Opinion
D057111
11-18-2011
THE PEOPLE, Plaintiff and Respondent, v. LASZLO IMRE SVERCSICS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD205691)
APPEAL from a judgment of the Superior Court of San Diego County, Charles R. Gill, Judge. Affirmed.
Following a court trial in this matter, defendant Laszlo Imre Svercsics was convicted of three counts of making a false statement to obtain workers' compensation benefits (Ins. Code, § 1871.4, subd. (a)(1), counts 1, 2 & 3) (all undesignated statutory references are to the Insurance Code) and one count of attempted perjury under oath (Pen. Code, §§ 118, subd. (a) & 664; count 4). The count 5 charge of making a false statement to obtain workers' compensation benefits was dismissed by the court. Following trial the court, on motion by the People, dismissed the count 4 charge of attempted perjury in the interests of justice.
On counts 1 through 3, the court suspended imposition of sentence and granted Svercsics five years' formal probation, with 180 days custody, stayed pending successful completion of probation. Pursuant to a stipulation of the parties, the court imposed $9,500 in victim restitution to be paid to the State Compensation Insurance Fund (State Fund).
On appeal Svercsics asserts (1) there is no substantial evidence to support his three convictions for making false statements to obtain workers' compensation benefits; and (2) the court erred in imposing the $9,500 victim restitution order. We affirm.
FACTUAL BACKGROUND
A. The People's Case
In May 1995, when Svercsics was working as an executive chef at Heritage Place in Tracy, California, he slipped and fell on a wet mat. Svercsics suffered injuries to his back, neck and left shoulder. He also claimed the fall caused him to suffer headaches. Svercsics filed a workers' compensation claim, and in October 1996 a workers' compensation judge approved a compromise and release of the claim for $15,000.
In 1998, while Svercsics was working as a chef at Station 55 in Gilroy, California, he slipped and fell. He suffered a compression fracture to his back at the T7-8 vertebrae. He filed a workers' compensation claim and received a permanent disability award of $18,000. The 1998 injury was more severe than the 1995 injury.
Although at various times in the record this injury is referred to as occurring in 1997, 1998 appears to be the correct year.
In July 2005, while working as a cook at Studio Diner in San Diego, Svercsics slipped and fell on a wet surface and injured his back. He filed another workers' compensation claim for the injury.
On July 25, 2005, Kathlyn Ignacio, a physician with Sharp Rees-Stealy in San Diego County who specializes in workers' compensation injury cases, had an initial consultation with Svercsics regarding his July 2005 injury. Svercsics told Dr. Ignacio that he had come to see her because he had slipped on a wet surface at work and fallen on his back. He told her he had tried a light duty position at work but could not work at all because he suffered headaches, dizziness and severe pain. When Dr. Ignacio asked him his medical history, she did not limit the history to the previous 10 years. Svercsics said he had a back injury seven years earlier (i.e., in 1998). He further stated that that case was settled and that he had not had any problems with his back since. He did not mention any prior injury except for the one in 1998. Svercsics stated he had only been injured that one time. An MRI showed that he had a bulging disk at the C5-6 vertebrae. Dr. Ignacio found Svercsics to be temporarily totally disabled.
On October 17, 2005, Dr. Ignacio stated in her treatment plan that she wondered if Svercsics had "secondary gain" issues. "Secondary gain" means the worker may be using the workers' compensation system for ulterior motives or fraudulent reasons. She came to that suspicion based upon his anger with his employer for not putting down mats on the floor and because Svercsics was not getting better regardless of what treatment Dr. Ignacio gave him.
On October 31, 2005, James McSweeney, an orthopedic surgeon, examined Svercsics to render an opinion as to Svercsics's July 2005 injury. As part of that examination, Svercsics was given a 10-page medical history questionnaire. Dr. McSweeney's medical assistants would augment the questionnaire with the patient if necessary. Page 8 of the questionnaire was entitled "Past Medical History" and asked the question, "Have you ever had any previous injuries to any body parts involved in this claim? If so, please give dates and types of treatment received." Steve Lombardo, a medical assistant at Dr. McSweeney's office, wrote Svercsics's response to that question as "N/A" (not applicable). The next question asked, "Have you ever had any other on-the-job injuries? If so, please give date, employer name . . . and part of body injured." Lombardo wrote Svercsics's response as, "Eight years ago, thoracic spine, chef."
