People v. Scofield

security in letting the statute of limitations run was brought against Aetna and Crazier, with defendant acting as Nelson’s attorney. Crazier received from Aetna’s attorney, Dunleavy, letters written by defendant representing that he on behalf of Nelson, was making a claim of $6,000 and the medical bills (in Exhibit 20) which had been submitted in support of this claim. Dunleavy’s letter transmitting the bills was dated June 15, 1962, and indicated that he had received them a “few days [previously] from plaintiff’s counsel.”

Dunleavy: He negotiated Nelson’s claim against Aetna with defendant, her attorney. On June 1, 1962, defendant sent him the May 18 bill in support of that claim. On August 20, 1962, Dunleavy took Nelson’s deposition, with defendant present at defendant’s elaborate home in Beverly Hills. He had a lengthy discussion with defendant on Nelson’s treatments, almost entirely physiotherapy, which defendant told him had been given by Dr. DeLong.

Von Berg: She was employed by Dr. DeLong as a medical assistant and office worker who handled the office overload of medical insurance from June until the second week in November 1961. Defendant came to the office many times, once or twice as a patient, and otherwise on personal business calls. Dr. DeLong instructed her that defendant’s clients were to be billed for treatments three times a week regardless of whether actual treatment had been given. She was to check with defendant concerning the duration of the treatments to be put on the billing and how much the final settlement should be. She would call defendant’s office and receive his instructions although she did not talk to him personally. She gave Nelson injections, at the most, twice a week. Although it was her duty to render physiotherapy treatments and she would have known about any such treatments, she did not render any to Nelson. During her period of employment, Nelson did not visit the office as often as, or receive the physiotherapy treatments, reflected in the bill. She overheard conversations of defendant and Dr. DeLong regarding certain patients, what the insurance settlements should be, when the cases should be terminated, and when they should be submitted. Defendant would receive copies of bills for his clients.

Moran: She was employed by Dr. DeLong from June 1961 to January 2, 1962, as a technician and general office worker. She gave physiotherapy only once or twice. She was instructed by Dr. DeLong and defendant that she should bill defendant’s clients as if they had received treatment three times a week (some treatments, taken from the patient’s chart, were authentic; others were filled in by the use of the calendar), and that she should call defendant to find out the amount of the bill. After making the bill,

she would fill in the “phony” treatments on the patient’s records. She took some of the bills to defendant’s home personally. She gave Nelson perhaps one shot and no physiotherapy treatments. During her employment, Nelson did not come to the office for treatment as frequently as the May 18 bill indicated. Nelson came to the office in reference to insurance and called often wanting to know why the insurance papers were not sent through. Moran prepared one bill for Nelson, but not the May 18 bill. Moran left the office when narcotics agents and the FBI started investigating and questioning the personnel.

DuBois: She worked for Dr. DeLong, replacing Von Berg, from October 1961 through November 1962, as a medical assistant and as compiler of insurance forms and personal injury reports. The cases of defendant’s personal injury clients were not put in the regular bookkeeping system; these patients had separate cards. She prepared bills for defendant’s clients showing treatments, which were not in fact true reflections of what patient records showed, according to telephoned instructions from defendant. Dr. DeLong told her that it was the office’s policy to submit fraudulent bills to insurance companies, that it would submit a bill for at least $300 for $100 worth of treatment, and that defendant, the patient, and “we” would each get $100. Defendant instructed her to lower the charges made for his clients because insurance companies balked at their size. DuBois treated Nelson occasionally. She prepared the May 18 bill, which reflected physiotherapy treatments and injections which had not been given. Some of the information on that bill was taken from Nelson’s patient records and some “from the calendar three times a week.” Defendant did not specify any particular amount for this, “but the instructions were to make the bill to begin treatments at the time of the accident, up until the last treatment date.” On January 12, 1962, while visiting defendant in his home with Levine, DuBois was told by defendant “that if anybody tried to do to him what evidently was trying to be done to Dr. DeLong, he would be like a rat in the corner, and he would have his back in the corner like a rat, and he would kill the person, whoever it was.” At that time defendant pointed his finger at DuBois and said that she was the only one who could implicate him relative to the insurance frauds.

Defendant contends on appeal that he did not give a valid waiver of his right to a jury trial, that the evidence was insufficient to support his conviction, and that witnesses Von Berg, Moran, and DuBois were accomplices whose testimony required corroboration to support the conviction.

Concerning the Jury Waiver

The clerk’s minutes recite: “The defendant personally and all counsel

776 [ 44 Cal.Rptr. 326 , 401 P.2d 934 ].) One who wilfully submits a claim, knowing it to be false, necessarily does so with intent to defraud. (Id.) Section 556 extends to the acts of an attorney in knowingly presenting a fraudulent claim on behalf of a client. (Scofield v. State Bar, 62 Cal.2d 624 , 628-629 [ 43 Cal.Rptr. 825 , 401 P.2d 217 ].) Although DuBois did not testify that defendant gave her instructions on the making of this particular bill, the evidence clearly established that defendant and Dr. DeLong operated under an agreement that the bills for defendant’s personal injury clients would contain false entries, that the information regarding the total amount of the bills and the period for which they should reflect treatments would be given by either Dr. Delong or defendant, and that this particular bill was prepared pursuant to that agreement. Defendant surely knew of the fraudulent nature of the bill when he submitted it.

