Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. JCF19583, William D. Lehman, Judge.
AARON, J.
I.
INTRODUCTION
While working for a subsidiary of Valley Harvesting and Packing (Valley Harvesting), Ricardo Razo claimed to have suffered various injuries after bumping his head on a metal door at his place of employment. After Razo initiated a workers' compensation claim based on the alleged injury, Valley Harvesting made various payments related to that claim to third parties on Razo's behalf. Valley Harvesting also provided Razo with temporary and permanent disability payments. A jury found Razo guilty of two counts of insurance fraud (Ins. Code, § 1871.4, subd. (a)(1), Pen. Code, § 550, subd. (a)(1)) (counts 1 and 2), and grand theft by false pretenses (§ 487, subd. (a)) (count 3). The trial court placed Razo on formal probation for three years, subject to various conditions, including that he serve 240 days in jail and pay $53,109.46 in restitution to Valley Harvesting.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, Razo claims that the trial court erred by failing to instruct the jury pursuant to CALCRIM No. 224 regarding the jury's consideration of circumstantial evidence. Razo also contends that the trial court abused its discretion in refusing to offset the amount of victim restitution awarded to Valley Harvesting by the amount the company expended on Razo's alleged legitimate workplace injury, unrelated to any fraud. We affirm the judgment.
II.
FACTUAL BACKGROUND
A. The People's evidence
1. Razo's alleged injury and medical treatment
On February 22, 2005, Razo was working for S.M.D. Logistics, a subsidiary of Valley Harvesting. On that date, Razo told a fellow employee, Javier Lopez, that he had accidently hit his head on an iron curtain at their workplace.
Two days later, Razo told his supervisor that he wanted to be seen by a doctor. Later that day, Dr. James Creek examined Razo. During the examination, Razo denied having suffered any previous injury to his neck or head. Dr. Creek examined Razo and diagnosed Razo as having suffered a strain or sprain of his cervical spine.
Over the course of the next several months, Razo was examined by several doctors, including Dr. Christopher Lai. Razo told Dr. Lai that he was suffering numerous symptoms, including numbness and tingling in the upper and lower extremities, as well as pain in his neck and shoulders. Razo did not tell Dr. Lai that he had suffered a previous neck injury. In December 2005, Dr. Lai found that Razo was permanently partially disabled.
2. Razo's workers' compensation claim
Maria Lopez, vice president of human resources at S.M.D. Logistics, testified that Valley Harvesting is self-insured for workers' compensation claims, and that it uses a third-party administrator, Tristar Risk Management (Tristar), to administer such claims. Tristar generates statements associated with the claims, which Valley Harvesting pays. After Razo reported the February 22 injury to his supervisor, Lopez filed a form with Tristar, which Razo had signed, describing the injury. The filing of this form commences a workers' compensation claim. Lopez described the various payments that Valley Harvesting had made as a result of Razo's claim, including payments to medical providers, and temporary and permanent disability payments to Razo.
In January 2006, Dr. Harvey Weiseltier performed an "agreed medical examination," in connection with Razo's workers' compensation claim. Razo told Dr. Weiseltier that he had suffered an injury to his neck in 1999. However, Razo denied having received treatment for the 1999 injury. In June 2006, Dr. Weiseltier performed another examination of Razo and learned that Razo had in fact received a M.R.I. in connection with his 1999 injury. Dr. Weiseltier found Razo to be permanently partially disabled.
3. Surveillance video
In March 2006, Tristar hired Insight Subrosa Group (Insight) to conduct video surveillance of Razo. At various times between March and June 2006, Insight filmed Razo engaging in activities such as assembling and using a power washer, washing a car and garage using the power washer, pumping gas, and driving his car.
In October 2007, Razo was recorded on surveillance video cameras at the Imperial Valley Mall performing various activities at a car wash located at the mall, such as picking up a generator, carrying a traffic pylon, and setting up a canopy.
