Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FVA700190, Jon D. Ferguson, Judge.
H. Reed Webb, 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, Assistant Attorney General, Rhonda Cartwright-Ladendorf, and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, J.
Alfonso Gutierrez appeals following his conviction for arson and insurance fraud. He contends that there was insufficient evidence of insurance fraud and challenges the sentence. Finding no error, we affirm the judgment.
PROCEDURAL HISTORY
Gutierrez was charged with one count of arson of an inhabited building (Pen. Code, § 451, subd. (b)) and one count of insurance fraud (§ 550, subd. (a)). After a jury convicted him on both counts, the court sentenced Gutierrez to the upper term of eight years for arson and to a consecutive one-year term for insurance fraud. The court ordered him to pay $148,656.29 in restitution to the insurer of the damaged property.
All statutory citations refer to the Penal Code unless another code is specified.
Gutierrez filed a timely notice of appeal.
FACTS
Alfonso Gutierrez owned a three-bedroom home in Rialto. After a number of financial and personal difficulties, he was unable to keep his mortgage payments current, and in November 2006, he was facing foreclosure. He needed to sell the house by December 12, 2006. He had listed the house for sale in September but by November 19, there had been no offers.
Gutierrez’s real estate agent, Mark Dundon, scheduled an open house for November 19. Dundon’s wife, who was to conduct the open house from 11:00 a.m. to 4:00 p.m., had placed “open house” signs around the neighborhood. In the past the city had admonished her not to place open house signs in certain locations, and she was concerned that the city would remove the signs she had posted for this open house. Around 1:30 p.m., Gutierrez volunteered to check on the signs. When he returned, he reported to Mrs. Dundon that all of the signs had been removed. She decided to call it a day, knowing that without the signs there was little chance that anyone would attend the open house.
As she drove through the neighborhood, Mrs. Dundon saw that all of the signs were still standing where she had placed them. She bought some lunch for herself and for Gutierrez and returned to the house approximately 15 minutes after she had left. When she returned, she saw Gutierrez’s car in the garage with the trunk lid open. The trunk was full of clothing. When she knocked on the door, Gutierrez answered. He was surprised to see her and said he was on his way out. He remained and ate lunch with Mrs. Dundon. While they ate, he expressed his despair over his inability to sell the house before the foreclosure. He suggested that they should give up on the open house and leave.
Mrs. Dundon left at 3:00 p.m. As she retrieved her signs, Gutierrez drove past. He honked and waved. That was about 3:05 or 3:10 p.m.
At 3:21 p.m., the San Bernardino County Fire Department dispatch received a call about a fire at Gutierrez’s house. The Rialto Fire Department responded and arrived at the house at 3:27 p.m. At 3:30 p.m., someone from the fire department called Mr. Dundon, whose name and telephone number were on the “For Sale” sign posted in front of the house. He called Gutierrez’s cell phone but was unable to reach him.
It took the fire department several hours to extinguish the fire. Immediately after the fire was extinguished, an investigation into the cause of the fire commenced. The on-site investigation took more than seven hours. Gutierrez did not return to the house during that time.
Captain Jolliff, the Rialto Fire Department arson investigator, determined that the fire had started in the master bedroom sometime after 3:00 p.m. and that it had been started deliberately with the use of an ignitable fluid. The use of an accelerant was later confirmed by the crime lab. Jolliff ruled out any accidental cause, such as faulty wiring. Jolliff also observed that the master bedroom appeared to have been cleared out, while furniture and personal property remained in another bedroom. That bedroom was rented by Gutierrez’s tenant, Miles Oberlies. Many of his belongings, including a wheelchair, had been destroyed. (Oberlies normally used a wheelchair, but could get around on crutches if he was not walking far. He had left his wheelchair at the house on the day of the fire when he went out with a friend in order not to interfere with the open house. He left a second wheelchair in the garage.)
The real estate agent, Mr. Dundon, reached Gutierrez the following morning and told him about the fire. Gutierrez seemed “totally shocked.” When Captain Jolliff interviewed him, however, Gutierrez told him that a neighbor had called and informed him on the day of the fire. Instead of going to check on the house, Gutierrez said, he went to a casino. He appeared nonchalant during the interview. Gutierrez said he had gone to visit his estranged wife after leaving the house around 2:00 p.m. His wife told Captain Jolliff that Gutierrez arrived at her home in San Bernardino sometime after 3:30 p.m. on the day of the fire.
