Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. JCF18227 Matias R. Contreras, Judge.
NARES, J.
In March 2008 a jury found Santos Manuel Alvarez guilty of five counts of workers' compensation insurance fraud within the meaning of Insurance Code section 1871.4, subdivision (a)(1), and one count of insurance fraud within the meaning of Penal Code section 550, subdivision (b)(3). In June 2008 the court placed Alvarez on three years' formal probation.
Alvarez appeals, asserting the court erred by (1) instructing the jury under a modified version of CALCRIM No. 3407 that a mistake of law is not a defense because the instruction failed to clarify that a mistaken belief as to his legal status was a defense to the fraud charges; (2) failing to conduct a hearing in response to a juror's note referring to other jurors' consideration of extrinsic evidence; and (3) instructing the jury under CALCRIM No. 220 because it failed to inform the jury that the prosecution must prove each element of the offense beyond a reasonable doubt. We affirm.
FACTUAL BACKGROUND
A. People's Case
In July 2001 Alvarez commenced employment at Calipatria State Prison. On February 20, 2002, a concrete pumping machine Alvarez was using malfunctioned, causing him to fly through the air and into a cement wall.
On March 29, 2002, Alvarez began treatment with Dr. Tushar Doshi. He told Doshi he had been injured while working at Calipatria State Prison and that a different doctor had placed him on temporary total disability (TTD). He reported to Doshi that he was not currently working and had not worked since the date of his injury. Based on these representations, Doshi continued Alvarez's TTD through April 26, 2002.
In-house counsel for the State Compensation Insurance Fund (SCIF), Steven Taylor, testified that a person is generally not permitted to work while on TTD. An insurance adjustor for SCIF testified that if Alvarez had told Doshi that he was working, Alvarez's workers' compensation payments would have been reduced or terminated.
Several witnesses testified they paid Alvarez to do construction work during the time he was receiving workers' compensation benefits. Ralph Wolke testified that he personally observed Alvarez helping other people pour cement at an apartment complex in Brawley, California, during the time he was receiving workers' compensation benefits.
Joni Dennis hired Alvarez to do cement work at her residence in March of 2002. She observed him doing some of the work himself.
Salvador Ruvalcaba paid Alvarez between $10,000 and $12,000 for work he did at an apartment complex in Brawley from July to August 2002. Ruvalcaba saw Alvarez operating a backhoe while they were working on a parking lot.
On December 23, 2002, Alvarez began treatment with a different doctor, Dr. William Shoemaker. Alvarez completed a "new patient" questionnaire, on which he stated he had not been working since February 20, 2002. Shoemaker testified that it was important to determine if Alvarez was still working because if he was, his workers' compensation benefits would have been reduced or terminated. Shoemaker placed Alvarez on temporary partial disability. Alvarez remained on temporary partial disability from December 2002 until September 2004.
Alvarez told Doctors Doshi and Shoemaker he had no preexisting injuries.
Alvarez's ex-wife testified that he had complained about back pain as a result of doing concrete work ever since they started dating in 1993.
B. Defense Case
Alvarez testified that Doshi lied when he testified that Alvarez had told him he had not been working at all. When Alvarez saw Doshi at the end of April 2002, he told Doshi he had not been working because he did not work that day. When Alvarez saw Doshi in September 2002, he told him he was not working because he had not returned to his full-time position with his previous employer. When Shoemaker asked Alvarez if he was currently working he answered no because he had not returned to his previous employer. Alvarez also testified that when he was working on side jobs, he had other people do the difficult work for him and he only performed minimal work.
Alvarez's brother testified that after Alvarez was injured, he worked primarily as a supervisor.
DISCUSSION
I. INSTRUCTION OF JURY UNDER CALCRIM NO. 3407
Alvarez asserts the court erred by instructing the jury under CALCRIM No. 3407 that a mistake of law is not a defense because the instruction failed to clarify that a mistaken belief as to his legal status was a defense to the fraud charges. In supplemental briefing, Alvarez asserts that his mistake when he informed his doctors he was not working was a mistake of fact, not law, and that the court thus had a duty to instruct the jury, sua sponte, under CALCRIM No. 3406 that a mistake of fact was a defense. We reject these contentions.