After reviewing the Insight videos, Dr. Lai testified that in his opinion, Razo had been exaggerating his pain and functional capacity, and that Razo was not disabled. Dr. Lai also stated his view that Razo had not been "representing the truth." Dr. Wieseltier testified that he had watched the Insight videos and the mall surveillance videos, and stated that after viewing the videos, he determined that Razo had not provided accurate information to him. Dr. Wieseltier stated that in his opinion, Razo "wasn't a credible person," and was not disabled.
B. The defense
Razo testified that on February 22, 2005, he hit his head on a metal curtain while at work. Razo described the treatment he received from various doctors after the February 22 injury. Razo claimed to have answered the doctors' questions truthfully and said that he had not exaggerated his symptoms.
III.
DISCUSSION
A. Any error the trial court may have committed in failing to instruct the jury pursuant to CALCRIM No. 224 was harmless beyond a reasonable doubt
Razo claims that the trial court erred in failing to instruct the jury pursuant to CALCRIM No. 224 regarding its consideration of circumstantial evidence. We conclude that any such instructional error was harmless beyond a reasonable doubt.
1. Governing law
CALCRIM No. 224 is a form jury instruction that describes the manner by which the jury is to consider circumstantial evidence that the prosecution offers to prove facts necessary to find a defendant guilty. CALCRIM No. 224 provides:
"Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
"Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
A trial court must instruct the jury regarding how to evaluate circumstantial evidence "'sua sponte when the prosecution substantially relies on circumstantial evidence to prove guilt.' [Citations.]" (People v. Rogers (2006) 39 Cal.4th 826, 885 (Rogers).)
CALCRIM No. 225 is a form jury instruction that describes the manner by which the jury is to consider circumstantial evidence that the prosecution offers to prove a defendant's intent or mental state. CALCRIM No. 225 provides:
"The People must prove not only that the defendant did the acts charged, but also that (he/she) acted with a particular (intent/ [and/or] mental state). The instruction for (the/each) crime [and allegation] explains the (intent/ [and/or] mental state) required.
"A[n] (intent/ [and/or] mental state) may be proved by circumstantial evidence.
"Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
"Also, before you may rely on circumstantial evidence to conclude that the defendant had the required (intent/ [and/or] mental state), you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required (intent/ [and/or] mental state). If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required (intent/ [and/or] mental state) and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required (intent/ [and/or] mental state) was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
"CALCRIM Nos. 224 and 225 provide essentially the same information on how the jury should consider circumstantial evidence, but CALCRIM No. 224 is more inclusive. [Citation.]" (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1172 (Samaniego).) CALCRIM No. 224 "is the proper instruction to give unless the only element of the offense that rests substantially or entirely on circumstantial evidence is that of specific intent or mental state." (People v. Cole (2004) 33 Cal.4th 1158, 1222; accord Bench Notes to CALCRIM No. 225 (2008) p. 45 ["Give this instruction when the defendant's intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence. If other elements of the offense also rest substantially or entirely on circumstantial evidence, do not give this instruction. Give CALCRIM No. 224, Circumstantial Evidence: Sufficiency of Evidence."].)
In Rogers, supra, 39 Cal.4th at page 885, the Supreme Court considered whether a trial court had committed reversible error in failing to instruct the jury in a murder case regarding how to evaluate circumstantial evidence of the defendant's guilt pursuant to CALCRIM No. 224's predecessor, CALJIC No. 2.01. The Rogers court concluded that the trial court had erred in failing to instruct the jury pursuant to CALJIC No. 2.01 because the "prosecution's case regarding the identity of [the victim's] killer rested principally on two items of circumstantial evidence...." (Rogers, supra, 39 Cal.4th at p. 885.)
