Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM015310
OPINION ON REMAND
BUTZ, J.
Defendant Cathy Dawn Garcia appeals after conviction of welfare fraud (Welf. & Inst. Code, § 10980, subd. (c)(2)) and perjury (Pen. Code, § 118) in connection with her receipt of $5,839 in welfare benefits to which she was not entitled. She contends the trial court erred: (1) in failing to dismiss the criminal charges on the ground of collateral estoppel as to issues that were previously resolved in an administrative hearing proceeding conducted by the state Department of Social Services (DSS), (2) in denying a continuance at the outset of trial, and (3) that there is insufficient evidence to support the convictions.
The case is before us for a second time, after the California Supreme Court reversed and remanded for further proceedings, including reconsideration of whether the issues litigated at the administrative hearing and in the criminal prosecution for welfare fraud and perjury were identical. (People v. Garcia (2006) 39 Cal.4th 1070, 1091 (Garcia).) We shall conclude that defendant failed to show the issues litigated were identical. Defendant failed to prove that the administrative hearing determination--that the overpayments were caused by administrative error--was also a determination that the overpayments were not concurrently caused by her misconduct. Also finding no merit in defendant’s other contentions, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2000, the Butte County Department of Social Welfare notified defendant that she had received $5,839 in benefits between October 1998 and June 2000 to which she was not entitled: specifically, $3,669 in cash aid and $2,170 in food stamps (collectively, the overpayments). The original notices of action said, “[w]e have decided the overpayment was caused by the County” and, as to the food stamps, repayment was required because “[t]he County Welfare Department made a mistake.” Later, the county issued new notices, which “alleged the overpayments and overissuances were not caused by administrative errors. Rather, the notices alleged [defendant’s] failure to report material changes of fact caused the excess assistance.”
None of the notices of action were adduced in the proceedings on defendant’s motion to dismiss for collateral estoppel. Only the first-round notices of action, dated August 9, 2000, were adduced at trial.
Following a hearing before an administrative law judge in May 2001, at which the parties were represented and testimony was taken, DSS issued its written decision. According to the decision, at issue were the following questions: “1. Whether [defendant’s two] boys were members of the assistance unit and household during the periods in question; and [¶] 2. Whether the overissuance and overpayment were the result of administrative errors or [defendant’s] failure to report the boys’ absence from her home.” Evidence considered by the administrative law judge included that the county case worker determined that defendant remained eligible to receive benefits for the boys after she reported in September 1998 that her two sons were living with their father “‘half of the time now,’” and evidence the boys lived weekdays with their father during the school year. Defendant’s ex-husband testified he had primary responsibility for the boys’ care since well before 1997, and their longest stay with defendant was four weeks in the summer of 1999.
The transcript of the administrative hearing was not produced in the criminal proceedings.
Noting that “[t]here are three types of overissuance claims: (1) inadvertent household error claims; (2) administrative error claims; and (3) intentional program violation claims,” the administrative law judge concluded: “The overpayment and overissuance are the result of administrative errors of omission committed by the county welfare department. The county is obliged to conduct periodic reviews and investigations as needed when information indicates the circumstances of eligibility may have changed. In this case, there were no periodic redeterminations as required. Furthermore, the report that the children were with their father half of the time needed prompt verification because it was inconsistent with [defendant’s] prior reports and the written calendar agreement of the District Attorney’s Family Support Division,” which indicated that defendant would have primary care and control responsibility during the summer months only.
The administrative decision rejected defendant’s claim that equitable estoppel barred recovery of some or all of the overpayments. Citing Canfield v. Prod (1977) 67 Cal.App.3d 722, 730, the decision notes the requirement for an estoppel that the party to be estopped must be apprised of the facts. However, “[t]he county welfare department was not fully apprised of the actual circumstances surrounding which parent had primary responsibility for the care and control of the boys.”
While the administrative proceeding concerning the overpayments was pending, the district attorney filed this action, alleging defendant fraudulently received welfare benefits of $5,839 (Welf. & Inst. Code, § 10980, subd. (c)(2)--count 1) and committed perjury by false application for aid when she “affirmatively omitted that James [F.] and Jordan [F.] had moved out of [defendant’s] home” (Pen. Code, § 118--count 2).
After the administrative decision was issued, defendant moved to dismiss this action, on the ground the doctrine of collateral estoppel barred the district attorney from proceeding on criminal charges because DSS had determined the overpayments “were the result of administrative errors . . ., and not the result of any intentional misrepresentation” by defendant. The trial court denied the motion to dismiss on the ground that the administrative decision did not afford a basis for collateral estoppel on the issue of misrepresentation by defendant and that notwithstanding the finding that administrative error caused the overpayments, the prosecution was still able to prove defendant’s misrepresentation was a cause for purposes of responsibility.
