People v. Bolton CA6 ( 2015 )

Filed 12/16/15 P. v. Bolton CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H041106
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS121238A)
v.
CHIP KYLE BOLTON
Defendant and Appellant.
A jury found appellant Chip Bolton guilty of two counts of making a
false/fraudulent insurance claim (Ins. Code, § 1871.4, subd. (a)(1), counts 1 & 2), one
count of attempted perjury (Pen. Code, §§ 118, subd. (a), 664, 1 count 3), one count of
fraud to obtain aid (Welf. & Inst. Code, § 10980, subd. (c)(2), count 4), one count of
perjury (§ 118, subd. (a), count 5), one count of grand theft (§§ 484, 487, subd. (a), count
6), and one count of insurance fraud (§ 550, subd. (b)(2), count 7). On May 2, 2014, the
court sentenced appellant to an aggregate term of eight years, eight months in county jail.
In this timely appeal from the judgment, appellant contends that the trial court
violated his Sixth and Fourteenth Amendment rights and abused its discretion by
dismissing a juror during jury deliberations. Further, the court erred in failing to stay the
sentences on counts 2, 5, and 7 pursuant to section 654.
1
All further statutory references are to the Penal Code unless otherwise indicated.
Given the limited issues on appeal, we do not set forth the underlying facts in
detail. However, we do set forth the factual and procedural background related to
appellant’s claim that the trial court erred in dismissing a juror during deliberations.
On April 3, 2014, the jury retired to deliberate at 12:30 p.m. At 4:45 p.m. the jury
recessed for the evening. Out of the presence of the rest of the jury the following
colloquy between the court and Juror No. 5 took place.
“THE COURT: We’re on the record with one juror, Juror Number 5, still with us.
You okay?
“JUROR NUMBER 5: I can’t do this.
“THE COURT: You can’t do it? So, here’s what I propose. I propose that we go
to sidebar actually. So if you would, would you join us over here. I’d like to talk to you
privately.”
The following discussion between the court and Juror No. 5 was held at sidebar.
“THE COURT: We’re at sidebar, out of the presence of the rest of the world, with
Juror Number 5, who is very emotional right now and had indicated that she can’t really
continue to participate in this. Is that how you’re feeling?
“JUROR NUMBER 5: Yes.
“THE COURT: Can you give me some idea of what the angst is about? Is it
making a decision? Is it the people involved in it? Is it the jury deliberation? Is there
anything at all you can give me? [¶] I don’t want to know what you’re thinking or
anything necessarily, just generally what the topic is.
“JUROR NUMBER 5: In the deliberation room—
“THE COURT: Interacting with other jurors—
“JUROR NUMBER 5: Uh-huh.
“THE COURT:—very difficult for you?
“JUROR NUMBER 5: Uh-huh.
2
“THE COURT: You feel that you can no longer continue to participate in that
process?
“JUROR NUMBER 5: I don’t think so. I—I think they’re making—or they’re
wanting me to say something that I don’t believe, and I can’t do it.
“THE COURT: Do you feel that you can participate in the deliberation process
with the other jurors?
“JUROR NUMBER 5: I don’t feel like I can right now.
“THE COURT: It’s a—I don’t think—you know, I’ve been doing this for, I’ll tell
you, thirty-six years, and I’ve only seen one juror come out crying. That would be you.
Shaking in your chair, unable to leave when the other jurors left. That’s a pretty rare
occasion. It’s obviously having a serious impact on you. [¶] We expect a lot of jurors,
of citizens coming in and being jurors, which includes taking you away from your normal
life and everything. We do not expect you to sacrifice your life though.
“JUROR NUMBER 5: It’s not that.
“THE COURT: Oh, well—
“JUROR NUMBER 5: It’s not.
“THE COURT: You’re still crying, you’re still emotional, you’re still shook up.
“JUROR NUMBER 5: I just don’t know—I—I know what I believe, and I don’t
know if I can do it. I—don’t know if I’m strong enough to stick with my guns. Well, I
don’t know if I can say that, but—I don’t know. I—it got a little bit heated in there.
