People v. Ruster

Opinion

Defendant appeals from judgment entered on jury verdicts convicting him of 1 count of grant theft (Pen. Code, §§ 484, 487, subd. 1) and 14 counts of forgery (Pen. Code, § 470) based on unemployment insurance fraud. He was sentenced to state prison for the term prescribed by law, the terms on the forgery counts to run concurrently with the grand theft term. The principal question presented by this appeal is whether section 2101 of the Unemployment Insurance Code, classifying as a misdemeanor fraudulent representation to obtain unemployment

Defendant submitted a questionnaire establishing his eligibility for unemployment benefits to an employee of the Employment Development Department (EDD); he signed the questionnaire “Gary Roster,” social security number 549940478. Receiving a pay certification card for $65, he signed the same name on that form and presented it to a cashier in the EDD office. A supervisor then noticed that defendant resembled a photograph posted on the office bulletin board of a man wanted by the department for questioning concerning possible violations of the Unemployment Insurance Code. The supervisor instructed the cashier to stall defendant until an EDD investigator could be summoned.

While defendant was sjill at the cashier’s window, but after he received the $65, an investigator approached defendant and identified himself. Defendant ran toward an exit, but was apprehended. He then produced identification indicating he was Gary Raster, social- security number 564560708. Subsequent searches made with his consent or pursuant to warrant produced documents indicating petitioner had received thirteen $65 unemployment insurance payments using the name “Gary Roster” between May and September of 1971, and had received $1,400 in unemployment insurance benefits by using a false social security number between April of 1970 and August of 1971. His defense at trial was diminished capacity.

The Special Statute Question

Prosecution under a general statute is precluded by a special statute when the general statute covers the same matter as, and thus conflicts with, the special statute. (People v. Gilbert (1969) 1 Cal.3d 475 , 479 [ 82 Cal.Rptr. 724 , 462 P.2d 580 ]; In re Williamson (1954) 43 Cal.2d 651 , 654 [ 276 P.2d 593 ].) However, a special statute does not supplant a general statute unless all of the elements of the general statute are included in the special statute (See People v. Gilbert, supra, 1 Cal.3d at p. 480; People v. Phillips (1966) 64 Cal.2d 574 , 582 [ 51 Cal.Rptr. 255 , 414 P.2d 353 ]; People v. Barrowclough (1974) 39 Cal.App.3d 50 , 55 [ 113 Cal.Rptr. 852 ].)

Statutes are to be construed so as to effect the intent of the Legislature. (Code Civ. Proc., § 1859; Mercer v. Perez (1968) 68 Cal.2d 104 , 112 [ 65 Cal.Rptr. 315 , 436 P.2d 315 ]; Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640 , 645 [ 335 P.2d 672 ].) To ascertain legislative intent, the court should construe a statute with reference to the whole system of law of which it is a part. (Select Base Materials v. Board of Equal., supra; Stafford v. L. A. etc. Retirement Board (1954) 42 Cal.2d 795 , 799 [ 270 P.2d 12 ]; County of Los Angeles v. Frisbie (1942) 19 Cal.2d 634 , 639 [ 122 P.2d 526 ].) When this principle of statutory construction is followed here, it becomes clear that section 2101 applies to completed, as well as attempted, unemployment insurance fraud and, therefore, that it precludes prosecution of such fraud under section 484.

Section 1263, subdivision (c), of the Unemployment Insurance Code provides: “The department shall, effective upon the date of the filing of a criminal complaint against an individual prosecuted under Section 2101, suspend the payment of benefits to the individual.” This section makes it clear that section 2101 was intended to apply to individuals who succeed in fraudulently obtaining unemployment benefits, as well as those who merely attempt to do so; if section 2101 applied only to attempts, it would be unnecessary to suspend payments of benefits.

This conclusion is reinforced by other sections in the same division. Section 1375 provides in pertinent part that “[a]ny person who is overpaid any amount as benefits ... is liable for the amount overpaid unless: (a) The overpayment was not due to fraud, misrepresentation or wilful nondisclosure on the part of the recipient . . . .” Section 2113

Here, too, the Legislature unquestionably. contemplated that the special statute might be violated by means of forgery. Indeed, applying for aid under a false identity, which entails signing eligibility questionnaires and pay certification cards with a false name, is. apparently one of the most common forms of unemployment insurance fraud. Therefore, such fraud may not be prosecuted under section 470. People v. Lustman, supra, is disapproved on this ground as well.

Reversing the judgment renders it unnecessary to reach most of defendant’s remaining contentions. However, because the admissibility of the fruits of the searches will inevitably arise again on retrial, we proceed to consider that question.

The Consent Search of Defendant’s Automobile

Both the EDD investigator who apprehended him and the police officer who subsequently took custody of him advised defendant of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ]. On both occasions, defendant declined to make a statement. When defendant arrived at the police station, he appeared to be hyperventilating and “quite upset, quite nervous.” However, during the booking interview, defendant’s breathing slowed and he “calmed down somewhat;” he appeared to be “rational” and to understand the-“nature” and “gravity” of his situation.

At the conclusion of the booking interview, which was recorded and transcribed, defendant consented to a search of his automobile. “[Officer]: Gary, we are impounding your car and we are obtaining a search warrant for it. We will be able to hold the car until We search it. It

Relying on People v. Superior Court (Keithley) (1975) 13 Cal.3d 406 [ 118 Cal.Rptr. 617 , 530 P.2d 585 ] and Bumper v. North Carolina (1968) 391 U.S. 543 [ 20 L.Ed.2d 797 , 88 S.Ct. 1788 ], defendant contends that the search of his automobile was illegal t ;cause his purported consent to the search was involuntary.

