Opinion
San Mateo County Super. Ct. No. SC55558
Lambden, Judge.
An information charged defendant with four felony counts of making a false statement to obtain worker’s compensation (Ins. Code, § 1871.4, subd. (a)(1)), a felony violation of grand theft (Pen. Code, § 487, subd. (a)), three counts of attempted perjury (§§ 664, 118), and a felony violation of making a false statement to obtain, increase, reduce or defeat a benefit or payment (Ins. Code, § 2101, subd. (a)). A jury found defendant guilty of two counts of making a false statement to obtain compensation and two counts of attempted perjury; the jury acquitted defendant on the other counts. Defendant appeals and argues that insufficient evidence supported the perjury convictions and that the trial court committed various prejudicial instructional errors. We agree that insufficient evidence supported one of her perjury convictions but are unpersuaded by her other arguments.
All unspecified code sections refer to the Penal Code.
BACKGROUND
Arrest and Amended Information
Defendant was arrested on September 17, 2003. Before leaving, defendant went inside her house, rummaged through some drawers, found a wrist brace, and put it on her right hand.
On February 5, 2004, an information was filed against defendant and then amended on October 20, 2005. The amended information charged defendant in counts 1, 3, 4, and 5 with a felony violation of making a false statement to obtain worker’s compensation (Ins. Code, § 1871.4, subd. (a)(1)), in count 2 with felony grand theft (§ 487, subd. (a)), in counts 6, 7, and 8 with attempted perjury (§§ 664, 118), and in count 9 with a felony violation of making a false statement to obtain, increase, reduce or defeat a benefit or payment (Ins. Code, § 2101, subd. (a)). The amended information specified that defendant’s representations in count 3 were made to Dr. Suckle, in count 4 to Dr. Lisa Key, and in count 5 to Dr. James Elbert Johnson. The amended information also asserted that the attempted perjury charge in count 6 concerned her statement during her deposition that she “ ‘lost functions in [her] right hand[.]’ ” The perjury charges in counts 7 and 8 related, respectively, to her statements during her deposition that it was “ ‘more than one year since [she] washed car(s)[,]’ ” and that she “ ‘did not help remove [the] BBQ from [the] trunk[.]’ ”
The Prosecution’s Case at Trial
Defendant’s Job and Injury
At trial, Jorge Gutierrez testified that he was defendant’s supervisor at her job as a bill collector for the Revenues Services Department of San Mateo County. Defendant’s duties included making phone calls to persons owing money to the San Mateo Medical Center and using the computer to input notes and details of conversations with debtors. Gutierrez considered defendant to be a good collector despite her occasional failure to meet the minimum requirement of 125 daily telephone contacts. In September 2000, defendant told Gutierrez that she would miss work because she was having surgery on her hand. At that time, she did not state that the ailment was related to work and she did not request worker’s compensation forms.
Defendant applied for state disability, and received $461 a week from October 2, 2000, through September 30, 2001, when her benefits were exhausted. She received a total of $23,972. In her application, she stated that her disability was not related to her job. The state disability insurance program pays benefits to eligible people who have non-industrial, non-work-related disabilities and are incapable of working.
On November 16, 2000, Girdie Bernard, the revenue services manager for San Mateo County, asked defendant if her hand injury was work-related and if she needed worker’s compensation forms. According to Bernard, defendant responded that the injury was not work-related and that she had “this pain and injury for quite a while prior” and that the injury was related to her arthritis. Defendant stated that she did not need worker’s compensation forms.
Worker’s Compensation Claim and Investigation
About three months later, in February 2001, defendant called Gutierrez and requested that worker’s compensation forms be completed. She then came in with the forms and told Gutierrez that she needed the forms signed.
Ruthanne Morentz was the worker’s compensation coordinator for San Mateo County. On February 7, 2001, Morentz met with defendant for about 10 minutes. Morentz noted from defendant’s paperwork that defendant was making a carpal tunnel claim. She noticed that defendant was wearing a brace on her right hand and was holding her hand in her lap. Defendant told Morentz that she was having severe pain and symptoms following her carpal tunnel surgery and that the doctors had told her she had reflex sympathetic dystrophy (RSD). Defendant said she could not use her right arm and her fingers had turned blue. Morentz told defendant that, because she already had surgery and she was now reporting an “older” claim as well as the fact she had a prior history of problems, her claim would be delayed for investigation.
Donna Vitalis, the person at the front desk at Morentz’s office, watched defendant as she was leaving from her meeting with Morentz. Defendant went to the elevator, but as soon as the elevator opened, the doors began to close. Defendant used both her right and left hands to try to pry the doors open. Vitalis reported to Morentz that she had seen defendant use both her hands to try to open the elevator doors.
Defendant filed a worker’s compensation claim on February 7, 2001, for a cumulative injury extending over a period of time through September 2000. San Mateo County conditionally denied her claim for failure to complete a medical consent form; defendant obtained counsel and pursued benefits.
In May 2001, Morentz decided to have defendant placed under surveillance. Morentz stated that her decision was based on several factors, including the severity of defendant’s injury, defendant’s claim to have no use of her right arm, and Vitalis’s report that she saw defendant use her right arm when attempting to open the elevator door immediately after defendant had reported to Morentz she had no use of her right arm. Additionally, records from Kaiser Hospital indicated defendant had preexisting problems dating back 10 years.
