Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge., Super. Ct. No. 04CF2077.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, Alana Cohen Butler, Deputy Attorney General, for Plaintiff and Respondent.
SILLS, P.J.
Juan Alberto Pacini appeals from the judgment granting him probation conditioned on his serving 120 days in Orange County Jail and paying restitution to the worker’s compensation fund for losses of $81,449.47 following a jury’s verdict that he made fraudulent statements for the purpose of obtaining worker’s compensation funds. (See Insur. Code, § 1871.4, subd. (a)(1).) On appeal, he contends that the court erred by allowing expert testimony that he was “malingering” and by failing to instruct the jury that his out-of court statements should be viewed with caution. In a supplemental brief, he also attacks the amount of restitution ($81,449.47) the trial court ordered him to repay. We affirm.
The jury acquitted Pacini of a third count charged against him.
FACTS
While on duty as a bus driver for Orange County Transit Authority (OCTA), 63-year-old Pacini received injuries when attacked by a passenger on December 27, 2002. Pacini applied for, and received worker’s compensation. However, his continued claim was “red-flagged” by Hazelrigg Risk Management, OCTA’s third party administrator because: (1) Pacini changed his attorney within three weeks after his injury; (2) changed his treating physician within 30 days of his injury; and (3) failed to appear for agency-requested medical appointments. Private investigators were subsequently hired and produced videotapes of Pacini playing volleyball numerous times, lifting a Christmas tree, shopping and unloading bags, building garage shelves, and unloading large furniture from his van, all of which occurred during the period OCTA relied on Pacini’s statements that he could not work.
Hazelrigg’s claims administrator ordered Pacini to see two doctors: Dr. Glatstein and Dr. Bernous. Dr. Glatstein, a neurologist, suggested modified work restrictions for Pacini in his report of October 30, 2003, but later changed his opinion on March 31, 2004, deleting any need for restrictions after watching videotapes of Pacini playing volleyball on October 2, October 9, and October 23 of 2003.
Dr. Glatstein examined Pacini on October 30, 2003 and Dr. Bernous in December of 2003.
Dr. Bernous, a psychologist, evaluated Pacini within a month after the attack, diagnosing him with acute stress disorder and adjustment disorder with anxiety and depression, and treating him on two other occasions with “psychological treatment to overcome his psychological symptoms caused by the industrial injury.” Bernous’ opinion was that he was qualified to return to “indoor” work, because he had improved enough to do “modified duty.” Almost a year later on December 1st, 2003, Bernous examined Pacini again as a “qualified medical examiner, rather than as a treating physician.” Bernous found inconsistencies in Pacini’s representations and diagnosed “malingering.” Malingering is a condition set forth in the Diagnostic and Statistical Manual (DSM-IV) as a condition featuring “intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as . . . avoiding work, obtaining financial compensation, evading criminal prosecution, obtaining drugs, or securing better living conditions.”
Pacini presented several witnesses, including other doctors and professionals who testified they did not believe that Pacini was malingering. Rather, according to these other treatment specialists, his symptoms of neck and head injuries not only required treatment but prevented him from returning to work as a bus driver. They prescribed medications and group therapy for Pacini who voluntarily attended the sessions to relieve anxiety symptoms. These doctors testified they saw nothing on the tapes that were necessarily inconsistent with Pacini’s injuries.
DISCUSSION
Expert Testimony
An expert may testify on matters that are “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (People v. Catlin (2001) 26 Cal.4th 81, 132.) Pacini contends that Bernous’ testimony violated Penal Code section 29, which prohibits an expert from testifying “as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.” (Italics added.)
The Attorney General responds that Bernous simply testified with a list of reasons why and how a person might exaggerate a disability, not that Pacini actually had the specific intent to defraud. Thus, no trespass of Penal Code section 29 occurred.
