) 51 Cal.3d 395, 408 ["the determination of materiality ... involves an evaluation of the significance of the defendant's statements or omissions, in the circumstances in which they were made"].) More specifically, the test of materiality in the present context is whether the perjurious statements were likely to influence the agency's decision on Lee's applications for benefits. (See People v. Kobrin (1995) 11 Cal.4th 416, 424 [definition of materiality is "whether the statement has "'a natural tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed"'"].) Under this standard, the trial court's instruction on materiality was not far off the mark. The instruction in substance defined materiality in terms of the question whether the statements at issue were "important" to the determination of Lee's eligibility for benefits and her continuing entitlement to them. The court appears to have erred, however, in framing the question from the perspective of a reasonable person, rather than from the perspective of the relevant agency. (See, e.g., TSC Industries, Inc. v. Northway, Inc. (1976) 426 U.S. 438, 449 [a fact omitted from a company's proxy statement "is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote" (italics added)].) We need not further analyze this issue because, even assuming the court's instruction was erroneous in this aspect, the error was harmless under any standard of prejudice.
Here, the prosecutor argued in closing, as to the perjury counts:
"Counts 2 to 13, these are the perjury counts so must declare under penalty of perjury, right, and we'll go through those documents quickly, but line after line after line for these counts it's very clear that these are under penalty of perjury.
"When defendant made these declarations, she knew [they] were false. Again, she knew her daughter was not living with her.
"The information was material. You heard the court read an instruction [on] what is material? It's up here, it's a substantial likelihood that a reasonable person would consider it important in evaluating whether an applicant for cash aid or food stamps or both should be considered eligible and continue to receive the benefits. [¶ ] Where the daughter lives is a very material fact that is not being reported.
"The defendant knew she was making misstatements under penalty of perjury, and we heard the workers time and time again [say] we go over the forms in detail. We advise them this is under penalty of perjury. We advise them to avoid fraud. She knew what she was signing. She knew her daughter didn't live with her.
"The defendant made false statements. She intended to declare them under penalty of perjury. There's no mistake here, she didn't forget that her daughter was no longer living with her. Her daughter didn't live with her. These were statements that were made and intended to be made. She signed time after time after time on these documents over the time frame, over years. The defendant signed and delivered her declaration to someone else intending it to be published and distributed.
"She signed that, gave it to the welfare employee so they could process her benefits and aid. She delivered it to the agency that relied on it in making determinations on what aid and how much she should receive." (Italics added.)
Next, defense counsel addressed the perjury counts in his closing argument:
"So first let me address the jury instructions regarding perjury to focus exactly where the issues are. So obviously, [Lee] made a declaration under penalty of perjury several times....
"So in order to convict her of perjury, you need to find she made a declaration under penalty of perjury which obviously she did. [Turning to the next element,] [Lee] willfully stated that the information was true [when] she knew it was false. This is one of the [elements] that I'm taking issue with[,] so this is [one] I would ask you to focus your attention on.
"The information was material. A reasonable person would think that it was important. Obviously, with Jade, it was ... [¶ ] ... So focusing it on Jade, I would submit that the information was material[,] so I think [the People] meet that criteria. [Lee] knew she was making a statement under penalty of perjury. That much is obvious, as well.
"And [Lee] intended to declare falsely, that's another one that I take issue with, and finally, she signed and delivered her declaration, and that's obviously the case.
"So the two that are the keys are [Lee] intended to declare falsely, and going back a ways, that she stated that the information was true when she knew it was false. [¶ ] And remember, the prosecution needs to prove each of these six elements. Proving five and not proving one is like baking a cake without eggs, it's not gonna turn out right." (Italics added.)
As the foregoing excerpts from the parties' closing arguments make clear, the materiality of the false statements underlying the perjury charges was conceded by the defense. The defense's concession was a sound tactical choice given the clear evidence in the record that information about Jade's living arrangements—the subject of the perjurious statements at issue—was material to the agency's decisions on Lee's applications for benefits. Under these, circumstances, to the extent the trial court's instruction erroneously framed the question of materiality in terms of a reasonable person's perspective, the error was harmless under any standard of prejudice.
Finally, we reject Lee's contention that "[t]o establish materiality here, the trial court was required to instruct on the statutes and regulations" governing Lee's entitlement to the benefits at issue. We further reject Lee's contention that the court's failure to so instruct was "tantamount to failing to submit the element [of materiality] to the jury." III. Application of Penal Code Section 654
The trial court ordered Lee's sentences on the perjury convictions to run concurrent to the sentence imposed on the welfare fraud conviction. The parties agree this was error. Rather, the court was required, under Penal Code section 654, to stay the sentences on the perjury convictions, since Lee committed the welfare fraud offense and perjury offenses in furtherance of the same objective (i.e., to obtain and retain benefits by misrepresenting the composition of her household). (See People v. Camillo (1988) 198 Cal.App.3d 981, 995 [although "a person who commits welfare fraud may be convicted for perjurious statements made to obtain such aid," under Pen. Code § 654, that person "cannot be punished for both offenses where they are committed with an indivisible intent"].) IV. Victim Restitution Award
Finally, Lee argues that the victim restitution award imposed here should be vacated in the event that her conviction for welfare fraud is reversed but her perjury convictions are affirmed. Since we have affirmed all of Lee's convictions, this claim is rendered moot and we need not address it.
DISPOSITION
The trial court is ordered to stay the sentences on Lee's perjury convictions pursuant to Penal Code section 654. The court shall prepare an amended abstract of judgment reflecting the change and forward it to the appropriate correctional authorities. The judgment is otherwise affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
PEÑA, J.