Another factor considered by Morentz when deciding to place defendant under surveillance was a report from Dr. Suckle. Defendant was sent to Dr. Suckle for an evaluation of her injury and its relationship to her employment. Morentz was concerned because defendant had not disclosed to Dr. Suckle any prior history of any preexisting problem. Morentz also believed that another “remarkable fact” was that “the exam seemed relatively normal and that [defendant] had relatively normal grip strength that were [sic]fairly equal between right and left hand.”
The record does not indicate Dr. Suckle’s first name.
Morentz hired investigator Keith Hillegass to obtain statements from defendant and the department staff. She also hired Peter Guglielmino, owner of PGIA Agency and a state licensed private investigator, to conduct surveillance and to videotape defendant. Guglielmino directed his employee, Robert Goodwin, to conduct surveillance of defendant from May 8, 2001, until February 16, 2002.
Defendant’s Appointments with Doctors
Defendant saw numerous doctors, including Dr. James Elbert Johnson, an orthopedic surgeon at Kaiser Hospital in South San Francisco specializing in hand surgery. Dr. Johnson first saw defendant on September 14, 2000, for right upper extremity problems that were part of a carpal tunnel syndrome. He performed carpal tunnel release surgery on defendant on September 25, 2000. After the surgery, defendant had more pain than Dr. Johnson expected, and he believed she might be getting RSD. He provided defendant with some treatment, but the treatment did not benefit her.
Defendant also saw Dr. Dennis Masaru Nakamura, who was board certified in physical and rehabilitation medicine, on January 19, 2001. Dr. Johnson referred defendant to him regarding the diagnosis of RSD. Defendant told him that the carpal tunnel symptoms had disappeared as a result of her surgery in September 2000, but she claimed she had new symptoms. These new symptoms included a constant burning pain, a swollen sensation, a tenderness at her scar in the palm and wrist, a weaker right upper extremity, and a sticking right thumb. Dr. Nakamura concluded that defendant most likely had RSD. He also noted that she had symptoms that were suggestive of repetitive strain injury beyond carpal tunnel.
Dr. Lisa Key, a physician at Kaiser and board certified in occupational and internal medicine, first saw defendant on February 15, 2001, and provided a first report to the worker’s compensation insurance carrier after defendant filed for worker’s compensation. Defendant told Dr. Key that she had pain in her right arm and to a lesser extent in her left arm. Dr. Key found that defendant had decreased grip strength on her right arm and had tenderness over the palm of her right hand. She diagnosed defendant with bilateral carpal tunnel syndrome and RSD.
Defendant again saw Dr. Johnson on February 27, 2001, and complained of swelling in her right hand. She also complained of neck pain and tightness in the neck.
Defendant saw Dr. Key on March 14 and April 17, 2001. Defendant still claimed she had pain and also reported having problems with her left arm.
On May 9, 2001, defendant saw Dr. Johnson and complained of swelling on the right hand; she also stated that her wrist was painful and stiff. Defendant also noted constant pain on the right side of her neck and right shoulder; this pain preexisted her surgery. Dr. Johnson reviewed an MRI, which did not show anything significant. A bone scan indicated mild RSD, but he did not believe it was significant. When Dr. Johnson used a method to distract defendant, he discovered that she had full range of motion in her right wrist.
Dr. Key saw defendant on May 14, June 5, July 16, and August 13, 2001. Defendant still complained of pain in her right arm.
Defendant saw Dr. Johnson on August 15, 2001. Defendant continued to report severe pain in the shoulder, forearm, wrist, and hand.
Defendant continued to see Doctors Key, Nakamura, and Johnson through April 2002. She continued to complain of pain. Dr. Key stated that, during the period she saw defendant, defendant continually reported having a great deal of pain in her right arm and difficulty using this arm.
Videotapes
Goodwin testified that he took five videotapes of defendant from May 8, 2001, until February 16, 2002, and these tapes were played in court. Defendant was seen wearing the wrist brace and bandages for the first time on September 10, 2001, only while going to the doctor’s office. Later that day, when going to the Office Depot, she no longer had the brace on her wrist, only bandages. The videotapes showed defendant driving a car and, on a number of occasions, opening and closing a car door with her right hand. Defendant was observed using both her hands to wash her car on July 3 and October 6, 2001. Defendant was also observed pumping gas into her car and using her right hand on July 10, 2001. On October 31, 2001, defendant carried “stuff” in her right hand. Additionally, on December 17, 2001, defendant was seen attempting to remove a barbecue inside a big box from the trunk of the car. She fell, laughed, and was helped up by her neighbor. She exhibited no apparent pain or disability.
These descriptions of defendant’s activities on the videotapes are from the prosecution’s sentencing memorandum and the doctors’ testimony.
Doctors’ Impressions After Viewing Videotapes
After viewing the videotapes, Dr. Key stated that defendant’s activities on the videotapes were inconsistent with her description to the doctor about the problems she was having with her right hand and with her comments about her level of disability. Dr. Key opined that defendant had been misrepresenting her complaints and had presented herself as more disabled than what appeared on the videotapes. Based on defendant’s activities in the videotapes, Dr. Key would have returned her to restricted work.
Dr. Johnson also viewed the videotapes. He stated that defendant’s statements to him were inconsistent with the activities defendant performed in the videotape. After watching the videotapes, he opined that defendant “probably” could work.
The Investigation by Counsel Hired by Morentz
Morentz hired Philip Klein, a worker’s compensation defense attorney. Klein testified that the doctors’ reports were essential in worker’s compensation cases, because their opinions control the benefits, if any, to which an injured worker is entitled. He opined that doctors were very dependent upon the stated history and representation by the claimant.
