PR 02905.006 California

A. PR 02-085 Curtiss E. P~, ~

DATE: November 15, 1983

1. SYLLABUS

Prior to promulgation of the revised regulation at 20 C.F.R. section 404.305(b), which became effective March 30, 1982, an individual convicted of voluntary manslaughter and whose case was adjudicated under the jurisdiction of the California juvenile court system was entitled to collect full survivor's benefits, despite a finding that he/she had committed the intentional homicide of the wage earner assuming that all other eligibility requirements are satisfied. Determine the last month of entitlement to be February 1982, i.e., the month before the month the revised regulation took effect. Under the revised regulation, the claimant becomes ineligible for benefits immediately upon conviction, even if the conviction is subject to expungement or reversal in the future.

2. OPINION

TEXT

The wage earner died of gunshot wounds on May 28, 1981. On August 26, 1981, the Superior Court of California, County of Los Angeles, Juvenile Court Division, found the wage earner's sixteen-year-old stepson, Stevie P~, guilty of voluntary manslaughter in violation of section 192 of the California Penal Code. Previously, on July 8, 1981, Stevie had filed an application for surviving child's insurance benefits on the record of the deceased wage earner.

You asked us whether the finding by the juvenile court constitutes a determination that Stevie committed an act "which, if committed by an adult, would have been considered a felony or an act in the nature of a felony" which would, therefore, bar entitlement to benefits pursuant to 20 C.F.R. section 404.305(b) (as revised at 47 Fed. Reg. 42097-98, September 24, 1982). You also inquired whether, under the revised regulation, benefits may be withheld on the basis of a conviction alone or whether information regarding sentencing or the possibility of appeal is also required. Your third question was whether benefits may be paid for the period between the month of the wage earner's death (May 1981) and the date when the revised regulation took effect. Finally, you requested our opinion as to whether or not, assuming all events occurred after the effective date of the regulation, benefits could be paid during the interval between the date of the wage earner's death and the date when the conviction was pronounced. We will answer your questions in the sequence asked (combining, as your memorandum did, the third and fourth questions).

I

The juvenile court found Stevie guilty of voluntary manslaughter in violation of California Penal Code section 192. Voluntary manslaughter is the intentional killing of a human being, without malice; statutory voluntary manslaughter (i.e, under section 192) is such a killing upon a sudden quarrel or heat of passion. See, e.g., People v. Graham, 71 Cal.2d 303, 455 P.2d 153, 78 Cal.Rptr. 217 (1969); People v. Forbs, 62 Cal.2d 847, 402 P.2d 825, 44 Cal.Rptr. 753 (1965); see our opinions re Daniel S~, D-14913, March 27, 1972, Florian N. P~, D-14659, August 27, 1971, and cases cited therein. This crime is punishable by imprisonment in state prison, making it a felony in California. Penal Code Secs. 17(a) and 193. Thus, the juvenile court has found that Stevie committed an act which, if committed by an adult, would be considered a felony. Accordingly, he is barred from collecting child's insurance benefits on the deceased wage earner's account pursuant to section 404.305(b), as revised. [FN1]

II

Formerly, section 404.305(b) provided that benefits could be denied only if the claimant had been "finally convicted" of a felonious and intentional homicide. If the claimant's appeal rights were not yet exhausted, or if the conviction were subject to expungement following successful completion of probation, the conviction could not be treated as final in California. [FN2] See, e.g., our opinions re 20 C.F.R. section 404.305(b), January 13, 1982; Lawrence M. G~, Sr., May 30, 1979. The recent revision of section 404.305(b) removes the term "finally" from before the word "convicted." The supplementary information preceding the text of the regulation in the Federal Register explains that the deletion was made

. . . in order to make clear with respect to adults and juveniles that benefit payments will not be made beginning with the month a court pronounces a conviction and withholding of the benefits or payments will continue unless and until the conviction is reversed.

20 C.F.R. Sec. 404.305(b); see 47 Fed. Reg. at 42098 (emphasis added). Under the revised regulation, the claimant becomes ineligible for benefits immediately upon conviction, even if the conviction is subject to expungement or reversal in the future. Consequently, it is no longer necessary to obtain sentencing, appeal, or probation information in cases where the court or the Penal Code declares the crime a felony. [FN3]

III

The revised regulation did not come into effect until the interim rule was published in the Federal Register on March 30, 1982. 47 Fed. Reg. 13324-25. POMS GN 00304.110 et seq. indicate that the revision was to be implemented effective January 1982. There is simply no authority for making this policy change operative prior to promulgation of the revised regulation. The interim and final regulatory revisions explicitly indicate an effective date of March 30, 1982. 47 Fed. Reg. 13324 and 42097. Thus, POMS GN 00304.110 et seq. should be amended to delete references to January 1982 as the month in which the revision actually became operative, replacing them with the date March 30, 1982.

Nor is there adequate authority for giving the revision retroactive effect. Regulations, such as this, which impinge upon antecedent rights may be applied retroactively only where retroactive operation is unequivocally intended. Greene v. United States, 376 U.S. 149, 11 L. Ed.2d 576, 84 S.Ct. 615 (1964). No such intent is manifest in connection with this revision; to the contrary, a specific effective date of March 30, 1982, is stated.