"CALCRIM Nos. 224 and 225 are substantially the same as their predecessors, CALJIC Nos. 2.01 and 2.02. In each pair, the lower numbered instruction informs the jury as to how to consider circumstantial evidence to find the defendant guilty, and the higher numbered instruction informs the jury on how to consider circumstantial evidence when only the element of mental state or intent has been proven by such evidence. Authorities discussing these CALJIC instructions are therefore instructive with regard to the analogous CALCRIM instructions." (Samaniego, supra, 172 Cal.App.4th at p. 1171, fn. 12.)
In determining whether the trial court's instructional error required reversal, the Rogers court reasoned that since the trial court had instructed the jury regarding how it should consider circumstantial evidence of the defendant's specific intent or mental state pursuant to CALCRIM No. 225's predecessor, CALJIC No. 2.02, "the failure to give CALJIC No. 2.01 could have affected only the issue of identity." (Rogers, supra, 39 Cal.4th at p. 886.) As to that issue, "the evidence supporting the jury's determination that defendant killed [the victim], while circumstantial was strong," and the "direct evidence pointing toward innocence was weak." (Ibid.) Under these circumstances, the Supreme Court concluded, there was "no reasonable probability ([People v. Watson (1956) 46 Cal.2d 818, 836]) that had the jury been given the circumstantial evidence instruction, it would have found defendant did not kill [the victim]." (Ibid.)
The Rogers court also rejected the defendant's claim that the trial court's failure to instruct the jury regarding how it should evaluate circumstantial evidence constituted federal constitutional error. The Rogers court reasoned, "We doubt the common law right to a circumstantial evidence instruction rises to the level of a liberty interest protected by the due process clause. [Citation.] In any event, any federal constitutional error would be harmless beyond a reasonable doubt...." (Rogers, supra, 39 Cal.4th at p. 887.)
2. Factual and procedural background
a. Circumstantial evidence jury instructions
The trial court provided the jury with a definition of circumstantial evidence pursuant to CALCRIM No. 223, as follows:
"Facts may be proved by direct or circumstantial evidence or by a combination of both.
"Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining.
"Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question.
"For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence, because it may support a conclusion that it was raining outside.
"Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. [¶] You must decide whether a fact in issue has been proved based on all the evidence."
The trial court also instructed the jury pursuant to a modified version of CALCRIM No. 225, as follows:
"The People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent or mental state. The instruction for each crime explains the intent or mental state required. An intent or mental state may be proved by circumstantial evidence.
"Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
"Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent or mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent or mental state. [¶] If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent or mental state, and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent or mental state was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
The trial court did not instruct the jury pursuant to CALCRIM No. 224.
b. The trial court's instructions on the elements of the charged offenses
The People charged Razo with two counts of insurance fraud (Ins. Code, § 1871.4, subd. (a)(1), § 550, subd. (a)(1)) (counts 1 and 2), and grand theft by false pretenses (§ 487, subd. (a)) (count 3). The trial court instructed the jury that in order to prove a violation of Insurance Code section 1871.4, subdivision (a)(1), the People had to establish each of the following elements:
"Number one, a person made or caused to be made a written or oral statement. Number two, the person knew the statement was false or fraudulent. Number three, the false or fraudulent statement was material. Number four, the false or fraudulent statement was made with the specific intent to obtain Workers' Compensation benefits."
The trial court instructed the jury with respect to the elements of section 550, subdivision (a)(1) as follows:
"To prove that the defendant is guilty of this crime, the People must prove that the defendant presented or caused to be presented a false or fraudulent claim for payment for a loss or injury, or the defendant prepared, or made, or signed or subscribed a document with the intent to present or use it or allow it be presented to support a false or fraudulent claim. Or the defendant made or caused to be made a false or fraudulent claim for payment of a health-care benefit. And the defendant knew that the claim was false or fraudulent. And when the defendant did that act, he intended to defraud."