“THE COURT: It does that.
“JUROR NUMBER 5: And pretty much, it’s everybody against me. And I feel
like I’ve already made some—voted, or whatever, on a couple of things that I didn’t
believe, but I just did it just to be agreeing with them.
“THE COURT: All right. I’m going to have you take your chair. If you would,
take a seat.”
3
Defense counsel expressed his concern that Juror No. 5 was “taking a position and
feeling intimidation from the other jurors, I don’t know the law about jury intimidation
kinds of issue[s], but if there was an intimidation that would be a concern. [¶] And I
guess I would have to figure out what the—I can’t do anything about it, but I’d want her
to be confident and feel safe and not feel any kind of threat because she’s taken a position
that’s contrary to what the other jurors had committed to or wanted her to take.”
The court responded, “So here’s where we are: We are dealing with a juror who
has demonstrated emotions I’ve never seen in, I’m sure, a hundred plus trials, probably
twice that frankly, but—” the prosecutor interrupted the court. The court went on: “And
she’s a big lady, and she was shaking like a leaf and had her head down between her
knees practically, sitting on the chair, when all the other jurors were there. She is
undergoing [an] extreme emotional reaction to this experience. And she’s already
indicated that she’s capitulated, I think that’s what she said anyway, to advocate—you
know, she calls it pressure, but I know jurors advocate, even though they aren’t supposed
to necessarily, but they do advocate one position or another. And she’s—she’s
capitulated to that. She’s indicated—she’s told us that she’s done that despite feeling
that—differently about the topic. So, she’s not performing her job. [¶] And my
responsibility would be to turn to her and say, Hey, stick to your guns, I suppose. You
have to—you can’t just capitulate. You have to change your mind only if you’re
convinced. And then, what am I doing? I’m telling her she has to go in there and be
tougher than she’s already been, and that’s going to send her right down the tubes; there’s
no doubt in my mind. [¶] So there’s no question in my mind that she can no longer
continue to participate in this jury without us risking, I suppose, liability.”
Defense counsel requested that the court wait and see if the juror could “manage to
gather her energy” but if she did not feel she could do so by the morning, “I guess you’d
have to excuse her?” The court refused to give the juror more time. Accordingly,
immediately thereafter the court dismissed Juror No. 5; the court explained that it “could
4
not order” her “to go back into that jury room.” The court picked one of the alternate
jurors to fill Juror No. 5’s spot.
The court asked defense counsel to comment for the record. Defense counsel
expressed his concern about juror intimidation. Specifically, defense counsel told the
court, “this is just sort of an extension of what I attempted to get at earlier; and that is, my
concern is that if she was prepared to take a position and then felt intimidation by any of
the jurors, that was beyond that she might be sensitive to the tug and push and pull of the
dialog that may go on, so I just wanted to state that I’m concerned that, maybe
appropriately, that your Honor didn’t—you didn’t explore that issue, but I felt there was
one time where she hesitated and wanted to say that something had gone on, something in
particular that felt both offensive to her and violated both her—that she felt intimidated
and that she was disrespected. [¶] And my concern was that she was a—she was a
holdout against the rest of the jurors and felt such intimidation that she was capitulating
just so that she didn’t have to feel the pressure from one or more of the other jurors.
[¶] And we may—we’ll never know that, but I just wanted to say that that’s my concern.
And certainly you’d expect that if she was the one person who was holding out for a not
guilty, if she was not persuaded, and it sounded like that was where she was and the other
jurors were pushing her to make a decision, rather than honoring her for struggling with
the issues and coming to a conclusion on her own right.”
The court was not convinced that there was “any indication whatsoever as to
which way the jury was going, from any comment that she made. It could be for guilty or
for not guilty, and she could be the lone for guilty or the lone for not guilty. [¶] The one
thing that became clear is that she wasn’t performing her job as a juror, that she was
capitulating, she was giving in to whatever the pressure was. And I think we all know
from our experience a jury—jury room can be very—it’s not always a picnic.” Defense
counsel agreed with the court’s observation. Again the court noted that the court did not
“know which way she was headed.”