A. Background
In its unedited form, CALCRIM No. 3407 provides: "It is not a defense to the crime[s] of ____ <insert crime[s]> that the defendant did not know (he/she) was breaking the law or that (he/she) believed (his/her) act was lawful." Further, the bench notes for CALCRIM No. 3407 elaborate that "[t]his is true even when the defendant claims he or she was acting in good faith on the mistaken advice of counsel." The bench notes also state, "The court should, however, exercise caution with specific intent crimes. A mistaken belief about legal status or rights may be a defense to a specific intent crime if the mistake is held in good faith." The bench notes conclude with the statement, "Although concerned with knowledge of the law, a mistake about legal status or rights is a mistake of fact, not a mistake of law. (See CALCRIM No. 3406, Mistake of Fact.)"
During discussions regarding jury instructions, the court and parties discussed the applicability of CALCRIM No. 3407 to the facts of this case. The prosecutor acknowledged that a mistake of law could be a defense to a specific intent crime, but that defense did not apply in this case because there was there was no evidence Alvarez acted in good faith. The court agreed that a mistake of law could be a defense to a specific intent crime, but questioned defense counsel as to what facts there were indicating a mistake by Alvarez was held in good faith. The court specifically questioned defense counsel, "Where is the evidence that [Alvarez] thought that the law was that he could say that he wasn't working at all? There's no evidence his attorney told him that." Counsel acknowledged there was no evidence his attorney told him he could say he was not working at all. Rather, he indicated that his attorney told him he could cash a workers' compensation check he received in March or April 2003, even though he had been working during that time period, and "they would be entitled to a credit." Defense counsel further stated that there was a retroactive change in the law changing his legal status as of May 2002, there was no evidence he knew that was going to happen, and according to Alvarez, he quit working after he was paid for May 2002.
The court asked defense counsel, "What about the side jobs, working between February and May of 2002?" Defense counsel responded he believed the evidence showed he was not working during that time period.
The court then proposed to modify CALCRIM No. 3407 to state: "It's not a defense to the crimes charged in Counts 1 through 6 that the defendant did not know he was breaking the law or that he believed his act was lawful. This is true even when the defendant claims he was acting on the mistaken advice of counsel. However, a mistaken belief about legal rights may be a defense if the mistake is held in good faith." Neither side objected to that proposal, and the jury was instructed with that modified version of CALCRIM No. 3407.
In closing argument, defense counsel did not argue that Alvarez was mistaken when he told Doctor Doshi and Doctor Shoemaker he was not working because he thought "working" meant regularly employed, as opposed to part-time jobs. Rather, he argued there was no evidence to show Alvarez actually did any side work while he was receiving workers' compensation benefits and prohibited from doing so.
B. Analysis
A mistake of fact occurs when a person understands the facts to be other than what they actually are, whereas a mistake of law occurs when a person knows the true facts but is mistaken as to their legal consequences. (People v. LaMarr (1942) 20 Cal.2d 705, 710.) A reasonable mistake of fact may be asserted as a defense to a general intent crime, and even an objectively unreasonable mistake of fact may negate a required specific intent or mental state so long as the defendant is acting in good faith. (People v. Russell (2006) 144 Cal.App.4th 1415, 1425-1427; People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 10-11.) By contrast, a mistake of law is no defense to a general intent crime, ignorance of the law being no excuse. (People v. Vineberg (1981) 125 Cal.App.3d 127, 137(Vineberg); see also People v. Stewart (1976) 16 Cal.3d 133, 140; People v. Urziceanu (2005) 132 Cal.App.4th 747, 776.)
In some circumstances, however, a good faith mistake of law may be a valid defense to a specific intent crime if the mistake negates the specific intent required for the offense. (People v. Howard (1984) 36 Cal.3d 852, 862-863; Vineberg, supra, 125 Cal.App.3d at p. 137; People v. Ramsey (2000) 79 Cal.App.4th 621, 631-632; People v. Cole (2007) 156 Cal.App.4th 452, 483.) "It has been recognized in California since the turn of the century that ignorance or mistake of law can negate the existence of a specific intent.... [Citation.] It has also been recognized, however, for approximately the same length of time, that an accused is only entitled to such an instruction if the evidence supports a reasonable inference that any such claimed belief was held in good faith." (Vineberg, supra, 125 Cal.App.3d at p. 137, italics added.)
