People v. Xiong CA5

Filed 10/23/13 P. v. Xiong CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F062259
Plaintiff and Respondent
(Super. Ct. No. VCF203527A)
v.
MOUA XIONG, OPINION
Defendant and Appellant.
THE PEOPLE,
F062262
Plaintiff and Respondent
(Super. Ct. No. VCF203527B)
v.
YER THAO MOUA,
Defendant and Appellant.
THE PEOPLE,
F062263
Plaintiff and Respondent
(Super. Ct. No. VCF203527C)
v.
CHOU XIONG,
Defendant and Appellant.
THE PEOPLE,
F062264
Plaintiff and Respondent
(Super. Ct. No. VCF203527D)
v.
LINDA MOUA,
Defendant and Appellant.
APPEALS from judgments of the Superior Court of Tulare County. Patrick J.
O’Hara, Judge.
Nuttall Coleman & Wilson, Nuttall & Coleman, Roger T. Nuttall and Glenn M.
Kottcamp for Defendants and Appellants.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N.
Farris, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted appellants Moua Xiong, Yer Thao Moua, Chou Xiong, and
Linda Moua (collectively defendants) of two counts of insurance fraud (Pen. Code,
§ 550, subd. (a)(1))1 and one count of conspiracy to commit insurance fraud (§ 182, subd.
(a)(1)). The convictions were based on insurance claims made for medical bills after an
automobile collision.
On appeal, defendants contend they were entitled to a judgment of acquittal after
the close of the prosecution’s case. Moua Xiong and Yer Thao Moua also argue that
1Subsequent statutory references are to the Penal Code unless noted otherwise.
2.
their convictions were not supported by substantial evidence.2 We disagree and affirm
the judgments.
FACTUAL AND PROCEDURAL SUMMARY
As the defendants contend the prosecution failed to prove its case and two
defendants contend their convictions were not supported by substantial evidence, we
describe the trial in some detail.
The charges
The Tulare County District Attorney alleged in an information that all four
defendants “did aid, abet, solicit, conspire with another and did knowingly present and
cause to be presented . . . false and fraudulent claim[s] for the payment of a loss and
injury” to Allied Insurance Company (Allied) (count 1) and Geico Insurance Company
(Geico) (count 2). Count 3 alleged that defendants conspired “together and with another
person and persons whose identity is unknown to commit the crime of INSURANCE
FRAUD,” committing the following overt acts: “1. Obtained medical treatment[;]
2. Submitted medical claims for payment to GEICO[;] 3. Executed powers of attorney.”
A jury trial for all four defendants began on October 4, 2010. The trial court
described its understanding of the case before the trial started: “[T]his is a traffic
accident and the People allege that two defendants were in the car and the defendants
indicated there are more than two.” The prosecutor and Yer Thao Moua’s attorney
agreed this was the crux of the case.3
2Both parties refer to defendants by their first and last names throughout their
briefs. Because two pairs of defendants share last names and one defendant’s first name
is the same as two other defendants’ last names, for clarity, we also will refer to
defendants by their first and last names.
3Defendants had separate attorneys during the trial. Moua Xiong was represented
by Paul Storey, Yer Thao Moua by Albert Gordon, Chou Xiong by Mary Jarvis, and
Linda Moua by Robert Bartlett.
3.
Prosecution’s evidence
Mark Stearns testified that he witnessed the collision. He lives in Las Vegas, and
in October 2007 he was in Fresno with his motorcycle club for a motorcycle event. His
wife Tracy and their two children also were with him in Fresno. Around 9:00 or 10:00 in
the morning on October 6, 2007, his motorcycle club was on its way to breakfast. There
were about 16 to 20 people; everyone was on a motorcycle except his wife Tracy. She
was driving a rental van and the children were with her. Tracy had not rented the van
and was not on the rental agreement, but she had permission to drive it from Randy
Harvey, who had rented the van in Las Vegas to tow his motorcycle to Fresno.
That morning Mark was acting as a road captain. He explained that road captains
block cross traffic so their motorcycle caravan can get through an intersection, even if the
traffic signal turns red before everyone in the group has cleared the intersection. Before
the collision, Mark was in the middle of an intersection on his motorcycle, blocking a bus
that was in the left-turn lane of the street perpendicular to the street on which the caravan
was traveling. He did not know the names of the streets, but other testimony indicates
the collision occurred in the intersection of Fresno Street and “O” Street, with the
motorcycle caravan traveling south on “O” Street and Moua Xiong’s 1991 Toyota Previa
headed east on Fresno Street.
According to Mark, there were three road captains or blockers at the intersection --
Mark and another road captain were blocking the cross traffic to the right of the caravan,
and a third road captain blocked cross traffic to the left of the caravan. As the
motorcycles were going through the intersection, the traffic light facing them was green.