The charges were subsequently tried to the court. The prosecution’s evidence at trial shows the following. Defendant applied for cash aid and food stamps for herself and her children, including the two boys, in June of 1998. She reported that she was going to have the boys in her home and that they were to go “home” in September.
She was required to fill out and submit monthly eligibility reports so that the welfare department could determine if she continued to be eligible for aid. When parents divide time, whoever has the child the majority of the time could be eligible for aid. If custody is precisely equal, either parent could be eligible. Defendant signed her September 1998 eligibility report under penalty of perjury. In response to the question on the report asking if anyone moved in or out of the home she wrote: “Boys are staying with their father [one-half] of the time now.” In fact, after the summer of 1998 the boys spent very little time in defendant’s home, sporadic weekend visits at best. Nonetheless, defendant continued to receive extra cash and food stamps, based on their presence in her home, to which she was not entitled, monthly until May of 2000.
Defendant was convicted of both counts 1 and 2 and placed on three years of formal probation, with terms including 60 days in county jail, restitution and community service. The jail time and community service were stayed pending this appeal.
DISCUSSION
I. Collateral Estoppel
Defendant contends the trial court erred in denying her motion to dismiss this action on the ground of collateral estoppel. When the matter was last before us the central question was the continued viability of the rule in People v. Sims (1982) 32 Cal.3d 468 (Sims), that a welfare recipient who has been exonerated of fraud charges by DSS in an administrative hearing cannot be criminally prosecuted for welfare fraud, because the doctrine of collateral estoppel bars the prosecution from relitigating issues that were determined in the administrative hearing. The Supreme Court has upheld our determination that the rule in Sims is still valid. However, the high court reversed our decision and remanded the matter to us for further proceedings, “including a determination of whether the issues litigated at the administrative hearing and the criminal prosecution for welfare fraud and perjury were identical.” (Garcia, supra, 39 Cal.4th at p. 1091.)
The Supreme Court explained its decision to remand as follows (Garcia, supra, 39 Cal.4th at pp. 1090-1091):
“At issue in a prosecution for welfare fraud is whether a person has obtained aid for a child not entitled to assistance ‘by means of false statement or representation or by impersonation or other fraudulent device.’ (Welf. & Inst. Code, § 11483, italics added.) However, the Court of Appeal did not adequately consider whether the administrative law decision actually determined whether defendant made any such misrepresentations or omissions and whether those misrepresentations or omissions caused, at least in part, the overpayments.
“The administrative decision concluded that ‘all the overpayments and overissuances are determined to have been caused by administrative errors.’ But this does not foreclose the possibility that defendant misrepresented whether her two sons were members of her household when she received aid on their behalf and failed to report the boys’ absence from her home. The administrative decision that the overpayments were caused by administrative errors leaves open the possibility that defendant made misstatements that were a contributing cause to the overpayments. It is possible that the administrative decision did not determine whether defendant made any misrepresentations, or whether such misrepresentations were a cause, but not the sole cause, of the overpayments. Only if the administrative law judge did indeed find that defendant had made no misrepresentations or omissions in her applications for aid would the state be barred from prosecuting her for welfare fraud; if defendant made no false representations, an element of that crime has not been satisfied. (People v. Carlson (1977) 76 Cal.App.3d 112, 116.)
“We decline to determine whether in the present case the People are collaterally estopped from prosecuting defendant for welfare fraud and, instead, remand the case to permit the Court of Appeal to resolve that issue in the first instance. In so doing, the Court of Appeal should consider the circumstance that the record on appeal does not include the notices of action issued by the County on January 16, 2001, in the administrative proceedings. Although we can deduce from the administrative decision that the notices alleged that defendant, rather than the County, was at fault for the overpayments, the absence of these notices from the record makes it difficult to determine what issues were raised ‘“by the pleadings or otherwise”’ (Sims, supra, 32 Cal.3d at p. 484) in the administrative hearing. On remand, the Court of Appeal should consider the effect, if any, of the absence of these documents from the record on appeal.
“It is also unclear whether the People are collaterally estopped from prosecuting defendant for perjury. The Court of Appeal decision does not discuss the perjury charge. The elements of perjury are: ‘a “willful statement, under oath, of any material matter which the witness knows to be false.”’ (Cabe v. Superior Court (1998) 63 Cal.App.4th 732, 735; see also Chein v. Shumsky (2004) 373 F.3d 978, 983.) Again, if the administrative decision actually decided that defendant had made no misstatements, collateral estoppel would bar prosecution of defendant for perjury. However, if defendant willfully made misstatements, but the administrative law judge determined that such misstatements were not the dominant cause of the overpayments, collateral estoppel would not necessarily dispose of the perjury charge, as it is possible that defendant’s false representation could have been material to the administrative proceeding. (See People v. Kobrin (1995) 11 Cal.4th 416, 426-427.)” [We end our quotation from the Supreme Court opinion.]