Thus, a mistake as to legal status or rights instruction is only appropriate where the evidence supports a reasonable inference that the claimed mistake was held in good faith. (People v. Flora (1991) 228 Cal.App.3d 662, 669-670; People v. Howard, supra, 36 Cal.3d at pp. 862-863.) "For example, the circumstances in a particular case might indicate that although defendant may have 'believed' he acted lawfully, he was aware of contrary facts which rendered such a belief wholly unreasonable, and hence in bad faith." (People v. Stewart (1976) 16 Cal.3d 133, 140.) "In the absence of some evidence from which it can be inferred that defendants' alleged belief in the lawfulness of their conduct was in good faith, the court was under no duty to instruct the jury that a good faith mistake of law constituted a defense to the action." (Vineberg, supra, 125 Cal.App.3d at p. 138, fn. omitted.)
Both workers' compensation fraud and insurance fraud are specific intent crimes. (Ins. Code, § 1871.4, subd. (a)(1); Pen. Code, § 550, subd. (b)(3).) However, the court did not err in its instruction of the jury under CALCRIM No. 3407.
Preliminarily, Alvarez asserts that his mistake concerning "the nonpenal legal status of what was 'work' " was one of fact, not law. Thus, he asserts, in a supplemental letter brief, that the court should have instructed the jury sua sponte under CALCRIM No. 3406 that a mistake of fact was a defense to the crimes charged. However, the alleged mistake was one of law because it involved the legal consequences of his statements to his doctors that he was not "working." (See People v. Mayer (2003) 108 Cal.App.4th 403, 412 [city council member's belief that residency requirement did not require him to sleep or live in the city to call it his residence was mistake of law]; People v. Young (2001) 92 Cal.App.4th 229, 233 [erroneous belief that Compassionate Use Act of 1996 permitted transportation of marijuana as medicine was mistake of law that did not excuse the general intent crime of transporting drugs].) This is not a case where Alvarez understood the facts to be other than what they were. He knew as true the fact that he was working part-time or irregular jobs, but was mistaken as to the legal consequences of whether that was considered "work." (People v. LaMarr, supra, 20 Cal.2d at p. 710.) Despite the comment in the bench notes to CALCRIM No. 3407 that a good faith mistaken belief as to legal rights or status is one of fact, cases considering this issue have held it to be one of law, not fact. (People v. Stewart, supra, 16 Cal.3d at p. 140; Vineberg, supra, 125 Cal.App.3d at p.137; People v. Flora, supra, 228 Cal.App.3d at pp. 669-670; People v. Urziceanu, supra, 132 Cal.App.4th at p. 779.)
Further, the modified version of CALCRIM No. 3407 was appropriate to this alleged defense because it accurately relayed what Alvarez contends was his mistake. That is, a mistaken belief as to his legal status could be a defense to the crimes charged. The instruction advised that if he had a good faith belief that he was entitled to make the representations he made to his doctors, it would be a defense to the crimes charged.
Moreover, the court was not required to give a good faith mistake as to legal status or rights instruction in this case because the evidence showed he did not hold his mistaken belief in good faith. It is unreasonable, and hence in bad faith, to believe that odd jobs or part-time work does not constitute "work." (Vineberg, supra, 125 Cal.App.3d at p. 138.)
To the extent that Alvarez's mistake was one of fact, the court was under no sua sponte duty to instruct under CALCRIM No. 3406 if Alvarez was not relying on this defense or it was inconsistent with his defense. (People v. Breverman (1998) 19 Cal.4th 142, 157.) Alvarez was not relying on a defense that he was mistaken what his doctors meant when he was asked when he last worked. Rather, defense counsel argued in closing argument that he was not working during the time he was prohibited from doing so. The only basis upon which counsel for Alvarez requested a mistake instruction was as to a possible mistake of law when he received a check and his attorney allegedly told him he could cash it even though he had worked during that time period. Thus, the court had no sua sponte duty to instruct on mistake of fact under CALCRIM No. 3406.