5
Again defense counsel expressed his concern that there was juror intimidation; he
said that because the juror was “stressed out” and that he respected the court’s decision.
However, he continued, “maybe she was the one that was holding out for guilty and the
rest were not guilty. It was not perfectly clear. But I was just curious and I just wanted
to make sure that if she could have held out but was feeling intimidation, then that would
have been of great concern because they could do that to the next juror. It’s a matter of
integrity. It just would be wrong that that would be going on. [¶] So, I’m not stating an
objection necessarily to your—to the decision you made, I appreciate that, but I just was
concerned that, you know, if there was intimidation that may bode poorly for the next
juror there would be.”
The court felt that the juror had “an emotional breakdown” and therefore the court
could not under those circumstances tell her not to “capitulate” and send her back to the
jury room.
The next morning, the court substituted in an alternate juror. The jury returned to
the jury room to continue deliberations at 8:25 a.m. At 11:22 a.m. the jury returned to the
courtroom having reached a verdict. The jury found appellant guilty as charged.
Discussion
Dismissal of Juror No. 5
Appellant contends that the court dismissed Juror No. 5 without good cause.
Further, he asserts that absent adequate investigation into potential juror misconduct, the
dismissal of Juror No. 5 was not based upon a demonstrable reality that the juror was
unable to perform the required functions as a juror. Appellant argues that the dismissal
constituted an abuse of discretion and that he was prejudiced by the improper dismissal of
a deliberating juror, which requires reversal in this case. We disagree.
The People assert that appellant has forfeited this claim by failing to object when
the court dismissed Juror No. 5. The People point out that after the court announced its
6
ruling, defense counsel stated, “I think you have an obligation to do that and you did what
you really had to do, given how [Juror No. 5] was stressed out about this.”
Assuming for the sake of argument that the People are correct, we will address the
merits of appellant’s claim because he argues that defense counsel provided ineffective
assistance of counsel by failing to adequately object. (People v. Williams (1998) 61
Cal.App.4th 649, 657 [addressing merits of a claim despite forfeiture because defendant
asserted ineffective assistance of counsel].)
“ ‘If at any time, whether before or after the final submission of the case to the
jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to
be unable to perform his or her duty, or if a juror requests a discharge and good cause
appears therefor, the court may order the juror to be discharged . . . .’ (§ 1089.) Removal
of a juror under section 1089 is committed to the discretion of the trial court, and we
review such decisions by asking whether the grounds for such removal appear in the
record as a demonstrable reality. [Citation.]” (People v. Thompson (2010) 49 Cal.4th 79,
137 (Thompson).) “Once a trial court is put on notice that good cause to discharge a juror
may exist, it is the court’s duty ‘to make whatever inquiry is reasonably necessary’ to
determine whether the juror should be discharged. [Citation.]” (People v. Espinoza
(1992) 3 Cal.4th 806, 821.)
The California Supreme Court has explained that a trial court’s decision to remove
a juror pursuant to section 1089 is reviewed on appeal for abuse of discretion. (See e.g.,
People v. Leonard (2007) 40 Cal.4th 1370, 1409.) In People v. Barnwell (2007) 41
Cal.4th 1038, the Supreme Court held that “that the more stringent demonstrable reality
standard is to be applied in review of juror removal cases. That heightened standard
more fully reflects an appellate court’s obligation to protect a defendant’s fundamental
rights to due process and to a fair trial by an unbiased jury.” (Id. at p. 1052.) Thus, the
Supreme Court has “clarified that a somewhat stronger showing than what is ordinarily
implied by [the abuse of discretion] standard of review is required. Thus, a juror’s
7
inability to perform as a juror must be shown as a ‘demonstrable reality’ [citation], which
requires a ‘stronger evidentiary showing than mere substantial evidence.’ [Citation.]”
(People v. Wilson (2008) 44 Cal.4th 758, 821.)