An interpreter was not present when Dr. McSweeney examined Svercsics. However, if Dr. McSweeney had any trouble communicating with Svercsics he would have rescheduled the appointment so an interpreter would be present. If Svercsics had told Dr. McSweeney about a prior injury in 1995, he would have noted that in his file. There was no such note in the file. It would be material to know about a 1995 injury claim to the same body part to determine if "apportionment" was applicable.
"Apportionment" is codified in Labor Codes section 4663 and 4664. It requires in certain circumstances that any award of workers' compensation benefits be apportioned between the current injury and any previous injury resulting in a permanent disability to the same body part.
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In November 2005 Maryam Hashemi, a claims adjuster for State Fund, was assigned to Svercsics's case. In January 2006 Dr. Ignacio expressed a concern about Svercsics to Hashemi. Dr. Ignacio advised Hashemi that State Fund needed to do a sub rosa investigation on Svercsics because his physical complaints did not match her objective findings. A sub rosa video or investigation is undertaken to show evidence that a patient is behaving differently when he or she is not in the doctor's office. After speaking to her supervisor, Hashemi arranged for an outside investigation of Svercsics. Hashemi believed that the surveillance showed Svercsics acting as though in pain while at the doctor's office, but acting like he was fine at home.
On February 21, 2006, Mark Romano, a State Fund attorney, deposed Svercsics. Svercsics was represented by an attorney at the deposition. During the deposition, Romano asked Svercsics, "Prior to Station 55, did you have any other injuries that you sustained on the job?" Svercsics responded, "No." Romano then asked, "No other worker[s'] compensation claims?" Svercsics responded, "No, not that I can remember." Romano also asked Svercsics, "Other than the slip-and-fall incident in 199[8] and the one in 2005, any other slip-and-fall incidents?" Svercsics responded, "No." All of Svercsics's responses were in English. Romano advised Svercsics of his right to review his deposition and make changes if appropriate.
In March 2006 Svercsics called Hashemi and advised her he had dismissed his attorney, would be representing himself, and would like to use a qualified medical examiner (QME). QME's provide outside medical opinions. Svercsics told Hashemi he did not need an interpreter for the QME. Hashemi and Svercsics always spoke to each other in English with no apparent problem.
On April 17, 2006, in her first permanent and stationary report, Dr. Ignacio stated that 100 percent of Svercsics's disability was caused by the injury he sustained in July 2005. Dr. Ignacio diagnosed Svercsics as having a neck sprain, back pain, and right hand pain. At that point she did not feel she could do anything else to document an actual injury she could treat. She had given Svercsics every test she could think of and referred him to consultants.
Also in April 2006, Hashemi contacted Lane Spencer, at that time an investigative liaison with State Fund. After reviewing Svercsics's deposition testimony, Spencer sought and obtained the records for Svercsics's 1998 injury claim. The 1998 injury claim alerted State Fund to Svercsics's 1995 injury claim. Spencer did an online insurance claims search and found that Svercsics had submitted workers' compensation claims for slipping and falling and injuring his back in 2005, 1998, and 1995. Svercsics also had a claim in 1996 for an automobile accident. State Fund handled the 1998 claim, but not the 1995 claim.
On August 16, 2006, attorney Romano and Svercsics attended a hearing before the Worker's Compensation Appeals Board (WCAB). Workers can appear in propria persona and interpreters are available if needed. Svercsics did not have an attorney or an interpreter present with him. The hearing lasted about an hour and a half, and Svercsics appeared to communicate effectively in English. Romano argued to the WCAB that Svercsics had not disclosed his 1995 injury, and Dr. Ignacio was not aware of it. Romano also argued that the 1995 injury claim was relevant for the purpose of apportionment.
Svercsics argued that he thought Romano's questions at his deposition were limited to 10 years in the past. Romano responded that there was no such limitation in his questioning. The case could not be settled because of the incomplete medical history regarding the 1995 injury claim.
In August 2006 Investigator Spencer sent a letter and medical records to Dr. Ignacio that referred to Svercsics injuring himself by slipping and falling in 1995 and 1998. Dr. Ignacio was asked to review those reports and submit another permanent and stationary report. Dr. Ignacio believed the 1995 injury claim was important in forming a treatment plan and on the issue of apportionment. On September 28, 2006, Dr. Ignacio issued a new permanent and stationary report that apportioned 90 percent to Svercsics's 1995 and 1998 injuries, and 10 percent to the current injury.
