Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F10845
SCOTLAND, P. J.
Defendant June Ann Lucena was prosecuted for giving false information to obtain benefits based on the purported effects of injuries that she suffered in April 1999, when she fell climbing a ladder to a guard tower while working as a correctional officer at Folsom State Prison. She received workers’ compensation benefits, industrial disability leave, and then temporary disability from the State Compensation Insurance Fund (SCIF). In late 2002, defendant was approved by the California Public Employees’ Retirement System (CalPERS) for disability retirement.
SCIF conducted a surveillance of defendant over several years. Surveillance videotapes showed her engaging in vigorous physical activities, such as jet skiing and going down waterslides, and bending, sitting without back support, lifting objects, and eating hard foods, all without apparent discomfort despite her claims of injury to her back and jaw. The activities shown on the videotapes were inconsistent with her representations about her chronic pain and limited ability to engage in activities. Defendant made the statements to doctors evaluating her for disability benefits and also during her deposition for her workers’ compensation claim.
A jury convicted her of 11 counts of workers’ compensation fraud (Ins. Code, § 1871.4, subd. (a)(1)), attempted perjury (Pen. Code, §§ 664/118, subd. (a)), theft by false pretenses (Pen. Code, § 532, subd. (a)), and filing a false claim with CalPERS (Pen. Code, § 72). The jury found the last two counts involved a loss of over $150,000 (Pen. Code, § 12022.6, subd. (a)(2)).
Defendant was sentenced to seven years in state prison and was ordered to pay $414,709.50 in restitution to SCIF and CalPERS.
On appeal, defendant contends the evidence is not sufficient to support the workers’ compensation fraud, theft by false pretenses, and filing a false claim convictions and the finding that the loss exceeded $150,000; the trial court erred when instructing the jury regarding certain crimes and the statute of limitations; all but one of the sentences imposed for the workers’ compensation fraud convictions must be stayed pursuant to Penal Code section 654; and the restitution order must be reversed for a variety of reasons.
We find merit in only one contention. As to the filing a false claim alleged in count 14, the trial court erred in instructing the jury on the discovery rule of the statute of limitations, namely, by failing to inform jurors that CalPERS, as the victim, was charged with discovering the fraud and had a duty to inquire. Because there is evidence from which a jury could find that CalPERS should have discovered the fraud earlier, count 14 must be reversed due to the instructional error. However, we shall affirm the other convictions and judgment imposed thereon.
FACTS
The Accident
Defendant began working as a correctional officer in 1989. On April 25, 1999, while working in Folsom State Prison, she climbed a ladder to a guard tower, lost her footing, and fell, hitting her head. She was sent by helicopter to Sutter Roseville Community Hospital.
Defendant was amnestic about the accident. She was conscious at the hospital, but there was a report that she had briefly lost consciousness earlier. She had a contusion on her forehead and complained of pain in her low back and right hip, and mild pain in her upper back.
All X-rays were negative, and a computed axial tomography (CAT) scan was normal; the doctor ruled out any fracture. Defendant had full range of motion in her neck, and she was released from the emergency room after an hour and a half.
Defendant’s Continuing Medical Problems
According to defendant, she continued to experience pain and sought a variety of medical help for her problems. Her complaints included significant neck and back pain as well as headaches. In the Spring of 2000, SCIF referred defendant to Dr. Stephen Mann for her back problems. She was prescribed Vicodin and Vioxx, and later Soma, for her pain.
In the summer of 2000, defendant had surgery on her shoulder for a rotator cuff problem. About two centimeters of bone was removed. After the surgery, she described her shoulder as “great” but said that injections in her joints brought only short-term relief from pain. She later had radio ablation (burning the nerves) on her facet joints, which provided some relief.
A magnetic resonance imaging (MRI) scan revealed an annular tear of a disc in her spine at L-4, L-5. To investigate the problem, Dr. Mann ordered a discogram, which involves putting fluid in the disc and measuring the amount of pressure it can hold. If the disc has a problem, the patient will experience pain; but there can be pain even if there is no problem with the disc. After the discogram, defendant consulted a surgeon, Dr. Mark Hambly, who concluded that she was not a good candidate for surgery.
Defendant also complained of jaw pain and was diagnosed with bilateral internal derangement of the temporomandibular joint (TMJ). She was first treated with splints, which did not work. She then had surgery, which made a great improvement.
Disability Benefits
Almost immediately after the accident, defendant filed for workers’ compensation benefits. She received industrial disability leave--the first 22 days at full pay and then a year at two-thirds of her pay. When those benefits were exhausted, she received temporary disability--also at two-thirds of her pay. The benefits are not taxed. SCIF paid defendant benefits based on reports from Drs. Mann and Hambly.
In October 2001, defendant applied to CalPERS for disability retirement, which pays one-half of the worker’s highest salary, and the benefits are not taxed. Her application was granted in December 2002. In assessing defendant’s eligibility for disability retirement, CalPERS had her evaluated by Drs. Stephen Abelow and Jeffery Light; and CalPERS relied on their reports in approving her disability retirement.
The Investigation
In 1999, SCIF hired an investigator to conduct surveillance of defendant. Investigators videotaped her activities without her knowledge.
On August 7, 2000, Dennis Burke followed defendant to the Oakwood Waterslide Park in Manteca. Defendant was spotted in the picnic grounds with three boys. She wore a bathing suit with a towel around her waist. Her hair was damp, and she wore a band around her wrist. One could enter the park by simply paying the parking fee; but a separate fee and wristband were required to use the recreational facilities.
Some of the waterslides at Oakwood require the use of a mat, on which the rider lies on his or her stomach and faces forward. The total elevation of the waterslides is 40 to 50 feet, and the main slides are turbulent. Some of the other slides are slower and do not require use of a mat. Some slides are slow enough that there had been problems with people stopping on them.
Owen Mitchell conducted over 130 hours of surveillance of defendant in 2002 and 2003, and took over 16 hours of videotape.
On July 26, 2002, he videotaped defendant using waterslides in Manteca, lying on her stomach. He saw defendant carrying large plastic storage bins a quarter-mile to her car. He never observed defendant limping, staggering, favoring one side, or crying.
The next day, July 27, 2002, Mitchell followed defendant’s vehicle pulling jet skis to Folsom Lake. Defendant spent the day there. The videotape showed her on a jet ski, doing 180-degree and 360-degree turns. There was a bit of a breeze, and the water was choppy, with big sprays. Defendant walked along the rocky terrain of the beach without shoes and, at one point, she picked up and threw a log weighing about 30 to 40 pounds. She carried an innertube and boxes, bent 90 degrees, and walked up and down a hill. Defendant carried a six-gallon to eight-gallon gas container. Her arms were straining and it took two minutes to empty the container. Mitchell believed that it was at least half full and weighed over 15 pounds.
On July 25, 2003, defendant spent seven hours at Waterworld Park at California Exposition & State Fair (Cal Expo). She was observed in a chair doing needlework. She also went on a ride in an innertube with her sons. Defendant did not stagger, limp, or cry; she enjoyed herself. Mitchell saw defendant eating nachos with no difficulty.
On August 23, 2003, defendant again went jet skiing. She drove the jet ski, jumped off, swam, and floated about. She took off her life jacket before jumping in the lake. Defendant was on the water about 50 minutes, and the water was choppy. The jet ski went 15 to 20 miles per hour. In 133 hours of surveillance, Mitchell saw no manifestation of pain by defendant.
Lawrence Ludwig followed defendant to the Oakwood Lake Waterpark in Manteca on September 6, 2003. Defendant wore a park wristband. She sat on the ground cross-legged and pulled her knees to her chest. She sat without back support. She ate snack food, including potato chips and barbequed meat.
On April 20, 2004, SCIF referred defendant’s case to the insurance fraud division of the California Department of Insurance. On March 30, 2005, SCIF provided the CalPERS disability validation team with medical reports, surveillance videotapes, and defendant’s deposition.
CalPERS conducted an investigation of defendant in 2001 and 2002. Bruce Aldrich did surveillance of defendant on certain days for over 13 hours. His videotape showed “a normal person doing normal things.” Defendant was shown grocery shopping, bending over, and loading groceries into her car. The tape was shown to Dr. Abelow. Because it did not change his opinion of defendant’s disability, the investigation was closed.