Defendant’s reliance on People v. Superior Court (Keithley), supra, is misplaced. In Keithley, the police con inued to interrogate the defendant, obtaining an incriminating statemei t from him, after he asserted his Miranda rights. Subsequently, he cor. ¡ented to a search of his residence. When his motion to suppress the evi ence seized during the search was granted, the People sought review ay writ of mandate. (Pen. Code, § 1538.5, subd. (o).) Substantial ev dence supported the trial court’s implied finding that the consent t( the search was the fruit of the Miranda violation. Therefore, we den ;d the writ.

Keithley is inapposite here becaus defendant’s Miranda rights were not violated. Seeking his consent to earch after defendant invoked his privilege against self-in crimination lid not violate the privilege. “A consent to search, as such, is neither estimonial, nor communicative in the Fifth Amendment sense. If appea mg in a lineup and speaking words used by a robber is not a ‘disclosui ; of any knowledge [the accused] might have’ (United States v. Wade, 388 U.S. 218 , 222 [ 18 L.Ed.2d 1149 , 1155, 87 S.Ct. 1926 ]), neither is a c< rsent to search. The fact that the search leads to incriminating evid< ace does not make the consent testimonial, any more than the victin s identification at the lineup gives such a quality to the words spoken 1 y the suspect.” (People v. Thomas (1970) 12 Cal.App.3d 1102 , 1110 [ 91 Cal.Rptr. 867 ]; see People v. Strawder (1973) 34 Cal.App.3d 370 , 379-380 [ 108 Cal.Rptr. 901 ].) There is no other evidence of a Miranda violat m here.

Bumper is inapposite because the officer here did not claim present authority to search under a warrant. Instead, the officer merely informed defendant that he would obtain a warrant if defendant did not consent to the search. Moreover, in the same breath the officer expressly informed defendant that he need not consent to the search, that the search was expected to reveal incriminating evidence, and that such evidence would be admissible against him.

“[T]he question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” {Schneckloth v. Bustamonte (1973) 412 U.S. 218 , 227 [ 36 L.Ed.2d 854 , 862-863, 93 S.Ct. 2041 ]; see People v. Michael (1955) 45 Cal.2d 751 , 753 [ 290 P.2d 852 ].) The trier of fact’s resolution of this question will not be disturbed on appeal if there is substantial evidence to support it. {People v. Superior Court (Keithley), supra, 13 Cal.3d at p. 410; People v. West (1970) 3 Cal.3d 595 , 602 [ 91 Cal.Rptr. 385 , 477 P.2d 409 ].) There is such evidence here.

The Warrant Search of Defendant’s Residence

Relying on People v. Grant (1969) 1 Cal.App.3d 563 [ 81 Cal.Rptr. 812 ], defendant contends that the search warrant for his San Mateo County residence was invalid because' it was issued by a Santa Clára County magistrate.

In Grant, a San Mateo County magistrate issued a search warrant for the defendants’ residence in that" county, as well as their persons. San Mateo County peace officers in possession of the warrant observed the defendants driving in the county, but were unable to stop their car until

Although ultimately upholding tb; search and seizure under a “hot pursuit” theory, the Court of Appeal held that the effect of a search warrant ordinarily should be limited o the county issuing it. “The person offended should have a ready forum a which to attack the validity of the search or seizure, and not be subjec .ed to following his property across county lines, or conceivably to tb; opposite end of the state.” (1 Cal.App.3d at p. 569.) If the pro erty of a stranger to a criminal investigation were seized in one county pursuant to a warrant issued by a magistrate in another county, it might well be inconvenient for him to contest the validity of the search o • seizure in the county issuing the warrant. But that is not the case 1 ere. Defendant had already been arrested and admitted to bail in Sar a Clara County when the warrant issued; the charges to which the evid' nee pertained were triable in Santa Clara County. Therefore, Santa Cla; a County was the most convenient forum in which to resolve the valid ty of the search and seizure. The Santa Clara County magistrate had ji isdiction to issue the warrant.

Defendant further contends t] at the warrant was invalid because the affidavit in support of it did not e :ablish that the affiant’s informants spoke with personal knowledge of the matters stated therein. (See Aguilar v. Texas (1964) 378 U.S. 108 , 114 [ 12 L.Ed.2d 723 , 84 S.Ct. 1509 ]; People v. Superior Court (Johnson) (1972) 6 Cal.3d 704 , 711 [ 100 Cal.Rptr. 319 , 493 P.2d 1183 ]; People v. Hamilton (1969) 71 Cal.2d 176 , 179-180 [ 77 Cal.Rptr. 785 , 454 P.2d 681 ].)

The affiant was an investigator fo the district attorney’s office. His informants were the chief investiga lor for that office and the EDD investigator who apprehended defendant. The information provided by the chief investigator was in turn basi I on information provided him by investigators for the district attorn ys of other jurisdictions. If the affidavit is read in a commonsense rr inner, as it must be (United States v. Ventresca (1965) 380 U.S. 102 , 108-109 [ 13 L.Ed.2d 684 , 688-689, 85 S.Ct. 741 ]; People v. Mesa (1975) 14 Cal.3d 466 , 469 [ 121 Cal.Rptr. 473 , 535 P.2d 337 ]), it is clear that the ulti nate sources of information spoke with personal knowledge of it. The fa t that the information was relayed to the affiant through “official cham els” did not vitiate its reliability. (See People v. Terry (1970) 2 Cal.3d 362 , 394 [ 85 Cal.Rptr. 409 , 466 P.2d 961 ]; People v. Ross (1967) 67 Cal.2d 54 , 70 [ 60 Cal.Rptr. 254 , 429 P.2d

The judgment is reversed.

Wright, C. J., McComb, J., Tobriner, J., Mosk, J., Sullivan, J., and Richardson, J., concurred.