Not everyone in the group cleared the intersection before the light turned red, however;
Tracy, who was driving the rental van, did not make it through the intersection.
The light for the cross traffic turned green, but Mark was blocking a bus in the
left-turn lane, while another road captain on a motorcycle was blocking two other lanes
of traffic. A minivan proceeded into the intersection between Mark and the other road
4.
captain. The minivan ran into the rental van Tracy was driving, hitting it on the
passenger side. Tracy had entered the intersection when her light was red, and the
minivan had the green light. Mark signaled for the other road captain to get Harvey, who
had rented the van, and Ferrer Vincent, who was another road captain.
After the collision, Tracy and the driver of the minivan went through the
intersection and parked on the side of the road. Mark got off his motorcycle, took off his
helmet, and went to Tracy’s van to make sure she and the children were okay. They were
fine. Tracy and the children had gotten out of the van.
Next, he went to the minivan to make sure the occupants were okay. Mark could
not identify the driver as any of the defendants, but he described the driver as “oriental
with black hair” and around five feet two inches to five feet four inches tall. There were
two women in the minivan. The driver got out and walked around the front of the car to
see the damage. The woman in the front passenger seat got out and stood to the side.
Mark asked if they were okay, and the driver said yes. He spoke to her in English.
The driver asked if his kids were okay, and Mark said yes. She asked if he was the owner
of the van, and he explained it was a rental. Mark and Tracy exchanged insurance and
driver’s license information with the driver. Asked whether he was able to converse
freely in English with the driver, Mark responded, “It was, yes. Yes, no, or okay. So
yes.” He also described the driver and passenger as speaking “broken” English.
At some point, a woman stopped at the scene and helped translate for Tracy and
the driver. (Mark did not know who she was, but at trial the translator was identified as
Maysee Yang.) He believed the exchange of information had started before the translator
arrived. Mark thought the translator pulled over within five or 10 minutes of the collision
and she parked in front of both vehicles.
Mark had a camera and took photos to document the damage to the vehicles from
the collision. The collision did not leave any debris on the ground, and Mark described
the damage to both cars as minor. The damage to the minivan was on the lower part of
5.
the bumper on the driver’s side. At one point while taking photos, Mark stood in front of
the minivan and looked through the windshield. He could see directly through and saw
no one inside. He also saw the inside of the minivan when the driver opened the sliding
door on the passenger side to retrieve her purse. Mark saw no one inside the minivan.
While Mark was taking photographs, Tracy was talking to the driver and the translator.
Vincent and then Harvey arrived at the scene. Mark thought they arrived within
two or three minutes of each other, and Harvey arrived about 10 or 15 minutes after the
collision. Harvey and Tracy spoke with the translator.
After the exchange of information, everyone left the scene of the collision. Mark
testified that the police were not called. Tracy got into the rental van with the children
and the people from the minivan got back into their car. Mark believed Tracy drove off
first and then the driver of the minivan. He also saw the translator get into a car and
make a right turn. He thought from the time of the collision until everyone left was about
45 minutes.
Tracy testified that she was driving the rental van on the morning of the collision.
She drove through a red light because she was following the motorcycles in her group. A
minivan bumped her on the right side. The collision “kind of just rocked [them],” and it
was “not a big impact.” She and her children were not injured from the impact.
Tracy saw only one person get out of the minivan -- an Asian woman with short
hair. Tracy was not paying attention when the woman got out of the minivan and could
not say whether she was the driver or a passenger. Tracy and the woman exchanged
information. Initially, Tracy gave information from Budget that she retrieved from the
rental van’s glove compartment, but she also gave insurance information for her own
carrier, Geico. Another Asian woman (Yang) was translating because the woman from
the minivan did not understand. Tracy did not know where the translator had come from,
but she appeared on the scene “really fast,” perhaps within two or three minutes. Tracy
remembered seeing only these two people, the woman from the minivan and the
6.
translator. She did not look into the minivan. She did not hear any voices or noises
coming from the minivan. Tracy did not remember seeing Harvey or Vincent at the
collision scene. She thought the whole process of stopping and exchanging information
took less than 10 minutes.
Vincent is from Las Vegas and was in Fresno for the motorcycle event. Twenty or
more people from his motorcycle club attended the event. Vincent testified that he did
not see the collision as he was at the front of the motorcycle caravan. He was a road
captain, and it was his job to make sure everyone was safe. He was told there was a
collision, and he turned around and went to the scene.