Klein deposed defendant on February 22, 2002, because he believed defendant’s statements to her doctors were inconsistent with the activities she performed on the videotape. When Klein asked defendant whether it was an accurate statement that she made to Dr. Johnson on January 9, 2002, that she had no use of her right hand, she responded that on that day she “probably didn’t have any use of it.”
When asked about her driving, she stated that she “basically” drove with her left hand. She did acknowledge that her car, a corvette, was a stick shift.
Klein asked defendant whether she washed her cars and she responded, “No.” She said that she had her cars washed at a car wash. She asserted that it had been “way over a year” since she last washed either of her cars.
When asked about lifting, defendant stated that a neighbor helped her lift a barbecue. She held the trunk for him and her neighbor did all the lifting. When asked whether she did anything, she responded: “No. I just held the trunk up for him.” When asked whether all she did was hold the trunk, she responded, “Yes.”
Klein also testified regarding a report by Dr. Suckle, who had been hired to evaluate defendant’s claim. He testified that Dr. Suckle prepared a last report on April 24, 2002, after he had defendant’s deposition and the videotapes. In this report, Dr. Suckle stated that defendant had misrepresented her physical condition to him.
Dr. Suckle had suffered a stroke and was unavailable as a witness.
Section 1118.1 Motion
At the close of the prosecution’s case, defendant moved for acquittal pursuant to section 1118.1. The trial court denied this motion, but acknowledged that the quoted references in the attempted perjury charges, which were also set forth in the verdicts, did not necessarily reflect actual statements made by defendant at her deposition. The court advised the prosecutor to explain the quoted references in the charging document and verdicts to the jury in closing argument.
The Defense’s Case at Trial
Dr. Richard F. Gravina, a neurologist and psychiatrist, reviewed defendant’s medical records and examined her. He testified that defendant suffered from bilateral carpal tunnel syndrome, post-operative right RSD, repetitive stress injury, and tendonitis. He maintained that these injuries resulted from cumulative trauma sustained at defendant’s workplace.
Dr. Gravina also reviewed the videotapes of defendant. He did not find any of defendant’s activities, including moving the barbecue box or washing cars, inconsistent with his diagnoses. He explained that the activities on the videotape were “medically dumb,” but his diagnosis was based on objective diagnostic tests, such as bone scans, and they could not be faked. He opined that defendant had a bizarre and almost pathologic attachment to cars, and therefore he discounted the car washing incidents. He stated that medication could cover up the pain and patients have good and bad days. Dr. Gravina, who was familiar with worker’s compensation issues, concluded that defendant was temporarily disabled and could not work. He opined that defendant’s activities seen on the videotapes were not inconsistent with that disability status.
Dr. Robert Wayne Allen, an expert in pain management, examined defendant on February 3, 2003. He diagnosed defendant with chronic neck, shoulder and bilateral upper extremity, arm, wrist, and hand pain. He also diagnosed her with bilateral severe carpal tunnel syndrome and severe repetitive stress injury. He found defendant’s activities on the videotapes, ill-advised, but not inconsistent with the diagnosis. Dr. Wayne did not believe defendant was misrepresenting her pain level, since patients have fluctuating pain levels. He would not have returned defendant to work during the period of September 2000 to December 2002.
Verdict and Sentence
The jury received the verdict form. With regard to count 7, the form specified the jury was to determine defendant’s guilt “of the crime of ATTEMPTED PERJURY in violation of . . . SECTION 664/118 TO WIT: MORE THAN ONE YEAR SINCE WASHED CARS as alleged in Count 7 of the Information filed herein.” With regard to count 8, the form specified the jury was to determine defendant’s guilt “of the crime of ATTEMPTED PERJURY in violation of . . . section 664/118 TO WIT: DID NOT HELP REMOVE BBQ FROM TRUNK as alleged in Count 8 of the Information filed herein.”
On November 15, 2005, the jury returned the verdict form and found defendant guilty of two counts of making false statements to Dr. Key and Dr. Johnson to obtain compensation (counts 4 and 5) and two counts of attempted perjury (counts 7 and 8) related to her statements about washing her car and about not helping to remove the barbecue from the trunk. The jury acquitted defendant of the other five counts.
Defendant moved for a new trial, which the court denied at the sentencing hearing on February 14, 2006. The court suspended imposition of sentence and placed defendant on supervised probation for five years, conditioned upon various terms.
Defendant filed a timely notice of appeal.
DISCUSSION
I. Evidence of Attempted Perjury
Defendant never signed the transcript of her deposition and therefore the charges against her were for attempted perjury. (See, e.g., People v. Post (2001) 94 Cal.App.4th 467, 480-484.)
Section 118 defines the crime of perjury as follows: “(a) Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury. . . .
“(b) No person shall be convicted of perjury where proof of falsity rests solely upon contradiction by testimony of a single person other than the defendant. Proof of falsity may be established by direct or indirect evidence.”
The jury found defendant guilty of two counts of attempted perjury for her statements during her deposition that she did not help remove a barbecue from the trunk of her car and that she did not wash her car within the past year. Defendant contends that insufficient evidence supported these convictions.
