Majority
Opinion
Defendant Diane Crudgington was charged by information with one count of welfare fraud (Welf. & Inst. Code, § 11483, subd. (2)—cash assistance for a child in excess of $200). Her motion to set aside the information made pursuant to Penal Code section 995 was granted. The People appeal pursuant to Penal Code section 1238, subdivision (a)(1)-
The sole ground upon which the trial court set aside the information was that the People did not introduce at the preliminary hearing any evidence that a request for restitution had been made upon defendant prior to the filing of the complaint as required by Welfare and Institutions Code section 11483[1] and former section 12850[2] as interpreted in People v.
1 Section 11483, which prescribes that any person who obtains aid for a child in excess of $200 by fraudulent means shall be punished by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year, states in its final paragraph: “All actions necessary to secure restitution shall be brought against persons in violation of this section as provided in Sections 12250 and 12850.”
2 Prior to its repeal in 1973, section 12850 provided in part: “It is the intent of the Legislature that restitution shall be sought by request, civil action, or other suitable means prior to the bringing of a criminal action.” The section was repealed in 1973 (Stats. 1973, ch. 1216, § 37, p. 2903) but the substance of the restitution requirement was reenacted in *298 new section 13200 (Stats. 1973, ch. 1216, § 52, p. 2921). Moreover, in People v. McGee, supra, 19 Cal.3d at page 958, footnote 3, the California Supreme Court held that “[notwithstanding their repeal, sections 12250 and 12850 remain operative to the extent that they are incorporated into section 11483.”
For purposes of this appeal, the facts may be very briefly stated. On March 8, 1978, a complaint was filed against defendant in the Central Orange County Judicial District alleging several counts of welfare fraud, one involving cash assistance, another food stamp assistance and another medical assistance.[3] A preliminaiy hearing was held on April 6, 1978, at the conclusion of which defendant was held to answer for one count of fraudulently obtaining aid for a child (Welf. & Inst. Code, § 11483). At the preliminaiy hearing the People introduced no evidence as to whether or not a request for restitution had been made upon defendant. When the People rested, the magistrate asked counsel for defendant whether defendant wished to present any evidence at the preliminary hearing. Counsel responded: “No, your Honor.” The district attorney then made a motion to bind the defendant over to superior court. Defense counsel was then given an opportunity to argue. After arguing that the prosecution was making “a mountain out of a molehill,” and technically, that it had not been shown that the defendant received any moneys due to any welfare, defense counsel stated: “Certainly, your Honor, there has been no showing that my client received notice of restitution. That is part of the Prosecution’s case in chief which must be proved.” The district attorney asserted that proof of a restitutionary demand was not an element of the crime and, therefore, need not be proved at the preliminaiy hearing by the prosecution. The magistrate indicated he agreed with the district attorney. Argument proceeded to other matters and the problem of a restitutionaiy demand was not thereafter mentioned.
First, the People contend that a motion to set aside the information made pursuant to Penal Code section 995 is an inappropriate vehicle for raising the question of whether or not the requisite demand
3 A substantially identical complaint had been filed against defendant on July 28, 1977, but was dismissed on March 8, 1978, on the People’s motion.
The purpose of a motion to set aside the accusatory pleading under Penal Code section 995 is to review the sufficiency of the indictment or information on the basis of the record made before the grand jury in the one case or the magistrate at the preliminary hearing in the other. A section 995 motion does not contemplate the introduction of evidence at the hearing on the motion. (See People v. Superior Court (Kusano) 276 Cal.App.2d 581 , 585 [ 81 Cal.Rptr. 42 ].) Clearly, the court in McGee had in mind an evidentiary hearing; it held that the factual question whether or not the requisite restitutionary demand was made on the defendant is properly resolved by the trial court prior to trial rather than by the jury at trial. (19 Cal.3d at pp. 967-968; see also Murgia v. Superior Court, supra, 15 Cal.3d at pp. 293-294, fn. 4.)
In any event, even if in a proper case a section 995 motion might be appropriate to raise the restitutionary demand question, this is not such a case. In this case, no evidence whatsoever was presented at the preliminary hearing showing whether or not a request for restitution was made to defendant; and defendant’s contention that it was incumbent
4 For the proposition that a motion under Penal Code section 995 is appropriate to raise the issue, defendant relies rather heavily on People v. Wright, 2 Cal.App.3d 732 , 735 [ 82 Cal.Rptr. 859 ]. In that case, one question was whether the issue of prejudicial prosecutorial delay could be raised in a section 995 motion to set aside an information. The court indicated that a person who was held to answer notwithstanding a showing that he or she had been prejudiced by an unjustified prosecutorial delay might not be “legally committed” as that phráse is used in section 995. The court stated: “The rule which has evolved from these' cases is that where evidentiary inquiry during the course of a preliminary examination establishes that the defendant has been deprived of a substantial [orig. italics] right, the commitment is unlawful and the deprivation may be asserted through a motion to set aside the information under section 995. [Citation.]” (2 Cal.App.3d at p. 735; italics added.) Thus, as the court indicated, the evidence of the prejudicial prosecutorial delay would have to be contained in the preliminary transcript for the question to be appropriately raised by a motion to set aside the information under Penal Code section 995. Up to that point, we follow the court’s reasoning. We must confess, however, that we do not fully comprehend the next succeeding statement of the court: “We will assume for the purpose of this appeal that had defendant been able to establish at the preliminary hearing that he was prejudiced by the delay in his arrest, there would have been a deprivation of a substantial right with the result that his commitment by the magistrate would have been unlawful. A motion under section 995 would be proper under such circumstances.” (2 Cal.App.3d at p. 735; italics added.) The court then proceeded to review the trial court’s order setting aside the information and reversed the order. (2 Cal.App.3d at pp. 735-737.)