An overpayment or overissuance, like other events, can have multiple causes. For example, a payment error might require both that the recipient fail to report accurately a material change of fact and that the welfare department fail to follow up as obliged to uncover the true state of affairs. The administrative hearing decision affirmatively declares that the overpayments were caused by administrative error. However, as the trial court astutely observed, it does not say that defendant did not concurrently cause the overpayments by misrepresentation. Moreover, it does not show that absence of such misrepresentation was an essential finding to warrant an administrative remedy granted to defendant. Even where issues are determined, they may be relitigated unless the prior judgment is dependent on the determination. (See Rest.2d, Judgments (1982) § 27, com. h, p. 258.)
The question of what remedy or relief was granted by the May 2001 administrative decision would turn on the application of state regulations governing the welfare programs in issue. The pertinent state regulations are in the DSS Manual of Policies and Procedures (hereafter MPP).
Defendant bore the burden of proof and the concomitant burden of going forward with the evidence on the issue of collateral estoppel. (E.g., Lucido v. Superior Court (1990) 51 Cal.3d 335, 341; Evid. Code, §§ 500, 550.) Thus, the question is, Did defendant show in some other fashion that the issue whether she made any misrepresentation was actually litigated and necessarily determined by the administrative hearing decision? “An issue is actually litigated ‘[w]hen [it] is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined . . . . A determination may be based on a failure of . . . proof . . . .’ (Rest.2d, Judgments (1982) § 27, com. d, p. 255, italics added.)” (Sims, supra, 32 Cal.3d at p. 484.)
The administrative hearing is a procedure “whereby a dissatisfied claimant may obtain an impartial review of a county action.” (MPP, § 22-001(s)(1).) Ordinarily, as in this case, an administrative hearing in a welfare case is triggered by a county notice of action to the recipient. (MPP, §§ 22-001(s)(1), 22-003.1, 22-004.221, 22-071.14.) The issue at the hearing is whether the county action noticed should be sustained, modified, or reversed. The issues that are determined by the hearing decision are those that are essential to the result of the hearing decision in sustaining, modifying, or reversing county action.
As the Supreme Court noted, defendant did not supply to the trial court the county notices of action of January 16, 2001, which are, effectively, the core pleading in the administrative proceeding. (Garcia, supra,39 Cal.4th at p. 1090.) This renders ascertaining what issues were determined by the hearing decision problematic.
It is unmistakable from the discussion in the administrative hearing decision that the missing notices of action asserted defendant had caused the overpayments because she failed to report properly that two of the children for whom the benefits were provided were not living in her household during the pertinent period. However, the hearing decision does not reveal what, if any, new or different county action was predicated on that assertion.
The juxtaposition of the original notices of action asserting that administrative error had caused the overpayments and the subsequent notices asserting that defendant caused the overpayments could be taken to imply that those are mutually exclusive possibilities. However, that inference is not compelled. As related, all that necessarily follows from the face of the administrative hearing decision is the finding that the administrative error by the county was one cause of the overpayments. A compelling showing that that decision determined defendant did not also cause the overpayment required a demonstration that the relief she was granted from the action the county proposed necessarily rested on such a finding.
Indeed, it is belied by the lack of any discussion, reasoning, or explanation in the hearing decision of how defendant’s false report that the boys were living with their father one-half of the time would not have been a causal misrepresentation.
Such a demonstration might be made by evidence that: (1) a notice proposed action that under welfare law and regulations required a finding that defendant made a causal misrepresentation; and (2) defendant was granted relief from that action. The evidence that defendant provided does not show this. Accordingly, the trial court did not err in concluding that collateral estoppel was not warranted as defendant failed to prove the administrative law decision actually determined she made no misrepresentations causing the overpayments.
For example, a defendant might be able to show that the county proposed to take some greater or different recoupment action which, under welfare regulations, required a finding of misrepresentations causing the overpayments. If the administrative hearing decision granted relief from that action, this could demonstrate an actual decision that defendant had made no misstatements essential to the administrative judgment. On this record, no such showing was made.
II. Continuance of the Trial
Defendant contends that the trial court erred in denying her motion, filed on the day trial was to begin, for a continuance. She argues that it was unreasonable to deny the continuance because her counsel was not prepared for trial. The argument is unpersuasive and the contention of error lacks merit.
To obtain a trial continuance the defense must show that, notwithstanding due diligence, defense counsel has been unable to prepare for trial (People v. Jenkins (2000) 22 Cal.4th 900, 1037) or that defense counsel is in fact unprepared to conduct the trial (People v. Fontana (1982) 139 Cal.App.3d 326, 333 (Fontana)). However, “a mere representation of unpreparedness is [in]sufficient to require the trial court to postpone probation revocation proceedings--or any other hearings or trials.” (Id. at p. 335.)