Dr. Hambly (Count 1)
Dr. Mann asked Dr. Hambly, an orthopedic surgeon, to determine if defendant was a surgical candidate. Dr. Hambly saw defendant on May 28, 2002. Defendant told him she had cervical neck pain and a TMJ problem. She also had pain in her lower and upper back and into her right leg. The low back and leg pain was constant. On the patient questionnaire, defendant claimed that all activities, except coughing and sneezing, were painful. According to defendant, she had been very active before but now she “just survives.” Dr. Hambly found that defendant had no surgical problem; the neurological exam was normal. He thought she would benefit from physical therapy.
Dr. Hambly believed that discography was not a reliable test. Defendant’s pain complaints could not be reproduced on the discogram; it reproduced left leg pain while defendant complained of pain in her right leg. He would not perform surgery on defendant because she did not need it; he could not put his finger on why she hurt. Dr. Hambly explained that many people with an annular tear, 25 to 40 percent, have no pain. All of the objective tests he performed on defendant were within normal limits.
In Dr. Hambly’s opinion, going down waterslides and riding a jet ski were not consistent with defendant’s representations. Such activity was better than “just surviving” and not typical of patients with significant complaints of low back pain.
Dr. Mann (Counts 2, 10, 11, 12)
Dr. Mann is a doctor of physical medicine and rehabilitation. He first saw defendant on March 28, 2000, and continued to see her through 2003. His impression was that she had chronic post-head-injury cervical and low back pain, and right shoulder impingement syndrome. By September 5, 2001, he thought defendant could not return to work as a correctional officer because her complaints were unchanged. He told her to start the paperwork for a medical retirement. Through her last visit on October 6, 2003, defendant’s complaints of pain were largely unchanged.
Dr. Mann explained that the annular tear would not necessarily preclude corrections work, as such condition is often asymptomatic.
Four counts of workers’ compensation fraud were based on statements defendant made to Dr. Mann. The statements formed the basis of Dr. Mann’s reports, which were sent to SCIF, which relied on them in providing defendant disability benefits. At every visit, defendant claimed she had constant pain.
On August 19, 2002, defendant completed a pain diagram for Dr. Mann that showed pain in the cervical, thoracic, and lumbar area, as well as down the right leg. She indicated pain in her spine at L-3, L-4. Her flexion was better than previously; it was normal. Defendant did not mention her previous activities of waterslides and jet skiing. Had Dr. Mann known that, within the last month, defendant went on waterslides one day and went jet skiing the next, he would have changed his opinion that she was a “qualified worker, ” i.e., one unable to resume usual and customary job duties. (Count 2.)
On July 9, 2003, she continued to report the same complaints. Her pain diagram indicated burning pain along her spine, aching pain in her lower back, and stabbing pain down her right leg. Her flexion on bending was limited. Therefore, at that time, Dr. Mann still considered defendant a qualified worker. His opinion would have been different if he had known of her level of activity as shown on the videotapes. (Count 10.)
On August 25, 2003, defendant indicated she continued to have pain in the same areas; there was no major change. Dr. Mann had no reason to believe that defendant’s activities had changed from what she indicated on her first visit. (Count 11.)
On defendant’s last visit on October 6, 2003, her orthopedic complaints, with the exception of her shoulder, had not changed in any significant way. Her pain diagram indicated her pain was closer to “worst possible” than to “no pain, ” and she had pain in her neck, shoulders, spine, lower back, and right leg. (Count 12.)
After Dr. Mann viewed the videotapes, he concluded that the activities shown were not what he would have expected defendant to be able to perform. The activities were inconsistent with her complaints of pain. This is so as patients with back problems do not go on boats or waterslides because such activities cause compression of the spine. The spine will be jarred, and the pain will increase. In his opinion, going on a waterslide 20 times in one day meant the back pain was not significant. That defendant could perform these activities on consecutive days was significant because patients who choose to engage in these types of activities spend several days recovering. Dr. Abelow’s report confirmed his opinion. After reviewing the videotapes, he believed there was no reason that defendant could not work. Due to the discrepancy between defendant’s reported symptoms and the material on the tapes, Dr. Mann believed that defendant had not been forthright with him.
On cross-examination, Dr. Mann equivocated somewhat, saying it was possible that defendant still had a back injury, and he did not know whether she could return to work. If being a correctional officer required lifting 100 pounds, as the job description said, Dr. Mann thought that defendant could not return to work. She could crawl, bend over, walk up and down stairs, and run some distance. If defendant did not have to lift 100 pounds, his opinion would be that she could return to work.
Dr. Abelow (Count 13)
Dr. Abelow, an orthopedic surgeon, evaluated defendant for CalPERS on August 14, 2002. Defendant completed a pain diagram, and Dr. Abelow took a 20- to 30-minute history and then examined her. Defendant told him that her problems were with her neck, back, and right shoulder. She indicated she was moderately or severely limited as to everything. He accepted her representation. She indicated she could do only light housework and grocery shopping; she survived with pain and her altered lifestyle. Dr. Abelow found no specific atrophy that would indicate a longstanding nerve problem. Defendant was able to stand straight up and had no abnormalities walking; her reflexes were normal, as were the motor muscle and sensory exams. The test of tenderness was subjective; thus, Dr. Abelow had to rely on what defendant said.
Based on defendant’s history and the report from the treating physiatrist, Dr. Abelow felt defendant had a significant disability and could not defend herself in a prison setting. When he saw the surveillance videotapes from Aldrich, he defended his position because they showed only normal activity.
In 2006, he was shown the later videotapes; he considered them “almost a slap in the face.” Based on the fact that defendant was on the waterslide and jet skiing only two or three weeks before his evaluation, he felt her reports were not accurate. He saw no limitation in her range of motion on the tapes; he saw a normal person doing strenuous things. The videos were sufficient for him to change his opinion. In 2006, Dr. Abelow opined that defendant had no orthopedic injury and could have pursued her job.
Dr. Light (Count 13)
CalPERS asked Dr. Light, a prosthodontist, to evaluate defendant for her TMJ problems. He saw her on September 19, 2002. Defendant complained of popping and clicking of her jaw, slight pain that increased if she spoke or chewed, limited ability to open her jaw, constant headaches, and pain from the sides of her face. Dr. Light believed that her TMJ condition precluded work as a correctional officer because the pain would interfere with her mental alertness. Her complaints of pain were crucial because TMJ can be asymptomatic.
Dr. Light’s opinion changed after he saw the videotapes; they led him to believe that defendant did not have the pain or symptoms she claimed and that she could work as a correctional officer. The tapes were inconsistent with her representations. She said she had to eat soft foods and could not do heavy lifting; but the tapes showed her eating crunchy food and lifting objects with no jaw discomfort.
Dr. Light still believed that defendant had a TMJ problem. He reviewed a report from another doctor, which indicated the problem was developmental, occurring before defendant was 18 or 19.
The Deposition (Counts 3, 4, 5, 6, 7, 8)
A deposition is standard in cases of a workers’ compensation claim. Defendant was deposed on September 30, 2002, but she never signed her deposition, despite promising to do so. Portions of her deposition were read at trial. Counts three through eight of workers’ compensation fraud were based on statements defendant made during her deposition under oath.
Defendant testified in her deposition as follows:
Before the accident, she was very fit and engaged in vigorous athletic activities. Now, most activities caused her pain, and she could not do any activity for very long. She described her back as like a checkbook; when she did certain things, it was like writing a check against the back account. As the checks added up, the pain increased until it went to overdraft. From that point, the recovery was much harder. To avoid this situation, she minimized the checks she wrote. She had to take her children to school and go grocery shopping; but she minimized all other activity because the amount left in her back account was small and, when it was gone, she was in a lot of pain.
She suffered neck pain from TMJ problems caused by the fall. She limited herself to a soft, not liquid, diet. She did not eat red meat, cookies, beef jerky, nuts, apples, Doritos chips, hamburger, steak, Chinese food (due to headaches), celery, or carrots.
While she could not do certain things, she made a choice to put up with discomfort to go on family outings. For example, the family had a Polaris, a larger personal water craft. She would go to Folsom Lake with them, taking her chair and pillow, but, in her words, “I can’t go out on the lake on the Polaris. I don’t know what that would do to my back.” When the questioner sought to clarify that defendant might go to the lake but would not ride the Polaris on the lake, defendant responded “true” and “correct.” (Count 3.)
These statements were also the basis of the attempted perjury charge.
She would take her children to Waterworld, but not go down the slides. The questioner asked if Waterworld at Cal Expo was like the waterslide in Manteca. Defendant said that they were similar, but that at Cal Expo one goes down tubes instead of using mats. “That is something I can’t do now. I mean, I could do it, but I would pay dearly for it and it would be longer than just a day.” She might go to Waterworld, but did not “do any of the physical activity.” (Count 4.)
