
    [Crim. No. 10657.
    Second Dist., Div. Two.
    Jan. 26, 1966.]
    THE PEOPLE, Plaintiff and Respondent, v. PATRICIA ELIZABETH DALE, Defendant and Appellant.
    
      Peter D. Bogart, for Defendant and Appellant.
    Bodle & Fogel, George E. Bodle, Daniel Fogel, Stephen Reinhardt and Loren R. Rothschild as Amici Curiae on behalf of Defendant and Appellant.
    Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and James H. Kline, Deputy Attorney General, for Plaintiff and Respondent.
   HERNDON, J.

Appellant was charged with grand theft in two counts of an information which alleges that during the two different periods of time specified therein, appellant “did willfully, unlawfully and feloniously take money of an amount in excess of two hundred and 00/100 Dollars ($200.00), lawful money of the United States, the personal property of State of California Department of Employment, ...”

Appearing with counsel, appellant in due form entered her plea of guilty to both counts, and on October 14, 1964, a judgment of conviction was entered thereon sentencing her to prison for the term prescribed by law. On October 20, 1964, appellant appeared by substituted counsel and moved to vacate the judgment of conviction, to withdraw her plea of guilty, and for leave to substitute a plea of guilty to a charge of violating section 2101 of the Unemployment Insurance Code.

While admitting that she stole in excess of $6,000 of state funds, appellant nevertheless urged her basic contention that the trial court was without jurisdiction to try her on any charge other than that of violating section 2101 of the Unemployment Code which declares that “It is a misdemeanor to wilfully make a false statement or representation or knowingly fail to disclose a material fact to obtain . . . any benefit or payment under the provisions of this division. ...”

On October 22, 1964, the trial court heard and denied appellant’s motion. On the same date appellant filed her notice of appeal from “the judgment and conviction and sentence imposed upon her, and from the denial of applications and motions made after judgment, and from each and every part thereof, on questions of law and fact. ”

It is elementary, of course, that a judgment entered on a plea of guilty is not appealable on the merits. (People v. Mullane, 182 Cal.App.2d 765, 768 [6 Cal.Rptr. 341].) Ordinarily, a defect of the variety here alleged may not be reached by any motion made after judgment. As stated in People v. Banks, 53 Cal.2d 370, 378-379 [1 Cal.Rptr. 669, 348 P.2d 102] :

“Except where the asserted defect is jurisdictional or constitutional [citation], a situation not presented here, the limited purpose of the nonstatutory motion to vacate a judgment of conviction, or the California version of the writ of error coram nobis, is ‘to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court.’ [Citation.] The remedy does not lie to enable the court to correct errors of law. [Citation.]

‘ ‘ It has often been held that the motion or writ is not available where a defendant voluntarily and with knowledge of the facts pleaded guilty or admitted alleged prior convictions because of ignorance or mistake as to the legal effect of those facts. [Citations.] Furthermore, it has been held, ‘appellant’s contention that his plea of guilty should be set aside on the basis of mistake, ignorance, [and] inadvertence ... is unavailing because the record discloses that he was represented by counsel at all stages of the proceedings.’ [Citation.]

“In the cases cited in the preceding paragraph, if the defendant because of his or his counsel’s mistake of law pleaded guilty or admitted a charged prior conviction without presenting the facts to the trial court, the situation comes within the rule stated in the Adamson case, supra, p. 326 [1] of 34 Cal.2d [210 P.2d 13], i.e., the remedy is not available because it was through defendant’s ‘negligence or fault’ that the facts were not known to the court; if the facts were known to the court yet it accepted defendant’s plea or admission, the situation comes within the rule stated in the Tuthill case, supra, page 822 [3] of 32 Cal.2d [198 P.2d 505], i.e., the remedy is not available because it is sought to enable the court to correct a mistake of law.

“When the trial court in the present case (San Diego County) accepted defendant’s admission that he had been convicted of a felony and his plea of guilty to the charge of a crime which has such prior conviction as an essential concurring element, the court did not know the facts as to defendant’s Alameda County plea and probation. Defendant and his then counsel, however, knew or were chargeable with having known those facts, and the failure to present the contention that defendant had not been convicted of a felony and the facts upon which such contention is based was due to defendant’s ‘negligence or fault.’ ”

Moreover, in the instant case, appellant failed to file any affidavit of her own in support of her motion. The only affidavit received was one prepared by her counsel in which he alleged: “I have carefully examined the record of the proceedings herein and the probation report, and have investigated the case at bar and similar cases. . . . The alleged crime was committed by means of trick and device and/or false pretense, namely by the use of false and fictitious claims to obtain unemployment insurance funds. . . . Defendant is desirous of correcting the court records, and has advised me that she desires to plead guilty to the proper charge, i.e. violation of Unemployment Code § 2101. That such a plea was her intent, but that she was confused by the court proceedings and not fully advised by counsel as to the implications of her plea. ’ ’

Mere allegations of ultimate facts or conclusions by counsel, based in part upon alleged hearsay communications purportedly received from his client, are ordinarily insufficient to support any motion. (Cf. People v. Evans, 185 Cal.App.2d 331, 333-334 [8 Cal.Rptr. 410] ; Nini v. Culberg, 183 Cal.App.2d 657, 664 [7 Cal.Rptr. 146].) This would appear particularly true in a case such as the instant one where the plea of guilty was originally entered in the municipal court and therefore not even a transcript of the preliminary hearing was before the trial court for its consideration in ascertaining the factual basis for the charges filed against appellant.