In People v. Warren (1986) 176 Cal.App.3d 324 (Warren), after the case had been
submitted to the jury, a juror told the trial court “that she had been ‘intimidated’ by the
other jurors, that she was in disagreement with them, that she felt she was going to ‘break
under it,’ that ‘I feel so intimidated now that I think I would vote the way the group wants
to vote even though I firmly believe I shouldn’t,’ and that ‘at this stage I’m afraid that I
will give in and maybe I won’t.’ ” (Id. at p. 326.) She said she could not follow the
court’s instruction that she should not be influenced to decide any question in a particular
way because a majority of the jurors or any of them favor such a decision. (Ibid.) The
appellate court found no abuse of discretion in the excusal of this juror. (Id. at p. 327.)
Appellant argues that removal of the sole holdout juror for acquittal is an issue at
the heart of the trial process and must be meticulously scrutinized and it was critical that
the court make a full inquiry into the facts before it determined that they constituted good
cause for discharge of a juror that appeared to favor the defense. In essence, appellant is
arguing that the court did not adequately investigate misconduct by the other jurors
before it discharged Juror No. 5.
The California Supreme Court has cautioned that “ ‘a trial court’s inquiry into
possible grounds for discharge of a deliberating juror should be as limited in scope as
possible, to avoid intruding unnecessarily upon the sanctity of the jury’s deliberations.
The inquiry should focus upon the conduct of the jurors, rather than upon the content of
the deliberations.’ [Citation.]” (Thompson, supra, 49 Cal.4th at p. 137.) Here, the
source of the tension reported by Juror No. 5 was the deliberative process, and the trial
court therefore acted within its discretion in not examining the other jurors, because to do
so would have threatened to intrude on that process. (Ibid. [defendant contended that the
trial court should have questioned the jurors to determine whether they were causing
8
stress to two jurors by impermissibly pressuring them to give up their lingering doubt
about defendant’s guilt; held, the source of the tension reported by the two jurors was the
deliberations themselves, and the trial court therefore acted within its discretion in not
examining the other jurors, because to do so would have threatened to intrude on the
deliberation process].)
The trial court’s questioning of Juror No. 5 revealed no suggestion of misconduct
by the other jurors. Rather, it appears that Juror No. 5 was a holdout juror and did not
agree with the position of the remaining jury members. Since there was no indication of
misconduct by the other jurors—only a disagreement over what the evidence showed—
the trial court acted within its discretion in limiting its inquiry to questioning Juror No. 5,
which, as detailed above, the court performed quite thoroughly.2
Citing United States. v. Brown (D.C. Cir. 1987) 823 F.2d 591(Brown) and United
States. v. Symington (9th Cir. 1999) 195 F.3d 1080 (Symington), appellant argues that the
dismissal of Juror No. 5 violated his rights under the Sixth and Fourteenth Amendments.
The rule promulgated in these federal cases precludes the dismissal of a juror for being
unwilling to deliberate whenever there is a reasonable possibility that the impetus for the
dismissal stems from the juror’s views on the merits of the case. (Brown, supra, at
p. 596, Symington, supra, at p. 1087.) Nevertheless, the California Supreme Court has
“expressly rejected this rule.” (Thompson, supra, 49 Cal.4th at p. 138.) We are bound by
that ruling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The issue in this case is not that Juror No. 5 was unwilling to deliberate, but rather
she was unable to deliberate because of her extremely distressed state. The California
2
At one point appellant argues that the court failed to follow up with Juror No. 5
when she said she felt intimidated. Nowhere in the colloquy between the court and
Juror No. 5 did the juror use the word “intimidated.” The juror said “it got a little bit
heated” in the jury room, but her anxiety was a result of the situation in the jury room
where the rest of the jurors did not agree with her position and she did not want to vote
for something she did not believe in.
9
Supreme Court has recognized that trial-related stress can provide good cause for
discharging a juror. (See People v. Collins (1976) 17 Cal.3d 687, 690-691, 696, [inability
to cope with the experience of being a juror].) Accordingly, we conclude that in the
absence of any evidence of intimidation or coercion by the other jurors, the trial court had
good cause to dismiss Juror No. 5.
