People v. Davis (85 Cal. App. 3d 916, 1978)

Opinion

JEFFERSON (Bernard), J.—

By an information filed in 1973, defendant Marilyn Davis was charged in case No. A183720, with committing the offense of fraudulently obtaining financial aid in excess of $200 from the County of Los Angeles for nonexistent children in violation of Welfare and Institutions Code section 11483.

Defendant entered a plea of not guilty, and then withdrew that plea and pleaded nolo contendere. Defendant personally waived her right to a jury trial, the right to confront witnesses and the right to present witnesses on her own behalf. Counsel joined. Defendant was granted probation.

By an information filed in 1974, defendant was charged, in case No. A311120, in count I, with committing the offense of grand theft, a violation of Penal Code section 487. In count II, defendant was charged with committing the offense of fraudulently obtaining financial aid for children Reginald Patterson, Janell Patterson, Vermitia Patterson and Joseph Patterson, in excess of $200, when said children were not in fact eligible for such aid, in violation of Welfare and Institutions Code section 11483.

Defendant entered a plea of not guilty. The case was called for trial on November 4, 1975. Defendant personally and her counsel waived trial by jury. Defendant’s motion to dismiss count I of the information, pursuant to Penal Code section 995, was denied. Trial commenced on November 14, 1975. Defendant was represented by an attorney who appeared on her behalf, pro bono.

After trial had commenced, the information was amended to allege that defendant had suffered five prior felony convictions. Defendant was rearraigned and denied the priors.

Trial in this matter was not completed until June 14, 1977, some 19 months after the trial had begun; proceedings were held on at least 19 different occasions during this period. Continuances of trial were obtained by defendant for a variety of reasons, among which were her illness, her failure to appear, her counsel’s failure to appear due to other commitments, his illness, and for other reasons not apparent in the record.

Defendant was found not guilty as to count I of the information, and guilty as to count II. The court found three of the allegations of prior felony convictions to be true, and two untrue. During her lengthy trial, defendant was charged with violating her probation in case No. A183720, due to her failure to appear for proceedings in the second case; The probation violation matter was continued so that it would trail proceedings in case No. A311120.

On August 19, 1977, defendant was sentenced in both cases to state prison for the terms prescribed by law, the sentences to be served concurrently.

Defendant has filed a notice of appeal which purports to appeal from the judgments rendered in both cases.

With respect to the judgment rendered in 1973 in case No. A183720, her purported appeal therefrom has not been filed in timely fashion (Pen. Code, § 1237), as her court-appointed appellate attorney concedes. Defendant has written a letter to this court, filed on June 7, 1978, in which she attempts to raise the issue of less than full advisement of the consequences of her waiver of rights in making a plea of nolo contendere in the first case; we may not consider that issue here. Neither defendant nor her appellate counsel has raised any issue claiming impropriety in the revocation-of-probation proceedings of the first case. The appeal from the judgment rendered in case No. A183720 must therefore be dismissed.

What remains before us is the appeal from the. judgment rendered in the second case—case No. A311120. Our discussion will concern the issues raised by defendant’s appellate counsel in his opening and supplemental opening briefs and an issue discussed in oral argument followed by written points and authorities submitted by the parties.

I

The Factual Background

Defendant was convicted on count II of the information, of fraudulently obtaining aid to families with dependent children (hereinafter, AFDC) for four nonexistent children—Reginald, Janell, Vermitia and Joseph Patterson. Thus, the burden placed on the prosecution at trial was to establish a negative fact—the nonexistence of the claimed-to-exist four Patterson children. Much of the evidence adduced below was circumstantial and directed toward the resolution of this crucial factual issue.

It appears that defendant, using the name Marilyn Patterson, contacted the Department of Public Social Services of the County of Los Angeles (hereinafter, DPSS) in March 1974, by telephone, requesting a home call to her Los Angeles address on Stanley Avenue to discuss an AFDC application. DPSS worker McNeal testified that she visited defendant at the latter’s home and commenced processing the application.

No children were seen by McNeal, but defendant advised her there were four Patterson children although there would be some difficulty in verifying the births of the children in Texas. Thereafter, defendant was issued aid under the AFDC program.

Warrant Investigator Ferrell testified that warrants were paid by Los Angeles County to defendant as Marilyn Patterson from April 1974, to July 1974, for AFDC, and additional warrants were issued to defendant as Marilyn Davis for general relief, a form of county assistance which is distinct from AFDC, during the same time period.

Witness Fraser, an examiner of questioned documents for the Los Angeles Sheriffs Department, testified that, after comparison of various prosecution exhibits, /.