Nevertheless, we have considered appellant’s basic contentions on their merits. Her contention that the superior court lacked jurisdiction to consider the cause is mistaken since she was charged with a felony in a complaint sufficient upon its face. The mere fact that if a trial had been sought and the evidence produced therein had demonstrated that appellant was guilty only of a misdemeanor, whether or not it was necessarily included within the crime alleged, such fact would not serve, ex post facto, to deprive the court of its jurisdiction over the accused and the subject matter of the accusation.

Appellant’s contention that the accusatory pleading was insufficient in that a state agency cannot be the victim of the crime of theft is without merit. (People v. Diamondstein, 42 Cal.App. 490, 491 [183 P. 679], Cf. also, People v. Finstan, 214 Cal.App.2d 54, 61 [29 Cal.Rptr. 165]; People v. Olf, 195 Cal.App.2d 97,107 [15 Cal.Rptr. 390].)

Appellant argues that the state is estopped to prosecute her for any offense more serious than a misdemeanor because various forms used by the Department of Employment warned that the making of false statements would be punishable as a misdemeanor. The contention is wholly devoid of merit. In effect, such claim amounts to the patently absurd assertion that the state induced her to devise a complex scheme whereby she succeeded in stealing some $6,000 by its promises, on which she reasonably relied, that even if apprehended she would be subject to no more than the maximum punishment prescribed for misdemeanants. Such a contention is pregnant with its own refutation.

Appellant’s contention that the enactment of Unemployment Insurance Code section 2101 effects a pro tanto repeal of the provisions of the Penal Code as to theft is likewise umneritorious. It is true that the decision in People v. Haydon, 106 Cal.App.2d 105 [234 P.2d 720], relied on by appellant, held that said section effected a pro tanto repeal of section 72 of the Penal Code dealing with the filing of false claims with any state board. However, the Haydon case cited with approval the case of People v. Armstrong, 100 Cal.App.2d Supp. 852 [224 P.2d 490], in which a conviction for theft was sustained under similar facts.

Our conclusion regarding the relationship between section 2101 of the Unemployment Insurance Code and the Penal Code provisions as to theft finds support in the reasoning of People v. Byerson, 199 Cal.App.2d 646 [19 Cal.Rptr. 22], wherein the defendants were charged with obtaining money by false pretenses from the County Welfare Department in violation of section 484 of the Penal Code. The court stated at page 650:

“In the present case the provisions of the Welfare and Institutions Code and the Penal Code are no more antagonistic than were the provisions of the Education Code and the Government Code in People v. Darby, 114 Cal.App.2d 412 [250 P.2d 743]. There the court held that the laws of this state have been codified and ‘All of them combined speak for the sovereign power and all constitute but a single statute. ’ (P. 422.) Again, quoting from the Darby case, here, as there, ‘The two codes are not antagonistic laws, but both are parts of the state’s jurisprudence and must be harmonized and effect given to every section. ’ (P. 424.) Thus, the mere fact that the Legislature has included provisions within the Welfare and Institutions Code which refer to prosecution for particular crimes (in this ease, perjury) does not of itself indicate a legislative intent that prosecutions for other crimes provided for in the Penal Code must be precluded.” tunity was offered then, as was now, for an explanation. None was given. You have a very direct statement as far as the corpus delicti is concerned. Obviously a car was used to get that particular distance away; this defendant was driving the car, and where he is afforded the opportunity to explain, and he doesn’t, even though it is not in the nature of an accusatory statement because obviously the officers don’t know of the commission of the robbery. I would say we at least had tied it in to such an extent that the explanation would be called for. It would seem to me, your Honor, that under all the circumstances this defendant driving a car obviously in a getaway, he at least must face the burden of proof of making an explanation which he hasn’t done. People submit. I will submit the matter as to Count I because of the fact there has been a plea as to the other defendant.

Our rejection of appellant’s contentions in the foregoing discussion suffices also to dispose of appellant’s contention regarding the inadequacy of her representation by her former counsel, since it is founded entirely upon her theory that she could not properly be charged with the crime of theft to which she had entered her plea of guilty. We also have considered appellant’s arguments that by reason of the confidential nature of information supplied to the Department of Employment and the fact that unemployment insurance is a national plan, the present prosecution is prohibited. We deem such contentions so clearly unsubstantial and unmeritorious as to require no detailed discussion.

The judgment and the order presented for review are affirmed.

Roth, P. J., and Fleming, J., concurred.

A petition for a rehearing was denied February 23, 1966, and appellant’s petition for a hearing by the Supreme Court was denied March 30, 1966.  