At the suggestion of Mr. Dundon, Gutierrez retained a public insurance adjustor to submit a claim for the fire damage to his insurance company and to negotiate with the insurance company on his behalf for a settlement. The adjustor, William Carpenter, informed Topa Insurance of the fire on November 21, 2006, and submitted a claim. An independent contractor retained by Carpenter estimated the cost to repair the house at $148,656.29.
Eric Varisco, a senior claims investigator with Topa Insurance, investigated the claim. His independent investigation confirmed the fire department’s finding that the fire was deliberately set with the use of an accelerant. Based on that fact, combined with Gutierrez’s financial situation, the pending foreclosure and Gutierrez’s claim of a burglary at the property a couple of months earlier, Varisco concluded that Gutierrez’s claim was fraudulent. By that time, Topa had paid Gutierrez’s claim for the cost of seven nights’ stay in a hotel plus meals.
LEGAL ANALYSIS
DEFENDANT WAS VALIDLY CONVICTED OF INSURANCE FRAUD
Gutierrez (hereafter referred to as defendant) contends that the evidence did not support the conviction for insurance fraud because there was no evidence that he made any false representations. Although he couches this issue as lack of substantial evidence, in reality his contention is that the evidence was insufficient as a matter of law because the statute under which he was charged requires an affirmative misrepresentation. This is a question of law which we review independently. (See People v. Villalobos (2006) 145 Cal.App.4th 310, 316, fn. 3.)
Section 550, subdivision (a)(1) provides that it is unlawful to “[k]nowingly present or cause to be presented any false or fraudulent claim for the payment of a loss or injury, including payment of a loss or injury under a contract of insurance.” Defendant contends that the evidence did not satisfy the requirements of the statute because his claim, as far as the record shows, consisted of only two affirmative representations: that there was a fire which caused damage at the insured premises and that the estimated cost to repair the damage was approximately $148,000. Because both statements were truthful, he contends, he could not be convicted of violating section 550, subdivision (a)(1).
We disagree. The gravamen of section 550, subdivision (a)(1) is the intent to defraud the insurer. (See People v. Scofield (1971) 17 Cal.App.3d 1018, 1025-1026.) The intent to defraud is an intent to deceive another person for the purpose of gaining a material advantage over that person or to induce that person to part with property, either by some false statement or representation of fact or by wrongful concealment or suppression of the truth. (People v. Pugh (2002) 104 Cal.App.4th 66, 72.) Implicit in any claim submitted to an insurance company is the representation that the insured believes that the loss is covered by the policy. Consequently, submission of an insurance claim for a loss which the insured knows is not covered is sufficient to prove the intent to defraud.
Viewing the evidence in the light most favorable to the verdict, and presuming the existence of every fact the trier of fact could reasonably deduce from the evidence (People v. Rayford (1994) 9 Cal.4th 1, 23), we conclude that there is substantial evidence which reasonably supports the conclusion that defendant submitted the claim knowing that the loss was not covered. Defendant does not contest the sufficiency of the evidence that he intentionally set the fire. As a matter of law insurance contracts exclude coverage for losses intentionally caused by the insured. (Ins. Code, § 533; Combs v. State Farm Fire & Casualty Co. (2006) 143 Cal.App.4th 1338, 1342.) There is a presumption that each person knows the governing law. (1119 Delaware v. Continental Land Title Co. (1993) 16 Cal.App.4th 992, 1002.) There was no evidence to rebut that presumption, i.e., that defendant did not know that an insurance policy may not cover a loss which the insured intentionally caused. In addition, when asked whether it is “always the policies of the insurance company” to exclude intentional acts from coverage, Topa Insurance investigator Varisco responded “Yes.” Although the question is not entirely clear, in context Varisco’s testimony can reasonably be understood as a statement that all of Topa’s policies, including defendant’s, explicitly exclude claims for losses which the insured intentionally caused. This evidence is sufficient to support the conclusion that defendant knew about the exclusion and that he intentionally submitted his claim knowing he was not entitled to payment. This is sufficient to support the verdict.