She was told not to lift more than five to seven pounds. Thus, she had the grocery store pack the bags lightly, and her husband or son carried anything heavy into the house. She limited herself to lifting no more than five to seven pounds. She could not recall lifting anything over 10 pounds. If she had, she explained, it was a “have to” situation, and she paid the consequences. (Count 5.)
She could not bend over very well without causing pain; she had to bend from the knees. Picking up something from the ground caused pain, so she limited it. She could not bend over and help her children with their animals for 4-H. Her bending was very limited; she could bend, but it caused pain. (Count 6.)
When she went to Folsom Lake, she took her special pillow and chair so she could sit for hours. Sitting at a picnic table with no back support was painful. (Count 7.)
She limited her physical activity and did not do anything that would test her shoulder, such as pull-ups. Basically, she could not do any of the activities she did before, like snow ski, water ski, play softball or volleyball, and ride her horse. Sitting for a period of time caused a lot of pain. She had her husband or son do the heavy household chores, like vacuuming, and she minimized her activities around the house. She was able to sew for only about 30 minutes. (Count 8.)
The Defense
Defendant presented several doctors who testified that she was disabled and unable to work as a correctional officer, despite her having been able to engage in the activities shown on the videotapes.
Dr. Joseph Clifford, an orthopedic surgeon, examined defendant. His report of February 2, 2001, found modest restrictions in her right shoulder after surgery, which made her permanently disabled with respect to overhead activities and heavy lifting. She also had some restricted motion of her back. Dr. Clifford conducted Waddell tests, which showed no evidence of any malingering or magnifying of symptoms. A reevaluation in November of 2002 showed similar findings. Defendant had a 20 percent disability in her back, which made her substantially disabled as a correctional officer. Dr. Clifford testified the jet ski and waterslide activities showed poor judgment, but they were primarily a pain issue. On a demanding day, the activities of a correctional officer were beyond those of the recreational activities on the videotapes. On cross-examination, he testified that defendant never told him she could lift 100 pounds before the accident, only 40 to 50 pounds. If defendant could lift 40 pounds now, she was back to where she had been.
Dr. Michael Roback, an orthopedic surgeon, examined defendant on May 31, 2006. Although she had received a very good result from the shoulder injury, he believed that she still had permanent disability of 25 percent loss of function and could not do heavy lifting or repetitive reaching. She also had some disability in her neck and a bad back. In his opinion, she was disabled from being a prison guard because she would not be safe in an emergency. Dr. Roback testified that going on the waterslide and jet ski was “dumb, ” but it did not change his opinion that defendant had damage to her spine.
Dr. Barry Hoffman, a prosthondontist who handles TMJ problems, examined defendant and found that her TMJ problems were caused by the fall. In his view, she was substantially disabled from the performance of duties as a correctional officer.
Dr. Louis Gallia, a physician and dentist, testified that defendant’s TMJ problems improved after surgery. Her headaches were less frequent, but still two to three times a week. In his opinion, the fall caused her TMJ problems, and he was “perplexed” by Dr. Light’s opinion to the contrary. Dr. Gallia disputed that another doctor would have said the TMJ problems were degenerative.
Two physical therapists who treated defendant testified that her subjective complaints matched the objective findings, and she was not malingering or exaggerating.
Defendant testified to her very active, athletic life before the accident. She claimed she loved her job as a correctional officer, wanted to work 30 years, and would go back if she could. She said the waterslides at Manteca were “completely different” from those at Cal Expo and that, in the deposition, she spoke only of those at Cal Expo, not about Manteca waterslides. After the slides, her back hurt, and she took extra Vicodin. Lifting the log also hurt her back. She had been on the Polaris only twice since the accident. According to defendant, her deposition statement about not going on the Polaris referred to the future, what she “might” do. Her statement was not incorrect, but she needed to explain it. She testified she had no problems with her head, neck, jaw, right shoulder, back, numbness, or stabbing pain in her leg before the fall. On cross-examination, defendant was asked about her reports to doctors before the accident of severe headaches, numbness, tingling, and insomnia. She complained those comments were taken out of context.
DISCUSSION
I
Defendant contends the trial court erred in defining the elements of workers’ compensation fraud.
Insurance Code section 1871.4, subdivision (a)(1) provides that it is unlawful to “[m]ake or cause to be made a knowingly false or fraudulent material statement or material representation for the purpose of obtaining or denying any compensation, as defined in Section 3207 of the Labor Code.” (Italics added.)
The court instructed the jury as follows: “The defendant is accused in Counts One through Eight, Counts 10, 11, and 12, of a violation of [section] 1871.4[, subdivision] (A)(1) of the [I]nsurance [C]ode. [¶] In order to prove a violation of this section, the People must prove each of the following elements, Number One, the defendant made or caused to be made, a false or fraudulent written or oral statement. Number Two, the defendant knew that the statement or statements were false or fraudulent. [¶] Number Three, the false or fraudulent statement or statements were material. And Number Four, the false or fraudulent statements were made with the specific intent to obtain worker’s compensation benefits. [¶] A written or oral statement is material if it concerns a subject germane or reasonably relevant to the insurer’s investigation, and if a reasonable insurer would attach importance to the fact misrepresented. [¶] The materiality of a statement does not depend on the actual effect on the outcome of either the investigation or the claim. [¶] Rather, a statement is material if it can influence the decision to grant or deny benefits.”
A
Defendant contends the instruction was overly broad in defining materiality because it permitted the jury to find a statement material “if it can influence” the decision. (Citing People v. Rubio (2004) 121 Cal.App.4th 927 (hereafter Rubio).)
In Rubio, a perjury case, the trial court gave an instruction defining a false statement as material if it “could influence the outcome of the proceedings.” Rubio held the definition was incorrect because “[v]irtually any false statement could possibly influence the outcome of the proceeding”; the qualifier “probably” was necessary; a statement was material if it “could probably influence the outcome of the proceeding.” (Id. at p. 933.)
The contention fails for the following reasons.
An instruction that omits or improperly describes an element of the offense, preventing the jury from making a necessary factual finding, is constitutionally defective. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165.) When a defendant contends that an instruction is ambiguous or potentially misleading, we must review the instructions as a whole and determine “‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution. [Citation.]” (Estelle v. McGuire (1991) 502 U.S. 62, 72, [116 L.Ed.2d 385]; see also People v. Smithey (1999) 20 Cal.4th 936, 963.)
Reviewing the instructions as a whole, we find that it is not reasonably likely the jury understood that a false statement was material even if it did not “probably” influence the decision to grant benefits. The instruction told jurors that the false statement must be germane to the investigation and important to a reasonable insurer. “A written or oral statement is material if it concerns a subject germane or reasonably relevant to the insurer’s investigation, and if a reasonable insurer would attach importance to the fact misrepresented.” This part of the instruction prevented the jury from convicting defendant on the basis of an insignificant false statement that was trivial and could not possibly affect the outcome.
In defendant’s view, this part of the instruction does not save the later “can influence” part because the jury may have understood the two parts to be alternate definitions of materiality. There is no support for this theory. The instruction does not indicate the two portions are alternatives; the word “or” does not appear in the instruction. The jury was instructed to consider the instructions together. We presume that the jury understood and followed the instructions. (People v. Butler (2009) 46 Cal.4th 847, 873; People v. Lewis (2001) 26 Cal.4th 334, 390.)
An instruction on materiality under Insurance Code section 1871.4 is adequate if it tells the jury that the statement must be “germane” and “reasonably relevant” to the insurer’s investigation and must bear directly and importantly on the investigation and evaluation of the claim; the instruction need not also specify that the information had “a tendency to influence” the decision. (People v. Gillard (1997) 57 Cal.App.4th 136, 152.) The instructions given in this case “adequately conveyed these concepts, ” as did those given in People v. Gillard, supra. (Ibid.)
There was ample evidence that defendant’s false statements actually influenced the decision to grant benefits. SCIF relied on the reports of Drs. Mann and Hambly. Dr. Mann testified that, if he had known about the vigorous activities shown on the videotapes, he would have concluded defendant was not qualified for benefits. Dr. Hambly testified the videotapes showed aggressive activities inconsistent with defendant’s representations and not typical of patients with significant complaints of lower back pain. Both found that defendant had been less than forthright; her representations of pain and limited ability were inconsistent with her activities shown on the videotapes.