Finally, any error by the court in instructing the jury under a modified version of CALCRIM No. 3407 was harmless, as it is not reasonably likely that Alvarez would have achieved a more favorable result had the instruction not been given. (People v. Watson (1956) 46 Cal.2d 818, 836.) Although Alvarez now argues he was under a mistaken belief as to the definition of "working" when he told his doctors he was not, that was not his defense at trial. Rather, as detailed, ante, his defense was that there was no evidence showing that he was working when he was prohibited from doing so. Further, it is not reasonably likely a jury would believe his testimony that he believed doing part-time work did not mean he was "working" or "employed."
II. NOTE FROM JUROR NO. 1
Alvarez asserts the court erred by not conducting an inquiry into the possibility of juror misconduct in response to a note from a juror. This contention is unavailing.
A. Background
On March 10, 2008, while the jury was in the process of deliberating, Juror No. 1 sent a note to the court, which stated:
"Please excuse me from jury duty. [¶] I find it impossible to be on the same jury with people who are in charge of placing [judgment] on someone's actions that to me are guilty of the same thing. [¶] Let me explain, a couple of jurors from the prison were talking about how they have not gone back to work since this trial began since they are required to go to work too early in the morning. And he said they better pay him or he will report it to his 'reps'... so this one guard has managed a 'freebee' vacation on the tax payers─to me this is fraud and how can a person be on a jury who is committing the same fraud against the tax payer as the person on whom he will be placing a verdict? [¶] Whether or not this is allowed by the jury system or his place of [employment] to me is not the issue.... The issue is this state employee has a 'rep' (Union rep) where the person we are judging had no 'rep.' Mr. Santos acted as his own rep and may have misinterpreted the law, but these prison guards, as people who will be judging the [defendant], should know better. [¶] Sincerely, [Juror No. 1]."
The court notified the parties of the juror's note. The court indicated its "initial reaction" was to "simply bring [Juror No. 1] in to clarify her request."
After further discussion with the parties, the court proposed that the jury be excused, but that Juror No. 1 be kept in court until defense counsel could get Alvarez to court, and they could then interview the juror to determine if it would be necessary to conduct a hearing on the issue. However, defense counsel suggested that the jury be allowed to continue to deliberate so they could "find out whether she actually can cooperate and... at least attempt to come to a verdict, or if she is just stonewalling and saying, 'No, I'm not going to be involved.' " Defense counsel then commented:
"I hate to just simply let somebody make a statement like this, come in and say, 'I can't do this." She may not like what's going on, but that's not what we look at. We look at can she deliberate? Can─Is she open to others' ideas, as well as her own? Is she willing to come to some sort of agreement? But to simply bring her in, I think would be inappropriate, without giving [the jurors] the opportunity to at least deliberate some."
The prosecutor suggested they ask the foreperson if there were any problems with the deliberations. The parties could then talk with Juror No. 1 if the foreperson indicated she had been refusing to deliberate. Defense counsel stated he was "fine with that," and the court agreed it was "an excellent idea, to get an objective evaluation of what's going on right now." The parties adjourned for a short recess so defense counsel could contact Alvarez.
When the parties reconvened about an hour later, the court informed them the jury had reached verdicts on all counts. The court stated this was "a new development" and asked for input from counsel. The prosecutor asserted the issue was now "moot," and defense counsel agreed there was no need for further inquiry.
The court then requested the verdicts. The court thereafter asked counsel, "By the request of the parties that the jury verdicts be delivered and rendered by the jury, is it the position of the parties that any claim of error in not inquiring further of [Juror No. 1]... is waived?" Both defense counsel and the prosecutor answered that it was. The parties also waived any claim of error in the court not making inquiry of the foreperson and indicated they were aware of no cause why the court should not accept the jury's verdicts.
B. Analysis
1. Forfeiture
Because counsel for Alvarez agreed that no further inquiry of Juror No. 1 or the foreperson was needed after the jury returned their verdicts, Alvarez has forfeited this issue on appeal. (People v. Holloway (2004) 33 Cal.4th 96, 124; People v. Mays (2007) 148 Cal.App.4th 13, 37.) Further, even if this contention is not forfeited, the court did not abuse its discretion in failing to conduct a hearing to determine if there was juror misconduct.