In sum, the evidence in the record supports our conclusion that Juror No. 5’s
inability to perform as a juror was shown as a demonstrable reality. Juror No. 5 was
crying in the courtroom, and as defense counsel conceded, she was “shuddering” as if she
had “heart palpitations.” The trial court did not err in dismissing Juror No. 5.
Section 654
Section 654 provides, in pertinent part, “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision. An acquittal or conviction and
sentence under any one bars a prosecution for the same act or omission under any other.”
(§ 654, subd. (a).)
Before sentencing, the prosecution filed a sentencing motion in which the
prosecutor noted that count 3—attempted perjury—was subject to section 654’s
proscription against multiple punishments. During the sentencing hearing, the court
noted that counts 1 and 2—making false/fraudulent insurance claims—were not subject
to section 654, but count 3 “probably is.” The court thought that count 4—fraud to obtain
aid (welfare fraud) and count 5—perjury were “two separate things simply because the
[w]elfare fraud is an ongoing, continuous effort and the perjury count conviction was
isolated, a single event and very specific act.” The court was not “sure” whether
count 6—grand theft—and count 7—insurance fraud—were subject to section 654, but it
thought that as one was a lesser included offense of the other, count 6 was subject to
section 654. Accordingly, in sentencing appellant the court imposed the upper term of
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five years on count 1, one third the midterm—one year on count 2—to be served
consecutively, one third the midterm—eight months on count 4—to be served
consecutively, one third the midterm—one year on count 5—to be served consecutively,
and one third the midterm—one year on count 7—to be served consecutively. The court
stayed the sentence on counts 3 and 6 pursuant to section 654.
Appellant argues that the court was required to stay the sentences on counts 2 and
7 under section 654, as the three offenses were based upon acts that constituted a
continuing course of conduct and single objective—to obtain workers’ compensation—
for which, he asserts, he received punishment when he was sentenced on count 1.
Further, appellant argues that the sentence on count 5 should have been stayed because
his different misrepresentations regarding his household income were all part of his
single objective to obtain welfare aid. The People disagree.
“ ‘Whether a course of criminal conduct is divisible and therefore gives rise to
more than one act within the meaning of section 654 depends on the intent and objective
of the actor. If all of the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.’ [Citation.]” (People v.
Latimer (1993) 5 Cal.4th 1203, 1208.) If the court makes no express findings on the
issue, as happened here with respect to count 7 in relation to counts 1 and 2, a finding that
the crimes were divisible is implicit in the judgment and must be upheld if supported by
substantial evidence. (People v. Blake (1998) 68 Cal.App.4th 509, 512.) Thus, “[w]e
review the trial court’s findings ‘in a light most favorable to the respondent and presume
in support of the order the existence of every fact the trier could reasonably deduce from
the evidence. [Citation.]’ [Citation.]” (People v. Green (1996) 50 Cal.App.4th 1076,
1085.)
Briefly, the evidence adduced at trial showed the following.
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On February 27 or 28, 2011,3 appellant slipped and injured his back when he fell
onto a concrete floor while making a delivery on behalf of the Complete Logistics
Company (CLC). CLC opened a workers’ compensation claim and appellant received
medical treatment for his injuries through the workers’ compensation insurance provided
by Gallagher Bassett Services (GBS). The treating physician assessed appellant with
total temporary disability and appellant received temporary disability checks to cover his
loss of income from March 11, 2011, to August 11, 2011. However, appellant continued
to receive workers’ compensation checks until November 2011.
Appellant returned to full work duty on August 18, 2011. CLC offered him a few
truck driving positions, which appellant did not accept. Eventually, CLC terminated
appellant’s employment on November 23, 2011.
On December 17, 2011, appellant applied for Unemployment Insurance Benefits
(UIB); he indicated that he had been “laid off.” CLC challenged appellant’s eligibility
for benefits based upon appellant’s rejection of the offered positions. Appellant received
UIB from January 3, 2012, through March 3, 2012. Eventually, however he was found
ineligible for the benefits because he had rejected the positions CLC had offered him.