B
Defendant next contends the trial court erred in failing to instruct that a violation of subdivision (a)(1) of Insurance Code section 1871.4, requires a specific intent to defraud. Defendant recognizes this contention was rejected in People v. Dieguez (2001) 89 Cal.App.4th 266 (hereafter Dieguez), but contends that Dieguez was wrongly decided.
In Dieguez, as here, the trial court specifically told the jury that, in order to prove the crime, the People had to prove several elements, including that the defendant made a “material” statement and “knew” it was “false or fraudulent, ” and was “made with the specific intent to obtain workers’ compensation benefits.” (Dieguez, supra, 89 Cal.App.4th at p. 278.) “The only specific intent required by the statute is the intent to obtain workers’ compensation benefits; this is what the jury was instructed. [Citation.]” (Ibid.) “Because the language of section 1871.4, subdivision (a)(1) is clear and unambiguous, there is no need to insert a superfluous additional specific intent requirement.” (Id. at p. 279.) We agree.
Dieguez further held that the intent to defraud was “built into” the language of the instruction because, to find all the elements listed in the instruction, a jury had to find that the defendant specifically intended to obtain workers’ compensation by means of knowingly making false or fraudulent material statements. (Dieguez, supra, 89 Cal.App.4that p. 279.) Dieguez concluded that the defendant acted with the specific intent to defraud by presenting information he knew was false with the intent that the insurance company rely on it. (Ibid.) The jury could not have convicted him without finding that he knowingly lied about his condition, as opposed to innocently exaggerating or magnifying his symptoms, and thus found defendant had a specific intent to defraud. (Id. at p. 280.)
Defendant disagrees that knowingly lying about her condition to obtain benefits equates with an intent to defraud. She contends the People had to prove--and the jury had to be instructed--that, due to her false statements, she received benefits to which she would not otherwise have been entitled.
We conclude that additional instruction was unnecessary. “[T]he intent to defraud the insurer is necessarily implied when the misrepresentation is material and the insured wilfully makes it with knowledge of its falsity.” (Cummings v. Fire Ins. Exchange (1988) 202 Cal.App.3d 1407, 1418.)
The trial court properly instructed on the elements of Insurance Code section 1871.4, subdivision (a)(1).
II
According to defendant, there is insufficient evidence to support her convictions for workers’ compensation fraud (counts 1, 2, 4, 5, 6, 7, 8, 10, 11, and 12). She specifically contends there is no substantial evidence that she made material false or fraudulent statements which could affect SCIF’s decision to grant her benefits.
Defendant does not challenge the sufficiency of the evidence as to count 3, that she lied in her deposition about riding the Polaris.
A
As detailed in the summary of facts at the outset of this opinion, defendant (in a series of doctor visits covering almost a year and a half from May of 2002 until October of 2003) told Drs. Hambly and Mann she suffered chronic pain that significantly limited her ability to engage in almost all activities; she also filled out pain diagrams and questionnaires to that effect.
In defendant’s view, her statements to Dr. Hambly on May 28, 2002, could not have possibly influenced SCIF’s decision to pay benefits because Hambly did not determine defendant’s disability status. However, the senior claims adjuster for SCIF testified that SCIF relied on Dr. Hambly’s report in making benefit payments. Defendant told Dr. Hambly she experienced significant, constant low back pain that made all activities painful such that she “just survives.” Because defendant’s statements to Dr. Hambly corroborated Dr. Mann’s reports that defendant was disabled due to chronic pain, substantial evidence supports her conviction on count 1.
Defendant claims there was no evidence of false statements to Dr. Mann on August 19, 2002, July 9, 2003, August 25, 2003, or October 6, 2003, that affected SCIF’s decision to pay benefits. She asserts she was disabled and her decision to ride the Polaris and go down waterslides was only a pain issue that did not affect her disabled status. She further asserts that Dr. Mann continued to believe she could not return to work. We are not persuaded.
On August 25, 2002, Dr. Mann declared defendant a “qualified injured worker, ” meaning she could not return to her usual and customary job duties. He testified, however, that if he had known of her activities, as shown on the videotapes, he would have revised his opinion. His opinion remained constant through the later visits because defendant continued to present with the same symptoms. Once he saw the videos, he concluded defendant had not been forthright with him, and he believed there was no reason defendant could not return to work. The activities shown on the videotapes indicated to him that her back pain was not significant, especially since she went on a waterslide and then jet skiing on consecutive days without needing time to recover. This is substantial evidence to support the convictions for counts 2, 10, 11 and 12.
Defendant focuses on Dr. Mann’s testimony on cross-examination, which she characterizes as his opinion that she was disabled and could not return to work. That testimony was based on the job description provided by defense counsel, saying a correctional officer was required to lift 100 pounds on occasion. Dr. Mann believed that defendant was orthopedically incapable of doing this, but she could crawl, bend over, walk up and down stairs, and run at full pace for some distance. While the job description included the 100-pound lifting requirement, there was evidence that defendant was never able to lift that much. She told Dr. Light that she would have another officer help her lift jugs of coffee. She told Dr. Clifford that, before her injury, she could lift 40 to 50 pounds, not 100. Dr. Roback testified that defendant told him she could lift 50 pounds before the accident; another assessment said that she could lift 40 pounds; and a pre-injury test of successive lifts indicated defendant could lift 30 pounds. If defendant did not have to lift 100 pounds, Dr. Mann would have concluded that she could return to work.
A correctional officer testified defendant had picked up laundry bundles at the prison weighing 75 to 100 pounds. Defendant placed the weight of the laundry at 50 to 75 pounds.
Conflicts in the testimony of a given witness do not mean such testimony is necessarily insufficient to support the verdict. “It is for the trier of fact to consider internal inconsistencies in testimony, to resolve them if this is possible, and to determine what weight should be given to such testimony.” (Clemmer v. Hartford Ins. Co. (1978) 22 Cal.3d 865, 878.)
Substantial evidence supports the convictions on counts 2, 10, 11 and 12.
B
Five counts of workers’ compensation fraud were based on statements defendant made in her deposition (counts 4, 5, 6, 7, 8). She challenges the sufficiency of the evidence as to four of them. Her contentions are based on an unreasonably crabbed view of the record, and we reject them.
Count 4 alleged that defendant lied about her ability to ride on waterslides. She testified that she would take her children to Waterworld, but would not go down the slides because she would “pay dearly” for it for several days. Defendant contends her statement about not going down waterslides was limited to the waterslides at Cal Expo’s Waterworld and did not cover those in Manteca. At this point in the deposition, the questioner was trying to determine what activities defendant could do, and asked about variations from her normal limited routine. Defendant offered Waterworld as an example. When the questioner asked if those slides were similar to the slides in Manteca, defendant replied Cal Expo “is like the one in Manteca, except you go down in tubes. I think the Manteca ones, you go down on mats.” Thus, the clear impression defendant left, by not indicating that she could go down the waterslides at Manteca, was that defendant could not go down waterslides at all. This is sufficient evidence to support the count 4 conviction.
Count 5 alleged that defendant lied about her inability to lift heavy objects. She claims she never said that she could not lift heavy objects. But the record shows she unmistakably gave that impression. She testified she tried to limit her lifting to five to seven pounds. She could not recall lifting anything heavier than 10 pounds; if she did, she “paid the consequences.” “I don’t lift anything heavy.” This statement was false; on the videotapes she is shown easily lifting and carrying storage crates and a large innertube, as well as picking up a heavy log. Thus, there is substantial evidence supporting the count 5 conviction.
Count 6 alleged that defendant lied about her inability to bend from the waist and lower back. She contends she said only that she could not bend without pain: “Bending is very limited. I’m able to bend, but it causes pain.” Her actions belie her words. On the tapes, she is shown easily and repeatedly bending from the waist without even bending her knees. This supports the count 6 conviction.
Count 7 alleged that defendant lied about her need for lower back support. She testified she took her special pillow and chair when she went to Folsom Lake because sitting at a picnic table without back support would be painful. However, on July 27, 2002, defendant went to the lake and sat at a picnic table, in no apparent discomfort, without back support. This evidence supports the count 7 conviction.
Count 8 alleged that defendant lied about her efforts to limit her activities. She testified, “I minimize my activities, ” but made the choice to accompany her family on outings, despite the pain, but refrained from activities that would aggravate her back or TMJ problems. The videotapes show otherwise and constitute substantial evidence to support the count 8 conviction.
Thus, we will affirm all of the workers’ compensation fraud convictions.
III
Claiming that all her false statements were part of a single course of conduct with a single intent, defendant argues the series of acts constitute only a single crime and can be punished only once. We disagree.