Relying on the rule of statutory construction which provides that where a more specific statute exists, the Legislature intended that prosecution under the more general law is prohibited (People v. Jenkins (1980) 28 Cal.3d 494, 501-502, 505), defendant also contends that he should have been charged under section 550, subdivision (b)(3), which he contends is a special statute in relationship to subdivision (a)(1). Subdivision (b)(3) of section 550 provides that it is unlawful to “[c]onceal, or knowingly fail to disclose the occurrence of, an event that affects any person’s initial or continued right or entitlement to any insurance benefit or payment, or the amount of any benefit or payment to which the person is entitled.” Defendant contends that because the fraud was based on the premise that he concealed the fact that he intentionally set the fire, he could validly have been charged only under subdivision (b)(3). He then goes on to assert that the evidence was insufficient to meet the requirements of subdivision (b)(3).
Concealment of a fact which is material to the defendant’s entitlement to payment for a loss is neither the theory the prosecution relied upon in this case nor the theory on which the case was submitted to the jury. Rather, the theory was that defendant submitted his claim knowing that he was not entitled to payment and with the intention of deceiving the insurance company. That theory is directly within the ambit of section 550, subdivision (a)(1).
THE TRIAL COURT’S DECISION TO IMPOSE THE UPPER TERM DID NOT VIOLATE THE FEDERAL CONSTITUTION
Defendant contends that the trial court could not validly impose the upper term in the absence of jury findings on the aggravating factors the court relied on. As he acknowledges, this issue has been resolved against him by the California Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825. (Id. at pp. 855-856.) This court is bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
THE COURT DID NOT ACT IRRATIONALLY OR ARBITRARILY IN IMPOSING THE UPPER TERM FOR ARSON
Defendant contends that the court abused its discretion in imposing the upper term for arson because several of the aggravating factors the court found applicable were not supported by the evidence or by the law.
We review the court’s sentencing choices under a deferential standard. We presume that the court acted to achieve legitimate sentencing objectives, and we do not disturb the sentence unless the defendant “clearly show[s] that the sentencing decision was irrational or arbitrary.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
The first aggravating factor the court relied upon was that the arson involved planning, as shown by the use of an accelerant, defendant’s creation of an alibi, and defendant’s use of the arson and his insurance as a ploy to get out of his financial obligations. (Cal. Rules of Court, rule 4.421(a)(8).) Defendant argues that rule 4.421(a)(8) provides for an aggravated term if the commission of the crime shows “planning and sophistication.” He argues that his conduct does not show sophistication or the use of “technically advanced skills” to set the fire. We agree that the crime was not sophisticated. However, the rule is stated in the disjunctive: “planning, sophistication, or professionalism.” (Rule 4.421(a)(8).) And, although the court referred to “planning, sophistication, professionalism,” the factor the court focused on was planning. We agree with the trial court that defendant’s use of an accelerant, his creation of an alibi and the fact that he apparently intended to destroy the house to avoid foreclosure do show planning.
All further citations to rules refer to the California Rules of Court.
The second factor found by the court was that the damage was of great monetary value. (Rule 4.421(a)(9).) Defendant argues that damage in the approximate amount of $150,000 does not justify the upper term of eight years because the Legislature has provided for a graduated scheme of sentence enhancements based on the dollar value of property destroyed in the commission of a crime. That scheme provides for an additional consecutive term of one year if the loss exceeds $65,000; an additional consecutive term of two years if the loss exceeds $200,000; and an additional consecutive term of three years if the loss exceeds $1,300,000. (§ 12022.6, subd. (a)(1), (2), (3).) Because imposition of the upper term increased defendant’s sentence from five years to eight years (§ 451, subd. (b)) rather than adding one year, which would have been the maximum sentence enhancement under section 12022.6, defendant contends that use of this factor resulted in a disproportionate sentence. Even if a sentence enhancement under section 12022.6 had been alleged and found true, however, the court could use the facts underlying the enhancement to impose the upper term, so long as it struck the enhancement. (Rule 4.420(c).) There is no requirement that the upper term and the enhancement be commensurate. Accordingly, the court’s reliance on this factor was not irrational or arbitrary.
The remaining factors defendant disputes were either not mentioned by the court at all or were not factors in aggravation the court relied upon to select the upper term but factors the court assessed in deciding to impose a prison term rather than to grant probation. Consequently, we need not address those arguments.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J. Richli, J.