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).
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]
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]
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
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.