Dr. Ignacio treated Svercsics a total of 15 times between July 2005 and August 2006. Each time she treated Svercsics they spoke in English and they did not have any problem communicating. Svercsics never requested an interpreter.
In December 2006 Bruce Van Dam, a retired orthopedic physician and QME, examined Svercsics with the use of a Hungarian interpreter. Svercsics disclosed his 1995 injury claim, which Dr. Van Dam considered material to the issue of apportionment. Dr. Van Dam disagreed with Dr. Ignacio's opinion that Svercsics did not need any further treatment. Dr. Van Dam believed that he was a candidate for surgery, if he agreed, because he had a herniated disk in his back at the C5-6 vertebrae. Dr. Van Dam opined that Svercsics had a 35 percent impairment based upon his cervical and lumber spine conditions. Contrary to Dr. Ignacio's opinion, Dr. Van Dam apportioned 10 percent of his disability to the 1995 and 1998 injuries, and 90 percent to the 2005 injury.
In April 2007 Jeffrey Steinhardt, a chiropractor, examined Svercsics. He conducted the exam and took Svercsics's medical history in English. If Svercsics needed an interpreter, he would have provided one for him, paid for by the workers' compensation system. Steinhardt had no issues communicating with Svercsics in English. Svercsics disclosed his injuries in 1995 and 1998, which were relevant to the issue of apportionment and accurately diagnosing and treating injured workers.
B. Defense Case
On July 9, 2005, John San Nicolas was working as a cook with Svercsics in the kitchen of Studio Diner. San Nicolas heard a thud and saw Svercsics laid out on the floor. On cross-examination, San Nicolas stated that Svercsics had no problem taking orders that were written in English. The staff communicated with Svercsics in English and he always appeared to understand.
Terry Piccirelli, the owner of a house where Svercsics resides, testified that Svercsics does not read or write English and had a good reputation in the community.
Svercsics testified that he was a 54-year-old chef who emigrated to the United States from Hungary when he was 23. He testified his primary language is Hungarian and that he speaks a little English, which is mostly "street language." On July 9, 2005, he slipped on the greasy and wet concrete floor at work. Svercsics denied being asked about, or withholding, information about the 1995 injury claim at Dr. Ignacio's or Dr. Steinhardt's office.
Svercsics testified that the deposition transcript omitted how fast Romano was talking and omitted his comments where he kept telling him, "Please slow down with your English." The deposition transcript also omitted Romano stating "within 10-year[s]" when he questioned Svercsics about prior accidents. Svercsics testified he sold a hot dog business in 2004 for $35,000 and had no financial problems because he was living off that money. Svercsics stated that he told Dr. Van Dam about the 1995 injury because an interpreter was present and he could understand what was being asked.
On cross-examination, Svercsics testified that in 1995 he slipped and fell at his work station because there was ice on the floor in front of the freezer. He suffered an injury and was paid $15,000 in workers' compensation benefits. Svercsics stated that in 1998 he slipped on a water-soaked rug while he has carrying a bowl of potatoes in his hands and fell. He was paid $18,000 in workers' compensation benefits for that injury. In 2005 he slipped on water again and was injured. He believed that his employer was negligent. Svercsics was paid $5,000 as a result of slipping and falling on wet pavement outside his apartment sometime after the 2005 accident.
Svercsics admitted he did not tell Dr. Ignacio about the 1995 injury claim. He testified he did not tell Dr. McSweeney about the 1995 injury claim because the assistant did not ask him about it.
He also stated that he did not tell Romano about the 1995 injury claim during his deposition. However, he again claimed that the deposition transcript omitted Romano limiting his questions to injuries occurring within the previous 10 years.
DISCUSSION
I. SUBSTANTIAL EVIDENCE TO SUPPORT SVERCSICS'S CONVICTIONS
Svercsics asserts that there is no substantial evidence to support any of the elements required to convict him of the three counts of making false statements to obtain workers' compensation benefits. This contention is unavailing.
A. Standard of Review
On an appeal contending there is insufficient evidence to support a verdict, we review the evidence in the light most favorable to the judgment and, in so doing, determine whether there is substantial evidence such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 848-849.) The reviewing court will presume in support of the trial court's judgment the existence of every fact the trier of fact could reasonably infer from the evidence. (People v. Iniguez (1994) 7 Cal.4th 847, 854.) "The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on ' "isolated bits of evidence.(People v. Cuevas (1995) 12 Cal.4th 252, 261.) "That the evidence might lead to a different verdict does not warrant a conclusion that the evidence supporting the verdict is insubstantial." (People v. Holt (1997) 15 Cal.4th 619, 669.)
