Manning v. Municipal Court

Opinion

BROWN (G. A.), P. J. In separate proceedings criminal complaints for fraudulently obtaining unemployment insurance benefits in violation of Unemployment Insurance Code section 2101 were filed against Richard Manning and John Martinez in the municipal court. The municipal court denied their motions to dismiss the actions, which were made on the ground that at no time were they notified of the possibility of making restitution for the overpayments of benefits in lieu of criminal prosecution. Their petitions for writs of prohibition in the superior court on the same ground were denied. These appeals followed from the denial.

Since both cases, though separately -filed and prosecuted, involve identical issues we have consolidated them for disposition in this court.

The parties stipulated to the following facts: “[The petitioners], upon receiving a letter requesting [their] presence, met with [agents of the] California Employment Development Department, regarding possible overpayments which [they] had received while collecting unemployment insurance benefits. At this meeting, [petitioners] made and signed a statement in regard to the circumstances of the payment. [They] also received a copy of a ‘Notice of Intent to Request Criminal Complaint’ attached hereto as Exhibit ‘D.’[1]At no time during this meeting or at any other time was the possibility of the [petitioners’] making restitution in lieu of [their] prosecution discussed.”

The provisions of Unemployment Insurance Code section 2113, set forth in the margin,2 govern these proceedings. Appellants do not allege that they ever offered to make restitution.

[935]Manifestly, the notice set forth in footnote 1, ante, which was sent to appellants, complied with the literal requirements of section 2113 that “[t]he Department of Employment Development shall by mail or personal service give such person written notice of intent to file a criminal complaint not less than 10 days prior to the filing of the criminal complaint.” Appellants argue that compliance with the letter of section 2113 is not sufficient; that the department was required to go further and notify appellants that they could make an offer of restitution.

Appellants’ contention is grounded upon the Supreme Court’s decision in People v. McGee (1977) 19 Cal.3d 948 [140 Cal.Rptr. 657, 568 P.2d 382], which held that under section 11483 of the Welfare and Institutions Code the Department of Employment Development must first seek restitution of welfare payments obtained by fraud before instituting a criminal prosecution.