*1 Nо. 6729. In Bank. [Crim. Mar. 1961.] THE PEOPLE, Respondent, v. TRESSIE NEAL SHIRLEY,
Appellant.* People Neal under the title of was carried This ease *Note: appears, however, Appeal. that defendant now Court of District Shirley. Neal is Tressie married name and her married *2 Appellant. Lopes M. J.
Stanley Attorney General, and Mosk, Moore, S. Clark Attorney Respondent. Deputy General, for GIBSON, trial, defendant C. J.—After was found guilty grand charging an theft under indictment that she unlawfully County $1,811 Tulare took of funds of between Imposition 1, 1958, April 30, October 1959. of sentence suspended granted probation. years, for three and she was was appealed granting probation She has from the order (Pen. denying 1237.) from order new trial. Defendant received welfare aid herself and minor chil- periodically commencing dren in 1948. She was informed re- duty pеatedly county keep welfare any changes family advised status or anyone moving or into out of the house budget. would affect her welfare On October 21, de- reported county fendant social only worker that her money income was the depart- she received from the welfare ment, plus earnings the occasional of two of her children, and there were unrelated adults family. with the *3 again duty keep She was advised of her to the welfare de- partment regarding informed income and members, household agreed any report change and she to in or other financial conditions. The worker social visited April defendant at her home 14, Shirley there, fully and found a Mr. clothed but wearing slippers. days bedroom Two later, request at the department, investigators the welfare from the district attor- ney’s called at office defendant’s home about 2:30 a. m. and Shirley found in bed her bedroom. Defendant told the investigators Shirley living that been had in her for home during six months least and that averaged this time he had spending expenses $20 a week for household and in addition given had her a week in $10 cash. Thus his total contributions during period approximately that were $800. She said that he helped payments had refrigerator. also on a She ad- report knowing that mitted she should all income received any changes persons her and in the number of in the home. April 23, 1959, reported On she to the welfare Shirley she previous day. that had married on the The de- partment recomputed budget period defendаnt’s for question and determined that overpaid $1,811. she had been
524 implied is sufficient to evidence The representations findings jury made false of the that defendant promised that, intent to and when she of fact with defraud report change condition, in her and financial any household keeping promise. clear had no is also she intention payments made that the welfare were reliance county representations was and that the defrauded. false jury pursuant 1508 instructed, to section needy child the Welfare and Institutions where grant stepfather, with mother and the amount of the lives his given computed the income be after consideration shall support, stepfather stepfather and of the bound wife’s if from so, if able to his children without do stepfаther they needy eligible would children for aid.1 be regulations that under was also told the State living stepfather Welfare in the home Board responsible Social needy mother of for the a man incapacitated support, unless unable assuming spouse the same the home has stepfather that of a for the mother and responsibility as needy children, stepfather оf a or and that the income spouse that is to used other determining role of ability pay plus his his to contribute is take-home except earnings. income from all other sources wife’s regulations designed set forth in the instructions need, which to assist welfare workers the determination of requirement eligibility is one The aid assistance. seq. needy program et established sections 1500 children with the of the Welfare Institutions Code coordinated funds avail program under federal are made federal which having plan approved aid to able states (Merced County Department Welfare, children. Social 46].) Cal.App.2d 540, P.2d Under both the [307 laws child is state person federal defined age deprived years of 18 who has under the been (Welf. Code, 1500; 42 parental support. Inst. U.S.C. & § 606(a).) requires plan provide The federal act the state part: provides in the Welfare Code 1Section 1508 of and Institutions *4 needy chapter in this his mother "Where child as defined lives with computed stepfather, grant and the amount of the . . . shall be after con stepfather. given . Notwith sideration is to the income of the . . standing provisions stepfather of Seсtion 209 Civil of the Code a sup support, so, bound to if able to do wife’s children if without port they needy eligible stepfather from such would be children for liability chapter. However, for aid under exceed the wife’s shall not community property interest his income.” that the agency, determining state need, shall take into any consideration other income and resources of a child (42 claiming 602(a) (7).) aid. U.S.C. § administration public of the programs, including assistance aid to presents children, many complex problems. (See 42 Cal.L.Rev. 458; 241.) Cal.L.Rev. Under the Welfare and Institutions Code the Board State duty Social Welfare has the enacting regulations rules and administering for pro- these grams adopt regulations and authorized to that are con- reasonably sistent with law necessary and for the administra- (Welf. tion welfare. & Code, Inst. 103, 103.1, 1560, §§ 2140, 3075.) express provisions its terms the
