Bradwell

In this writ of prohibition proceeding, we conclude that a welfare fraud conviction under Welfare and Institutions Code section 11483 cannot be used as the prior (theft-related) conviction for a Penal Code section 666 criminal charge of petty theft with a prior. Consequently, we issue a peremptory writ directing the dismissal of such a charge against petitioner Tina Bradwell.

Background

Over petitioner’s objection at the preliminary hearing, the Placer County trial court held petitioner to answer a charge of “petty theft with a prior” (Pen. Code, § 666), where the “prior” consisted solely of petitioner’s prior conviction for welfare fraud under Welfare and Institutions Code section 11483. The trial court reasoned that “welfare fraud is a specie[s] of theft” and that Penal Code section 666 “encompasses both petty theft and grand theft.”

After unsuccessfully moving to set aside'this charge pursuant to Penal Code section 995, petitioner filed a petition for writ of prohibition with this court, requesting a peremptory writ and a stay restraining the trial court from proceeding with this criminal action against her. (Pen. Code, § 999a.) After considering opposition from the…