Finally, with respect to the grand theft by false pretenses charge (§ 487, subd. (a)), the trial court instructed the jury that the People had to prove the following elements:
"[N]umber one, the defendant knowingly and intentionally deceived a property owner or the owner's agent by false or fraudulent representation or pretense. Number two, the defendant did so intending to persuade the owner or the owner's agent to let the defendant or another person take possession and ownership of the property. Number three, the owner, [or] the owner's agent let the defendant or another person take possession and ownership of the property because the owner or the owner's agent relied on the representation and pretense. And, number four, when the defendant acted, he intended to deprive the owner of the property permanently."
3. Application
Razo claims that the trial court erred in failing to instruct the jury pursuant to CALCRIM No. 224 because the People relied on circumstantial evidence to prove that Razo made false statements regarding the extent of his injuries. Specifically, Razo contends that the People "relied heavily on video surveillance tapes to establish an element of the offense[s] apart from specific intent, specifically that appellant made false statements about his physical condition."
We assume for the sake of argument that the trial court erred in failing to instruct the jury pursuant to CALCRIM No. 224, because the People used circumstantial evidence to prove not only Razo's intent, but also the falsity of Razo's statements. Therefore, we must consider whether the trial court's assumed instructional error could have affected the issue of the jury's consideration of whether Razo made false statements. (See Rogers, supra, 39 Cal.4th at p. 886.)
With respect to each of the charged offenses, the trial court instructed the jury regarding how it should consider circumstantial evidence that the prosecution presented to prove that Razo knew that his statements were false and that he intended to make false statements for the purpose of obtaining some specified benefit or property, pursuant to CALCRIM No. 225. For example, as applied to the Insurance Code section 1871.4, subdivision (a)(1) charge, the modified version of CALCRIM No. 225 informed the jury how it should evaluate circumstantial evidence in determining whether Razo "knew the statement was false or fraudulent," and whether, "a false or fraudulent statement was made with the specific intent to obtain workers' compensation benefits." Similarly, as applied to the section 550, subdivision (a)(1) offense, the trial court's CALCRIM No. 225 instruction informed the jury how it should consider circumstantial evidence that the prosecution had offered to prove that Razo "knew that the claim was false or fraudulent," and "intended to defraud." Finally, as applied to the grand theft by false pretenses charge (§ 487, subd. (a)), the trial court's CALCRIM No. 225 jury instruction informed the jury regarding how it should evaluate circumstantial evidence that the prosecution offered to prove that Razo "knowingly and intentionally deceived a property owner or the owner's agent by false or fraudulent representation or pretense," that he "did so intending to persuade the owner or the owner's agent to let the defendant or another person take possession and ownership of the property," and that when Razo acted, "he intended to deprive the owner of the property permanently."
By instructing the jury pursuant to a modified version of CALCRIM No. 225 regarding how to evaluate circumstantial evidence used to prove "intent or mental state," the trial court instructed the jury regarding how to consider circumstantial evidence used to prove the knowledge elements of each of the charged offenses. (See People v. Valenzuela (2001) 92 Cal.App.4th 768, 775, fn. 2 ["[K]nowledge is not identical with intent. [Citations.] It is, nevertheless, a mental state.' [Citation.]"].)
The guilty verdicts on the three charged offenses establish that after having been properly instructed, the jury found that Razo knew that his statements were false and that he intentionally made false statements in order to obtain benefits. The jury could not have made such findings, and, at the same time, found that Razo had not made false statements. Accordingly, any instructional error pertaining to how the jury was to evaluate circumstantial evidence regarding whether Razo made false statements was necessarily harmless beyond a reasonable doubt. (See People v. Chaffin (2009) 173 Cal.App.4th 1348, 1353 ["the failure to give an instruction is harmless error if 'the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions']; People v. Wright (2006) 40 Cal.4th 81, 98-99 [instructional error is harmless beyond a reasonable doubt where jury resolves factual issue posed by omitted instruction adversely to defendant].)
Accordingly we conclude that any error that the trial court may have committed in failing to instruct the jury pursuant to CALCRIM No. 224 was harmless beyond a reasonable doubt.