When Vincent arrived, the vehicles involved in the collision were already pulled
over and the drivers had gotten out. He checked to make sure everyone was okay. He
asked the women in the other vehicle if anyone was hurt or needed medical attention and
called for police assistance. Another woman (Yang) also had stopped at the scene of the
collision. This woman was translating because “the two that [were] in the other vehicle
that struck Mrs. Stearns’ van, they didn’t understand too well.” Vincent thought the
translator arrived close to the time he did because he saw her getting out of her car as he
was arriving. With the help of the translator, he again asked if anyone was hurt and
everyone said they were fine and they did not need medical assistance.
Vincent saw two women from the minivan that hit Tracy’s van. He did not see
anyone else get out of the minivan. He walked around the minivan and looked through
the windshield and did not see anyone else. He did not hear any voices or noises coming
from the minivan. The passenger door was open, but he did not think the sliding door
was open.
Vincent contacted the police, but they did not come to the collision scene. He
testified that the police “said they were more or less overwhelmed with all the other
motorcycle clubs going on in the area” and told him the drivers should exchange
7.
information as best they could. He looked at the minivan for damage and thought it was
not significant. He also inspected the rental van Tracy was driving.
Vincent thought he was at the collision scene for roughly 15 to 20 minutes. He
could not remember whether Harvey was there. Vincent left the scene with Mark and
they left before the minivan did.
Harvey also is from Las Vegas and was in Fresno for the motorcycle event. He
testified that he rented a van in Las Vegas and drove it to Fresno with his motorcycle on a
trailer. In Fresno he rode his motorcycle, and he gave Tracy permission to drive the van.
On the morning of the collision, Harvey was already seated at a restaurant when
someone came in and told him Tracy had been involved in a collision. He rode over to
the scene with Vincent. When he arrived, the cars were parked and people were out of
their cars. Tracy was on the sidewalk, but her two children were in the rental van. The
people from the other vehicle were an Asian woman and a girl, and they were standing on
the sidewalk. The girl appeared to be about seven or eight years old to Harvey. Another
Asian woman (Yang) was translating; Harvey thought she worked for the city or county.
Harvey tried to talk to the driver, but she did not know what he was talking about.
Through the translator, Harvey told the driver everything was fine and he had insurance.
He asked if everyone was fine and they said yes.
Harvey looked at damage to the rental van and realized the collision had not really
been that bad. It appeared the damage would only cost a couple hundred dollars. He also
walked around the other car, which had sustained even less damage. He said, “[A]ll you
have to do is paint the bumper core and that was it.” When he walked around the other
car, he could see inside and there was nobody there. He saw that Tracy’s kids were
crying and shaken up from the collision, but he did not hear any crying coming from the
other car. Harvey knew that the woman and the girl were from the other car involved in
the collision because after everyone exchanged information, he saw them get in the car
8.
and drive away. He also saw the translator walk away. He was at the collision scene for
about 15 to 20 minutes.
Yang, who acted as translator after the collision, is fluent in Hmong, Laotian, and
English and works for the Fresno County Department of Social Services (adoption). On
October 6, 2007, she was working, driving a county car to transport a child to an
appointment. Prior to the collision, Yang was on Fresno Street headed west, and Moua
Xiong’s minivan was on the other side of the intersection headed east. She saw the
collision and pulled over “because it was unusual that my light was green, but there was a
gentleman who was blocking the street.” She spoke to both drivers involved in the
collision, in English with one and in Hmong with the other. Yang testified that one of the
drivers “look[ed] like a typical Hmong”4 and she assumed that the driver spoke Hmong.
Yang translated and helped the drivers exchange information. She also spoke to the man
who had been blocking the street. She was not sure if he was on a motorcycle. These
were the only three people she spoke to directly.
Both drivers had gotten out of their cars when Yang spoke to them. Yang did not
remember if anyone else got out of the Hmong-speaker’s car. She did not remember
speaking to anyone else. She testified that as the collision occurred, she saw into the
Hmong-speaker’s vehicle and saw “several people in the car.” She testified, “[I]t is a
typical, you know, looks like a typical Hmong car with people -- you know, a lot of
people in there.” Asked how many, Yang responded, “I don’t know how many, but I
know I saw several people like in the cars.” When she pulled over and translated for the
drivers, she did not look into their cars, but she had “a feeling that both car[s had] people
in there.” Yang believed people had come out of both cars, but she was not paying
attention because she was talking with the drivers. She explained, “I have a feeling that
4Yang explained, “I mean it is hard to explain but, you know, when you live the
culture all your life, it is like a typical Hmong woman who [doesn’t] speak a lot of
English, the way she dress[es] or, you know, how she look[s] .…”
9.
both cars have people in the cars . . . because they were like people around me, you
know, trying to share the information and the Hmong speaking car like I said . . . it is just
a typical car that when I drove by, you know, but I didn’t actually, I don’t think they
come out, all of them come out of the car.”