Further, it is the exclusive function of the trier of fact to assess the credibility of witnesses. (People v. Alcala (1984) 36 Cal.3d 604, 623; People v. Lopez (1982) 131 Cal.App.3d 565, 571.) We will " 'not substitute our evaluation of a witness's credibility for that of the factfinder.' " (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; see also People v. McLead (1990) 225 Cal.App.3d 906, 917.) Moreover, it is not our function to reweigh the evidence. (People v. Perry (1972) 7 Cal.3d 756, 785.) Thus, a judgment will not be overturned even if we might have made contrary findings or drawn different inferences, as it is the trier of fact, not the appellate court, which must be convinced beyond a reasonable doubt. (People v. Perez (1992) 2 Cal.4th 1117, 1126.)
B. Analysis
Section 1871.4 provides in 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." (See also People v. Webb (1999) 74 Cal.App.4th 688, 693-694.)
Thus, the elements of this crime are: (1) a materially false statement; (2) made with knowledge that it was false or fraudulent; and (3) with the specific intent to obtain workers' compensation benefits. (People v. Dieguez (2001) 89 Cal.App.4th 266, 278.) A specific intent to defraud is not an element of the crime, but is subsumed within the required elements. In other words, "a [trier of fact] necessarily finds an intent to defraud when it convicts a defendant upon a finding of all the elements listed . . . ." (Id. at pp. 279-280, italics omitted.)
It was alleged in count 1 that Svercsics told Dr. Ignacio that his only prior work-related injury was seven years earlier (i.e., in 1998) and did not tell her about the 1995 work-related injury. It was alleged in count 2 that Svercsics told Dr. McSweeney about his 1998 work-related injury, but failed to tell about his 1995 injury, either verbally or in the medical questionnaire form. It was alleged in count 3 that when attorney Romano asked Svercsics whether he had suffered any work-related injuries prior to 1998, Svercsics answered that he had not. On appeal, Svercsics argues each count separately. However, it is not necessary for us to address each count separately. Rather, we shall address all three counts together in the context of the required elements of the crime. Viewing the evidence in the light most favorable to the judgment, we conclude that there is substantial evidence to support Svercsics's convictions for violating section 1871.4, subdivision (a)(1).
1. Knowingly false or fraudulent statement
As to this element, there is no dispute that Svercsics told Dr. Ignacio, Dr. McSweeney and Romano about his 1998 injury claim, but failed to reveal his 1995 claim. Thus, the statements were false. The evidence shows that Svercsics knew about the 1995 claim because when confronted at the WCAB hearing with his failure to reveal it earlier, he did not deny knowing about it, but only argued that at his deposition he thought Romano was only asking him about work-related injuries that had occurred within the previous 10 years.
Moreover, Svercsics's excuse that he thought he was only required to reveal injuries that occurred within the previous 10 years is contradicted by the testimony of Dr. Ignacio, Dr. McSweeney and Romano that they did not so limit their inquiries. Indeed, Svercsics's testimony that the court reporter omitted from his deposition transcript Romano's qualification that he was only asking about injuries occurring within the last 10 years is not supported by anything in the record.
Further, Svercsics's claim that because his primary language is Hungarian it caused him to misunderstand what he was required to reveal is belied by the evidence. The evidence shows that he successfully performed his work, spoke with doctors, spoke with personnel from State Fund, and argued before the WCAB in English, without the aid of an interpreter.
Finally, Svercsics's argument that his deposition testimony could not be used against him because he never signed and delivered his copy of the transcript to State Fund is unavailing. The requirement of "delivery" is only relevant to the crime of perjury because no such crime is committed until the false statement is delivered to another. (See Collins v. Superior Court (2001) 89 Cal.App.4th 1244, 1247, 1249.) However, the court dismissed that count and it is not at issue on appeal.
2. Materiality
There is also substantial evidence to support the fact Svercsics's false statements were material. State Fund employees Hashemi, Romano, Spencer, as well as Svercsics's treating physicians, all testified his 1995 injury claim was relevant to the issue of apportionment; i.e., whether benefits for his 2005 injury claim would be reduced based upon the fact that some of his disability was caused by his 1995 injury. It was also germane to State Fund's determination of the legitimacy of Svercsics's 2005 claim.