B. The trial court did not abuse its discretion in refusing to offset the amount of victim restitution awarded to Valley Harvesting by the amount the company expended on Razo's alleged legitimate workplace injury unrelated to the fraud
Razo claims that the trial court abused its discretion in refusing to offset the amount of victim restitution awarded to Valley Harvesting by the amount the company expended on Razo's workplace injury that was unrelated to the fraud.
1. Standard of review
In People v. Millard (2009) 175 Cal.App.4th 7, 26 (Millard), this court outlined the standard of review to be applied to a trial court's victim restitution order:
" 'The standard of review of a restitution order is abuse of discretion. "A victim's restitution right is to be broadly and liberally construed." [Citation.] " 'Where 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.]' [Citation.]....'In reviewing the sufficiency of the evidence [to support a factual finding], 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.].... "If the circumstances reasonably justify the [trial court's] findings," the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Citation.] We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact. [Citation.]' [Citation.]"
2. Factual and procedural background
Prior to sentencing, the trial court received a probation report. In the report, the probation officer noted that Valley Harvesting was requesting $53,109.46 in restitution. The probation officer indicated the following with respect to Valley Harvesting's request:
"A phone call to TRISTAR RISK MANAGEMENT was made and Claims Adjuster Martha Mendez was contacted. She researched the matter of restitution [and] was directed by her supervisor to request $53,109.46. This figure represents the total of all costs from the date of the original injury.
[NOTE: The probation Officer is in possession of an itemized work sheet from TRISTAR RISK MANAGEMTNT dated 12/03/2007, which [is] attached to this report. The itemized work sheet lists all costs as of that date. However, it is recognized that there may be some adjustments to this figure, specifically with regard to any offset or apportionment for the costs of the defendant's neck injury which may be found to be valid. In particular, Mr. Mendez stated that after April 2006, when... TRISTAR concluded the defendant's claims were invalid, total costs were $23,439.11. However she indicated that the company is asking for the full amount listed above.] It is recommended that the court retain jurisdiction of this matter for the purpose of assigning a final restitution amount if a stipulated amount cannot be agreed upon."
Defense counsel filed a statement in mitigation. In his statement, defense counsel stated the following in arguing for a grant of probation:
"The probation officer points out that the monetary loss to the victim is substantial. However, elsewhere in his report, the probation officer notes that the restitution requested by the victim ($53,109.46) is for all costs to the victim. The Court must consider that the victim clearly pointed out to the probation officer that more than half the amount is comprised of costs attributable to the valid workplace injury suffered by Defendant. The Claims Adjuster for the victim stated to the probation officer that only $23,438.11, in costs were incurred after April 2006, when the victim believed there were invalid claims being made."
The prosecutor later filed a brief in which he stated that the People were seeking victim restitution in the amount of $53,109.46, pursuant to Insurance Code section 1871.4. The prosecutor argued:
As discussed in part III.B.3, post, Insurance Code section 1871.4, subdivision (b) provides that a trial court shall order restitution in cases in which a defendant commits insurance fraud (Ins. Code, § 1871.4, subd. (a)).
"The statute does not state any apportionment is to be made, nor did the evidence show an apportionment for his alleged injuries. I argue that any apportionment should be denied. He did not tell the doctors of any pre-existing condition. No apportionments were shown by the evidence. It was all or nothing for him while he was collecting workers compensation."
The prosecutor submitted an updated copy of the itemized worksheet that was attached to the probation's officer's report, entitled "Payment Listing," which reflected amounts paid by Valley Harvesting's claim administrator in connection with Razo's alleged injury. The form contained information including the type of payment made, the date of payment, the amount of payment, and the recipient of the funds. The document listed a total of $54,658.96 in expenditures.