A. Standard of Review
“ ‘When a finding of fact is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. [Citations.] [¶] When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.’ ” (Scott v. Common Council (1996) 44 Cal.App.4th 684, 689, quoting Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 784-785.) The court “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence––that is, evidence which is reasonable, credible, and of solid value––such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
However, the Legislature has determined that there is an exception to the substantial evidence test in perjury cases. In a perjury case, the testimony of a single witness as to the falsity of the defendant’s perjurous statement (§ 118, subd. (b)) must be corroborated before a conviction can be based on this testimony.
B. Removing the Barbecue from the Automobile Trunk
Defendant was charged in count 8 with attempted perjury based on her statement in her deposition that she “ ‘did not help remove [the] BBQ from [the] trunk[.]” Defendant contends that the evidence was insufficient to support a conviction on this count because defendant stated in her deposition that she helped her neighbor remove the barbecue from the trunk by holding the hood of the trunk open.
Attorney Klein conducted the deposition of defendant, and the exact questions and answers about the removal of the barbeque from the trunk of defendant’s automobile were as follows:
“Q: Have you done any lifting, let’s say of any object or objects over ten pounds in the past two months?
“A: I would have to say no. What day is it today? The 21st?
“Q: Let’s say December, January, February, have you done any lifting of objects over ten pounds?
“[Defense Counsel]: Do you have any particular objects in mind?
“[Klein]: No.
“A: No.
“[Defense Counsel]: Lifted any packages, groceries?
“A: I had a neighbor that was helping me try to lift something, a barbecue, and I was just holding the trunk up for him and trying to direct him [to] pull it out, as to the way the people put it in the trunk.
“Q: Was he doing all the lifting?
“A: Yes.
“Q: Did you do anything?
“A: No, I just held the trunk up for him.
“Q: That’s all you did was hold the trunk?
“A: Yes.”
The People assert that defendant did much more than simply hold open the trunk, which the videotape and the testimony of the doctors describing the incident corroborated. The doctors’ testimony about what they saw on the videotape as well as the videotape, itself, showed defendant pushing and pulling on the barbecue. The People argue that this evidence was sufficient to support the attempted perjury count.
The information and verdict form provided that defendant falsely testified that she “did not help remove [the] BBQ from [the] trunk.” The People concede that both the information and the verdict form do not accurately reflect defendant’s exact statements regarding the barbecue incident. The People maintain that the prosecutor did not charge defendant with specifically stating that she did not help remove the barbeque from the trunk, despite this statement being enclosed in quotes in the information.
Count 8 in the information alleged in pertinent part: “On or about 02/21/2002, [defendant] having taken an oath that [she] will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in a case in which such oath may by law of the State of California be administered, did willfully and unlawfully attempt contrary to such oath, to state as true material matter which [she] knew to be false, or did willfully and unlawfully attempt to testify, declare, depose, or certify under the penalty of perjury in a case in which testimony, declarations, depositions, or certifications is permitted by law of the State of California as true material matter which [she] knew to be false, in violation of . . . section 664/118, a felony. To wit: ‘Did not help remove BBQ from trunk.’ ”
The People assert that the variance between the quoted material in the information (and the verdict) and defendant’s actual statements at the deposition was an issue addressed and settled correctly at trial. At the close of the prosecution’s case, defense counsel moved for acquittal pursuant to section 1118.1. With regard to count 8, defense counsel argued that the record established that defendant never stated at her deposition that she did not help remove a barbecue from the trunk.
The prosecutor responded that the quoted statement in the information was simply her attempt to “summarize what the defendant’s testimony was with regard to helping the neighbor with the barbecue.” The court asked the prosecutor why she placed these words in quotes in the information. The prosecutor responded that she was not trying to indicate that it was a quote from defendant. Rather, she claimed: “I was trying to indicate, to wit, this is what the testimony is that I’m––that I’m pointing at. That’s not even required by the code section, but I simply put it in there to notify the defense to what testimony I’m relying on with regard to that particular count.”
The trial court concluded that the prosecutor was simply giving defendant notice as to the areas of each attempted perjury charge. Had there been one perjury count, no further elaboration would have been needed. The court then denied defendant’s section 1118.1 motion, but advised the prosecutor to explain the quoted references in the charging document and verdict to the jury in closing argument.
The People maintain that the prosecutor did adequately explain the quoted material to the jury and that the jury therefore did not make a specific finding that defendant did not help remove the barbecue from the trunk of the car. In closing argument, the prosecutor told the jury that counts 6, 7, and 8 in the information “alleged specific areas in the transcript of the deposition that I believe fit those counts. Okay? So that’s why in Count six, on the verdict forms, it’s going to say ‘lost functions in the right hand.’ That’s not a specific quote from the defendant, but it points the defendant to the particular areas in the deposition that I feel fit that count.”
With specific reference to count 8, the prosecutor argued to the jury the following: “Count eight I summarized by saying ‘did not help remove barbecue from trunk[.]’ ” The prosecutor then repeated the quoted testimony cited above and provided no further explanation. The People do not point to any place in the prosecutor’s argument where the prosecutor told the jury that defendant’s false statement was that she did not help “lift” the barbecue from the trunk rather than she did not help “remove” the barbecue from the trunk.
Although not specifically addressed by either party, the presumption appears to be that the jury found defendant guilty of attempted perjury based on her statement that she never lifted any object over 10 pounds and that her neighbor, alone, attempted to lift the barbeque. The verdict, however, specifically provides that the jury found defendant guilty for falsely stating that she did not help “remove” the barbecue from the trunk of the car. There is no evidence in the record to support this because the cited deposition testimony establishes that defendant expressly stated that she helped her neighbor remove the barbecue from the trunk of her car by holding open the trunk.