Bernous did not testify to Pacini’s specific intent to fraudulently obtain worker’s compensation benefits, but rather gave examples of motivations involved with the recognized syndrome of malingering. As seen in People v. Adan (2000) 77 Cal.App.4th 390, doctors can appropriately testify in worker’s compensation fraud cases as to the elements of malingering, as long as they do not express the direct and personal opinion that a particular defendant had the specific intent to defraud. (Id. at p. 393.)
In Bernous’ initial evaluation, his “clinical opinion” was that Pacini was able to continue to return to “modified work” 12 days after he was attacked. By his third appointment, Pacini’s improvement appeared “slower than [] expected.” Pacini did not show up for his next appointment, but instead started treatments with Dr. Brown, a psychologist to which his attorney referred him. Bernous later re-evaluated Pacini: This time, Bernous diagnosed Pacini with malingering.
Bernous relied on Pacini’s representations in forming his initial diagnosis, but after viewing the videotapes, he found those statements to be false. Pacini said he had always been an active person, read a lot, watched TV, did woodworking in his garage, but now could not. Specifically, Pacini told Bernous he had not played volleyball since before the assault. Based on this material misrepresentation by Pacini as proven by his actions captured on the videotape, Bernous diagnosed malingering on March 4, 2004. Bernous opined Pacini’s material misrepresentation was made with the knowledge that he would obtain money to which he was not entitled. Pacini’s mental state was an element of the offense, and it was also relevant as the object of Bernous’ testimony.
The defense argued that Bernous’ testimony was conclusory in that it expressed his direct and personal opinion of what intent Pacini held at the time of the misstatements. Thus, Penal Code section 29 was violated. We disagree. Pacini is correct in his assertion that certain evidence, such as an opinion that Pacini had or did not have a particular mental state, is inadmissible. But nothing bars an expert from rendering an expert opinion on how a person’s mental state is formed, what characteristics are displayed by that mental state and why certain actions are consistent with that mental state. Rather than declaring what Pacini’s mental state was, Bernous diagnosed him with malingering, based on factors present that reflect that state of mind. We thus affirm the trial court’s ruling that evidence of malingering, a recognized condition in the Diagnostic and Statistical Manual, was admissible.
Jury Instruction
Pacini contends that the trial court erred by failing to instruct the jury to view Pacini’s out-of-court statements with caution as described in CALJIC No. 2.71. As the trial court has the sua sponte duty to properly instruct the jury on those principles of law which are relevant to the issues raised by the evidence (see People v. Wilson (1988) 66 Cal.2d 749, 759), and this instruction was not given, Pacini argues that his statements—in the compensation claim forms and to the various doctors—critically influenced the jurors against him. Had the jury been instructed to view these oral statements with caution, at least one of the jurors would have likely not been persuaded beyond a reasonable doubt of his guilt.
CALJIC No. 2.71 declares that an “admission is a statement made by a defendant which does not by itself acknowledge his guilt of the crimes for which the defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence. [¶] You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part. [¶] Evidence of an oral admission of a defendant not made in court should be viewed with caution.”
Initially, it must be recognized that CALJIC No. 2.71 addresses a defendant’s admissions which should be viewed with caution, not statements which are not admissions. A statement is an admission—as defined by the instruction—“made by a defendant which does not by itself acknowledge his guilt of the crime, . . . but which statement tends to prove his guilt when considered with the rest of the evidence.” (CALJIC No. 2.71.)
We observe that the trial court asked for Pacini’s approval before withdrawing CALJIC No. 2.71 from the instruction list during the court’s discussion with counsel. Pacini agreed with the court that it should be withdrawn. Where a party by his conduct invites error, he is estopped from asserting it as a ground for reversal on appeal. (See Evid. Code, § 353; People v. Seijas (2005) 36 Cal.4th 291; People v. Pollock (2004) 32 Cal.4th 1153.) Pacini raises this evidentiary issue, arguing it was error resulting in a miscarriage of justice. (Cf. Cal. Const., art. VI, § 13.) By his agreement to withdraw the instruction, he invited any error that occurred. Nonetheless, we address it on its merits because the statements were not admissions.