At the sentencing hearing, the prosecutor reiterated that he was requesting a total of $53,109.46 in victim restitution. Defense counsel argued that $53,109.46 was not an "amount that is representative of either the fraud or the misrepresentation." Counsel argued that a portion of the expenditures were made "due to a legitimate workplace injury, and as such was not fraudulent." Defense counsel noted that Tristar's adjustor had stated that "only $23,439.11 of that amount was incurred after... Tristar... believed there may have been some kind of fraudulent activity." The following colloquy then occurred:
The prosecutor stated at the sentencing hearing that although the document listed a total of $54,658.96 in expenditures, the People were seeking only $53,109.46 in victim restitution. The prosecutor explained that $1,549 of the expenses was incurred outside the time period in which the People alleged the crimes occurred.
"The Court: Right. Certainly the prosecution's argument, and they presented the argument to the jury, was that there was fraud from the very beginning and that all of these expenses occurred as a result of that fraud, that is one interpretation of the evidence."
"[Defense counsel]: It was. That was one interpretation of the evidence. The evidence at trial also showed with the testimony of four physicians and with the testimony from the Tristar representatives, that the initial workplace injury, bump on the head with cervical sprain and strain, was in fact, a legitimate workplace injury."
After further argument, defense counsel stated, "I would argue that since... Tristar[] has acknowledged that only $23,439 and change was incurred after there was a substantiated suspicion of fraud, that anything prior to that time should not be ordered as compensation by the Court." Counsel explained, "The payment to Mr. Razo in the form of offset for reduced wages, whether from the Worker[s] Comp[ensation] system or payment to healthcare providers, payments for x-rays, M.R.I, anything else, up to that point could only be considered valid expenditures on Mr. Razo's behalf...."
After hearing argument from both counsel, the trial court pronounced judgment. With respect to the issue of victim restitution, the court stated "[T]he only real dispute... is whether or not there should be some offset... for what the defense would call the defendant's legitimate industrial injury." The court ruled that it would not reduce the victim's restitution award by any such offset, reasoning:
"[W]ith respect to the costs of Valley Harvesting, the Court believes that Mr. Razo's misrepresentations completely undermined his credibility and that the entire amount requested is appropriate, and that is specifically the $53,000-and-change amount proposed by the People. And there will be no offset as suggested by the probation officer and the defense for what they termed a 'legitimate work-related injury.' I think that because of the defendant's fraud to infect [sic] this proceeding, we can't in any meaningful way cull out a figure that would represent what some people believe is a legitimate work-related injury.
"But the Court's view of the facts is that the fraud occurred from the very beginning. I think Dr. Wieseltier conceded that point, although his testimony in this proceeding was somewhat different. Dr. Wieseltier, in his letter of December 5th, 2007, which was admitted into evidence, states in the next-to-last paragraph, 'Having reviewed the... investigation videos, it is my opinion that Mr. Razo is not disabled as I stated in my prior medical evaluation dated June 13, 2006.'
"That's the interpretation of the evidence that the Court is accepting. He wasn't disabled. And his efforts to obtain disability compensation was a fraud from the very beginning. And the Court is not going to allow any offset. And the Court is going to order the entire amount.
"And the Court's conclusion, I believe, is supported by the provisions of the Insurance Code section 1871.5, but also the case of [Tensfeldt v. Workers' Comp. Appeals Bd. (1998) 66 Cal.App.4th 116, 121 (Tensfeldt)]."
The court's written probation order states, "Defendant shall make restitution to the victim, Valley Harvesting, in the amount of $53,109.46 in a manner determined by the probation officer."
3. Governing law
a. Insurance Code
Insurance Code section 1871.4 provides in relevant part:
"(a) It is unlawful to do any of the following:
"(1) Make 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.
Labor Code section 3207 defines compensation for purposes of the Workers' Compensation Act and provides: "'Compensation' means compensation under this division and includes every benefit or payment conferred by this division upon an injured employee, or in the event of his or her death, upon his or her dependents, without regard to negligence."
