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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 

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 This opinion has not been certified for publication 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION THREE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

TOWANA LATRICE BYERS, 

 Defendant and Appellant. 

 B252924 

 (Los Angeles County 

 Super. Ct. No. BA401202) 

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. 
2

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).) 
3

 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.) 
4

 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 
5

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. 
6

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.