Concerning Accomplices

Defendant’s final contention is that Von Berg, Moran, and DuBois were accomplices and that there was not sufficient corroboration of their testimony to support the conviction. Penal Code section 1111 provides that “[a] conviction can not be had Upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense,” and it defines an accomplice as “one who is liable to prosecution for the identical offense charged against the defendarit on trial in the cause in which the testimony of the accomplice is given.”

The testimony of one accomplice cannot corroborate the testimony of another. (People v. Marshall, 273 Cal.App.2d 423 , 426 [ 78 Cal.Rptr. 16 ].) If all of Dr. DeLong’s employees are accomplices, there is not sufficient corroboration of their testimony to support a finding of defendant’s guilt. (See People v. Anthony, 29 Cal.App.2d 290 [ 84 P.2d 523 ].)

An accomplice includes all persons concerned in the commission of the offense, whether they directly commit the act constituting the offense or aid and abet in its commission. (People v. Goldstein, 146 Cal.App.2d 268 , 272 [ 303 P.2d 892 ].) The Attorney General argues that the women could not have been accomplices because they were merely acting as employees and, at most, had knowledge of the crime and not any criminal intent. However, to “aid and abet” means “ ‘to . . . encourage ... or aid with guilty knowledge of the wrongful purpose of the perpetrator’. . . . The logical basis for conviction as an aider and abettor is that with knowledge of the unlawfulness of the act, one renders some independent contribution to the, commission of the crime or otherwise makes it more probable that the crime will be successfully completed than would

be the case absent such participation.” (Italics supplied.) (People v. Belenger, 222 Cal.App.2d 159 , 163 [ 34 Cal.Rptr. 918 ]; see People v. Terry, 2 Cal.3d 362 , 401 [ 85 Cal.Rptr. 409 , 466 P.2d 961 ]; People v. Goldstein, supra, 146 Cal.App.2d 268 , 272-273; People v. Wood, 56 Cal.App. 431 [ 205 P. 698 ]; Perkins on Criminal Law (2d ed. 1969) Imputability—Parties to Crime, pp. 662-663.)

It is apparent from DuBois’ testimony that she prepared the May 18 bill knowing it would be submitted in support of a fraudulent insurance claim. In so doing she aided and abetted defendant in his June 1 submission of the bill in support of the fraudulent claim,. (Accord: People v. Zelver, 135 Cal.App.2d 226 , 232 [ 287 P.2d 183 ].) DuBois, therefore, was an accomplice.

It is also apparent from the testimony of Von Berg and Moran that they prepared bills with guilty knowledge of their fraudulent nature and purpose. However, there is no indication in the record that they aided and abetted the particular offense under consideration. (See Pen. Code, § 1111; People v. Owens, 28 Cal.2d 191 , 193 [ 168 P.2d 945 ] and People v. Robinson, 184 Cal.App.2d 69 , 77 [ 7 Cal.Rptr. 202 ] [holding that testimony of a witness who was an accomplice to one offense charged against the defendant can corroborate the testimony of an accomplice to another offense charged against the defendant]; see also People v. Gallardo, 41 Cal.2d 57 , 63 [ 257 P.2d 29 ].) The offense of which defendant was convicted involved his presentation on June 1 of the May 18, 1962, bill in support of the $6,000 demand. In view of DuBois’ testimony that she prepared the bill, Von Berg’s testimony that she ceased working for DeLong in November 1961, and Moran’s testimony that she ceased working for him in January 1962, it is apparent that Von Berg and Moran had nothing to do with the preparation of this bill. (See People v. Graham, 191 Cal.App.2d 521 , 538 [ 12 Cal.Rptr. 893 ].) They, therefore, were not accomplices.

The fraudulent aspect of the May 18 bill was part of the corpus delicti, and this could properly be established by the testimony of DuBois alone since an accomplice’s testimony as to the corpus delicti need not be corroborated. (People v. Simpson, 43 Cal.2d 553 , 563 [ 275 P.2d 31 ]; People v. Neely, 163 Cal.App.2d 289 , 301 [ 329 P.2d 357 ].) In fact, however, it was corroborated by Von Berg’s and Moran’s testimony to the effect that Nelson had not received the treatments reflected in the bill during their employment. Only defendant’s connection with the crime need be corroborated, and the question for the trier of fact is to determine whether there was any substantial corroborative evidence. (People v. Malone, 82 Cal.App.2d 54 , 60 [ 185 P.2d 870 ].) “Although the corroborating evidence must raise more than a conjecture or suspicion of

guilt, it is sufficient if it connect the defendant with the commission of the crime in such a way as reasonably to satisfy the fact finding body that the accomplice is telling the truth. [Citation.] The evidence of inculpatory participation need not be direct nor extend to every fact and detail. It may be circumstantial and is sufficient, even though slight, if it tends to connect the defendant with the commission of the crime.” (People v. Henderson, 34 Cal.2d 340 , 342-343 [ 209 P.2d 785 ].) Defendant’s submission of the bill was established, not by DuBois, but by Aetna’s claims representative, Crazier, and the attorney, Dunleavy. DuBois’ testimony as to the existence of the practice of making fraudulent bills and as to defendant’s knowledge of and participation in that practice at the time this bill was made demonstrated defendant’s guilty knowledge and intent. This testimony was corroborated by the very similar testimony of Von Berg and Moran as to defendant’s connection with their billing practices when they were employed by Dr. DeLong.

The judgment is affirmed.

Stephens, Acting P. J., and Aiso, J., concurred.

A petition for a rehearing was denied June 25, 1971, and appellant’s petition for a hearing by the Supreme Court was, denied July 21, 1971. Wright:, C. J., did not participate therein.