Ochoa

Maria Ochoa (defendant) was found guilty by a jury of one count of welfare fraud (Welf. & Inst. Code, § 10980, subd. (c)(2)), one count of food stamp fraud (Welf. & Inst. Code, § 10980, subd. (c)(2)) and nine counts of perjury. (Pen. Code, § 118.) She was placed on probation for five years subject to certain terms and conditions. She appeals, contending that the trial court erred (1) by refusing to allow her attorney to argue to the jury that she was, in fact, entitled to receive welfare and food stamp benefits, and, therefore, was not guilty of Medi-Cal, welfare and food stamp fraud; (2) by refusing to instruct the jury as to matters related to her claim that she was in fact entitled to receive the benefits she had obtained; and (3) by instructing the jury that the false statements she had made in connection with obtaining such benefits were material, instead of allowing the jury to determine the materiality, if any, of the statements.

After reviewing defendant’s contentions, we conclude that nonentitlement for benefits is an element of the crimes of welfare fraud and food stamp fraud, that the trial court erred by removing the element of nonentitlement from the jury’s…