Counts 1 and 6—Fraudulent Insurance Claim and Grand Theft
After appellant was placed on total temporary disability he made several false
statements for the purpose of continuing to collect benefits. On April 6, 2011, appellant
reported to a claims adjuster that he could not sit for more than 15 to 20 minutes or stand
for more than an hour, that he had a numbing sensation from his buttocks to his knee, that
he had a pain going up to his shoulder blade and the shoulder felt tight, that he needed to
sit on a cushion to watch his daughter’s baseball games, and that he was unable to hold
his baby daughter. Appellant claimed that he was not getting any better; when asked
3
The testimony was ambiguous as to whether the injury was sustained on
February 27 or 28.
12
what he was doing to make his condition better or worse, he replied “nothing.”
Additional tests were ordered.
The same day, a private investigator conducted surveillance on appellant;
appellant went to the YMCA gymnasium where he used an elliptical machine and played
basketball. The following day, the same investigator saw appellant throw a football to a
child. On April 11, appellant had a scheduled medical appointment. Appellant appeared
to walk normally before he got to the doctor’s office, but walked slowly into the medical
facility. On April 19, the investigator saw appellant push a child on a swing, swing a
baseball bat, and bend at the waist.
In addition, on April 19 the investigator watched as appellant attended another
scheduled medical appointment. Appellant appeared to walk normally before going to
his appointment, but walked with a limp as he was going into the doctor’s office.
Following the appointment, the investigator saw appellant walking normally at a much
faster pace as he entered a coffee shop.
Counts 2 and 3—Filing a False Insurance Claim and Attempted Perjury
On June 10, 2011, appellant was called to testify under oath at a deposition
conducted by CLC regarding his worker’s compensation claim. At the deposition,
appellant testified that since the accident he had experienced physical limitations from his
injury. These limitations included an inability to jump, drive for more than 45 minutes at
a time, climb stairs, ride a bicycle, throw a ball, engage in sports, or swing a bat, and until
late May he had had trouble bending. Appellant said that he had not been to the YMCA
or engaged in any exercise beyond his physical therapy exercises.
Counts 4 and 5—Fraud to Obtain Aid and Perjury
Appellant received welfare benefits from the Monterey County Department of
Social Services (DSS). Initially, appellant filed for Cash Aid, Food Stamps, and
Medi-Cal. He listed his household as consisting of himself and his son Seth Bolton. At
the time, appellant listed Alexis Bushta and her son Tristan as roommate and roommate’s
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son. In a face-to-face orientation with an eligibility worker on November 9, 2009,
appellant claimed he was sharing rent with others but purchasing and preparing his meals
separately. In a telephone interview on November 20, 2009, appellant told an eligibility
worker that he did not know who Tristan’s father was and that all adults in the household
were responsible for their own food. Bushta told the same story in her own welfare
claim; she said that she and her son Tristan were roommates of Chip and Seth Bolton;
and she checked the box to indicate that her family bought and cooked food “apart from
others living in the home.” In fact, appellant, Bushta, and the children had a family
membership at the YMCA. Eventually, appellant admitted that he was Tristan Bushta’s
father. This meant that since appellant and Bushta were living under the same roof as a
family they were required to file a joint application.
On August 5, 2011, appellant and Bushta filed an application for aid that did not
disclose the workers’ compensation income appellant was receiving; and in an interview
on August 23, 2011, again they failed to report this income.
On January 25, 2012, during a recertification of the welfare claim, appellant
signed some supporting documentation under penalty of perjury in which he failed to
disclose his UIB income. Appellant received his UIB income starting January 3, 2012.
Ultimately, the DSS determined that when filing together, appellant and Bushta
were not eligible for benefits because the income they failed to report took them over the
income threshold for aid.
Count 7—Insurance Fraud
Appellant made false or misleading statements to his treating physician.