“With respect to defendant’s contention that the court erred in denying his various requests for continuance, the trial court has broad discretion to determine whether good cause exists to grant a continuance of the trial. ([Pen. Code,] § 1050, subd. (e); People v. Frye [(1998)] 18 Cal.4th [894,] 1012.) A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence. (People v. Mickey [(1991)] 54 Cal.3d [612,] 660; People v. Grant (1988) 45 Cal.3d 829, 844.) When a continuance is sought to secure the attendance of a witness, the defendant must establish ‘he had exercised due diligence to secure the witness’s attendance, that the witness’s expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.’ (People v. Howard [(1992)] 1 Cal.4th [1132,] 1171.) The court considers ‘“not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.”’ (People v. Zapien [(1993)] 4 Cal.4th [929,] 972.) The trial court’s denial of a motion for continuance is reviewed for abuse of discretion. (People v. Mickey, supra, 54 Cal.3d at p. 660.)” (People v. Jenkins, supra, 22 Cal.4th at p. 1037.)
In this case defendant’s motion was supported by a declaration of counsel as follows. Counsel was involved in a trial during Wednesday through Friday preceding the Monday that trial was to commence. As a result he was unable to meet with defendant, to adequately prepare for trial, or to meet with potential defense witnesses. In addition, counsel was awaiting documents from Legal Services of Northern California (Legal Services), which represented defendant in the administrative proceedings, and defendant wanted to set aside her jury trial waiver.
When the matter came on for trial the court said that it was willing to consider a break after the prosecution’s case-in-chief if defendant needed additional time. Defense counsel suggested this would not help with a lack of preparation to cross-examine the prosecution’s witnesses. The court noted that the parties had indicated readiness the week before and that the prosecution had already summoned its witnesses, some from out of the area. Defense counsel said that he had not had time to review documents from Legal Services that might support the defense. The court suggested that could be cured by a break after the prosecution rested. Defense counsel reiterated a concern about ineffective cross-examination. The court said it would allow him to confer with his client before commencing cross-examination and could retain witnesses so they could be recalled if necessary. Defense counsel mentioned defendant’s desire to seek a jury trial and the court opined that was untimely. Defense counsel moved to exclude witnesses and the court trial commenced.
In Fontana, defense counsel gave a detailed and undisputed explanation of basic preparation that had not yet been done, including reviewing, analyzing, and discussing with his client hundreds of pages of materials and the preliminary hearing transcript. (Fontana, supra, 139 Cal.App.3d at pp. 332-333.) If the continuance were denied he would be required to proceed immediately with the hearing on the matter. Accordingly, the Court of Appeal concluded counsel was, in fact, unprepared. (Ibid.)
In this case, the defense counsel made no comparable showing. He made no showing concerning lack of trial preparation in the period preceding the three days before trial or that the trial during the prior week was an unforeseeable occurrence. His principal claim was that he might be impaired in cross-examination because of an inability to meet with his client immediately before trial and to review documents that might be supplied by Legal Services. However, the trial court offered to ameliorate this possibility by allowing him to consult with his client before having to undertake cross-examination and to recall witnesses as needed.
In our judgment, on this record, there is no basis for an appellate determination that counsel was irremediably unprepared for trial. This is a case in which the trial court had discretion to find a mere representation of unpreparedness. In light of the accommodation it offered, the trial court did not abuse its discretion in denying the last-minute request for a continuance.
III. Sufficiency of the Evidence
Defendant contends that there is insufficient evidence to support her convictions. She argues, in essence, a reasonable trier of fact could not find her false statement that the boys were “staying with their father [one-half] of the time now” was a criminal misrepresentation because she is not sophisticated and has no “legal training on the precise definition of perjury and misrepresentation for aid.”
The argument is unpersuasive and the contention of error has no merit.
Defendant points for support to a tentative musing by the court, before argument, concerning what its findings might be. The only pertinent remarks of the trial court are its actual findings: The false “statement [that the boys were ‘staying with their father one-half of the time now’] . . . was made with the intent to deceive the welfare department.”
“In reviewing the sufficiency of the evidence, we must determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ (Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573], italics in original.) ‘[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ (People v. Johnson (1980) 26 Cal.3d 557, 578.) We ‘“presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ (People v. Pensinger (1991) 52 Cal.3d 1210, 1237.)” (People v. Davis (1995) 10 Cal.4th 463, 509.)
The question that defendant answered falsely--explain what changed with respect to anyone moving in or out of your home-- did not require legal training on the precise definition of perjury and misrepresentation for aid. It required only the truth about what occurred. Viewed in the requisite light, a rational trier of fact could find the essential elements of the crimes of which defendant was convicted true beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS , Acting P.J., MORRISON , J.