People v. Batten

86 Cal.App.3d 848 (1978) 150 Cal. Rptr. 567 THE PEOPLE, Plaintiff and Appellant,

v.

SUE CAROL BATTEN, Defendant and Respondent.

Docket No. 9736. Court of Appeals of California, Third District.

November 29, 1978. [849] COUNSEL

Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Willard F. Jones and Charles P. Just, Deputy Attorneys General, for Plaintiff and Appellant.

Robert E. Roney for Defendant and Respondent.

OPINION

EVANS, J.

The People appeal from a judgment (order dismissing the information) entered after the trial court determined that they were required to seek restitution prior to proceeding with prosecution of the action.

An information was filed in the superior court on March 23, 1978, charging defendant with 19 counts of perjury (Pen. Code, § 118), alleging that under penalty of perjury, she knowingly signed a false statement.

(1) The superior court erred in determining that an attempt at restitution was a prerequisite to prosecution of this action. People v. McGee (1977) 19 Cal.3d 948 [140 Cal. Rptr. 657, 568 P.2d 382], so held with reference to a criminal prosecution under Welfare and Institutions Code section 11483. But Penal Code section 118 is unrelated to section 11483, and conduct proscribed by it is not dependent upon a violation of [850] section 11483. (Cf. People v. McGee, supra, 19 Cal.3d at p. 966, fn. 8.)[1] Section 11483 involves obtaining aid by use (inter alia) of a false statement, while section 118 involves any false statement, but made under oath or penalty of perjury. (People v. Isaac (1976) 56 Cal. App.3d 679, 683-684 [128 Cal. Rptr. 872].)