Opinion
G036877
5-31-2007
THE PEOPLE, Plaintiff and Respondent, v. RAUL RUEDA COREA, Defendant and Appellant.
Vicki Marolt Buchanan, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Raul Rueda Corea appeals from a judgment after a jury convicted him of two counts of making fraudulent statements to obtain workers compensation benefits. Corea argues the trial court erroneously instructed the jury, insufficient evidence supports his convictions, and the court erroneously admitted evidence. As we explain below more fully, two of his contentions have merit. Therefore, we need not address his other claims. We reverse the judgment.
FACTS
In 1995, Corea suffered a back injury while working at Dennys restaurant. Corea was treated for his injury and received a monetary settlement for his workers compensation claim.
In 1998, Corea was hired by Wildlife in Wood. Corea cut small pieces of wood, glued them to other pieces, and sanded them. In July 2001, he hurt his arm lifting a bag of wood. Coreas employer asked him if he wanted to see a doctor, but he was reluctant. In November of the same year, Corea told his employer his arm was still hurting him, and his employer sent him to a workers compensation clinic for treatment. Corea filed a workers compensation claim in January 2002.
Republic Indemnity, Wildlife in Woodss workers compensation carrier, assigned an investigator, Brenda Davis, to investigate Coreas claim. Davis called Corea and spoke with him about his injury. Corea told her he had previously injured his back. When Davis asked him whether he was involved in any sports or recreational activities, Corea said he used to jog, but stopped since his injury. Corea never mentioned he played handball, which Davis had learned from her investigation.
Corea was, in fact, an avid handball player who had played for over 20 years. He played two to three times per weeks and in tournaments. Corea was such a good handball player, he could hit the ball with either hand with great skill.
Corea saw Dr. Roy Caputo who diagnosed him with carpel tunnel release in his right hand. Caputo operated on Corea in March 2002, and he returned to work in the summer of that year. Near the end of treatment on his right hand, Corea began to complain of pain in his left hand. Caputo diagnosed him with carpel tunnel syndrome in his left hand as a result of "cumulative trauma, work related." Caputo told Corea that if the pain in his left hand should worsen, he could treat that as well. As a result of the injury to his right hand, Republic Indemnity paid approximately $72,000 for medical costs, disability payments, and salary.
In May 2003, Corea attended a handball tournament. Although he may have registered to play in the tournament, there was no evidence he played.
The Attorney General states Corea registered and played in a handball tournament in January[] 2003." The record citation the Attorney General provides does not support its contention.
In July 2004, Corea played in a handball tournament. He asked his employer for the day off and invited several coworkers to watch him play handball. He played, but lost in the first round. He played a couple of games in the consolation bracket.
Approximately three months later, Corea went to the doctor complaining his left hand and arm hurt. Republic Indemnity requested Caputo ask Corea whether he had been playing handball. On November 20, 2004, Caputo examined Corea and asked him whether he had played. Corea stated he had not played handball since his first surgery. Caputos report stated, "`[Corea] states he has not returned to playing handball because he has pain in his right wrist when he applies forceful pressure."
In his reply brief, appellate counsel states, "Obviously [Corea] tried playing handball at least once to experience pain."
Approximately one week later, Patricia Araque, a Republic Indemnity investigator, called Coreas employer. She spoke with three of Coreas coworkers who said they saw him play handball at the July 2004 tournament. She also spoke with Corea.
He told her that he not played handball at all. He then said he had not played handball since 2002. He said he did not play handball in July 2004. When Araque asked him what he would say if she told him that people had said he played handball during the summer of 2004, Corea replied, "`If somebody told you that they saw me playing handball [in 2004] they would be a liar." Araque did not record the telephone call, and her notes were destroyed pursuant to regular business practices.
In his reply brief, Corea characterizes Araques testimony as "confusing." We have reviewed the transcript of her testimony, and we disagree. It is clear Araque asked Corea about playing handball during this exchange, not racquetball as Corea suggests. Araque asked Corea if he played handball at all, whether he had played handball in 2004, and whether he had played handball in a July 2004 tournament.
Corea had surgery on his left hand in March 2005. Republic Indemnity paid approximately $13,500 for medical costs, disability payments, and salary.
An information charged Corea with two counts of making fraudulent statements in violation of Insurance Code section 1871.4, subdivision (a)(1). Count 1 charged Corea with making the following fraudulent statement to Araque on November 18, 2004—"[d]enied playing handball for two and a half years and denied playing any handball in 2004." Count 2 charged him with making the following fraudulent statement to Caputo on November 30, 2004—"[d]enied playing handball since 2002."
At trial, Corea offered the testimony of his wife, Kathy Corea (Kathy). Kathy testified Corea has difficulty understanding the English language and he does not have a good memory.
Corea testified through a Spanish interpreter. He testified that when he spoke with Araque, he did not remember playing in the July 2004 handball tournament and he told his employer he had not played handball. He admitted telling Caputo he had not played handball during the November 2004 visit.
The parties stipulated that an investigator conducted surveillance of Corea during January and February 2005. The investigator saw Corea doing physical tasks, but never playing handball.
