Brief Bank # B-672 (Re: F 18.16 n2 [Welfare Fraud – Food Stamps: Knowledge Element (WI 10980(g))].)
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Excerpt From Appellant’s Opening Brief
I. THE COURT MISDIRECTED THE JURY ON AN ELEMENT OF
FOOD STAMP FRAUD, REMOVING THE ELEMENT FROM
THE JURY’S CONSIDERATION AND THEREBY DEPRIVING
APPELLANT OF A FAIR TRIAL.
The court instructed the jury as to the violations of Welfare and Institutions Code section 10980, subdivision (g) by reading the statute:
Every person who knowingly uses, transfers, sells, purchases or possesses food stamps in a manner not authorized by the law is guilty of the crime of violation of Section 10980(g) of the Welfare and Institutions Code, a crime. (RT 846.)
The court defined the elements as follows:
In order to prove such felony crime, each of the following elements must be proved: Number one a person sold, transferred, purchased or possessed food stamps;
Number two, such person was not authorized to possess food stamps;
Number three, the face value of the food stamps exceeds $400. (RT 846.)
In defining the term “knowingly,” as used in this instruction, the court informed the jury, “The word ‘knowingly’ means with knowledge of the existence of the facts in question. Knowledge of the unlawfulness of any act or omission is not required.” (RT 838, emphasis added.)
The court erred in directing the jury to omit consideration of an element of the crime; the prosecution must prove the defendant knew his possession, purchase, or transfer was without entitlement. Although California courts have not interpreted the knowledge element of section 10980, subdivision (g), the federal courts have construed an essentially identical federal statute to include the element of knowledge that the possession, etc., was not authorized and have required that juries be instructed on this element. [Footnote 1]
In United States v. Marvin (8th Cir. 1982) 687 F.2d 1221, the court rejected the prosecution’s argument that “knowingly” modified only “uses, transfers, acquires,” etc. The court’s review of the legislative history caused it to conclude “Knowledge of the illegal nature of the transactions is, therefore, necessary for an individual to be subject to sanctions under the Act.” (Id., at p. 1227.) The court held the jury should have been instructed the prosecution had to prove “that the defendant knowingly did an act which the law forbids.” (Ibid.) Failure to so instruct mandated reversal. (Id., at p. 1228.) In accord was the Eighth Circuit’s decision in United States v. Faltico (8th Cir. 1982) 687 F.2d 273.
The same conclusion was also reached by the Tenth Circuit in United States v. O’Brien (10th Cir. 1982) 686 F.2d 850, but using a different analysis. The O’Brien court found the statute to be ambiguous and found the legislative history did not clarify the statute. Therefore, the court relied on the rules of statutory construction, which dictate that the interpretation favoring the defendant be adopted. The court concluded that knowledge that the acquisition of food stamps is not authorized by law is an essential element of the offense. (Id., at p. 853.)
The Sixth Circuit concurred with the Eighth and the Tenth in United States v. Pollard (6th. Cir. 1984) 724 F.2d 1439.)
Each of these four federal cases involved an undercover informant selling food stamps to a defendant; in O’Brien, the informant also gave food stamps in exchange for a controlled substance. Factually, the cases cannot be distinguished from appellant’s; legally the statute is essentially identical. The legislature in California obviously intended its statute to duplicate the federal statute. If one accepts the analysis of the Marvin court, the statute unambiguously requires knowledge that the acquisition was unlawful. If one accepts the O’Brien analysis applying the rules of statutory construction, the result is the same. California also requires that statutes be interpreted to favor the defendant in the case of ambiguities:
It is the policy of this state to construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit; just as in the case of a question of fact, the defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute. (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, citing Walsh v. Department of Alcoholic Bev. Control (1963) 59 Cal.2d 757, 764-765.)
The jury must be instructed that an element of Welfare and Institutions Code section 10980, subdivision (g) is that the defendant must know his use, transfer, sale, purchase or possession of the food stamps was not authorized by law. Here, the jury was told just the opposite, that knowledge of the unlawfulness of the act was not required. Thus, the court not only omitted an element, but directed the jury not to consider it.
The court has a sua sponte duty to give instructions on general principles of law connected with the case. This includes the duty to instruct on all elements of the offenses charged. (People v. St. Martin (1970) 1 Cal.3d 524, 531; People v. Sedeno (1974) 10 Cal.3d 703, 715-716; People v. Valenzuela (1985) 175 Cal.App.3d 381, 393.) The instructions must not be misleading or contradictory. (People v. Murtishaw (1981) 29 Cal.3d 733, 765, fn. 25.) A defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and a denial of that right constitutes a miscarriage of justice regardless of the strength of the prosecution’s case. People v. Mayberry (1975) 15 Cal.3d 143, 157; see also People v. Reynolds (1988) 205 Cal.App.3d 776, 779.)