“Of course, it is elementary that every fact or circumstance necessary to constitute the crime charged must be alleged and proved, and the proof must correspond with the allegations in the pleading. But technical or trifling matters of discrepancy will not furnish ground for reversal. Under the generally accepted rule in criminal law a variance is not regarded as material unless it is of such a substantive character as to mislead the accused in preparing his defense, or is likely to place him in second jeopardy for the same offense.” (People v. Williams (1945) 27 Cal.2d 220, 225-226.)
Thus, the question presented, although not addressed by the People, is whether this variance between the quoted material in the information and the proof of the attempted perjury charge was material. “With respect to the crime of perjury it is . . . said in 48 Corpus Juris, page 886, section 138: [¶] ‘Strictness of proof is required in all matters which constitute the essence of the crime, and a substantial variance in this regard is fatal; but strict proof is not required as to immaterial averments, or it has been stated, as to those which are not descriptive of the offense, and a variance in respect of such matters is not fatal.’ ” (People v. Mizer (1940) 37 Cal.App.2d 148, 153-154.)
Defendant contends that the present case is similar to the facts in People v. Ames (1943) 61 Cal.App.2d 522. The allegation in People v. Ames was “that defendant testified in the civil action that she borrowed the money to apply on the purchase price of the car . . . .” (Id. at p. 529.) The court noted that this statement was “a material part of the charge against” the defendant “as it was descriptive of the perjury which she was alleged to have committed.” (Ibid.) The appellate court concluded that the motion for a new trial on this count should have been granted because the record contained no evidence in the record to support this allegation. (Id. at pp. 528-529.) Similarly, here, the difference between the allegation that defendant “did not help remove” the barbecue from the trunk of her car is materially different from an allegation that defendant did not lift any object over 10 pounds and did not help her neighbor “lift” the barbecue out of the trunk. A high standard of proof is required for perjury and the essence of the attempted perjury charge in count 8, as alleged, was that defendant falsely stated that she did not assist in the removal of the barbeque from the car’s trunk. However, as already noted, defendant admitted to helping her neighbor remove the object by holding open the trunk. Thus, the record establishes that no evidence supported this allegation. Accordingly, we reverse the attempted perjury conviction as to count 8.
The record contains no evidence regarding the weight of the barbecue.
We need not address defendant’s other arguments that defendant’s statements concerning the barbecue (1) were volunteered in response to Klein’s original question about whether she had done any lifting, (2) were misleading or unresponsive to the question regarding lifting, and (3) were not material in the respect that they could possibly have influenced the outcome of the proceeding.
C. More than One Year Since Defendant Washed Her Car
Both the information and the form verdict stated that, for count 7, defendant testified falsely that it was “more than one year since [she had] washed [her] car(s).” Defendant maintains that defendant never specifically said in her deposition that it was more than one year since she had washed her car and therefore the record contains insufficient evidence to establish that her statement was false. Defendant also challenges the sufficiency of the evidence in support of the element of materiality.
1. The Deposition Testimony and the Prosecutor’s Argument
Defendant’s conviction of attempted perjury on count 7 was based on the following questions and answers at defendant’s deposition on February 21, 2002:
“Q: Do you presently wash your cars?
“A: No. I have my cars washed.
“Q: When [was] the last time you washed either the Towncar or the Corvette?
“A: Probably––I don’t know. It has been way over a year.”
In her closing argument, the prosecutor argued to the jury that she had alleged “the specific testimony is [that it had been] more than one year since [defendant] washed the cars. That was February 21st, 2002. We know on the videotape she’s washing cars not only October 6th, but also July 3rd as well.” The prosecutor then set forth the foregoing exchange in the deposition.
2. The Element of Falsity
Defendant contends that her response to when was the last time she washed her car was too ambiguous and unresponsive to establish perjury. She asserts that Klein failed to follow-up with a question that pinned her down as to when she last washed her car. She cites Bronston v. U.S. (1973) 409 U.S. 352, which holds that “the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner––so long as the witness speaks the literal truth. The burden is on the questioner to pin the witness down to the specific object to the questioner’s inquiry.” (Id. at p. 360.) “[A]ny special problems arising from the literally true but unresponsive answer are to be remedied through the ‘questioner’s acuity’ and not by a . . . perjury prosecution.” (Id. at p. 362.)
The falsity element of the crime of perjury requires that a statement be literally false. Misleading and nonresponsive testimony that is literally true cannot support a perjury conviction. (In re Rosoto (1974) 10 Cal.3d 939, 950; Cabe v. Superior Court (1998) 63 Cal.App.4th 732, 740.)
The People contend that defendant’s answer was not ambiguous, because defendant clearly stated that it had been “way over a year” since she washed her car. The People maintain that this was an answer that was literally false.
There are several problems with the question posed by Klein. Not only did Klein fail to pin defendant down regarding her initial response of “probably,” but he also failed to clarify in a follow-up question that he was referring to defendant’s personally washing the car and not to defendant’s taking her car to a carwash or having others wash her car. The question for us on review, however, is whether a rational jury could possibly have found the falsity element of the crime of perjury satisfied. In the present case, we conclude the jury could have found defendant’s response that it had been “way over a year” since she last washed her cars was false given the videotapes showing her personally washing the car on two separate occasions. Although defendant initially stated, “Probably—I don’t know,” that portion of her answer was non-responsive to the question. Her subsequent response did answer the question and therefore the jury could have concluded that defendant intentionally provided a false statement when stating that it had been “way over a year” since she washed the car.
