Filed 3/12/15 P. v. Byers CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                          B252924

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA401202)
         v.

TOWANA LATRICE BYERS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Barbara R. Johnson, Judge. Modified and, as modified, affirmed.


         Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
                                       INTRODUCTION
       After a court trial, defendant and appellant Towana Latrice Byers was found guilty
of obtaining aid by misrepresentation (Welf. & Inst. Code, § 10980, subd. (c)(2)) and of
perjury (Pen. Code, § 118, subd. (a)). Byers contends that she could be prosecuted under
either Welfare and Institutions Code section 10980 or under Penal Code section 118 but
not both, and therefore her conviction for perjury should be reversed. Although we
disagree with that contention, we find that sentence could be imposed only on one count.
We therefore modify the judgment to stay the sentence on the perjury count and affirm
the judgment as modified.
                                        BACKGROUND 1
       Based on evidence that Byers received public assistance benefits from
Los Angeles County while residing in San Bernardino County, without informing the
proper authorities, an information was filed on January 3, 2013 alleging: count 1,
obtaining aid by misrepresentation (Welf. & Inst. Code, § 10980, subd. (c)(2)),2 and
counts 2 and 3, perjury (Pen. Code, § 118, subd. (a)).3


1
       We omit a detailed statement of facts, because it is unnecessary to a determination
of the discrete issue on appeal.
2
        “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[.]” (Welf. & Inst. Code, § 10980,
subd. (c).)
3
        “Every person who, having taken an oath that he or she will testify, declare,
depose, or certify truly before any competent tribunal, officer, or person, in any of the
cases in which the oath may by law of the State of California be administered, willfully
and contrary to the oath, states as true any material matter which he or she knows to be
false, and every person who testifies, declares, deposes, or certifies under penalty of
perjury in any of the cases in which the testimony, declarations, depositions, or
certification is permitted by law of the State of California under penalty of perjury and
willfully states as true any material matter which he or she knows to be false, is guilty of
perjury.” (Pen. Code, § 118, subd. (a).)

                                              2
       After Byers waived a jury trial, the court found her guilty, on November 6, 2013,
of counts 1 and 3, but acquitted her of count 2. The trial court, among other things,
suspended imposition of sentence on counts 1 and 3 and placed Byers on four years’
probation.
                                      DISCUSSION
       Byers contends that she could be charged under either Welfare and Institutions
Code section 10980, subdivision (c)(2), or under Penal Code section 118, subdivision (a),
but not under both. We disagree.
       Byers relies on People v. Jenkins (1980) 28 Cal.3d 494 (Jenkins). The defendant
in Jenkins was charged with violating Welfare and Institutions Code section 114834 and
perjury under Penal Code section 118. The trial court dismissed the perjury count, based
on an implied finding that “since section 11483 is a ‘special’ statute dealing with AFDC
fraud, the more ‘general’ perjury provisions of section 118 do not apply.” (Jenkins, at
p. 501; see generally People v. Murphy (2011) 52 Cal.4th 81, 86 [“if a general statute
includes the same conduct as a special statute, the court infers that the Legislature
intended that conduct to be prosecuted exclusively under the special statute”]; In re
Williamson (1954) 43 Cal.2d 651.) Although Jenkins agreed that welfare fraud under the
Welfare and Institutions Code could not be committed without also committing perjury,
the court found that the Legislature intended the Penal Code perjury provisions to be
available as an “alternative charge for misstatements made in connection” with welfare
applications. (Jenkins, at p. 508.) Jenkins therefore reversed the trial court’s order
dismissing the perjury charge. (Id. at pp. 508-509.)




4
      Before section 10980 was added to the Welfare and Institutions Code in 1984,
welfare fraud was punishable under section 11483, among other statutes. (People v.
Ramirez (2008) 168 Cal.App.4th 65, 72.)

                                              3
       Byers interprets Jenkins to hold that a prosecutor must elect between the Welfare
and Institutions Code and the perjury statute when charging her with welfare fraud.
People v. Ramirez, supra, 168 Cal.App.4th 65, however, did not interpret Jenkins in this
way. In Ramirez, as here, the defendant was charged with and convicted of receiving aid
by misrepresentation (Welf. & Inst. Code, § 10980, subd. (c)(2)) and of perjury (Pen.
Code, § 118). (Ramirez, at pp. 68-69.) The defendant argued that changes in the
applicable Welfare and Institute Code statutes made Jenkins inapplicable. Ramirez found
that those changes “maintained” requirements that certain documents be signed under
penalty of perjury. “The Legislature’s requirement that statements by aid recipients be
filed under penalty of perjury evinces that simultaneous prosecutions may be maintained
for misrepresentation and perjury.” (Id. at p. 73.)
       Byers acknowledges Ramirez but notes that it did not expressly consider the
language Jenkins used to describe the perjury charge. Specifically, Jenkins referred to
perjury as an “alternative charge” (Jenkins, supra, 28 Cal.3d at p. 508), and, in its
conclusion, Jenkins said: “An individual cannot commit AFDC fraud without also
violating the perjury provisions of the Penal Code. However, there is overwhelming
evidence that by incorporating section 118 into the AFDC program via [Welfare and
Institutions Code] sections 11054 and 11265, the Legislature intended to permit
prosecutions for AFDC fraud to proceed either under section 11483 or [Penal Code]
section 118.” (Jenkins, at p. 509, italics added.)
       The opinion as a whole and the holding show that the court was merely stating that
a perjury charge is not foreclosed in a prosecution for welfare fraud. Jenkins said nothing
about requiring an election between charges. In fact, the disposition in Jenkins does not
support Byers’s parsing of the court’s statements to support such an election. Jenkins
reversed the superior court’s order dismissing the perjury charge. (Jenkins, supra, 28
Cal.3d at p. 509.) The court did not direct the prosecutor to elect between charging the
defendant under the Welfare and Institutions Code or under the Penal Code. Had the
court intended not to follow the general rule that a person may be convicted of more than
one crime arising out of the same act or course of conduct, it would have said so in its

                                              4
detailed discussion of welfare fraud and perjury. (See generally Pen. Code, § 954;
People v. Reed (2006) 38 Cal.4th 1224, 1226.)
      Although Byers could be prosecuted for aid by misrepresentation and for perjury,
she could not be punished for both. (People v. Camillo (1988) 198 Cal.App.3d 981, 995;
Pen. Code, § 654.) The sentence on count 3 therefore should have been stayed under
Penal Code section 654.5




5
      It appears that the trial court selected count 1 as the primary count.

                                             5
                                    DISPOSITION
      The judgment is modified to stay the sentence on count 3, under Penal Code
section 654. The judgment is affirmed as modified. The clerk of the Superior Court is
directed to prepare a modified abstract of judgment.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                ALDRICH, J.


We concur:


             KITCHING, Acting P. J.




             LAVIN, J.*




*
      Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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