Yang recalled that she turned around and came back to the scene. At that point,
the rental van had already pulled over, and Yang parked in front of the rental van. The
Hmong-speaker’s car had not moved and was still in the middle of the street. She told
them they needed to move and they parked behind the rental van.
Fresno Police Officer David Unruh testified that on October 6, 2007, he was
notified there had been a collision at Fresno Street and “O” Street. He went to that
location at approximately 12:45 p.m. One car was still there. Unruh spoke to an Asian
man. He could not recall if anyone else was there. He did not generate a police report
because it is department policy not to write a police report for a noninjury traffic
collision. Unruh asked the man if anyone had been injured and he said there were no
injuries.
Wadoua Xiong testified that he speaks English and Hmong. Moua Xiong, who is
his niece, does not speak English very well. He learned of the traffic collision when
Moua Xiong and her husband Tong Moua called him a day or two after the collision.
They needed Wadoua to translate for them and asked him to contact their insurance
company.5 Wadoua explained that he would help anyone in the Hmong community with
translating.
When he first called Allied, he was told they could not speak to him about the
claim until Moua Xiong gave permission for him to speak on her behalf. Wadoua met
with all four defendants at one time at Moua Xiong’s house, and they all asked him to
5Because Wadoua Xiong shares a last name with two of the defendants, we refer
to him by his first name.
10.
speak to the insurance company on their behalf. He bought a form from the store and had
defendants sign it. He testified that he explained the form to the four defendants in
simple terms: “I just give them simple like as you sign this that means you will give me
permission to speak with your insurance and represent you to talk to them.”
Wadoua testified that Moua Xiong told him to report to Allied that they were in a
collision and needed to go to the doctor. Allied told Wadoua to contact the other party
involved in the collision directly, but he was unsuccessful in trying to find the other
driver. Later, around January 2008, Allied called Wadoua with information about the
other driver’s insurance company, Geico. Wadoua was told that he just needed to contact
Geico and they would take care of his niece’s case.
The four defendants signed a document giving Wadoua permission to speak to
Geico on their behalf. In addition, Tong Moua signed a form allowing Wadoua to speak
on behalf of Gaohnou and Pang (Moua Xiong’s children), and Linda Moua signed a form
allowing him to speak for her daughter Michelle. Wadoua contacted Geico on behalf of
the four defendants to seek payment for their medical bills. Wadoua’s purpose in calling
Geico was to have Geico compensate Allied for the medical bills Allied had already paid.
Lani Chevoya testified that she works for Allied inspecting vehicles for damage.
She inspected Moua Xiong’s minivan for damage after the collision. The damage was on
the bumper, and the repair cost was approximately $300, below the insured’s deductible.
Ralph Edwards investigates suspicious insurance claims for Allied and other
insurance companies. He testified about Allied’s claim file for its insured, Moua Xiong,
involving a traffic collision that occurred in Fresno on October 6, 2007. Allied received
claims from seven claimants for medical bills totaling $8,396.86. The claimants were the
four defendants and three children -- Linda Moua’s daughter, Michelle Moua, and Moua
Xiong’s children, Gaohnou Moua and Pang Moua. Allied paid the claim amount directly
to the treatment provider, chiropractor Ronald Ybarra.
11.
John Palisoc, a senior security investigator at Geico, testified that a claim existed
for Tracy Stearns, who was the other driver in the collision. She had received a demand
from Allied.
Section 1118.1 motion
At the close of the prosecution’s case, Yer Thao Moua’s attorney stated that he
wanted to make a motion pursuant to section 1118.1. Moua Xiong’s attorney added that
he wanted to make a motion in regard to count 2, specifically. He argued there was no
evidence that an insurance claim had been made for pain and suffering. Chou Xiong’s
attorney joined in the motion as to all counts, and Yer Thao Moua’s attorney stated, “I
concur.”
The prosecutor argued that whether the false claim made to an insurance company
was for medical bills or for pain and suffering made no difference; the falsity of the claim
“lies in the fact that there were not 7 people in the car, there were only 2 people.” Aside
from the statement regarding count 2, defendants’ attorneys made no argument in support
of the motion for judgment of acquittal. The trial court denied the motion, explaining,
“The issue is whether there was a false claim made and for the reasons stated by the
prosecution, the 1118.1 motion is denied.”