Failure to instruct on an element constitutes a denial of federal due process principles, which require the prosecution to prove beyond a reasonable doubt every fact necessary for conviction. (People v. Garcia (1984) 36 Cal.3d 539, 550-551.) The United States Supreme Court has drawn a clear distinction between instructional error that entirely precludes jury consideration of an element of an offense and that which affects only an aspect of an element. Where a jury has been precluded from consideration of an element, reversal is required without a consideration of prejudice. (People v. Cummings (1993) 4 Cal.4th 1233, 1315, relying on such cases as Carella v. Califomia (1989) 491 U.S. 263 and Sandstrom v. Montana (1979) 442 U.S. 510.)
Here, the court’s instruction precluded the jury from a consideration of the element of knowledge. Therefore, reversal is mandated.
Even if the per se standard does not apply, reversal is nevertheless required in appellant’s case. Failure to instruct on an aspect of an element is reversible error unless it is harmless beyond a reasonable doubt. (Rose v. Clark (1986) 478 U.S. 570; People v. Lee (1987) 43 Cal.3d 666, 671-676.)
It has been determined the proper standard to use in analyzing harmless error was that employed by Justice Scalia in his concurring opinion, joined by three other justices, in Carella v. California, supra, 491 U.S. at p. 27 1. Justice Scalia explained that an error in instructing on an element could be found harmless only if the jury itself necessarily resolved the factual issue in another context or its findings were so “closely related” to the factual issue removed from consideration by the erroneous instruction as to be “functionally equivalent” to a jury finding on the issue. (Carella v. California, supra, 491 U.S. at p. 271 (conc. opn. of Scalia, J.).) Justice Scalia specifically noted that “misdescription of an element of the offense,” like a conclusive presumption, “deprives the jury of its factfinding role and must be analyzed similarly.” (Id., at p. 270.)
This method of analyzing instructional error was adopted by the First District in People v. Reyes (1992) 2 Cal.App.4th 1598. There, the trial court failed to instruct that specific intent is required of an aider and abettor. As the Reyes court pointed out, Justice Scalia’s analysis forbids the reviewing court from substituting its own factual findings for those that should have been made by the jury. (People v. Reyes, supra, 2 Cal.App.4th at p. 1603.)
Justice Scalia’s approach was followed not only by the First District in Reyes, but also by Division Two of the Fourth District in a case involving entitlement to welfare. People v. Ochoa (1991) 231 Cal.App.3d 1413, 1424.) In People v. Williams (1992) 4 Cal.4th 354, 372, the California Supreme Court noted that Justice Scalia’s analysis was the federal constitutional version of the reasonable doubt standard articulated in such cases as People v. Sedeno, supra, 10 Cal.3d at pp. 720-721.)
In appellant’s case, the jury did not resolve the issue adversely to appellant because it was specifically instructed not to consider knowledge of the unlawfulness of the act. Therefore, the error was not harmless beyond a reasonable doubt. Appellant’s convictions for the food stamp offenses must be reversed.
Excerpt From Appellant’s Reply Brief
II. THE COURT MISDIRECTED THE JURY ON AN ELEMENT
FOOD STAMP FRAUD, REMOVING THE ELEMENT FROM
THE JURY’S CONSIDERATION AND THEREBY DEPRIVING
APPELLANT OF A FAIR TRIAL.
Omitted from the trial court’s instructions was an instruction that the jury must find appellant knew that he was not entitled to obtain food stamps in the manner he did. Contrary to respondent’s argument, this does not turn the crime of food stamp fraud into a specific intent crime. [Footnote 2] A requirement of knowledge is not synonymous with specific intent. (See People v. Garcia (1967) 250 Cal.App.2d 15, 21; People v. Williams (1980) 102 Cal.App.3d 1018, 1029.) Knowledge and intent are two different legal concepts, and both may be required, depending on the elements of any given offense. Different elements may even require different mental states. (United States v. Bailey (1980) 444 U.S. 394, 405-406; Liparota v. United States (1985) 471 U.S. 419, 423-424, fn. 5 [more than specific or general intent may be involved in a criminal act. The Model Code lists four different mental states: purpose, knowledge, recklessness, and negligence].)