To support her claim that there was only one crime of fraud, defendant relies on the Bailey rule, i.e., there is a single theft if each taking is the result of a continuing impulse, intent, plan or scheme. (People v. Bailey (1961) 55 Cal.2d 514, 519.) However, defendant was not charged with a theft offense based on her false statements to Drs. Mann and Hambly and in her deposition; she was charged with workers’ compensation fraud, accomplished by her false statements. Case law has limited the Bailey rule to cases of theft or other offenses that can be aggregated to create a felony offense. (In re Arthur V. (2008) 166 Cal.App.4th 61, 66.)
“[A] charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute--the gravamen of the offense--has been committed more than once.” (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349.) Thus, for example, two counts of perjury can be based on two separate statements at trial. (People v. Jiminez (1992) 11 Cal.App.4th 1611, 1624-1625, disapproved on another ground in People v. Kobrin (1995) 11 Cal.4th 416.)
Here, the actus reus of Insurance Code section 1871.4, subdivision (a)(1) is making a false statement to obtain workers’ compensation benefits. Defendant committed the actus reus multiple times. As to counts 3 through 8 (the statements made during the deposition), each statement was about different facts; each was a separate and distinguishable lie. As to the remaining counts (the false statements made to Drs. Hambly and Mann), they were made on separate dates, and each supported a different benefit payment.
Accordingly, the separate counts of workers’ compensation fraud were proper.
Pursuant to Penal Code section 654, the trial court stayed the sentence on counts 4, 5, 6, 7, and 8, i.e., on all but one of the counts pertaining to the deposition. Defendant contends the court was likewise required to stay the sentence imposed on all but one of the workers’ compensation fraud counts because all had a single objective--to obtain workers’ compensation benefits. Once again, we disagree.
Penal Code section 654 states in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (Pen. Code, § 654, subd. (a).)
“The test for determining whether section 654 prohibits multiple punishment has long been established: ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.] A decade ago, [the California Supreme Court] criticized this test but also reaffirmed it as the established law of this state. [Citation.] [The court] noted, however, that cases have sometimes found separate objectives when the objectives were either (1) consecutive even if similar or (2) different even if simultaneous. In those cases, multiple punishment was permitted. [Citation.]” (People v. Britt (2004) 32 Cal.4th 944, 951-952.)
For example, People v. Gaio (2000) 81 Cal.App.4th 919 upheld separate punishment for three bribes where, in imposing consecutive sentences, the trial court impliedly found that the defendants had multiple objectives in making and receiving the several bribes. (Id. at p. 935.) Separate punishment was proper even if all of the bribes were paid with a single intent and objective. “Under section 654, ‘a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]’ [Citations.] This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken. [Citation.] Here, the three bribes occurred months apart, and the giving and receipt of each arose separately. Appellants were properly eligible for sentencing for each such offense.” (Id. at pp. 935-936.)
The same is true here. On the counts 1, 2, 3, 10, 11, and 12, for which sentence was not stayed, the false statements were made months apart, giving defendant ample time to reflect and renew her intent to provide a false statement to obtain workers’ compensation benefits. Temporary disability was paid every two weeks. Therefore, each successive false statement supported a different transaction, a new benefit payment. Each new false statement was accompanied by a new intent to commit fraud. (See Dieguez, supra, 89 Cal.App.4th 266, 276, fn. 3 [noting false statements made two months apart were not part of continuous course of conduct].) Furthermore, limiting defendant’s sentence to only one count of workers’ compensation fraud would be contrary to the purpose of Penal Code section 654, which is “to insure that a defendant’s punishment will be commensurate with his culpability. [Citation.]” (People v. Perez (1979) 23 Cal.3d 545, 552.) Defendant’s conduct became more egregious with each successive false statement.
The trial court properly sentenced defendant on separate counts of workers’ compensation fraud.
IV
Claiming there is insufficient evidence of theft by false pretenses (count 13), defendant argues the People had to prove that, based on false statements she made to Drs. Abelow and Light, CalPERS parted with money which it would not have otherwise provided to her. She submits that the evidence showed she was disabled and unable to return to work, so CalPERS was not fraudulently induced to part with money. The contention fails.
“A theft conviction on the theory of false pretenses requires proof that (1) the defendant made a false pretense or representation to the owner of property; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant in reliance on the representation. [Citations.] In this context, reliance means that the false representation ‘materially influenced’ the owner’s decision to part with his property; it need not be the sole factor motivating the transfer. [Citation.]” (People v. Wooten (1996) 44 Cal.App.4th 1834, 1842.)
Defendant believes there was insufficient evidence of a false statement to Dr. Light that caused CalPERS to part with money. Her theory is CalPERS granted her disability retirement based in part on her TMJ problems, and Dr. Light opined that defendant had TMJ problems which prevented her working as a correctional officer.
Defendant’s view of the evidence is incorrect. Dr. Light’s initial opinion that TMJ problems prevented defendant from working as a correctional officer was based on her report of significant pain, which he believed would interfere with her mental alertness. After viewing the videotapes, Dr. Light changed his opinion because he no longer believed her representations about pain. In his words, because her representations were inconsistent with her activities shown on the videotapes, “it was my opinion, that she could continue to work as a correctional officer or in any job in the general labor market.”
Defendant contends there was insufficient evidence that she made a false statement to Dr. Abelow. She makes this claim despite Dr. Abelow’s unequivocal testimony that, after viewing the tapes, he believed defendant’s reports to him were not accurate. After seeing her do strenuous things, he opined that she had no orthopedic injury and could return to her job.
Defendant says the evidence is insufficient because Dr. Abelow failed to take into account whether she took pain medicine before engaging in those strenuous activities. This point, raised in cross-examination, related to the credibility of Dr. Abelow’s opinion, and was an issue for the jury to decide. “‘[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
In sum, substantial evidence supports defendant’s conviction for theft by false pretenses.
V
Defendant next challenges the jury instruction on grand theft by false pretenses.
The trial court instructed in part as follows: “Count 13, the defendant is charged in this count with grand theft by false pretenses. To prove the defendant is guilty of this crime, the People must prove that, Number One, the defendant knowingly and intentionally deceived California Public Employees Retirement System, CalP[ERS], by false or fraudulent representation or pretense, Number Two, the defendant did so intending to persuade the owner, CalP[ERS], to let the defendant take possession and ownership of the property, Number Three, CalP[ERS] let defendant take ownership and possession of the property because CalP[ERS] relied on the representation or pretense. And Number Four, when the defendant acted, she intended to deceive CalP[ERS] permanently of the property.”
The instruction continued: “You may not find the defendant guilty of this crime unless the People have proved A, the false pretense was accompanied by either a writing, or B, there was a note or memorandum of the pretense signed or handwritten by the defendant or C, testimony from two witnesses or testimony from a single witness along with other evidence supports the conclusion that the defendant made the pretense. [¶] Property includes money. A false pretense is any act, word, or symbol, the purpose of which is to deceive. Someone makes a false pretense if intending to deceive, she does one or more of the following. Number One, gives information she knows is false, or Number Two, does not give information when she has an obligation to do so. [¶] Proof that the representation was false, is not enough by itself to prove that the defendant intended to deceive. CalP[ERS] relies on false pretense, if the falsehood is an important part of the reason CalP[ERS] decides to give up the property. The false pretense must be an important factor, but it does not have to be the only factor CalP[ERS] considers in making the decision. [¶] If CalP[ERS] gives up property sometime after the pretense is made, CalP[ERS] must do so because they rely on the pretense. [¶] The defendant committed grand theft if she took property worth more than $400.”
Defendant does not contend that this instruction is erroneous in general; in fact, she concedes that it is usually “adequate.” Her claim of error is the instruction was incomplete by failing to specify to which person, rather than to CalPERS generally, the false statements had to be made. Noting that, in summation, the prosecutor argued only that the statements to Dr. Abelow were false, and did not mention the statements to Dr. Light, defendant contends the failure of the instruction to include the names of both doctors allowed the jury to convict her on a legally inadequate theory if it found that she made false statements to Dr. Abelow only.
The contention fails because defendant did not request such a clarifying instruction. (People v. Lewis (2001) 25 Cal.4th 610, 666 [“a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language]”.)
In any event, although focusing the summation on defendant’s statements to Dr. Abelow, the prosecutor did mention the statements to Dr. Light, arguing that defendant told both doctors “some real whoppers.” Indeed, there was strong evidence of false statements
to both doctors. Given that the false statements were of the same nature, relating to defendant’s pain and her ability to engage in activities, and that the jury found all charges of false statements true, there is no basis to believe the jury reached a different conclusion about the false statements to Dr. Light than it did as to Dr. Abelow. Consequently, defendant has failed to show how she was prejudiced by the instruction.