Under the Welfare are to fairly, and Institutions Code be administered only for applicants not needs due consideration but public (Welf. safeguarding also & funds. Inst. 103.3.) they not If children are in need, obviously eligible regardless not for assistance of who is paying support. for their we seen, As havе the welfare department is authorized section 1508 of the code to con stepfather computing sider the income of a the amount of unlikely granted, and it aid of a the financial need vary substantially depending upon legality child will relationship of the a man living between mother and assuming spouse. the home and role of It is rea assuming spouse sonable to infer that man the role of contribute to mother and need, will thus reduce their but would be difficult and and perhaps impossible to ascertain the amount practical of contributions in each case. A difficulty solution of the regulations is offered which authorize the department to consider the income of such a man in the same a stepfather. manner as it would consider thаt of A decision declaring regulations place premium invalid would illegal operate deterrent marriage assuming of the mother the man role of regulations spouse. pri are in accord with program, mary purpose of the which to aid children, they they depart are valid insofar as direct the welfare determining granted, ment, the amount of aid to be regard income without to the existence of consider the man’s marriage. a lawful may have To the extent that the instructions indi although spouse, that a cated *5 obligation the and her married, had mother they beyond the and were It children, went issues erroneous. jurors however, not how the have been appear, does could a misled, question liability since the of man’s guilty bearing on whеther defendant was of theft had jurors fully pretenses, of false and the were informed the they must elements of that offense which find in order guilty. of return verdict Defendant further contends that the trial court erred Shirley’s admitting during
in income evidence of the months question. Testimony Shirley employed during in that was period objection. payroll this was admitted without Later showing during period the he records earned several objection. were Evidence of thousand dollars introduced over regu in earnings was the the amount of his relevant view of calling department lations for consideration the welfare assuming spouse. of a role of of the income the had making the bearing misrepresenta intent on defendant’s Shirley tions tended corroborate her admission and regular contributions for the of herself had made and her children. guilt defendant’s and con clear evidence The miscarriage are that there was no satisfied vincing, we and VI, §4%.) (Cal. art. Const., justice. denying a probation and trial granting new orders affirmed. J., J., White, Schauer, McComb, J., and J.,
Traynor, concurred. PETERS, J.—I dissent. part based, least, was case on this The conviction on inadmissible evi- to the erroneous instructions jury that, instructed the under the trial court dence. Welfare, man of Social of the Board regulations though not assuming spouse, married, even the role home stepfather legal responsibility that of
has the same needy children, and income such a mother of ability determining his to contribute be used is to man that plus pay from take-home income all support, is his their other sources. responsibility” portion “legal majority admit that erroneous, say preju- not but this instruction was validity part uphold the last dicial, then held, extent, it is To that instruction. valid. majority ruling, then hold that Based evidence assuming spouse, though of man even the income “regulations because of married, was admissible the welfare calling consideration spouse.” of man role of my opinion challenged regulations In are void in their upon entirety, erroneous, instructions based them were erroneously evidence was admitted reliance them. *6 clearly prejudicial. These matters were majority opinion The effect of is hold that the Board Welfare, by regulation adopted by of it, a Social can deter- a child, mine thаt who is otherwise entitled to state deprived portion a aid, can be of certain of that minimum aid Legislature which has determined to necessary (Welf. support him Code, 1511.5), solely & Inst. because § engaged in the mother is an extramarital with a legal obligation man who has no the child, and fact, legally who inmay, uphold so. refuse do To such regulation uphold usurpation is to legislаtive of power by an administrative board. majority uphold because, so it is as- “practical serted, problem affords solution” to the determining a man whether with the child’s is mother actually contributing “ money. It is contended that is reasonable to that a man assuming infer [i]t spouse contribute to of the mother and reasoning obviously This child.” unsound. Needy chapter The Aid to Children1 the Welfаre and (§§ 1500-1585) give Institutions Code does not the board the authority “practical solution,” either to enforce such toor indulge in such a fact, so-called “reasonable” In inference. deny statutes, implication, authority to the board. elementary law, course, It Legislature may that the upon power confer an administrative up board to “fill policy by legislative enacting regula details” rules and long Legislature adequate tions, as as the establishes an standard (K Creamery Brook, v. 37 Co. Cal.2d 485 [234 nudsen County Assn., ; Emp. P.2d Com. v. Butte etc. 26] California ; Boyd, 25 624 P.2d Butter-worth 12 Cal.2d v. Cal.2d [154 892] 838]). equally 140 P.2d 126 A.L.R. But it is ele [82 mentary agency vary, the administrative can neither referred to as 1Hereafter ANC.