D. The Materiality Element
Defendant contends that her statement regarding washing her car was not material. She claims that her ability to wash the car was immaterial because, as her experts testified, persons with carpal tunnel syndrome and RSD can have good and bad days, and she could have washed her cars on good days or when her pain medication masked the pain. Her subjective complaints of pain to her doctors were therefore, according to defendant, not inconsistent with her ability to use her right hand to wash her cars on her “good” days.
When considering whether a statement is material, California law focuses on whether the false statement, at the time it was made, had the tendency to probably influence the outcome of the proceedings. (See, e.g., People v. Poe (1968) 265 Cal.App.2d 385, 391.) Defendant cites the testimony of her expert doctors that defendant’s ability to wash the car had no bearing on the diagnosis of carpal tunnel or RSD and their testimony that the objective tests established her injury.
The question, however, is whether a jury could reasonably have found that, had defendant told Doctors Key, Johnson, and Nakamura that she was able to use her right hand to wash her cars, it would have probably affected these doctors’ assessments of whether she could work. The videotape showed defendant washing her car in July and October 2001. Specifically, on October 6, 2001, Dr. Key, as well as others, testified that the videotape showed defendant washing both of her cars for a period of about one hour and 34 minutes. Defendant used a rag or sponge after hosing the car and then dried the car. Two days later, on October 8, defendant saw Dr. Key and told her that both her arms were extremely tender and painful. She stated that she had pain all of the time, was having difficulty doing things with her right hand, and did not seem to be getting any better. She did not mention washing her car two days earlier.
Dr. Key testified that defendant’s action of washing her cars was “actually more than” Dr. Key would have expected that she could do, given defendant’s statements to her during her office visits. Dr. Key testified that this activity did not bear on her diagnosis of bilateral carpal tunnel or RSD or her determination that defendant could not return unrestricted to work. She did, however, testify that the fact that defendant could wash her cars showed that she “was capable of some repetitive activity” and that she might have been able to return to work with restrictions, such as limitations on typing to about four hours a day.
Dr. Johnson testified that, after viewing the videotapes, he believed that defendant had misrepresented herself to him during her office visits, although he could not say whether she deliberately misrepresented herself to him. He stated that, after seeing the videotape, he “would have strong feelings that probably she could return to work.” His diagnosis and treatment, however, would have remained the same. Dr. Johnson conceded that defendant’s complaints of pain when visiting him, despite being able to wash her car, would not represent a misrepresentation under the theory of a good and bad day. He further elaborated that the videotapes only showed good days, and defendant did not appear to have any bad days while being taped. He opined that the “theory” of a good day and a bad day as explaining defendant’s activities on the videotapes while complaining of pain each time she saw him was “probably” a “theory [that was] not going to bear out[.]”
Dr. Nakamura stated that, based on defendant’s complaints and description of her symptoms during the time he saw her from January to October 2001, he believed she was completely disabled, unable to work, and probably unable to do many everyday activities. He did not see the videotapes, but he testified that he would not have expected to see her wash her cars using her right and left hands. Of his 50 to 100 RSD patients, he never saw any of them hand washing cars themselves.
Accordingly, based on the testimony of the three doctors who treated defendant, we conclude sufficient evidence supported the jury’s finding of materiality.
II. The Instruction on Materiality for the Crime of Perjury
For the perjury charges, the trial court gave the following instruction regarding materiality: “A false statement is material if it could influence the outcome of the proceedings in which it is uttered. Whether it actually had that effect is irrelevant.” Defendant contends that this instruction was prejudicially erroneous.
Defendant cites the holding in People v. Rubio (2004) 121 Cal.App.4th 927, which concluded that the same instruction on materiality used in the present case was overbroad. (Id. at p. 929.) The Rubio court explained: “This instruction correctly informs the jury that a false statement must be material before the defendant can be found guilty of perjury. The instruction then defines a false material statement as one that ‘could influence the outcome of the proceedings in which it is uttered.’ We think the correct definition of a false material statement is one that ‘could probably have influenced the outcome’ of the proceeding in which it is uttered.” (Ibid.) The court concluded that “[v]irtually any false statement could possibly influence the outcome of the proceeding.” (Id. at p. 933.) The Rubio court, however, held that the instruction was harmless because defendant had essentially conceded the fact of materiality in the lower court. (Id. at p. 935.)
We agree that the instruction given by the trial court in the present case was deficient. Most constitutional errors are subject to harmless error analysis because they do not “necessarily render a criminal trial fundamentally unfair . . . .” (Neder v. United States (1999) 527 U.S. 1, 8-9.) The California Supreme Court has held that instructional error affecting an element of the offense is not a structural defect requiring automatic reversal of the conviction under either the California or United States Constitution. (People v. Flood (1998) 18 Cal.4th 470, 490, 503-504.) Thus, this misstatement of the materiality element is subject to harmless error review under Chapman v. California (1967) 386 U.S. 18. (People v. Rubio, supra, 121 Cal.App.4th at p. 935.) We therefore affirm the judgment only if it appears “beyond a reasonable doubt” that the incorrect instruction did not contribute to the verdict. (Chapman, supra, 386 U.S. at p. 24.)