Defendant contends she adequately invoked the defense when her attorney pointed out to the magistrate in oral argument at the preliminary hearing that no evidence had been introduced that the requisite request for restitution had been made to defendant. She concedes that the “general rule is that a defendant bears the burden of going forward with evidence on matters of affirmative defenses covering proofs unrelated to the ‘elements’ of the offense. [Citations omitted.[[5] ]]” However, she urges that the People have exclusive knowledge of the facts as to whether a request for restitution was made to the accused prior to the filing of the
5 Among the authorities cited by defendant for the stated proposition are People v. Tewksbury, 15 Cal.3d 953 [ 127 Cal.Rptr. 135 , 544 P.2d 1335 ], and section 343 of Witkin’s California Criminal Procedure. In Tewksbury the court stated: “There are . . . defenses asserted by an accused which raise factual issues collateral to the question of the accused’s guilt or innocence and do not bear directly on any link in the chain of proof of any element of the crime. Among such defenses are those which raise no challenge to the sufficiency of the prosecution’s proof of any element of the crime charged but for reasons of public policy insulate the accused notwithstanding the question of his guilt. (See Witkin, Cal. Criminal Procedure, § 343, pp. 335-336.) Entrapment is one of such public policy defenses [citation] and the collateral question whether an accused was entrapped must be proved by him by a preponderance of the evidence. [Citation.] In still other contexts factual issues which are collateral are raised by the assertion of defensive matter which challenges the reliability of particular incriminating evidence. Again the factual issue raised, that is, the proof of the fact upon which the challenge to reliability can be asserted, is collateral to the question of the accused’s guilt or innocence. Proof of such collateral factual issue, as in the case of the proof of the factual issue on which the public policy defense rests, is not one which must be established in the direct chain of proof of the accused’s guilt. . . .” (15 Cal.3d at pp. 964-965, fns. omitted.) In McGee the court expressly stated that “the question of whether or not the state has sought restitution ‘relates not to the guilt or innocence of the accused’ but to the question of a statutory defect in the institution of the prosecution. . . .” (19 Cal.3d at p. 968.)
It is true that the People presumably have knowledge of whether or not a precomplaint request for restitution was made, and that the evidence of the conduct of government representatives in that connection is probably more accessible to the People than to the accused. On the other hand, the accused presumably knows whether or not he or she received any request for restitution and is in as good or better position than the People to present evidence as to that fact. Defendant’s contention that placing the burden of producing evidence on the accused is inconsistent with the privilege against self-incrimination (U. S. Const., 5th and 14th Amends; Cal. Const., art I, § 15) is unsound. A defendant who takes the stand to testify does not waive the privilege against self-incrimination except as to matters within the scope of relevant cross-examination. (People v. Tealer, 48 Cal.App.3d 598 , 604 [ 122 Cal.Rptr. 144 ]; see Evid. Code, §§ 761, 772, subd. (d); Witkin, Cal. Evidence (2d ed. 1966) §§ 911, 1204, pp. 845, 1112.) Thus, if the accused testifies only as to the facts concerning his or her receipt of a request for restitution, the prosecutor could not cross-examine the accused with respect to any other matter. Moreover, the defendant will usually be able to adduce evidence on the question by simply cross-examining the government’s witnesses.
More fundamentally, however, the issue before us is not which party has the burden of persuasion or even the burden of producing evidence at trial or at an evidentiary hearing on a nonstatutory pretrial motion to set aside the information such as that prescribed in McGee. Here the question is whether the prosecution is required to present evidence at the preliminary hearing that the statutorily required request for restitution has been made. Since it was determined in McGee that proof of compliance with the statutory requirement is not an element of the crime and need not be alleged in the information, it must be concluded that it is not incumbent upon the People to introduce evidence on the issue at the preliminary hearing. Of course, as previously indicated, if a defendant elects to present evidence at the preliminary hearing that no request for restitution was made, the People may be required to produce evidence at
Accordingly, the order of the trial court setting aside the information was improvident and is reversed.
Gardner, P. X, and Morris, X, concurred.
Cases cited
- People v. McGee 19 Cal.3d 948 p. 298
- People v. Van Randall 140 Cal.App.2d 771 at 774 p. 299
- People v. King 66 Cal.2d 633 at 644-645 p. 299
- Murgia v. Municipal Court 15 Cal.3d 286 at 293-294 p. 299
- Jones v. Superior Court 3 Cal.3d 734 at 736 p. 299
- People v. Superior Court of L.A. Cty. 276 Cal.App.2d 581 at 585 p. 299
- Jones v. Superior Court 4 Cal.3d 660 at 668 p. 300
- Jennings v. Superior Court 66 Cal.2d 867 at 880 p. 300
- People v. Montalvo 4 Cal.3d 328 at 334 p. 302
- People v. Loggins 23 Cal.App.3d 597 at 602 p. 302
- People v. Tealer 48 Cal.App.3d 598 at 604 p. 302