2. Merits
Penal Code section 1089 provides in part: "If at any time... a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged...." In construing this statute, our high court has held that " ' "[o]nce a trial court is put on notice that good cause to discharge a juror may exist, it is the court's duty 'to make whatever inquiry is reasonably necessary' to determine whether the juror should be discharged." ' [Citations.] [¶] 'But not every incident involving a juror's conduct requires or warrants further investigation. "The decision whether to investigate the possibility of juror bias, incompetence, or misconduct─like the ultimate decision to retain or discharge a juror─rests within the sound discretion of the trial court." ' [Citations.] ' "[A] hearing is required only where the court possesses information which, if proven to be true, would constitute 'good cause' to doubt a juror's ability to perform his duties and would justify his removal from the case." ' " (People v. Martinez (2010) 47 Cal.4th 911, 941-942.)
Contrary to Alvarez's contention, there is nothing in Juror No. 1's note that indicates any juror was engaging in misconduct. Juror misconduct occurs when there is a direct violation of the juror's oaths, duties, or instruction. (In re Hamilton (1999) 20 Cal.4th 273, 294.) Here, the note merely evidenced Juror No. 1's unhappiness with certain other jurors being union workers who, in her mind, got a "freebie" vacation while on jury duty.
The court properly exercised its discretion (at the suggestion of defense counsel) to determine if Juror No. 1 was willing to deliberate. While a recess was held to allow defense counsel to contact his client, the jurors reached a verdict on all counts. The fact the jurors did continue to deliberate after Juror No. 1 submitted the note and reached a verdict shortly thereafter demonstrates the court acted appropriately in response to the juror's note. (People v. Ray (1996) 13 Cal.4th 313, 343-344.)
III. INSTRUCTION UNDER CALCRIM NO. 220
Alvarez asserts the court erred by instructing the jury on reasonable doubt under the August 2006 revision to CALCRIM No. 220. Alvarez contends the instruction fails to inform the jury that it must find he committed each of the elements of the charged offense beyond a reasonable doubt. We reject this contention.
A. Background
The court instructed the jury under CALCRIM No. 220 as follows:
"The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. [¶] You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. The defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove the defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt, unless I specifically tell you otherwise. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
B. Analysis
"Under the United States Constitution and California law, the government must prove each element of a charged offense beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5 [(Victor)]; People v. Cole (2004) 33 Cal.4th 1158, 1208; [Pen. Code,] § 1096.) Whether an instruction correctly conveys this standard must be determined by examining the instruction in the context of all the instructions given the jury. [Citations.]" (People v. Wyatt (2008) 165 Cal.App.4th 1592, 1601(Wyatt).) In reviewing the correctness of reasonable doubt instructions, the proper inquiry is "whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the [In re Winship (1970) 397 U.S. 358, 364] standard [requiring proof of each element beyond a reasonable doubt]." (Victor, supra, at p. 6.)
"We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.] ' "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." [Citation.]' [Citation.] 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 (Ramos).)
In Ramos, supra, 163 Cal.App.4th 1082, the Court of Appeal rejected the same argument Alvarez makes, that a court errs in instructing with CALCRIM No. 220 because the instruction does not expressly state that the prosecution must prove every element of the offense beyond a reasonable doubt. As the Ramos court explained, CALCRIM No. 220 "explicitly informed the jurors that 'Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.' (Italics added.)" (Ramos, at p. 1088.) As in Ramos, in this case "the trial judge... enumerate[d] each of the elements of the charged crime[s]..., and stated that the People were obligated to prove each of those elements in order for defendant to be found guilty. If we assume, as we must, that ' "the jurors [were] intelligent persons and capable of understanding and correlating all jury instructions... given..." [citation]' [citation], then we can only conclude that the instructions, taken as a whole, adequately informed the jury that the prosecution was required to prove each element of the charged crime beyond a reasonable doubt." (Ramos, at pp.1088-1089, fn. & italics omitted.)
Moreover, the trial court in this case, immediately prior to the attorneys' opening statements, explained to the jury the presumption of innocence and the prosecution's burden of proof, stating in part: "A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of the crime beyond a reasonable doubt. [¶] When I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt, unless you're specifically told otherwise." (Italics added.)
Thus, there is no reasonable likelihood the jury understood the instructions to allow for conviction based on less than proof of every element beyond a reasonable doubt. (Victor, supra, 511 U.S. at p. 6.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., IRION, J.