Defense evidence
Moua Xiong testified that she had children but could not remember how many.6
Her younger children are Gaohnou and Pang, but she could not remember how old they
were. She had recently had a medical condition and surgery, which caused her not to
recall things well. She did remember that on October 6, 2007, she was in Fresno at a
relative’s funeral. At some point, she left the funeral with six others to get something to
eat. Moua Xiong drove her minivan. Yer Thao Moua was next to her, Linda Moua was
6MouaXiong testified using an interpreter. Linda Moua, her daughter Michelle,
and Moua Xiong’s children, Pang and Gaohnou, also used interpreters when they
testified.
12.
behind Moua Xiong, and Chou Xiong was behind Yer Thao Moua. There were three
children in the back, Gaohnou, Pang, and Michelle.
Recalling the collision, Moua Xiong testified that she had the green light and
“there was one coming from the other side, before I knew it I had slowed but we hit each
other.” Her minivan was “stuck with” the vehicle. Yang noticed they were Hmong and
talked to them. Yang told Moua Xiong to back up so they would be able to move to the
side. Moua Xiong gave her insurance information to Yang, and Yang gave her the
information from the other people involved in the collision. Moua Xiong did not recall
what time of day it was or what the weather was like. If Yang had not asked her to move
her car, she would have remained there until the police came. Moua Xiong did not check
on her children, and she did not know if they were crying. She got out of her car and
talked to Yang. She testified that only Yang spoke to her, and nobody else spoke to her.
Asked whether she felt like she had been hurt, Moua Xiong responded that she
was too frightened to feel hurt. She noticed pain later. She went to the doctor but could
not recall how long it was after the collision. She also took Gaohnou and Pang to the
doctor. They complained of neck and back pain. She did not recall how long the
treatment lasted, and she did not know if she contacted her insurance for treatment.
Wadoua set up the doctor’s appointments for them. All four defendants went to the same
clinic for treatment. She did not know how they all decided to go to the same clinic.
Moua Xiong testified that she did not contact her insurance company as she does
not speak the language. Asked if she had Wadoua call her insurance company for her,
she responded, “I don’t know.” She did recall signing a form. Asked why she signed the
form, she responded, “Because my insurance has coverage, there is coverage and I don’t
speak the language so [Wadoua] speaks the language.”
Linda Moua testified that she was in the minivan with Moua Xiong. There were
seven people in the minivan, including her daughter, and they were going to the store.
They were in a collision, and, as a result, she went to a chiropractor for treatment. She
13.
testified that she did not get out of the minivan until her husband came to the scene.
They were all there when the police arrived.
Pang was 11 years old at the time of the trial. He testified that he remembered
going to a funeral in Fresno for an uncle and they went to get something to eat. He was
in his mother’s car with Linda Moua, Chou Xiong, Yer Thao Moua, his mother,
Gaohnou, and Michelle. The car had three rows and he was in the third row in the back
wearing a seatbelt. He was eight when the collision happened. He could not see through
the front windshield. After the collision occurred, he stayed in the car. His mother got
out of the car. He did not remember if anyone else got out of the car. He did not
remember if his mother ever opened the door to the car. He did not remember whether
he saw the other driver or anyone else. He did not remember if anyone talked to his
mother or if anyone walked around their car. He saw a man on the sidewalk on a
motorcycle. He did not remember if that man spoke to his mother. He did not feel pain
then, but when he got home his back and neck started to hurt.
Gaohnou was 10 years old at the time of the trial. She testified that she went with
her mother and brother to a funeral in Fresno. They left in her parents’ van. There were
seven people in the van, including her mother and three other adults. She sat in the back
of the van. She said there was a collision “because our direction was green light and
theirs was a red light, we went and there is a car accident.” According to Gaohnou, after
the collision she “went outside.” She testified that Yang asked them to move their car.
The prosecutor asked if she saw any motorcycles, and Gaohnou responded, “They did not
look at us.” “When they came they did not look at us.” Asked who did not look at them,
she said, “Police.”
Michelle, who was 11 years old, also testified there were seven people in the
minivan. She identified Moua Xiong as the driver and Yer Thao Moua as “the one who
sits next to the sliding door.”
14.
Two witnesses testified they saw seven people in Moua Xiong’s minivan before
the collision. Nao Tou Moua testified that on October 6, 2007, he was at a church in
Fresno because a relative had passed away.7 He saw four women and three children get
into a blue van. Later, he became aware that a collision had occurred. This was about 20
minutes after he saw the blue van leave the parking lot. Another witness, Yia Moua,
similarly testified that he was at a funeral and saw four women and three children leave in
a minivan. He identified defendants as the women in the minivan. He did not recall any
other people getting into their cars that day, and he could not remember with whom he
was standing when he saw the minivan. He learned about the collision while he was still
at the funeral.