Therefore, Stevie's rights during the interval between the wage earner's death in May 1981 and the initial publication of the revision on March 30, 1982, are governed by the regulations in effect during that interval. As indicated above, prior to the revision, an individual whose case was adjudicated under the jurisdiction of the California juvenile court system was entitled to collect full survivor's benefits, despite a finding that he/she had committed the intentional homicide of the wage earner. See our memorandum re 20 C.F. R. section 404.305(b), cited above. We conclude, therefore, that benefits may be paid to Stevie for May 1981 through February 1982, [FN4] assuming that all other eligibility requirements are satisfied.

The supplementary information preceding the final revision of section 404.305(b) provides the answer to your final, hypothetical question. These explanatory introductions to the interim and final revised regulations indicate that benefit payments are to terminate "with the month a court pronounces a conviction." 47 Fed. Reg. 13325, 13326 (March 30, 1982) and 42097, 42098 (September 24, 1982). There is no indication that benefits for which the claimant is otherwise eligible are to be withheld pending the disposition of criminal charges. Operating instructions at POMS GN 00304.127(A), provide that, prior to a conviction for felonious homicide (or the equivalent in the case of a minor), ". . . payment cannot be delayed, except at the request of the claimant."

FN1 Contrary to your apparent understanding, the question of intent is already resolved in this case. The intent to kill is a necessary element of voluntary manslaughter in California. See, e.g., People v. Cisneros, 34 Cal.App.3d 399, 110 Cal.Rptr. 269 (1973); People v. Wynn, 257 Cal.App.2d 664, 65 Cal.Rptr. 210 (1968).

FN2 Sentencing and probation have never been critical factors where, as here, the claimant was tried within the juvenile justice system. Under California law a juvenile is not "convicted" but, rather, is made a ward of the court for purposes of rehabilitation. Thus, a juvenile can never be deemed "convicted" under state law, regardless of the sentence imposed or the terms of probation. See our opinion re 20 C.F.R. section 305(b), January 13, 1982.

FN3 Reversal of a conviction still constitutes a sufficient condition for reopening a claim pursuant to 20 C.F.R. Sec. 404.988(c)(9) (as revised at 47 Fed. Reg. 42097-98, September 24, 1982). Note also that for other crimes or in jurisdictions other than California, it still may be necessary to obtain sentencing information to help determine whether or not the claimant has been convicted of a felony. See generally GC opinion re Application of P.L. 96-473 to "Students" Confined in Various Correctional Facilities, August 5, 1981.

FN4 The issue of the last month of entitlement is not explicitly addressed in the regulations. Because benefits are payable through the month before conviction (see text below), however, it appears logical to utilize a parallel rule here, paying benefits through the month before the month during which the revisions became effective, and we have used this approach in the text.

B. PR 02-081 Claim for Survivor's Insurance Benefits on Account of Wage Earner Charles R. I~, SSN: ~

DATE: May 17, 2002

1. SYLLABUS

The claimant was convicted under California law of voluntary manslaughter. A conviction of voluntary manslaughter in the State of California is an intentional crime. Both penal code sections under which the claimant was convicted are felonies. 20 CFR 404.305(b) preclude benefit entitlement to anyone convicted of intentionally and feloniously causing the death of a wage earner on whose record they are filing. The claimant is not entitled to benefits on the deceased wage earners account based on the conviction.

2. OPINION

QUESTION

You asked whether the claimant Wanda R. I~ is entitled tobenefits as the surviving spouse of the wage earner Charles R. I~, despite her conviction in the State of California for voluntary manslaughter in connection with his death in July 1984.

ANSWER

No. The claimant is not entitled to benefits based on the account of the wage earner due to her conviction of a felony for intentionally causing the death of the wage earner under California law.

SUMMARY OF EVIDENCE

The claimant shot and killed the wage earner on July 5, 1984. Mrs. I~ was initially charged with murder on July 6, 1984, but later entered a plea agreement where she pled guilty to voluntary manslaughter and use of a firearm in commission of a felony.

ANALYSIS

Under the applicable regulation, a claimant "may not become entitled to or continue to receive any survivor's benefits or payments on the earnings record of any person, or receive any underpayment due a person, if . . . convicted of a felony or an act in the nature of a felony of intentionally causing that person's death." 20 C.F.R. § 404.305(b) (2001). Under California law, voluntary manslaughter is an intentional crime. See People v. Wellborn, 242 Cal.App.2d 668, 673 (Cal.App. 3 Dist. 1966)("[v]oluntary manslaughter is a crime requiring a specific intent"). As well, both penal code sections under which the claimant was convicted are felonies under California law. See California Penal Code § 17(a) (a "felony is a crime which is punishable with death or by imprisonment in the state prison").

We previously have determined that a conviction of voluntary manslaughter under California law is a conviction of intentional homicide for purposes of 20 C.F.R. §404.305(b) (2001). See Memorandum from Regional Chief Counsel, San Francisco, to Regional Commissioner, Region IX, San Francisco, Claim of Curtiss E. P~ for Surviving Child's Benefits (November 15, 1983)(copy attached).

You also asked whether the evidence in the record concerning the claimant's mental capacity at the time of the murder has any bearing on our determination of her eligibility for survivor's benefits. In this case, the answer is no. Since it is clear that under California law voluntary manslaughter is an intentional homicide, there is no basis to investigate the factual underpinning or possible mitigating factors in determining whether the crime was intentional.

CONCLUSION

The claimant was convicted of a felony for intentionally causing the death of the wage earner under California law. Therefore, she is not entitled to any social security benefits deriving from this wage earner's account.

Janice L. W~
Regional Chief Counsel

By: ________________________
Dennis J. M~
Assistant Regional Counsel


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PR 02905.006 - California - 11/23/2011
Batch run: 11/23/2011
Rev:11/23/2011