Appellant’s doctor testified that statements appellant made to him on April 4, April 11,
and April 19 were “embellished, or exaggerated.” Further, appellant’s doctor said that
had he been aware of how fast appellant was recovering, he would have returned him to
modified work sooner. The time period charged—April 6 through June 10, 2011—
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encompassed the time period during which the misrepresentations that counts 1 and 2
were based on were made.
As noted, appellant claims that counts 2, 5, and 7 should have been stayed under
section 654. As to counts 2 and 7, he argues that counts 1, 2 and 7 were all part of his
single objective of fraudulently obtaining workers’ compensation benefits for the period
April 6, 2011 through June 10, 2011. Therefore, he contends that the court erred in
sentencing him on all three counts in violation of section 654.
Appellant was convicted of two counts of making a false or fraudulent insurance
claim (Ins. Code, § 1871.4, subd. (a)(1)). Count 1 was based on his misrepresentations to
the insurance adjuster on April 6, 2011; count 2 was based on his misrepresentations at
his deposition on June 10, 2011.
The purpose of section 654 is to ensure that a defendant’s punishment will be
commensurate with his culpability. (People v. Oates (2004) 32 Cal.4th 1048, 1063.)
Nevertheless, as our Supreme Court has explained, “By its terms section 654 applies only
to ‘[a]n act or omission that is punishable in different ways by different provisions of
law . . . .’ [Citation.]” (People v. Correa (2012) 54 Cal.4th 331, 341 (Correa).) Further,
the purpose of section 654 does not “support a bar to multiple punishment for multiple
violations of the same provision of law.” (Correa, supra, at p. 341.) Thus, the Correa
court held that “that section 654 does not bar multiple punishment for violations of the
same provision of law.” (Id. at p. 344.) In so holding, the Correa court disapproved
contrary dictum in Neal v. State of California (1960) 55 Cal.2d 11, 18, footnote 1.
(Correa, supra, at p. 334.) Accordingly, we conclude that the court did not err in
refusing to stay the sentence on count 2.
Whether section 654 applies to count 7 is a different issue. Count 7 was based on
the misrepresentations that appellant made not only to his doctor wherein he exaggerated
how he was feeling, but to the claims adjuster and at his deposition. Appellant argues
15
that the conduct underlying this conviction was part of his single objective to fraudulently
obtain the workers’ compensation benefits.
As noted, section 654 prohibits multiple punishment for a single criminal act and
for two crimes arising from a single indivisible course of conduct in which the defendant
had only one criminal intent or objective. (People v. Moseley (2008) 164 Cal.App.4th
1598, 1603.) Thus, it has been said that “[i]f all of the crimes were merely incidental to,
or were the means of accomplishing or facilitating one objective, a defendant may be
punished only once. [Citation.] If, however, a defendant had several independent
criminal objectives, he may be punished for each crime committed in pursuit of each
objective, even though the crimes shared common acts or were parts of an otherwise
indivisible course of conduct.” (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.)
Appellant’s separate actions involved an intent to fraudulently obtain workers’
compensation insurance benefits; however, such an intent constitutes too general an
objective to constitute one transaction and preclude punishment for temporally separate
offenses.
As our Supreme Court has explained in referring to section 654, “a course of
conduct divisible in time, although directed to one objective, may give rise to multiple
violations and punishment.” (People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11
(Beamon).) “This is particularly so where the offenses are temporally separated in such a
way as to afford the defendant opportunity to reflect and to renew his or her intent before
committing the next one, thereby aggravating the violation of public security or policy
already undertaken.” (People v. Gaio (2000) 81 Cal.App.4th 919, 935.) This rule has
been applied in numerous instances when several crimes could broadly be described as
part of an overarching criminal plan, but were committed on different days. (See, e.g.,
People v. Andra (2007) 156 Cal.App.4th 638, 640-642, [defendant’s commission of
identity theft to facilitate a vehicle theft and to obtain money by false pretenses did not
implicate section 654, because the identity theft occurred prior to the other crimes];
16
People v. Kwok (1998) 63 Cal.App.4th 1236, 1256, [burglary to facilitate commission of
crimes nine days later not subject to section 654]; People v. Williams (1988) 201
Cal.App.3d 439, 442, [burglary to obtain jewels to facilitate solicitation of murder
months later were part of the same scheme but not subject to section 654].)