Ybarra is a chiropractor. He testified about treating all four defendants and the
three children. All seven began treatment on the same day, October 10, 2007. Yer Thao
Moua, for example, complained of neck and low back pain, and her treatment plan
included manual manipulation of the cervical mid and lower back, electrical muscle
stimulation, and therapeutic massage. She received 17 treatments, and her treatment
ended on December 5, 2007. She improved gradually, and her course of treatment was
typical for patients who have been in an automobile collision. Ybarra submitted his bills
directly to, and received payment directly from, the insurance company. Defendants all
had the same type of injuries. Ybarra’s understanding was the injuries were related to a
collision, but this was based on the statements of the patients.
In her closing statement, the prosecutor argued that the defense witnesses were not
reliable. Moua Xiong had significant memory problems. Linda Moua testified that she
sat in the minivan until the police came, which would have been almost three hours after
the collision, and this “just doesn’t make any sense.” She reminded the jury that the
other driver involved in the collision described it as a “bump,” and suggested that it could
7This witness also used an interpreter.
15.
not have caused injuries requiring so much chiropractic treatment. “Use your common
sense,” the prosecutor said. “Do 7 people need 2 and a half months of chiropractor care
from this?” In her rebuttal, she argued, “We don’t know what [the injuries] were caused
by. Quite frankly we don’t know that they even exist .… They can’t be x-rayed, we don’t
know.”
Verdict and posttrial motions
On October 12, 2010, the jury found Moua Xiong, Yer Thao Moua, Chou Xiong,
and Linda Moua guilty of counts 1, 2, and 3.
Defendants filed a number of posttrial motions. On November 2, 2010, Linda
Moua filed a motion for new trial. On March 9, 2011, Moua Xiong filed a motion for
new trial. On March 14, 2011, Yer Thao Moua, Chou Xiong, and Linda Moua filed a
motion for reconsideration of the denial of the motion for judgment of acquittal.8 They
argued that the prosecution presented no evidence about the identity of the front seat
passenger. Four days later the same three defendants filed a motion for new trial.
A hearing on the motions was held on March 23, 2011. The trial court denied the
motion for reconsideration in the following discussion:
“THE COURT: Your position is that you didn’t have to name exactly who
was in the automobile as long -- because the gravamen of the crime is the false
statements in order to obtain insurance proceeds.
“[PROSECUTOR]: Correct, all members of the conspiracy
together, then there are -- all members of the conspiracy are all guilty of the
underlying crime if it is committed, which in this case it was. [¶]…[¶]
8As noted above, each defendant had her own attorney during the trial. By the
time this motion was filed, defendants’ current appellant counsel, Roger T. Nuttall, was
representing Yer Thao Moua, Chou Xiong, and Linda Moua. Separate counsel
represented Moua Xiong at the hearing on the posttrial motions. Now on appeal, Nuttall
represents all four defendants.
16.
“THE COURT: I agree with the prosecutor’s position in this matter,
the crime is the insurance fraud, and so the [section 1118.1] I think was
denied appropriately.”
The trial court next considered the motion for new trial. Nuttall described some of
the witness testimony, emphasizing Yang’s statement that there were several people in
the car. He concluded, “So my position simply is that there were more than two people
in the [Hmong] vehicle, and as testified to, these people were injured, sought medical
help for their treatment, had the medical bills paid, didn’t recover a dime. [¶] This does
not import as fraud of any type, let alone insurance fraud.” The trial court denied the
motion, explaining:
“Ms. Yang did testify that she believed that there were other people in the
car, and she did clarify that upon further examination as she got this feeling
this was a typical [Hmong] car, and she had that feeling, but the jury chose
to believe the particular witnesses who were there at the scene who looked
at the car. Their job was to look at the car and found -- and saw that there
were two people in the car. The jury believed that, and I agree with the
jury. [¶] There is no basis for a new trial.… [Defendants were] ably
represented at the trial.”
Sentence
The trial court proceeded to sentencing, granting each defendant probation for
three years. For count 1, each defendant was ordered to serve 180 days in county jail; for
counts 2 and 3, no time was imposed. In addition, the trial court ordered defendants,
jointly and severally, to pay restitution of $8,396.86.
Each defendant filed a notice of appeal on April 5, 2011. We consolidated the
appeals by order dated August 6, 2013.
DISCUSSION
I. Motion for Judgment of Acquittal
All four defendants contend that the trial court erred by denying their motion for
judgment of acquittal at the close of the prosecution’s case. (§ 1118.1.) We disagree.
17.
“‘The standard applied by a trial court in ruling upon a motion for judgment of
acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate
court in reviewing the sufficiency of the evidence to support a conviction, that is,
“whether from the evidence, including all reasonable inferences to be drawn therefrom,
there is any substantial evidence of the existence of each element of the offense
charged.”’ [Citation.]” (People v. Stevens (2007) 41 Cal. 4th 182, 200 (Stevens).)