3. Intent
There is also strong circumstantial evidence that Svercsics withheld evidence of his 1995 claim for the purpose of obtaining workers' compensation benefits. As stated above, if he failed to disclose his 1995 injury claim there would be less of a chance that there would be an apportionment and a reduction of benefits for his 2005 claim. Indeed, Dr. Ignacio, when informed of the 1995 claim, apportioned only 10 percent of Svercsic's disability to the 2005 injury. Svercsics had knowledge of the workers' compensation system because he had filed claims and been paid benefits two times in the past. Finally, the court obviously did not believe Svercsics's stated reasons for not disclosing the 1995 injury claim. His dubious explanations provide substantial evidence he was withholding that information in the hopes of securing a higher payout for his 2005 claim.
In sum, substantial evidence supports Svercsics's three convictions for making a false statement to obtain workers' compensation benefits.
II. RESTITUTION ORDER
Svercsics asserts that the $9,500 restitution order was erroneous because it was based on losses to State Fund that were not related to his actions that resulted in his convictions. Alternatively, he contends that if this issue was forfeited by trial counsel's failure to object, the failure to object constituted ineffective assistance of counsel. These contentions are unavailing.
A. Background
At Svercsics's sentencing, the court did not impose a prison sentence on him, but granted formal probation. As a condition of probation, the parties stipulated to restitution in the amount of $9,500, reflecting State Fund's investigation costs. The probation officer recommended an amount of $12,531.32 be imposed. This amount consisted of $3,808.47 for outside investigation costs by Marshall Kelsay, a private investigator; $1,235.52 for in-house investigative costs; $2,469.43 for copy service costs related to Svercsics 's records; $212.07 for Dr. Ignacio's report after reviewing Svercsics's deposition; $1033.40 for Dr. Ignacio's September 12, 2006 report after reviewing Svercsics's prior records; $1,402.43 for deposition expenses; and $2,400 for in-house legal expenses. However, the parties stipulated to $9,500 because any amount over $10,000 could result in Svercsics being deported.
B. Analysis
1. Forfeiture
A defendant forfeits a challenge to a restitution order by failing to object at sentencing, unless the restitution order was unauthorized, meaning the order could not lawfully have been imposed under any circumstances in the particular case. (People v. Anderson (2010) 50 Cal.4th 19, 26.)
Penal Code ection 1203.1 gives trial courts broad discretion to impose probation conditions to foster rehabilitation and to protect public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) The court may impose upon probationers "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . ." (Pen. Code, § 1203.1, subd. (j).)
In Carbajal, supra, 10 Cal.4th 1114, the California Supreme Court noted that under section 1203.1 "courts have long interpreted the trial courts' discretion to encompass the ordering of restitution as a condition of probation even when the loss was not necessarily caused by the criminal conduct underlying the conviction." (Carbajal, supra, at p. 1121.) "Under certain circumstances, restitution has been found proper where the loss was caused by related conduct not resulting in a conviction [citation], by conduct underlying dismissed and uncharged counts [citation], and by conduct resulting in an acquittal [citation]. There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action." (Ibid.) For example, in Carbajal, our high court upheld a restitution order for property damage after concluding that "in the context of the hit-and-run statute, the restitution condition may relate to conduct that is not in itself necessarily criminal, i.e., the probationer's driving at the time of the accident." (Id. at p. 1123, fn. omitted.)
Here, the restitution order was not "unauthorized" even if it was for items not directly based upon criminal conduct for which Svercsics was convicted. It was conduct related to that conviction, i.e., the investigation of his 2005 claim that ultimately led to the discovery of his false and fraudulent statements. Thus, Svercsics has forfeited his challenge on appeal to the $9,500 restitution award.
2. Ineffective assistance of counsel claim
Svercsics asserts that if he has forfeited his challenge on appeal to the restitution award because of trial counsel's failure to object, trial counsel rendered ineffective assistance. We reject this contention.
To prevail on a claim of ineffective assistance of counsel, Svercsics must show that "counsel's representation fell below an objective standard of reasonableness" (Strickland v. Washington (1984) 466 U.S. 668, 688) and that "the deficient performance prejudiced the defense." (Id. at p. 687.) In view of our conclusion the restitution order was proper, it necessarily follows that counsel's failure to object to that order did not constitute ineffective assistance of counsel. (See People v. Anderson (2001) 25 Cal.4th 543, 587 [rejecting contention that counsel was ineffective for failing to make evidentiary objection because "[c]ounsel is not required to proffer futile objections"].)
The judgment is affirmed.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
DISPOSITION
NARES, J.