Opinion
NOT TO BE PUBLISHED
Superior Court County No. 2005012014, of Ventura Rebecca S. Riley, Judge
Lisa M. J. Spillman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Robert Galante appeals from a judgment following his conviction after a jury trial of two counts of insurance fraud. (Ins. Code, § 1871. 4, subd. (a)(1).) The court suspended imposition of sentence and placed appellant on five years' formal probation, with a condition that he spend 180 days in county jail, and ordered him to pay fines and restitution to the state. After a restitution hearing, the court also directed him to pay his employer $53,656 in restitution. Appellant contends that the trial court's exclusion of testimony from his acupuncturist and physical therapist violated his constitutional right to present a defense. We affirm.
BACKGROUND
Appellant worked as a power line truck operator for the Glendale Department of Public Works for 17 years. In July 2002, his right ankle "gave way" and felt painful while he was walking at work. About two weeks later, he reported the injury and filed a workers' compensation claim. On July 31, the city sent him to an industrial clinic. That clinic took X-rays that suggested he had a broken ankle. The clinic doctor wrapped appellant's ankle and placed it in an air cast or brace, prescribed a pain killer, and ordered him to stop working. He received disability payments at full salary beginning in August.
Cindy Castro, an adjuster for the city's workers' compensation carrier, referred appellant to Gary Zohman, M.D., an orthopedic specialist. When Zohman examined appellant on August 5, 2002, he complained of intermittent pain, swelling, slight discoloration, and other problems. Zohman observed that appellant limped, but could not see any swelling, bruising, deformity, or open wounds. He did not see any fracture on an August 5 X-ray of appellant's ankle and concluded that he had sprained his ankle on the job. Zohman prescribed pain medication and two physical therapy sessions a week for four weeks. He authorized appellant to return to work on August 5, with prohibitions against climbing or kneeling, and limitations on lifting (10-pound maximum), sitting, standing (one-hour maximum), driving and walking. He also ordered him to use weight-bearing crutches and an ankle air brace for three weeks.
Appellant did not return to work on August 5. Zohman reexamined him on August 27, after he had attended physical therapy. Appellant continued to limp and report feeling pain in his ankle. Zohman observed no swelling or bruising. He continued appellant's work restrictions and physical therapy orders for four weeks and advised him to use an air brace, try to wean himself from crutches, and avoid driving.
A field investigator observed and photographed appellant, beginning on September 23, after the city initiated an investigation of his insurance claim. Appellant watered his front lawn for approximately two hours on September 23. While rinsing his left foot, he put weight on his right ankle; while rinsing his right foot, he pointed his toes and moved his ankle around.
Appellant reported improvement when he saw Zohman on September 24. Zohman continued the same treatment plan, but modified certain restrictions: lifting (25-pound maximum), standing (two-hour maximum), stooping and climbing (occasional). He concluded that appellant could return to work to perform office tasks, but appellant did not want to drive from his Simi Valley home to work in Glendale. Zohman mentioned other transportation options to him. At 9:16 a.m., on September 24, appellant used a crutch and limped as he left Zohman's office. At 9:57 a.m., he carried a gym bag and two plastic shopping bags into his home without using a crutch.
On September 25, without using a crutch or limping, appellant carried a bag or backpack to his truck and drove to Zohman's office. Outside Zohman's office, appellant limped and used a crutch. Inside the office, he neither limped nor wore an air brace. He later went to a market, a drugstore, and a Costco warehouse, where he shopped and appeared to put all of his weight on his right foot. He took his Costco purchases to his truck, drove home, and unloaded and carried them into his house.
On September 26, Zohman asked Castro to try to arrange transportation for appellant. Later that day, Castro advised appellant that the city would reimburse him for commuting to work by train. Appellant declined the offer and said that he would only return to work when he was 100 percent healthy, and that using crutches on the train would be embarrassing. He also wanted a guarantee that he could attend all of his physical therapy sessions, which Castro could not provide.
On September 27, appellant used a crutch while walking between his truck and the medical office. Later that day, without limping, and apparently while putting his full weight on his right foot, appellant mowed his lawn, did other yard work, and went to a market. On September 28, appellant squatted while sanding a bookcase or dresser with a power sander. He also lifted the bookcase or dresser without displaying any limp.
Appellant limped when he saw Zohman on October 4, 2002. He said that he used a single crutch full-time, complained of ankle pain, and stated he did not feel safe driving beyond Simi Valley. He also claimed that pain prevented his walking, standing, kneeling, squatting, bending and lifting.
Zohman viewed the videotapes of appellant engaged in activities that were inconsistent with his reported symptoms and abilities. He concluded that appellant had been dishonest with him and appeared to have been able to perform his job as a power line truck operator full-time, without any restrictions, with a September 23 return date. He ceased treating appellant and the city stopped paying for his medical treatment. Appellant obtained other treatment.
On October 8, 2002, appellant carried the trash from his house. Later that day, he entered Zohman's office building while limping and using a crutch. On October 10, he walked to and from his mailbox without limping.
DISCUSSION
Appellant contends that the trial court violated his constitutional right to present a defense by excluding the evidence of his acupuncturist and physical therapist. (U.S. Const., Amends. VI, XIV.) We disagree.
Appellant sought to introduce the opinions of Darren Abe, his acupuncturist, and Robert Pinkston, his physical therapist. Counsel advised the court that Steven Nagelberg, M.D., had referred appellant to Abe and Pinkston. The court ruled tentatively that the testimony of Abe and Pinkston was irrelevant unless appellant presented Nagelberg's testimony to establish that his injury was continuing, rather than new. After the prosecution rested its case, appellant's counsel indicated that Nagelberg had not been served because he had been uncooperative, but that it would call Abe and Pinkston. Counsel also made an offer of proof that Pinkston would testify that he measured appellant's legs, and there was swelling. The court offered counsel a three-day weekend continuance to produce Nagelberg. Nagelberg did not testify, and the court excluded the testimony of Abe and Pinkston.
A "trial court retains discretion to exclude expert testimony . . . that is unreliable or irrelevant . . . ." (People v .Carpenter (1999) 21 Cal.4th 1016, 1061.) We review a trial court's ruling on expert testimony under the deferential abuse of discretion standard. (People v. Mayfield (1997) 14 Cal.4th 668, 766.)
Appellant failed to establish the relevance of the testimony of Abe and Pinkston. He did not present the testimony of Dr. Nagelberg to establish the diagnosis supporting his referrals to Abe and Pinkston. Abe first treated appellant in either December 2002 or January 2003, and Pinkston first treated him in March or June 2003. The court acted within its discretion in excluding their testimony as irrelevant to the charged September 24 and October 4, 2002, crimes.
The court's exclusion of irrelevant evidence did not violate appellant's right to present a defense. (See Delaware v. Van Arsdall (1986) 475 U.S. 673, 679; compare Washington v. Texas (1967) 388 U.S. 14, 19.) Furthermore, even if such evidence had been relevant, it would not have altered the vote of any juror who viewed the evidence of appellant's late September and early October 2002 physical activities.
The judgment is affirmed.
We concur: GILBERT, P.J. PERREN, J.