The question “is simply whether the prosecution has presented sufficient evidence
to present the matter to the jury for its determination.” (People v. Ainsworth (1988) 45
Cal. 3d 984, 1024.) We review the question independently. (Stevens, supra, 41 Cal.4th at
p. 200.)
As to count 1, insurance fraud against Allied, defendants argue, “To prove that
appellant’s claim with Allied was false and fraudulent, the prosecution needed to prove
either that appellant was not injured at all or, if she was injured, the injuries were not
sustained in the underlying collision in this case. Such evidence was lacking at the time
appellant made her 1118.1 motion.”9
Defendants’ position—that the prosecution was required to prove that each
defendant’s insurance claim for her own injuries was false—is not correct. Section 550,
subdivision (a)(1) makes it a crime “to do … or to aid, abet, solicit, or conspire with any
person to do” the following: “Knowingly present or cause to be presented any false or
fraudulent claim for the payment of a loss or injury … under a contract of insurance.” It
was, therefore, sufficient for the prosecution to present evidence from which it could be
inferred that defendants conspired to present a false claim or aided another in presenting
a false claim.
9We have quoted the argument as it appears in the briefs for three of the four
defendants. The wording of Moua Xiong’s brief on this point is slightly different, but the
argument is exactly the same.
18.
Here, the prosecution presented evidence that witnesses after the collision saw
only two women get out of Moua Xiong’s minivan and saw no one else inside the
minivan (testimony of Mark and Vincent); all four defendants met together with Wadoua
and asked him to make claims with Allied on their behalf (testimony of Wadoua); and
claims were made for chiropractic care for all four defendants plus three children
(testimony of Edwards). This was evidence from which a reasonable jury could infer that
there were only two women in the minivan when the collision occurred and,
consequently, at least five of the seven claims for chiropractic care were fraudulent.10
At the meeting with Wadoua, the two defendants who had been in the minivan
during the collision would have known that the other two defendants had not been there
and could not have valid claims, yet all four defendants together asked Wadoua to make
claims for them. This was circumstantial evidence from which the jury could infer that
defendants conspired together to make fraudulent claims (that is, the claims of the
defendants who were not in the minivan and the claims for the three children). (See
People v. Vu (2006) 143 Cal. App. 4th 1009, 1025 [“[I]t is not necessary to establish the
parties met and expressly agreed; rather, ‘a criminal conspiracy may be shown by direct
or circumstantial evidence that the parties positively or tacitly came to a mutual
understanding to accomplish the act and unlawful design.’”].)
Furthermore, someone must have told the defendants who were not involved in the
collision about the meeting with Wadoua and the opportunity to make fraudulent
insurance claims. This too was circumstantial evidence from which the jury could infer
10In their reply briefs, defendants assert, for the first time, that any apparent
conflict in the testimony regarding how many people were in Moua Xiong’s minivan at
the time of the collision was “illusory,” suggesting that Yang’s testimony conclusively
proved there were more than two people in the minivan. “It is axiomatic that arguments
made for the first time in a reply brief will not be entertained because of the unfairness to
the other party.” (People v. Tully (2012) 54 Cal. 4th 952, 1075 (Tully).) In any event,
defendants’ new assertion is no more than an attempt to reargue the weight of the
evidence.
19.
that defendants together conspired to present fraudulent claims and/or one or more of the
defendants aided and abetted other defendants in presenting fraudulent claims.
In addition, the prosecution presented evidence that the collision was minor and
caused very little physical damage to the vehicles. Tracy testified that Moua Xiong’s
minivan “bumped” her van and she and her children were not injured in the collision.
Witnesses at the scene testified that everyone said they were fine immediately after the
collision, and a police officer testified that more than two hours after the collision an
Asian man associated with the minivan reported it was a noninjury collision. Given the
state of the evidence at the close of the prosecution’s case, it reasonably could be inferred
that the collision did not cause any injuries, and therefore all claims for chiropractic care
for alleged injuries resulting from the collision necessarily were false.
Defendants next argue they were entitled to acquittal on count 2 because there was
no evidence that any of them submitted a claim to Geico. They rely on the claim on
Tracy’s insurance being opened because Allied made a subrogation claim against Geico.
The prosecution was not required to show that defendants personally submitted
claims to Geico. Section 550, subdivision (a)(1) makes it unlawful to “cause to be
presented any false or fraudulent claim.” Here, the evidence was sufficient for the jury to
find that defendants caused the claims to be made to Geico. (See People v. Singh (1995)
37 Cal.App.4th 1343,1369-1370 [chiropractor who did not directly present fraudulent
claims to insurers properly convicted of insurance fraud; sufficient that he sent fraudulent
billings to attorneys, knowing billings would be forwarded to insurers].)