VI
Defendant correctly contends her conviction on count 14, filing a false claim with CalPERS (Pen. Code, § 72), must be reversed due to error in the instruction on the statute of limitations, which failed to tell jurors that the victim, as well as law enforcement officers, had a duty to investigate for purposes of discovery under the statute of limitations.
Defendant also notes that the instruction used the wrong date for commencement of the prosecution, May 10 instead of May 17, but she does not claim this error was prejudicial.
“Prosecutions for violation of Penal Code section 72 must be ’commenced within four years after discovery of the commission of the offense, or within four years after the completion of the offense, whichever is later.’ (Pen. Code, §§ 801.5, 803, subd. (c).) The limitations period commences after ‘“‘one has knowledge of facts sufficient to make a reasonably prudent person suspicious of fraud, thus putting him on inquiry.’”’ [Citations.]” (Debro v. Los Angeles Raiders (2001) 92 Cal.App.4th 940, 951, italics omitted.) Prosecution commences when the indictment or information is filed or the defendant is arraigned on a felony complaint. (Pen. Code, § 804, subds. (a), (c).)
Here, defendant’s claim for disability retirement was filed with CalPERS on October 22, 2001. However, she was not charged with this fraudulent claim until 2007. The complaint was deemed an information, and defendant waived arraignment and entered a plea of not guilty on May 17, 2007.
Where the fraud action is brought more than four years after commission of the offense, the plaintiff must “plead and prove: (1) when and how the facts concerning the fraud became known to him; (2) lack of knowledge prior to that time; (3) that he had no means of knowledge or notice which followed by inquiry would have shown at an earlier date the circumstances upon which the cause of action is founded. [Citation.]” (People v. Zamora (1976) 18 Cal.3d 538, 562.)
The People alleged the false claim violation was not discovered until April 20, 2004, the date that the case was referred to the fraud division of the Department of Insurance, and no law enforcement agency had actual and constructive notice prior to that date.
Where the discovery rule applies to concealed crimes, the statute of limitations begins to run upon discovery by the victim or the responsible law enforcement authority. (People v. Swinney (1975) 46 Cal.App.3d 332, 344, disapproved on another point in People v. Zamora, supra, 18 Cal.3d at p. 564, fn. 26.) “[I]n cases involving fiscal crimes against government, a victim for purposes of the discovery provisions of Penal Code section 803, subdivision (c), is a public employee occupying a supervisorial position who has the responsibility to oversee the fiscal affairs of the governmental entity and thus has a legal duty to report a suspected crime to law enforcement authorities.” (People v. Lopez (1997) 52 Cal.App.4th 233, 247-248.)
As to the statute of limitations for count 14, the trial court instructed jurors: “A defendant may not be convicted of Count 14, that is Penal Code [section] 72, unless the prosecution began within four years of the date the crime was discovered, or should have been discovered. [¶] Count 14 was filed on May 10, 2007. [¶] A crime should have been discovered when the law enforcement officer was aware of facts that would have alerted a reasonably diligent law enforcement officer in the same circumstances to the fact that a crime may have been committed.” (Italics added.)
During deliberations, the jury asked the following questions concerning this instruction:
“(1) Are all of the following considered law enforcement:
“(A) D.A. Office
“(B) Lead investigator for dept. of insurance
“(C) Special investigator for CalP[ERS]
“If not all, who above is? According to our instructions on page 20.
“(2) Does prosecution begin at the time of arrest?”
The trial court responded:
“#1) You must decide what the facts are from the evidence that was presented in this case.
“#2) A prosecution begins at the time of filing. Please refer to instruction 3410.”
We agree with defendant that it was prejudicial error to fail to instruct the jury that CalPERS, as the victim, had a duty of inquiry and discovery or to explain the law upon the jury’s inquiry.
Aldrich, CalPERS’s special investigator, began investigating defendant once CalPERS became aware of the investigation by SCIF. His surveillance of defendant began in December 2001. Defendant contends that, if the jury had known CalPERS had a duty to make reasonable inquiry, the jury could have found that CalPERS had a duty to communicate with SCIF about the result of its investigation and would have learned of defendant’s trips in July 2002 to the waterslides in Manteca and Folsom Lake for jet skiing.
In a pretrial memorandum on the statute of limitations, the People claimed CalPERS attempted to obtain SCIF’s investigative files and videos of defendant, but SCIF declined to provide them to CalPERS. No such evidence was presented to the jury.
The People agree “that there appears to be problems with the instructions, ” but claim any error is harmless because the evidence shows CalPERS was diligent. This is so, the People argue, because Aldrich conducted surveillance, but Dr. Abelow did not change his opinion based on the footage that Aldrich shot. Nor could CalPERS be faulted for being unaware of SCIF’s evidence, the People say, because SCIF continued to pay benefits to defendant even after obtaining the July 2002 videotapes and defendant’s deposition.
We are not persuaded.
People v. Bell (1996) 45 Cal.App.4th 1030 found prejudicial error in the failure to instruct that discovery for purposes of the statute of limitations could be by either the victim or law enforcement. “[A] denial of federal due process occurs when a trial court, as in the present case, fails to instruct on an element of the statute of limitations just as it occurs when the court fails to instruct on an element of the crime itself.” (Id. at p. 1065.) Because the forgery victims were sophisticated lending institutions, the court could not say beyond a reasonable doubt that the jury would not have concluded the institutions were on notice of a crime before it was discovered by law enforcement. (Id. at p. 1067.)
The standard for harmless error when there is an error in instructing on the statute of limitations is subject to some dispute; the People do not address it. People v. Stanfill (1999) 76 Cal.App.4th 1137, at pages 1153-1154, found error in instructing on an element of the statute of limitations is subject to the standard of harmless error beyond a reasonable doubt. People v. Smith (2002) 98 Cal.App.4th 1182 (hereafter Smith) held the error is harmless unless it is reasonably probable the defendant would have achieved a more favorable result absent the error. (Id. at p. 1193.)
We need not decide which standard is correct because we find the error prejudicial under either standard.
The jury found the falsity of the CalPERS claim was not discovered until after May 2003 (four years prior to prosecution). This is not a case, as was Smith, where there is “overwhelming” evidence that the statute of limitations was satisfied. (Smith, supra, 98 Cal.App.4th at p. 1194.) Instead, the record contains evidence (the investigation by SCIF of which CalPERS was aware) that CalPERS had “knowledge of facts sufficient to make a reasonably prudent person suspicious of fraud, thus putting him on inquiry” before May 2003. From this evidence, the jury could conclude the statute of limitations had run before May 2007, when the prosecution was commenced.
Whether CalPERS exercised reasonable diligence after it learned of the SCIF investigation, and thus should be excused from discovering defendant’s fraud earlier, is a question for the jury. (Leaf v. City of San Mateo (1980) 104 Cal.App.3d 398, 409.) But that question was not put to the jurors, despite their inquiry focusing on who would qualify as law enforcement for purposes of discovery. The fact the jurors asked this question suggests that they might have reached a different conclusion on timeliness of discovery depending on who qualified as law enforcement. Although there was evidence of the surveillance by Aldrich, and its inconclusive findings, there was no evidence before the jury as to what steps, if any, CalPERS took to find out the results of SCIF’s investigation. Such evidence would be significant in assessing CalPERS’s diligence.
Consequently, the instructional error requires us to reverse the conviction on count 14.
VII
Although we reverse the conviction on count 14 due to the instructional error, we must address defendant’s contention that the conviction is not supported by substantial evidence of filing a false claim with CalPERS. If she is correct, double jeopardy would prevent a retrial on that count. (Burks v. United States (1978) 437 U.S. 1, 11 [57 L.Ed.2d 1, 9]; In re Johnny G. (1979) 25 Cal.3d 543, 546; People v. Belton (1979) 23 Cal.3d 516, 527.)
It is a crime to present “for allowance or for payment to any state board or officer, ” “with intent to defraud, ” “any false or fraudulent claim.” (Pen. Code, § 72.) Defendant’s claim stated that she injured her neck, head, shoulder, and jaw in a 15-foot fall at Folsom State Prison; she was no longer able to perform the duties of a peace officer; her limitations were that she was in pain all the time, including walking, and she could not run, pick up anything heavy, or sit or stand for a long period of time.