In California, it is not unusual for a criminal statute to require an element of knowledge independent of general or specific intent. For example, Penal Code section 496 requires knowledge that the property is stolen, section 311.11 requires knowing possession of prohibited material, section 115 requires knowingly procuring or offering a false or forged instrument for filing. None of these sections requires specific intent. On the other hand, section 32 requires knowledge that a principal committed or was charged with a felony, section 288.2 requires knowing distribution of “harmful matter” to persons known to be minors. Each has a specific intent element in addition to the element of knowledge.
As to food stamp fraud, both the federal and the California statutes require the defendant knowingly to possess or acquire food stamps “in a manner not authorized” by the law. Federal courts, including the United States Supreme Court (Liparota v. United States, supra, 471 U.S. at p. 425) have interpreted this to require an instruction to the jury that the defendant must know his acquisition was contrary to law. Respondent argued that this interpretation was intended to harmonize 7 U.S.C. 2024, subdivision (b) with subdivision (c), which has an explicit requirement that the defendant know the food stamps were acquired in an unauthorized manner. Subdivisions (b) and (c) carry the same punishment. [Footnote 3] However, this was only a secondary rationale of the Court in Liparota.
Primarily, the Court followed the reasoning of the lower federal courts [Footnote 4] in holding “[a]bsent indication of contrary purpose in the language or legislative history of the statute, we believe §2024(b)(1) requires a showing that the defendant know his conduct to be unauthorized statute or regulations.” (Ibid.) Additionally, the Court followed the lower federal courts in recognizing that requiring the element of knowledge was consistent with the principle that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity. [Citations.]” (Id., at p. 427.)
As argued in appellant’s opening brief, these same principles apply to state statutory construction. This construction does not run afoul of Penal Code section 7 in light of other common rules of statutory construction, which support appellant’s interpretation of the statute. Specific provisions of the law prevail over general provisions. (People v. Trimble (1993) 16 Cal.App.4th 1255, 1259; Bowens v. Superior Court (1991) 1 Cal.4th 36, 45. [“[W]hen constitutional provisions can reasonably be construed so as to avoid conflict, such a construction should be adopted. [Citations.] As a means of avoiding conflict, a recent, specific provision is deemed to carve out an exception to and thereby limit an older, general provision. [Citations].”]) The word “knowingly” in Welfare and Institutions Code section 10980, subdivision (g) modifies “in any manner not authorized . . . ” This statute specifically calls for knowledge that the acquisition was unlawful; thus, respondent’s reliance on the general language of Penal Code section 7 is misplaced. Furthermore, “When the occasion demands it, the same word may have different meanings to effectuate the intention of the act in which the word appears. [Citations.]” (People v. Hernandez (1981) 30 Cal.3d 462, 468.) Penal Code section 7 and Welfare and Institutions Code section 10980, subdivision (g) are not inconsistent; they are reasonably harmonized by appellant’s position.
Appellant’s jury was not properly instructed on the element of knowledge, and therefore did not return a reliable verdict. Appellant’s conviction of violating Welfare and Institutions Code section 10980, subdivision (g) must be reversed.
III. THE RESTITUTION ORDER TO THE USDA WAS IMPROPER.
Respondent concluded his argument by asking this Court to uphold the order of direct restitution of $1834 in food stamps which, respondent claimed, were “pocketed” by appellant. (RB at p. 15.) Respondent ignored a crucial fact (previously brought out in appellant’s opening brief at p. 14): there was insufficient evidence to support a loss to the Department of Agriculture. There is no loss to the Department of Agriculture until the food stamps are redeemed (see RT 460) and there was no evidence that the food stamps were ever redeemed. The Department of Agriculture is authorized to issue food stamps for enforcement purposes (7 U.S.C. 2024, subd. (a)). The Department of Agriculture also chose not to arrest appellant immediately after the transaction, thus choosing not to recover the food stamps (and not to provide corroboration for the informant’s testimony that she gave him the food stamps).
The Department of Agriculture was not a victim of a loss caused by appellant, and therefore the direct restitution order is an improper order.
Footnote 1: Title 7, section 2024, subdivision (b) provides “. . . whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by this chapter or the regulations issued pursuant to this chapter shall . . . be guilty of a felony . . .”
Footnote 2: It would not be anomalous for food stamp fraud to require specific intent; many or most other fraud crimes require specific intent.
Footnote 3: Penal Code section 396.5, food stamp fraud by a retailer or wholesaler, is a misdemeanor and has no knowledge element.
Footnote 4: United States v. Marvin (8th Cir. 1982) 687 F.2d 1221; United States v. Faltico (8th Cir. 1982) 687 F.2d 273; United States v. O’Brien (10th Cir. 1982) 686 F.2d 850;United States v. Pollard (6th. Cir. 1984) 724 F.2d 1439.