Since we are reversing the perjury conviction for count 8, we need only to consider whether the deficient instruction was harmless beyond a reasonable doubt for defendant’s conviction on count 7. Defendant maintains that, unlike the situation in People v. Rubio where the defendant essentially conceded the fact of materiality (People v. Rubio, supra, 121 Cal.App.4th at p. 935), defendant in the present case vigorously contested the materiality of the statements and the evidence of materiality was “not overwhelming.”
Contrary to defendant’s assertion that materiality was vigorously argued in the present case, defense counsel did not argue materiality in her closing argument. Indeed, appellate counsel for defendant fails to point to any place in the record where trial counsel argued materiality in the closing argument. During closing argument, defense counsel argued that both Dr. Gravina and Dr. Allen testified that they were not impressed with the videotapes because defendant’s actions were medically ill-advised but did not affect their diagnoses. Defense counsel also stressed the “good day and bad day” theory presented by defendant’s expert doctors. With regard to the perjury counts, defense counsel argued that defendant’s statements were not false. Defense counsel defined perjury as “lying under oath” and then proceeded to emphasize the reasons she believed her client had not lied. With regard to the statement about washing the cars, defense counsel argued that the issue was “semantics” and it depended upon what part of the response the jurors were going to believe. She explained that it depended upon whether the jurors believed defendant’s first sentence of “Oh, I probably––I don’t know,” or the second sentence, “It’s been way over a year.”
Although defense counsel did not mention materiality, the prosecutor explained that a fraudulent statement was material if it was “important.” Subsequently, the prosecutor again repeated that the element of material for perjury means, “It has to be important. It can’t be the sky is purple. It can’t be it was raining that day, unless it’s important to the investigation.” The People maintain that the prosecutor’s discussion of materiality cured any problem with the deficient instruction.
Defendant responds that simply admonishing the jury that “material” means “important” is insufficient. Rather, the jury had to be told that the definition of material is that the false statement “ ‘could probably have influenced the outcome of the proceedings . . . .’ ” (People v. Rubio, supra, 121 Cal.App.4th at pp. 931-932.)
We agree with defendant that the prosecutor’s statements did not adequately address the problems with the deficient instruction. However, we conclude that the instructional error was harmless beyond a reasonable doubt.
Defendant argues that the doctors testified that patients with carpal tunnel syndrome and RSD can have good and bad days, which explained defendant’s ability to wash her cars on two occasions. Dr. Johnson stated that had he seen defendant’s activities on the videotape his diagnosis and treatment would have remained the same. Further, Dr. Gravina concluded that defendant was temporarily disabled and could not have returned to work despite defendant’s actions on the videotapes because of his conclusion regarding the objective findings. Finally, Dr. Wayne stated he did not believe defendant was misrepresenting her pain level and patients experience fluctuating pain levels.
The fact that defendant may have experienced good and bad days does not negate the fact that the jurors could find defendant’s failure to tell her doctors that she had some good days was a material false representation. The evidence was overwhelming that defendant presented herself to Doctors Key, Johnson, and Nakamura as being in constant pain and unable to participate in everyday activities and unable to work. All of these doctors reported that defendant never stated that she could do activities such as washing her cars. All of the doctors treating defendant testified that the activities portrayed on the videotape indicated that defendant had misrepresented her symptoms to them. Although Doctors Key and Johnson did not change their diagnosis that defendant suffered from carpal tunnel syndrome and RSD even after viewing the videotapes, the doctors did conclude after viewing the tapes that defendant was probably able to work with restrictions. Viewing the videotapes caused Dr. Key to believe that defendant could work with restrictions, which was especially significant since she was the doctor authorized to make the decision about defendant’s ability to work.
Given the lack of any argument regarding materiality by defense counsel during closing argument and the testimony of Doctors Key and Johnson that the videotapes made them believe defendant probably could work with restrictions, we conclude that the trial court’s deficient instruction on materiality was harmless error under Chapman v. California, supra, 386 U.S. at page 24.
III. The Instruction on Materiality for the Crime of Insurance Fraud
The jury convicted defendant of worker’s compensation fraud for her representations to Dr. Key and Dr. Johnson. As to the worker’s compensation fraud charges, the trial court instructed on materiality as follows: “A statement is material if it concerns a subject reasonably relevant to the investigation and if a reasonable insurer would attach importance to the fact represented. A statement is material even if it does not influence the ultimate decision to award benefits. The statement is material if it could have influenced the decision to award benefits.”
Insurance Code section 1871.4 provides in pertinent 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 . . . any compensation, as defined in Section 3207 of the Labor Code.”
Defendant argues that the materiality instruction given regarding insurance fraud suffers from the same problem as the materiality instruction given for perjury. (See People v. Rubio, supra, 121 Cal.App.4th at p. 933.) She maintains the instruction given could be interpreted by the jury to mean that a statement is material if it could possibly influence the outcome of the proceedings and all relevant statements could possibly influence the outcome of the proceeding. Thus, according to defendant, under this instruction, all false statements would be material.
The instruction given in the present case conforms to the definition of material set forth in People v. Gillard (1997) 57 Cal.App.4th 136. The Gillard court explained that a false statement to obtain insurance benefits is material if it “convey[s] information on subjects which are ‘germane’ or ‘reasonably relevant’ to the insurer’s investigation and which could bear directly and importantly on the investigation and evaluation of the bona fides of the claim.” (Id. at p. 152.) “ ‘[I]f the misrepresentation concerns a subject reasonably relevant to the insured’s investigation, and if a reasonable insurer would attach importance to the fact misrepresented, then it is material.’ ” (Id. at p. 151, italics omitted.)