Pacini argues that his out-of-court statements were hearsay, and therefore inadmissible unless falling within one of the established exceptions. (See Evid. Code, § 1200.) If admissible under the exception to hearsay as a party admission (see Evid. Code, § 1220), the jury needed to be instructed to view that admission with caution, he argues.
A statement is not hearsay, however, if the words or verbal acts are not used to prove the truth of the statement’s contents. In those instances in which the words’ utterance constitute the very fact in controversy—and not whether these statements were true or false—they are deemed “original evidence” or “operative facts,” and are not hearsay at all. (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 31, p. 714; People v. Rosson (1962) 202 Cal.App.2d 480, 486-487; People v. Henry (1948) 86 C.A.2d 785, 789 [in prosecution of obtaining prescription by fraud, statements made on phone purportedly by doctor were admissible to prove the fraud whether or not defendant made them].)
“It is only when a party’s statement is introduced to prove the truth of the matter stated that it is properly considered hearsay evidence and becomes admissible against the party under the exception to the hearsay rule for the personal admission of a party. [Citation.] The innate concept of a party’s ‘admission’ is that it is a hearsay statement which avoids the exclusionary rule because it falls within the exception to the hearsay exclusionary rule for a party’s statement—offered against the party to prove ‘the truth of the matter stated.’ [Citation.]” (People v. La Salle (1980) 103 Cal.App.3d 139, 150.)
We recognize that not all statements uttered by a criminal defendant are either admissions or operative facts. As noted in People v. Kimble (1988) 44 Cal.3d 480, 495-499, post-arrest statements by a criminal defendant may be false, and thus outside the definition of hearsay, but can still be admitted as consciousness of guilt and not as operative facts at all. However, Pacini’s statements were not made at the time of arrest or when faced with the criminal charges. Thus, they could not be of the kind addressed in Kimble.
Pacini’s statements that he was injured on the workmen’s compensation forms and his subsequent explanations to the doctors that he was in pain, distressed and unable to work are those types of declarations not constituting hearsay at all. The doctors relied on Pacini’s specific statements about not playing volleyball, not celebrating Christmas, the difficulties of his everyday activities, and measured these against the videotaped actions Pacini actually engaged in during the same time period. In these situations, the words themselves, written or oral, were the “operative facts” comprising the claims. Pacini allegedly made these statements for financial gain; therefore, the statements were the crime itself. The prosecution simply presented Pacini’s statements as the crime, not for the truth of their contents. To the contrary, they were admitted and then shown to be false, which constituted the crime of fraudulently obtaining worker’s compensation.
Pacini told Glatstein and Bernous that he was not playing volleyball or engaging in other hobbies and interests. But those statements did not tend to show that he committed a crime when considered in combination with the prosecution’s other evidence. Rather, the statements were the crime. Thus, they did not comprise admissions at all, and the instruction would have been inappropriate if not misleading. No error occurred.
Restitution
At the time of imposition of sentence, the trial court ordered Pacini to pay restitution in an amount to be determined at a later restitution hearing. Approximately six months later, a hearing was conducted at the end of which the trial court found the appropriate amount of restitution to be $81,449.47. This amount was not the value of all the benefits Pacini received during his out-of-work recovery period: The total funds he received were $130,948.15 over the course of about 20 months. Pacini contends that his statements to Gladstein and Bernous—the basis for the fraudulent claims—did not result in any economic loss to the agency at all because he was entitled to all such funds irrespective of the alleged fraudulent statements to the two doctors. He posits that he was entitled to all the funds because his alleged misrepresentations to Gladstein and Bernous did not result in their ordering further funds to be paid to him. On the contrary, they both ultimately ordered him to return to work, at least at a modified or restricted level.