The jury convicted Corea on both counts. The trial court placed him on three years formal probation on the conditions he serve 180 days in county jail and pay restitution in the amount of $12,664.11.
DISCUSSION
I. Special Instruction No. 2-Materiality
Relying on People v. Rubio (2004) 121 Cal.App.4th 927 (Rubio), Corea argues the trial court erroneously instructed the jury with Special Instruction No. 2, "Materiality" (hereafter, Special Instruction No. 2). He claims the instruction was overly broad and it allowed the jury to find him guilty based on insufficient evidence his statements were material.
The Attorney General argues Corea waived appellate review of this issue because he did not object to Special Instruction No. 2. It also argues the instruction when taken as a whole was proper. Corea contends appellate review of this issue is not waived because materiality is an element of the crime and the issue can be raised for the first time on appeal. As we explain below, we agree with Corea and reverse.
"Instructions regarding the elements of the crime affect the substantial rights of the defendant, thus requiring no objection for appellate review. [Citations.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 503.) The adequacy of jury instructions is considered by examining the charge as a whole. (People v. Holt (1997) 15 Cal.4th 619, 677.) In assessing whether jury instructions correctly state the law, we review the instructions de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.)
In Rubio, the defendant was charged with perjury. (Rubio, supra, 121 Cal.App.4th at pp. 929-930.) The court explained the trial court instructed the jury with a modified form of CALJIC No. 7.20, which stated, "A statement was defined as material `if it could influence the outcome of the proceedings in which it is uttered."
(Id. at p. 930.) The court examined the evolution of the instruction and noted that until 2003, the instruction stated: "`A false statement is material if [it could probably have influenced the outcome of the proceedings in which it was uttered. Whether it actually had that effect is irrelevant.] [Citation.]" (Id. at pp. 931-932, italics added.) The court concluded omission of the word "probably" rendered the instruction too broad because, "Anything could influence the outcome of a proceeding." (Id. at p. 933.) The court opined, "An instruction that informs the jury that a false statement is material if it could probably influence the outcome of the proceeding is much more consistent with the definition of `material and the cases we have reviewed. This instruction conveys the requirement that the false statement must be important to the matter under discussion. It also conveys to the jury that false statements on matters not pertinent to the proceeding do not constitute perjury." (Ibid.)
The trial court instructed the jury with Special Instruction No. 1, "Workers Compensation Fraud Insurance Code section 1871.4," which stated: "[Corea] is accused in [c]ount(s) 1 and 2 of having violated [Insurance Code] [s]ection 1871.4[, subdivision] (a)(1) . . . , a crime. [¶] Every person who, makes any knowingly false material statements, either written or oral, for the purpose of obtaining, any compensation under the [w]orkers [c]ompensation laws is guilty of a violation of . . . [Insurance] Code [s]ection 1871.4[, subdivision] (a)(1). [¶] In order to prove such a crime, each of the following elements must be proved: [¶] 1. A person made a material false written or oral statement; [¶] 2. The person knew the statement was false when it was made; [¶]
3. The person made the statement with the specific intent of obtaining compensation or benefits under the [w]orkers [c]ompensation laws; [¶] 4. The statement or representation was material to a [w]orkers [c]ompensation claim or benefits." (Italics added.)
Special Instruction No. 2 stated: "A statement or representation is material if it concerns a subject reasonably relevant to the insureds investigation, and if a reasonable insurer would attach importance to the fact represented. A misrepresentation is material if it can influence a determination." (Italics added.)
We agree with Corea the definition of materiality in Special Instruction No. 2s second sentence was erroneous. The second sentence simply substitutes "can" for "could," and the same concerns implicated in Rubio are implicated here. As for the instructions first sentence, it could be read to compliment the second sentence, but could just as easily be read independently of the second sentence. If the two sentences were read independently, the jury would likely have concluded the first and second sentences provided alternative definitions of materiality. We have no way to discern which definition of materiality the jury relied upon in making its decision.
Further complicating matters is that during closing argument, the district attorney promoted an erroneous definition of "materiality." The district attorney stated: "Is it reasonably relevant to the investigation? Thats why I asked all those questions of the insurance adjustor. That, I think, was . . . Erath . . . . Is it important to you to know whether or not a person who is claiming workers compensation benefits on a particular part of their body has been playing in sports that use that same part? . . . And, specifically, is it relevant to carpal tunnel syndrome or to a wrist injury that the person is playing handball? Thats materiality." (Italics added.) Whether Coreas statements were material was a critical issue.
When counsel misstates the law and the trial court admonishes the jury that if anything counsel said during argument conflicts with the courts instructions, the jury is to follow the courts instruction (Jud. Council of Cal. Crim. Jury Instns. (2006-2007) CALCRIM No. 200), we generally conclude the courts proper instruction cured counsels misstatement. Here, we cannot so conclude because the courts definition of materiality was flawed.
The trial courts failure to properly instruct the jury on an element of the charged offense is subject to review under the reasonable doubt standard articulated in Chapman v. California (1967) 386 U.S. 18. (Rubio, supra, 121 Cal.App.4th at p. 935.) We cannot say beyond a reasonable doubt the incorrect definition of "material" in Special Instruction No. 2 did not contribute to the jurys verdicts. Therefore, we reverse his convictions on counts 1 and 2 because of instructional error. This does not end our analysis, however. We must now address Coreas sufficiency of the evidence claims.
