Filed 3/12/15 P. v. Byers CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Supe rior Court of Los Angeles County, Barbara R. Johnson, Judge. Modifi ed and, as modified, affirmed.

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

Kamala D. Harris, Attorney General, Gera ld A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, James Will iam Bilderback II and Robert C. Schneider, Deputy Attorneys Ge neral, for Plaintiff and Respondent.2 INTRODUCTION After a court trial, defendant and appella nt 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 coul d be prosecuted under

either Welfare and Instituti ons Code section 10980 or under Penal Code section 118 but not both, and therefore her conviction for perjury should be reve rsed. Although we disagree with that contention, we find that se ntence could be imposed only on one count. We therefore modify the judgme nt to stay the sentence on the perjury count and affirm the judgment as modified.

BACKGROUND 1 Based on evidence that Byers recei ved public assistance benefits from Los Angeles County while residing in San Bernardino County, w ithout informing the proper authorities, an information was file d on January 3, 2013 alleging: count 1, obtaining aid by misrepresentation (W elf. & 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, b ecause it is unnecessary to a determination of the discrete issue on appeal.

2 “Whenever any person has, willfully and knowingly, wi th 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. & In st. 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 St ate 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 te stifies, 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 Stat e of California under pe nalty of perjury and willfully states as true any material matter wh ich he or she knows to be false, is guilty of perjury.” (Pen. Code, § 118, subd. (a).)3 After Byers waived a jury trial, the c ourt found her guilty, on November 6, 2013, of counts 1 and 3, but acquitte d her of count 2. The tria l court, among other things, suspended imposition of sentence on counts 1 and 3 and placed Byers on four years’ probation.

DISCUSSION Byers contends that sh e 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 viola ting Welfare and Institutions Code section 11483 4 and perjury under Penal Code secti on 118. The trial court dismis sed the perjury count, based on an implied finding that “since section 11483 is a ‘special’ statute dealing with AFDC fraud, the more ‘general’ perjury provisi ons 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 statut e, 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 with out also committing perjury, the court found that the Legislature intended the Penal Code perjur y provisions to be

available as an “alternative ch arge 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 wa s added to the Welfare and Institutions Code in 1984, welfare fraud was punishable under sect ion 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 statut e 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)) a nd 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” requirement s that certain documents be signed under penalty of perjury. “The Le gislature’s requirement that st atements 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 provisi ons of the Penal Code. However, there is overwhelming evidence that by incorporating section 118 into the AFDC progra m via [Welfare and Institutions Code] sections 11054 and 11265, the Legisl ature 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 ch arges. In fact, the disposition in Jenkins does not support Byers’s parsing of the court’s st atements to suppor t 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 th e 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 cour se of conduct, it would have said so in its5 detailed discussion of welfare fraud and perjury. (See ge nerally Pen. Code, § 954; People v. Reed (2006) 38 Cal.4th 1224, 1226.) Although Byers could be prosecuted for ai d 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 th erefore should have been stayed under

Penal Code section 654. 5

5 It appears that the trial court sele cted count 1 as th e primary count.6 DISPOSITION The judgment is modified to stay th e sentence on count 3, under Penal Code section 654. The judgment is affirmed as mo dified. 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 Ange les County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.