Defendants also claim the prosecution failed to prove counts 1 and 2 because,
accepting the prosecution’s theory that there were only two women in the minivan at the
time of the collision, the identity of these two occupants was not established. Defendants
posit that the two occupants of the minivan are “on a much different legal footing” from
the remaining defendants because “the [insurance] claims of the two [mini]van occupants
were not shown by the prosecution to be anything but proper.”
20.
This claim fails for the reasons we already have discussed. First, the prosecution
was not required to prove that each defendant’s insurance claim was false; it was
sufficient to present evidence that each defendant conspired to present a false claim or
aided and abetted another to present a false claim. Second, at the close of the
prosecution’s case, the jury reasonably could have determined that no one was injured in
the collision and, as a result, even the insurance claims made by the two occupants of the
minivan were false.
As to count 3, conspiracy to commit insurance fraud, defendants contend the
evidence of overt acts was insufficient to withstand the section 1118.1 motion.
“The crime of conspiracy is defined in the Penal Code as ‘two or more persons
conspir[ing]’ ‘[t]o commit any crime,’ together with proof of the commission of an overt
act ‘by one or more of the parties to such agreement’ in furtherance thereof. (Pen. Code,
§§ 182, subd. (a)(1), 184.)” (People v. Swain (1996) 12 Cal. 4th 593, 600.)
Defendants challenge the sufficiency of the evidence for each of the overt acts
alleged in the second amended information, but all the prosecution was required to show
was a single overt act in furtherance of the conspiracy committed by one of the
defendants. The prosecution met this burden by presenting evidence that all four
defendants signed “power of attorney” documents intended to give Wadoua permission
to make insurance claims on their behalf. If there were only two women in the minivan,
then the signatures of at least two of the defendants furthered the conspiracy by allowing
Wadoua to make false claims on their behalf.
In their reply briefs, defendants also argue, for the first time, that they could not be
convicted of both the crime of conspiracy and the substantive crime of insurance fraud.
Although we need not consider it, see Tully, supra, 54 Cal.4th at page 1075, this
argument fails. Conspiracy is a distinct offense from the commission of the offense that
is the object of the conspiracy, and a defendant may legally be convicted of both
offenses. (People v. Moore (1956) 143 Cal. App. 2d 333, 340.)
21.
In summary, defendants have failed to show they were entitled to a judgment of
acquittal as to any of the charges at the close of the prosecution’s case. The trial court
correctly denied their section 1118.1 motion.
II. Sufficiency of Evidence
Defendants Moua Xiong and Yer Thao Moua raise the additional claim that their
convictions were not supported by substantial evidence. The defense presented evidence
that Moua Xiong was the driver and Yer Thao Moua was in the front passenger seat at
the time of the collision. Ybarra also testified that he provided treatment to these
defendants (as well as the five other claimants). Moua Xiong and Yer Thao Moua argue
there was no evidence to show they were not in the minivan and were not injured, and
therefore an inference of guilt was not warranted.
This claim fails because it is premised on the incorrect assumption that a
defendant can be guilty of insurance fraud only if it is proved that his or her own claim is
fraudulent. As we have discussed, this is not the law; a defendant also is guilty of
insurance fraud when he or she conspires with another to cause a fraudulent claim to be
made or aids and abets another in making a fraudulent claim. (§ 550, subd. (a)(1).)
In reviewing a challenge to the sufficiency of the evidence, “[w]e presume in
support of the judgment the existence of every fact the trier of fact reasonably could infer
from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s
findings, reversal of the judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing
court neither reweighs evidence nor reevaluates a witness’s credibility. [Citation.]”
(People v. Lindberg (2008) 45 Cal. 4th 1, 27.)
Here, the evidence was sufficient to support a finding that all four defendants
conspired to present insurance claims for persons who were not in the minivan at the time
of the collision. The jury also was free to discredit Moua Xiong’s testimony that she felt
pain the day after the collision. (Yer Thao Moua did not testify). Moreover, regardless
22.
of Moua Xiong’s credibility, in light of the evidence presented that the collision was
minor, the jury reasonably could have rejected the inference that any pain experienced by
Moua Xiong was caused by the collision. Accordingly, Moua Xiong and Yer Thao
Moua’s convictions were supported by substantial evidence.
DISPOSITION
The judgments are affirmed.
_____________________
CORNELL, J.
WE CONCUR:
_____________________
LEVY, Acting P.J.
_____________________
FRANSON, J.
23.