In assessing the evidence presented on count 14, we view it in the light most favorable to the judgment and presume in support thereof the existence of every fact the trier of fact reasonably could deduce from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303.)
Defendant believes there is no evidence that her condition in October 2001 was other than as she stated on her retirement application. All of the false statements presented at trial occurred in 2002 or later. She contends the surveillance conducted by October 2001 showed no rigorous activity. The Burke video shows defendant walking into a building and sitting at a picnic bench doing needlework. The Aldrich videotape showed her loading groceries into a car.
Although the Burke videotape did not show defendant going down a waterslide at Manteca, it shows her with damp hair in a bathing suit and wrapped in a towel. She had a band on her wrist that allowed entrance to the recreational activities. From this, a reasonable jury could infer that defendant engaged in waterslide activities. And her movements shown in the 2000 surveillance tapes, where she moved about freely without pain, contrast sharply with her retirement application stating she was “in pain all the time, ” even walking.
The basis of her claim of disability was her representations of pain and inability to engage in activities. There was ample evidence for the jury to disbelieve defendant’s representations. Doctors were unable to pinpoint the cause of her pain, and relied on her representations in making their diagnoses. The examination at the emergency room revealed only a contusion on her head. All X-rays and a CAT scan were negative, and her pelvis was stable. There was no sign of oral or dental trauma, and defendant had full range of motion in her neck.
Defendant’s exaggeration of the results of her accident began early, well before she filed the CalPERS application. For example, witnesses told the emergency room doctor that defendant had lost consciousness, but awoke quickly, within a minute or two. Yet, defendant told Dr. Mann, at her first visit in 2000, that she was unconscious for 20 minutes. Dr. Clifford testified two centimeters or 3/4 of an inch of bone was removed from defendant’s shoulder, but defendant described it as one and a half to two inches.
Thus, substantial evidence supports the jury’s disbelief of defendant’s claim of pain and disability and the finding that she filed a false claim with CalPERS for disability retirement.
VIII
We also disagree with defendant’s contention that the evidence is insufficient to support the jury’s finding that the loss with respect to counts 13 and 14 was greater than $150,000. (Pen. Code, § 12022.6, subd. (a)(2).)
Defendant “submits that the evidence at trial demonstrated that she was unable to return to her job as a correctional officer due to her on-job injury.” She thus believes that, “[d]espite any false or exaggerated statement that may have been made, she... was entitled to receive disability retirement.”
Defendant does not challenge the calculation of retirement benefits to reach the $150,000 level.
The jury’s finding to the contrary is supported by the testimony of Drs. Abelow and Light, whom CalPERS asked to evaluate defendant. Both initially believed that defendant was disabled and could not work as a correctional officer. However, both testified that they concluded otherwise after reviewing the videotapes.
Both opined that defendant was not disabled and could have returned to work. This constitutes substantial evidence to support the enhancement.
IX
Next, we address defendant’s contention that the court erred in denying her request to present testimony at the restitution hearing by two witnesses who would support her claim that SCIF waived its right to restitution earlier when defendant dismissed her workers’ compensation claims, and a third witness who would testify defendant had a valid workers’ compensation claim, despite the false statements, and thus “gave up a case of significant value in her settlement with SCIF, ” such that “SCIF suffered no loss.” This testimony, defendant argues, would support her position that, if SCIF had not waived restitution, she was entitled to an offset for benefits she would have received without the false statements.
A
At the restitution hearing, defendant stipulated to paying $244,400.47 in restitution to CalPERS, and she had no objection to paying $24,867.67 in restitution to SCIF for investigative costs, including special investigative unit (SIU) costs. The point of contention was whether defendant owed restitution to SCIF for temporary disability and medical and treatment costs. Defendant took the position that SCIF had waived its right to restitution.
In November 2003, defendant and SCIF entered into a stipulation to dismiss with prejudice defendant’s workers’ compensation claim due to “inconsistencies contained in the Applicant’s Deposition of September 30, 2002 and sub rosa films.” An order of dismissal was later entered. During a meeting to discuss the dismissal, counsel for defendant asked SCIF whether, if defendant dismissed her claim, SCIF was waiving its right to reimbursement. Counsel for SCIF replied that SCIF was not asking for restitution as a condition of the dismissal; they were not seeking reimbursement.
At the restitution hearing, defendant wanted to present two witnesses, her workers’ compensation attorney and his assistant, to testify that counsel for SCIF had offered to waive restitution as part of the stipulation for dismissal. The trial court denied the request, concluding it already had documents (the stipulation of dismissal and transcript of the meeting concerning the dismissal) to decide the waiver issue. The court indicated that allowing supplemental evidence in the form of testimony was likely to create more issues than it resolved.
As we will explain, the court did not err in refusing to allow the witnesses to testify; this is so because “a release by a victim cannot waive the People’s right to have a defendant pay restitution ordered as part of his sentence.” (People v. Bernal (2002) 101 Cal.App.4th 155, 160.)
Restitution in criminal cases is mandated by the Constitution of our state. Article I, section 28, subdivision (b)(13) thereof states in part: “(A) It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer. [¶] (B) Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss.”
“A restitution order has objectives beyond simply indemnifying the victim. It also seeks to rehabilitate the defendant and deter defendant and others. [Citation.]” (People v. Bernal, supra, 101 Cal.App.4th at pp. 161-162.) Even if the stipulation between SCIF and defendant reflected SCIF’s willingness to waive its right to restitution, it does not reflect the People’s willingness to accept no restitution “in satisfaction of the defendant’s rehabilitative and deterrent debt to society. A restitution order pursuant to a defendant’s plea is an agreement between the defendant and the state. [Citation.] The victim is not party to the agreement, and a release by the victim cannot act to release a defendant from his financial debt to the state any more than it could terminate his prison sentence.” (Id. at p. 162.)
Here, at the time of the stipulated dismissal of her workers’ compensation claim, defendant acknowledged the limited nature of her agreement with SCIF, including that it would have no effect in her criminal case. At the meeting, the following was read into the record. “... Defendant has indicated that this proceeding is limited strictly to the matter entitled June Lucena versus the Department of Corrections, Folsom State Prison in the Sacramento workers’ comp appeals board and does not concern any pending or future actions in any other venues, that no promises have been made and there has not been any coercion or threats made, that this has been purely a factual discovery by the Defendant to the Applicant and her attorney prior to the scheduled date as to the Defendant’s motion to proceed under [section] 3280 of the Labor Code.”
Thus, even if defendant could prove that SCIF waived the right to restitution as part of the settlement, defendant had agreed the waiver had no effect in subsequent actions, such as the criminal prosecution. For this additional reason, the trial court properly refused to permit defendants’ witnesses to testify about SCIF’s waiver of restitution.
B
Nevertheless, defendant contends she was entitled to an offset against restitution for the value of the workers’ compensation claim she gave up in the dismissal because “the defrauded agency’s ‘loss’ should be calculated by subtracting the amount the government would have paid had no acts of fraud occurred from the amount the government actually paid.” (People v. Crow (1993) 6 Cal.4th 952, 962.)
On this point, defendant presented witness Frank Abi-Nader, a retired attorney who had worked at SCIF, who would testify that defendant’s workers’ compensation case was legitimate and worth hundreds of thousands of dollars.
This contention is premised on the assertion, raised throughout defendant’s brief on appeal, that she was entitled to some workers’ compensation benefits after her false statements, despite those false statements. We disagree. The jury found defendant committed 11 counts of felony workers’ compensation fraud by making materially false statements about the extent and nature of her injury. This fraud went to the heart of her workers’ compensation claim.
Insurance Code section 1871.5 states: “Any person convicted of workers’ compensation fraud pursuant to Section 1871.4 or Section 550 of the Penal Code shall be ineligible to receive or retain any compensation, as defined in Section 3207 of the Labor Code, where that compensation was owed or received as a result of a violation of Section 1871.4 or Section 550 of the Penal Code for which the recipient of the compensation was convicted.”
Tensfeldt v. Workers’ Comp. Appeals Bd. (1998) 66 Cal.App.4th 116 (hereafter Tensfeldt) held this statute barred an employee’s workers’ compensation benefits.
In Tensfeldt, a city employee falsely claimed he injured his knee on the job and was convicted of workers’ compensation insurance fraud. (Tensfeldt, supra, 66 Cal.App.4th at p. 119.) The employee filed a second workers’ compensation claim, alleging what he said were the true circumstances of the same knee injury that was the subject of the false claim. (Id. at p. 120.)