II. Insufficient Evidence
Corea contends there was insufficient evidence he committed counts 1 and 2 because there was no evidence his statements to Araque and Caputo were material to obtaining workers compensation benefits. We agree as to count 2 only.
Insurance Code section 1871.4, subdivision (a)(1), makes it unlawful to make a knowingly false or fraudulent material statement to obtain workers compensation benefits. "[M]ateriality of false statements to obtain insurance benefits is met if the statements convey information on subjects which are `germane or `reasonably relevant to the insurers investigation and which could bear directly and importantly on the investigation and evaluation of the bona fides of the claim." (People v. Gillard (1997) 57 Cal.App.4th 136, 152.)
"`The proper test to determine a claim of insufficient evidence in a criminal case is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt. [Citations.] In making this determination, the appellate court "`must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] . . . `[O]ur task . . . is twofold. First, we must resolve the issue in the light of the whole record . . . . Second, we must judge whether the evidence of each of the essential elements . . . is substantial . . . ." [Citations.]" (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1339, superseded by statute on other grounds as stated in People v. Franz (2001) 88 Cal.App.4th 1426, 1442.)
A. Count 1
Relying on Republic Indemnitys knowledge of the injury to his left hand before paying for the surgery, Caputos surprise at the nature of the investigation, and his claimed poor English language skills, Corea contends his statements did not convey information that was "`germane" or "`reasonably relevant" to Republic Indemnitys investigation. None of his contentions have merit.
Corea cites to the following testimony from Republic Indemnitys certified fraud expert, Erath, to support his first claim. The district attorney asked Erath "if an employee lies about playing handball and you dont find out about it, is that something thats important to your investigation?" Erath responded, "Oh, yes." Corea states, "Erath conceded it would only be important for an investigation if the employee lied about playing handball and if Republic Indemnity did not know about it before paying medical expenses." (Italics added.) Corea claims that because Republic Indemnity knew by November 2004 he played handball in July 2004, and paid for the surgery on his left hand in March 2005, his statements to Araque were immaterial.
While we disagree with Coreas characterization of Eraths testimony, we need not engage in a lengthy discussion as to why it is important when an insurance company does not know that a non-work related activity could have contributed to a claimed work-related injury. When an insurance company lacks such knowledge, they presumably pay the entire bill, but when they do have such knowledge, they may refuse to pay, or seek apportionment.
Here, there was sufficient evidence for the jury to conclude Coreas statements to Araque that he had not played handball for two and one-half years and denied playing handball in 2004 were material to obtaining workers compensation benefits. Erath testified it was material to her investigation whether Corea played handball because it would affect accepting liability for the injury to his left hand. She stated that an employers workers compensation insurance rates increase when a claim is paid for a valid work-related injury. She also explained that workers compensation laws require the insurance company to provide treatment unless it can prove the injury was not work related or there were other factors contributing to the injury. Erath said she was still investigating the claim when Caputo concluded Corea needed surgery, and Republic Indemnity had no legal option under workers compensation laws but to pay for the surgery. She testified that if an employees injuries were caused in part by work and in part by non-work related activity, payment of the claim would be apportioned.
Corea claims because his native language was Spanish and he was questioned in English, it is doubtful he understood the questions. We disagree. When Araque called to speak with him, Corea stated he preferred to speak in English. Given Coreas request to speak in English, we find no basis for his claim he lacked sufficient English language skills to understand and answer the questions posed.
Finally, we conclude beyond a reasonable doubt the incorrect definition of material in Special Instruction No. 2 did not contribute to the verdict on count 1. Corea told Araque he had not played handball for two and one-half years and denied playing handball in 2004. As we explain more fully above, Coreas denial was material to Araques investigation because whether Corea played handball would affect accepting liability for the injury to his left hand. Therefore, Corea was not prejudiced by Special Instruction No. 2 as to count 1.
B. Count 2
Relying on Caputos testimony, Corea contends his statement to Caputo he had not played handball since 2002 was not material in obtaining workers compensation benefits. We agree.
We conclude there was insufficient evidence Coreas statement to Caputo was material. Caputo testified Coreas hand injury was not caused by playing handball because he was right handed and the injury was to his left hand. There was no evidence Caputo knew Corea played handball with his left hand. Coreas statement he did not play handball, although a lie, was not material because it did not demonstrate playing handball caused or contributed to his injury. The district attorney should have asked Caputo to assume Corea played handball with his left hand and then asked if this could have caused the injury. The district attorney did not do so. Thus, there was insufficient evidence to conclude Coreas statement to Caputo he had not played handball since 2002 was material in obtaining workers compensation benefits.
III. Conclusion
Therefore, we reverse count 1 due to instructional error. We reverse count 2 due to instructional error and insufficient evidence.
DISPOSITION
The judgment is reversed.
We concur:
BEDSWORTH, Acting P. J.
ARONSON, J.