528
legislative enactment,
nor
scope of
change the
or
enlarge,
scope of
оutside the
regulations which lie
adopt
may it
Creamery
Brock, supra;
Indus
First
(Knudsen
Co.
statute
;
Daugherty,
dependency is caused circumstances defined Section (Emphasis (Welf. 1503.) added.) 1500.” & Inst. “needy that a child” is one “who has been Section states deprived parental support or care” for various reasons. *7 primary It is the welfare of the child that is the factor. So family essential is this consideration “the needs of the that may group determining be considered the needs [also] (Merced County Department of the child.” Wel- Social of fare, Cal.App.2d 540, 46].) 148 543 P.2d [307 specific and Institutions is The Welfare Code most in de- fining instances which child those otherwisе entitled to may deprived be that aid because of aid the acts of other may support be if persons. The child denied the custodial cooperate parent to with law refuses enforcement officers enforcing legal charged obligation with the of the absent parent (§ 1523), accept or refuses to vocational rehabilitation (§ accеpt 1523.5), 1523.6). employment or refuses to reasonable only (§ are the Legislature These situations that the should be to needy determined sufficient withdraw aid from a child. They only
These sections are exclusive. enumerate the Legislature significant enough situations that the deemed so disqualified be from aid because of should that child give persons. These unmistakable of third sections thе acts is Legislature’s intent that aid to be that evidence the only person legally when a who is from a withheld so, is obligated support child, the to do refuses. to able by refusing cannot to admin- These aid added causes legislative Certainly provision no that fiat. there istrative engaging in an expressly that a mother’s act provides disqualify aid, a child from extramarital the statute frоm which provision there implied. contrary, To the legislative can be the clear intent referred to is that aid to be intent of the sections above carefully only in situations set forth withheld by those extreme regulation question The seeks Legislature. the to add provided disqualification of the child not statute. form majority provisions of seek some solace from the seсtion and Institutions Code. That section ex the Welfare pressly step the to consider the income of a authorizes board determining granted. father the amount aid to be Based majority argue on this the means that the section this 11may regard board the man’s income without to the consider marriage.” argument existence of a lawful This is unsound. completely overlooks, to mеntion, fails fact that and so stepfather’s why Legislature provided the reason may computing granted be used the amount aid carefully step child is that section 1508 makes legally obligated up stepchildren father property community representing amount wife’s interest child, paramount in his income. con statute, given, cern is thus assured. The child right right sup aid, legal substitute to enforce his port stepfather. “quasi spouse” legal from a But a has no obligation child, and the woman whom legal any part right of his he is has no income. As points Impact Mr. out in his article Wel tenBroek Family Upon Law in California Law Review Law 42 fare applied step has page 483, board, regulation, its liability quasi spouse, although and, father to the law husbands, recognize this common-lаw state does under fiat, has board, administrative created majority stepfathers. What the have done is common-law carefully unequivocally pro hold a statute which *8 legally the for vides enforceable substitute to child by implication, withdrawn, authorizes, state which is the aid nonstepfather in a of state aid
the withdrawal situation where legally no enforceable there is substitute. apparently majority were disturbed because there is spouse” legal duty “quasi support child, no the be- they attempt justify cause jecture their conclusion the con- unlikely is that “it that the financial of a child need vary substantially depending upon legality the living between mother and a man in the certainly authority is home.” There in the ANC statutes withdrawing for aid to child on the basis сonjecture. unsupported unquestioned and unwarranted It is any actually provided support any to the mother from can payments. But, be source puting by and should taken into consideration com- one of the law review articles cited out, majority points relationships the these “common law” develop very often for the reason that the re- involved support obligated (42 for fuses to be the of the children supra, p. 483). Cal.L.Rev. child may say is, highly a man least, obtain from such legal right fixing not have uncertain. The board does the allotment for the child to consider income which is un- predictable uncertain, actually unless is contributed support. to gram purpose pro- The fundamental of the ANC help caught is to has innocent child who beеn him, punish the web created the adults around not to for the misdeeds of these adults. quite possible respects program It is some the ANC likely is It is than abused. more that the at which abuses sufficiently suggest are aimed serious to possibility legislative Certainly, remedial action. the state required not are, fact, should being be children who supported by equally others. It is true that deliberate attempts program to subvert and defraud welfare should prevented. But the existence of the need for reform cannot authority Board of pass create regulations Social Welfare the developed plan to correct abuses that have in a Legislature. Legislature It policy. for evolved Legislature the board to determine and not the board to whether a determine child is have his curtailed allotment because his mother spouse,” a man who assumes “the role of whether such a man obligated legally child, shall be whether shall receive legal stepfather the child relationship ANC aid unless policy
has been established. Such decisions *9 guidance board without by an administrative to be made Legislature. from the appellant cannot convictеd mean This does not misrepresented her actual income. The grand if she theft misdirected present case is that vice clearly admitted. These matters were improper evidence was prejudicial. appealed from. reverse the orders
I would Dooling, J., concurred. No. 7165. In Bank. Mar. 1961.]
[Sac. JONES, EVELYN KATH- of ALBERT Deceased. Estate JONES, Appellants, KATE Re- al., et ERINE KAY spondent.