[¶]... [¶]
"(b) Every person who violates subdivision (a) shall be punished by imprisonment in the county jail for one year, or in the state prison, for two, three, or five years, or by a fine not exceeding one hundred fifty thousand dollars ($150,000) or double the value of the fraud, whichever is greater, or by both that imprisonment and fine. 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."
Insurance Code section 1871.5 provides:
"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."
As noted previously, the jury found Razo guilty of violating Insurance Code section 1871.4, subdivision (a)(1) (count 1) and section 550, subdivision (a)(1) (count 2).
In Tensfeldt, supra, 66 Cal.App.4th at page 119, the Court of Appeal considered whether an employee who had been convicted of insurance fraud (Ins. Code, § 1871.4, subd. (a)(1)) for lying about the circumstances of an alleged industrial knee injury in his initial claim for workers' compensation benefits was precluded, by virtue of Insurance Code section 1871.5, from receiving compensation for the injury premised on a different description of the circumstances of the alleged injury. The Tensfeldt court held, "[F]ollowing a conviction of workers' compensation fraud under section 1871.4 [, subdivision] (a)(1), an individual who seeks to receive or retain workers' compensation benefits is barred from retaining or receiving any compensation, as defined in Labor Code section 3207, which stems directly from the fraudulent misrepresentation." (Tensfeldt, supra, 66 Cal.App.4th at p. 124.)
Section 1202.4 provides in relevant part:
"(a)(1) It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime. [¶]... [¶]
"(3) The court, in addition to any other penalty provided or imposed under the law, shall order the defendant to pay... the following: [¶]... [¶] (B) Restitution to the victim or victims, if any, in accordance with subdivision (f), which shall be enforceable as if the order were a civil judgment. [¶]... [¶]
"(f)... [I]n every case in which a victim has suffered economic loss as a result of the 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 any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record."
" '[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.' [Citation.]" (People v. Tabb (2009) 170 Cal.App.4th 1142, 1153.) "[A] prima facie case for restitution is made by the People based in part on a victim's testimony on, or other claim or statement of, the amount of his or her economic loss. [Citations.] 'Once the victim has [i.e., the People have] made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim. [Citations.]' [Citation.]" (Millard, supra, 175 Cal.App.4th at p. 26.)
4. Application
At the restitution hearing, the People carried their prima facie burden of presenting evidence demonstrating that the victim, Valley Harvesting, suffered $53,109.46 in economic loss as a result of Razo's conduct. Razo presented no evidence to demonstrate that the loss was other than that claimed by the victim. Defense counsel's sole argument was that the trial court should not award Valley Harvesting any expenses that it incurred prior to the date that Tristar substantiated its suspicions that Razo's claims were fraudulent. While counsel argued that expenses incurred prior to that date "could only be considered valid expenditures on Mr. Razo's behalf," this is not necessarily so. The fact that Tristar incurred expenditures prior to confirming its suspicions of fraud does not mean that these expenditures were necessarily validly expended in connection with an actual injury.
Defense counsel acknowledged at the sentencing hearing that "one interpretation of the evidence" was that Razo's claim had been fraudulent from the very beginning, and that all of the expenses incurred by Valley Harvesting occurred as a result of such fraud. The trial court expressly adopted this interpretation of the evidence in denying Razo's request to offset the victim's restitution award. On appeal, we may not reweigh the trial court's interpretation of the evidence. (Millard, supra, 175 Cal.App.4th at p. 26.)
Accordingly, we conclude the trial court did not err in refusing to offset the amount of victim restitution awarded to Valley Harvesting pursuant to section 1202.4 by the amount the company expended on Razo's alleged valid workplace injury unrelated to the fraud.
In light of our conclusion that the trial court did not err in ordering restitution pursuant to section 1202.4, we need not consider whether we may affirm the trial court's restitution order on the ground that Razo was precluded from retaining workers' compensation benefits pursuant to Insurance Code section 1871.5.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McDONALD, J.