The standard of review for the amount in a restitution order is that of an “‘“abuse of discretion. . . . ‘“When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.”’ [Citations.]”. . .’ . . .‘In reviewing the sufficiency of the evidence [to support a restitution order], “‘the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the trial court’s findings.” [Citations.] Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.]’ . . .The trial court ‘“must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.”’ [Citation.]” (See People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)
Pacini relies on a rule extracted from People v. Hudson (2003) 113 Cal.App.4th 924, at page 928, to support his argument: “[T]he 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. Any money that the government would have been obligated to pay had the fraud not occurred is not attributable to the fraud, and thus is not a ‘loss’ arising out of the criminal offense.” (Original emphasis.) Because Gladstein ultimately ordered Pacini to return to work notwithstanding Pacini’s alleged misrepresentations, the monies Pacini received were not “attributable” to those misrepresentations, he argues. He makes the same argument regarding his alleged misrepresentations to Bernous. Thus, he contends he was entitled to receive all the funds.
The Hudson case did not involve a prosecution for worker’s compensation fund fraud. It related to a welfare fraud prosecution in which the People appealed from a trial court’s refusal to order restitution for food stamps received as part of the welfare allotment. (See People v. Hudson, supra, 113 Cal.App.4th at p. 926.) Under Penal Code section 1202.4, subdivision (f), the trial court was required to order restitution for a victim’s “economic loss as a result of the defendant’s conduct . . . in an amount established by court order, based on the amount of loss claimed by the victim . . . .” (Id. at pp. 927-928.) Notwithstanding this penal statute, the trial court was required to calculate the restitution amount pursuant to a formula laid down in People v. Crow (1993) 6 Cal.4th 952, which governed welfare fraud reimbursement to a government agency. The discrepancy between contesting figures was resolved by the appellate court when it ordered the trial court to comply with the mandatory terms of Penal Code section 1202.4, subdivision (f), but it did not order the amount that the agency necessarily desired. (Id. at pp. 929-930.)
As defined by Penal Code section 1202.4, subdivision (f), the trial court was to determine what economic losses the agency suffered “as a result of the defendant’s conduct . . . .” The trial court found that Pacini’s underlying fraudulent behavior and plan resulted in the economic loss of $81,449.47. It was not merely those funds he received after misrepresenting his condition to Bernous and Gladstein that comprised the loss: The loss commenced when he could have worked but made misrepresentations to the agency of continued disability. The statements to Bernous and Gladstein occurred only after his conduct became so suspicious that an investigation was commenced and he then was ordered to be examined by the two doctors.
Fraudulent claims under Insurance Code section 1871.4 involve not just the monies paid to the individual, but “payment for services, hospital or doctor records, X-ray, test results, medical-legal expense . . .[and] other evidence of loss, injury, or expense, or payment.” (Insur. Code, § 1871.4, subd. (a)(4).) OCTA paid Pacini for the time he was not working, but it also paid for all the therapeutic services necessary for his difficulties and all the medical-legal services necessary to prove he was defrauding them. Neither the language of Insurance Code section 1871.4 in defining compensation claims nor Penal Code section 1202.4 defining restitution loss limits the trial court in assessing what losses the victim has suffered as a result of the defendant’s criminal actions.
The trial court premised its decision on pleadings—with attachments—submitted by both parties on the issue, information supplied by the probation department, the documents submitted by the OCTA, and arguments by all counsel. The prosecutor concluded that Pacini was physically able to return to work on or about October 30, 2003, and mentally able to work as early as January 2003. Nonetheless, he received benefits well into 2004. The expense for those benefits after October 2003 totaled $81,851.97, according to the latest statement provided by OCTA. The defense examined various documents, disputed certain items or services but failed to present a single dollar amount at the hearing, relying on its proposed amount in its earlier papers of $79,901.60. The court determined the total was $81,449.47. Such a sum cannot be said to be totally arbitrary or capricious: It was well within the range presented by both parties.
Pacini’s counsel argued in its papers that restitution should be no more than $79,901.60.
OCTA requested restitution in an amount of $81,815.97 out of the total expense to and for Pacini of $130,948.15.
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, J., IKOLA, J.