All false statements that could influence the investigation are not material under the definition of material set forth in People v. Gillard, supra, 57 Cal.App.4th at page 151. Rather, only those false statements that concern “a subject reasonably relevant to the insured’s investigation” and such that “a reasonable insurer would attach importance to the fact misrepresented” are material. (Id. at p. 151, italics omitted.) It is true the instruction does contain the language, which concerned the court in People v. Rubio, but the entire given instruction makes it clear that only a false statement relevant to and important to the insurer can be considered material. Accordingly, we conclude that the instruction on worker’s compensation fraud was adequate and not erroneous.
Further, for the same reasons already discussed regarding the perjury instruction, we conclude that any alleged instruction error was harmless. As already discussed, defense counsel never mentioned in closing argument that the statements made by defendant were not material. Moreover, both Doctors Key and Johnson testified that defendant’s description of her injuries were inconsistent with the activities they observed her doing on the videotape. Both testified that defendant presented herself as being in constant pain and unable to work. Klein explained that the benefits a claimant receives for worker’s compensation depend on the doctors’ opinions and the doctors rely on accurate representations by their patients of their symptoms and capabilities.
Accordingly, we conclude there was no instructional error but, even if we were to presume there was, any alleged error was harmless beyond a reasonable doubt under Chapman v. California, supra, 386 U.S. at page 24.
IV. Sua Sponte Unanimity Instruction
The information charged defendant with four felony counts of making a false statement to obtain compensation. The jury returned guilty verdicts on count 4 for representations to Dr. Key between February 15, 2001, and May 15, 2002, and on count 5 for representations to Dr. Johnson between September 4, 2000, and November 26, 2002. Defendant contends that the trial court has a sua sponte duty to instruct the jury on unanimity pursuant to CALJIC No. 17.01 with respect to the insurance fraud counts. She asserts that it is impossible to determine beyond a reasonable doubt whether the jury actually rendered a unanimous verdict.
The other two counts of insurance fraud related to representations made to Dr. Suckle and false statements made to obtain the benefits.
“Defendants in criminal cases have a constitutional right to a unanimous jury verdict. [Citation.] From this constitutional principle, courts have derived the requirement that if one criminal act is charged, but the evidence tends to show the commission of more than one such act, ‘either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act.’ [Citations.] . . . [¶] . . . [However,] [e]ven when the prosecution proves more unlawful acts than were charged, no unanimity instruction is required where the acts proved constitute a continuous course of conduct. [Citation.] ‘ “This exception arises in two contexts. The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. [Citation.] The second is when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time.” ’ [Citation.]” (People v. Napoles (2002) 104 Cal.App.4th 108, 114-115.)
As our Supreme Court has stated: “The unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction. [Citations.] The ‘continuous conduct’ rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.” (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)
Defendant maintains that the evidence presented to the jury included numerous discrete events where defendant was alleged to have knowingly made false statements or representations to Doctors Key and Johnson for the purpose of obtaining insurance compensation. Each visit, according to defendant, was separated by time and place and defendant’s complaints about pain varied. She claims that the jurors could have believed her guilty on one occasion and not on another. (See People v. Russo (2001) 25 Cal.4th 1124, 1135.) She asserts that the facts of this case have no similarity to People v. Dieguez (2001) 89 Cal.App.4th 266, 275-276, where all of the false statements were made during a single appointment with the doctor. We disagree that the present case involved discrete claims against Dr. Key and Dr. Johnson rather than acts “so closely connected as to form part of one continuing transaction or course of criminal conduct.” (People v. Dieguez, supra, 89 Cal.App.4th at p. 275.) Prior to trial, the prosecutor requested to proceed on a continuous course of conduct theory. The court granted this request. The prosecution proceeded on that theory, and the defense offered a single defense, which was that defendant had not misrepresented her disability. The fact these statements were made at different appointments is not dispositive. Rather, the question is whether the acts were “so closely connected that they form part of one and the same transaction, and thus one offense.” (People v. Avina (1993) 14 Cal.App.4th 1303, 1309.) Here, the statements may have been separated by time, but they were given under the same set of circumstances and to the same doctor.
“[N]o unanimity instruction is required when the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct. ‘The “continuous conduct” rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.’ [Citations.]” (People v. Dieguez, supra, 89 Cal.App.4th at p. 275.) In the present case, defendant offered the same defense to all of her statements during her visits to the doctors. She claimed that she honestly stated her symptoms and made no misrepresentations. If a defendant offers a unitary defense to all charges and the jury rejects that defense, the failure to give a unanimity instruction is harmless error. (People v. Wolfe (2003) 114 Cal.App.4th 177, 185-187.)
Moreover, where the information alleges a course of conduct in statutory terms, which occurred between two designated dates, and the issue before the jury was whether the accused was guilty of the course of conduct, not whether the defendant had committed a particular act on a particular day, a unanimity instruction is inappropriate. (People v. Daniel (1983) 145 Cal.App.3d 168, 174.) “ ‘A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.’ [Citations.] ‘[W]here the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury’s understanding of the case.’ ” (People v. Beardslee (1991) 53 Cal.3d 68, 93.)
We therefore conclude the trial court had no sua sponte duty to give a unanimity instruction.
DISPOSITION
The judgment is reversed as to count 8 and affirmed in all other respects.
We concur: Kline, P.J., Richman, J.