Without doubt the misrepresentations made at the medical appointments were
temporally separated from the April 6 false statements to the claims adjuster that formed
the basis of count 1 and the June 10 false statements at appellant’s deposition that formed
the basis of count 2. As such, appellant had more than ample “ ‘opportunity to reflect
and to renew his . . . intent before committing the next’ ” offense. (People v. Kurtenbach
(2012) 204 Cal.App.4th 1264, 1289 (Kurtenbach).)
Throughout the period in which all the false statements were made, appellant
continued to collect workers’ compensation in discrete payments, payments that he would
not have been able to collect if he had not continued to lie at his medical appointments.
As to counts 4 and 5, appellant argues that the sentence on count 5 should have
been stayed because his different misrepresentations regarding his household income
were all part of his single objective to obtain welfare aid.
As noted, in count 4 appellant was convicted of fraud to obtain aid and in count 5
of perjury—false affirmation for aid. Count 4 was based on appellant’s numerous
material omissions to obtain aid from March 1, 2011, to April 11, 2012, including but not
limited to his failure to report his workers’ compensation benefits. On the other hand,
count 5 was based on his failure to report his UIB when he submitted a supporting
statement of facts during the recertification process on January 25, 2012.
Plainly, the many material omissions and false statements that appellant made over
the course of more than a year were temporally separated from the discrete act of perjury
that appellant committed on January 25, 2012. An overarching “intent to defraud the
government” does not allow the collection of multiple benefits through multiple crimes
while avoiding punishment for all but one. (People v. Williams (1980) 106 Cal.App.3d
1715, 20.) Again, appellant had more than ample “ ‘opportunity to reflect and to renew
his . . . intent before committing the next’ ” offense. (Kurtenbach, supra, 204
Cal.App.4th at p. 1289.)
Finally, appellant’s reliance on People v. Conners (2008) 168 Cal.App.4th 443(Conners) for the proposition that the court erred in not staying the sentences on counts 5
and 7 is misplaced. In Conners, the evidence showed that through a fraudulent real estate
transaction, the defendant caused a check to be issued to a foundation. His wife
deposited the check into the bank account of the foundation, and over a 10-day period,
she wrote—and the defendant cashed—five checks totaling more than $44,000, with each
check written for less than $10,000. (Id. at p. 450.) The defendant was convicted of a
single count of money laundering and a single count of receiving stolen property. (Id. at
pp. 451-452.) The appellate court found that in negotiating the checks, the defendant
harbored a single intent—to receive the stolen funds—by means of a single, indivisible
course of conduct consisting of cashing the checks representing the stolen funds; thus, the
court held, the defendant could not be punished separately for money laundering and
receiving stolen property. (Id. at p. 458.) Thus, the court in Conners found the single
indivisible course of conduct to be the defendant’s act of cashing the checks over a brief
period of time. This conduct constituted both the receipt of stolen property and the
money laundering itself. The same cannot be said of the conduct here.
In contrast to the defendant’s receiving stolen property charge in Conners, which
was predicated on the identical facts supporting his single money-laundering conviction
(the cashing of the checks), appellant’s welfare fraud was committed before the specific
perjury event took place. The perjury may have assisted, but was not essential to, the
ongoing welfare fraud. The fact that the perjury assisted in perpetrating the fraud does
not make it part of an indivisible course of conduct. In sum, it may have assisted in
perpetrating the fraud, but it was also a means of perpetuating the fraud.
18
In sum, the trial court did not err in failing to stay the sentences on counts 2, 5,
and 7.
Disposition
The judgment is affirmed.
19
_________________________________
ELIA, J.
WE CONCUR:
_______________________________
RUSHING, P. J.
_______________________________
PREMO, J.
The People v. Bolton
H041106