Tensfeldt rejected the notion that Insurance Code section 1871.5 should be interpreted to completely bar workers convicted of workers’ compensation insurance fraud (Ins. Code, § 1871.4) “from forever receiving or retaining any workers’ compensation benefits connected with a claim for an otherwise legitimate industrial injury, without regard for the specific facts of the case.” (Tensfeldt, supra, 66 Cal.App.4th at p. 124.) “Whether an employee is barred from receiving benefits by application of section 1871.5, following a conviction of workers’ compensation fraud under section 1871.4(a)(1), must be decided on a case-by-case basis.” (Tensfeldt, supra, at p. 126.)
Based on the facts of that case, Tensfeldt held the employee’s fraud conviction barred his right to receive any benefits related to his knee injury because he lied about his statutory eligibility for benefits in the first place. “When an employee is convicted for fraud because of a lie about the statutory compensability of an injury, section 1871.5 precludes that employee from ‘receiving or retaining’ all workers’ compensation benefits, because the fraudulent misrepresentation is material to entitlement to any benefits under the Labor Code.” (Tensfeldt, supra, 66 Cal.App.4th at p. 124, original italics.)
Tensfeldt set forth a three-prong test for determining whether a worker who is convicted of workers’ compensation insurance fraud is entitled to receive further workers’ compensation benefits when the fraud conviction is not the result of a lie about the statutory compensability of that injury. “Entitlement to receive further compensation benefits after a fraud conviction necessarily will require (1) an actual, otherwise compensable, industrial injury; (2) substantial medical evidence supporting an award of compensation not stemming from the fraudulent misrepresentation for which the claimant was convicted; and (3) that claimant’s credibility is not so destroyed as to make claimant unbelievable concerning any disputed issue in the underlying compensation case.” (Tensfeldt, supra, 66 Cal.App.4th at pp. 125-126.)
Here, defendant did not lie about her statutory eligibility for benefits; it was undisputed she sustained an industrial injury. She lied repeatedly, however, about the nature and extent of her disability; and these lies formed the basis for receiving workers’ compensation benefits. Thus, as in Tensfeldt, her fraudulent misrepresentations are “material to entitlement to any benefits under the Labor Code.” (Tensfeldt, supra, 66 Cal.App.4th at p. 124.) Insurance Code section 1871.5, therefore, completely bars defendant from receiving any compensation for her injuries from the fall.
Even were we to assume that defendant’s fraud convictions are not a complete bar under Insurance Code section 1871.5 to all further compensation for her injuries from the fall, we would still conclude she fails the three-prong test of Tensfeldt. Defendant did sustain an actual industrial injury, and she provided medical witnesses at trial that could, perhaps, be found to have offered substantial evidence to support an award of compensation. However, the sufficiency of this medical evidence depended on the acceptance of defendant’s descriptions of her symptoms, primarily her pain. Defendant’s 11 felony convictions for fraud (plus her conviction for attempted perjury) reflect the jury’s finding that defendant lacked credibility, such that defendant is “unbelievable concerning any disputed issue in the underlying compensation case.” (Tensfeldt, supra, 66 Cal.App.4th at pp. 125-126.) Her stipulated dismissal of her workers’ compensation claim (based on “inconsistencies” in her deposition and the videotapes) recognizes this fact.
Since defendant was not entitled to an offset, the trial court properly excluded the testimony of Frank Abi-Nader on this issue.
X
Defendant contends the trial court erred in awarding SCIF its investigation costs as restitution because the statutory provision permitting such costs as restitution was not adopted until 2005, after defendant committed her crimes. Recognizing that her counsel stipulated to these costs, she argues the court nonetheless lacked jurisdiction to order such restitution. In the alternative, she argues that she received ineffective assistance of counsel.
Insurance Code section 1871.4, subdivision (b) states in part: “Restitution shall be ordered, including restitution for any medical evaluation or treatment services obtained or provided. The court shall determine the amount of restitution and the person or persons to whom the restitution shall be paid. A person convicted under this section may be charged the costs of investigation at the discretion of the court.”
The last sentence of the statute, authorizing investigative costs as part of restitution, was not effective until 2005. (2004 Stats. 4th Ex. Sess., ch. 2, § 1.) Thus, when defendant made her false statements in 2002 and 2003, the statute did not specifically authorize restitution for investigative costs. But nothing in the statute at that time precluded such costs as part of restitution.
It is undisputed that SCIF incurred such costs as a direct result of defendant’s criminal behavior. Restitution for such costs is consistent with the constitutional mandate to provide restitution for those who suffer losses due to criminal conduct. (Cal. Const., art. I, § 28, subd. (b)(13).)
At the time of defendant’s crimes, Penal Code section 1202.4, subdivision (f), implementing legislation for thr constitutional provision, provided in part: “In every case in which a victim has suffered economic loss as a result of defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or other showing to the court.” (Stats. 2000, ch. 1016, § 9.5.)
We recognize that People v. Ozkan (2004) 124 Cal.App.4th 1072 held investigative costs incurred by governmental agencies are not recoverable as restitution where the public agency is not directly victimized. SCIF, however, was a direct victim of defendant’s workers’ compensation fraud. (People v. O’Casey (2001) 88 Cal.App.4th 967, 973.)
For the reasons stated above, the trial court did not err in ordering defendant to pay restitution for SCIF’s investigative costs.
XI
Defendant contends the trial court erred in awarding restitution for the period beginning February 2, 2002, because the first false statement that served as a basis for the charge of workers’ compensation fraud was not made until May 28, 2002.
SCIF requested restitution of $170,309 and the court awarded that amount. The only evidence in the record indicating how that figure was reached is a one-page exhibit prepared by a special investigator for SCIF that breaks down the figure by category. The exhibit indicates the restitution figure includes $49,368 in temporary disability paid from February 2, 2002, through October 30, 2003, the last date temporary disability was paid. The exhibit states Dr. Mann had changed the date on which defendant became permanent and stationary to February 2, 2002.
At the restitution hearing, defendant’s counsel indicated that he had no problem with the dollar amounts SCIF sought; they accurately reflected the bills he had seen. The only issue was a legal one, whether SCIF was entitled to restitution at all for temporary disability, medical treatment, and evaluation.
By not objecting to the amount of restitution in the trial court, defendant has forfeited this issue on appeal. Without an objection by defendant, the prosecution had no reason to present further evidence on the issue. (People v. Beaver (2010) 186 Cal.App.4th 107, 129.)
XII
Lastly, defendant contends she was denied effective assistance of counsel at the restitution hearing. She faults her counsel for failing to object to investigative costs as restitution; not arguing, based on People v. Crow, supra, 6 Cal.4th 952, that restitution cannot be ordered for amounts the government agency would have paid absent the false statements; and failing to claim that restitution could not be ordered for periods not included within the convictions.
“To prevail on a claim of ineffective assistance of counsel, defendant ‘must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.’” (People v. Hart (1999) 20 Cal.4th 546, 623.)
“Prejudice occurs only if the record demonstrates ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citation.]” (People v. Lucero (2000) 23 Cal.4th 692, 728.)
We need not determine “‘whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’” (In re Fields (1990) 51 Cal.3d 1063, 1079.)
As to defendant’s first two claims of ineffective assistance of counsel, we find no prejudice because we have rejected the merits of these contentions. Counsel’s alleged failures did not prejudice defendant because the objection and argument defendant seeks would have failed. (People v. Constancio (1974) 42 Cal.App.3d 533, 546 [“It is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel”].)
As to failing to object to the amount of restitution and the period it covered, we find no ineffective assistance of counsel. It is likely that any objection would have been futile, either due to the trial court’s broad discretion in setting the amount of restitution (People v. Tucker (1995) 37 Cal.App.4th 1, 6) or the People’s ability, if challenged, to present sufficient evidence to sustain the restitution order.
Where the record fails to show reasons why the attorney acted or failed to act, the claim must be rejected on appeal unless the attorney was asked for an answer and failed to give one, or unless there could be no satisfactory explanation. (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) This case does not fall within that narrow exception.
XIII
Our review of the record reveals an error in the abstract of judgment. The court sentenced defendant to a concurrent term of three years on count 10, a concurrent term of one year on count 11, and a concurrent term of one year on count 12. These sentences are not shown on the abstract of judgment. We shall order the trial court to correct the abstract of judgment to show these sentences.
DISPOSITION
The judgment as to count 14, violation of section 72 of the Penal Code, is reversed. The judgment as to counts 1 through 13 is affirmed. The trial court is directed to amend the abstract of judgment to reflect the concurrent sentences on counts 10, 11, and 12, and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, J. BUTZ, J.