People v. Post

A. Factual Matters

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307 , 319 [ 99 S.Ct. 2781 , 2789, 61 L.Ed.2d 560 ]; People v. Osband (1996) 13 Cal.4th 622 , 690 [ 55 Cal.Rptr.2d 26 , 919 P.2d 640 ]; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907 , 908-909.) On August 14, 1992, defendant was employed by Methodist Hospital Southern California, where she allegedly tripped and fell. Defendant claimed she injured her neck, back, and toe as a result of the fall. She also claimed she suffered from general body aches. Defendant was initially off work and received temporary disability workers’ compensation benefits from August 15, 1992, to August 2, 1995. Thereafter, defendant received permanent disability benefits until May 28, 1997. On May 28, 1997, defendant settled her claim with Methodist Hospital. The settlement provided for free medical treatment for all body parts injured on the job. On July 15, 1997, defendant filed a petition to reopen her initial claim, alleging new and further disability as a result of her original injuries. Thereafter, Keenan and Associates, the insurance company administering the disability payments to defendant, filed opposition to her petition to reopen her claim. Company employees also began an investigation to determine whether defendant had sustained a new and further disability. The investigation included surveillance and videotaping of defendant’s activities.

On February 25, 1998, defendant was seen using a cane as she walked into her doctor’s office. Defendant was videotaped leaving the doctor’s office later in the day. Defendant was carrying her cane and purse, but did not use the cane to walk to her husband’s car. Thereafter, defendant was observed walking into a computer store in a normal gait without the use of her cane. A few hours later, the videotape showed defendant entering a post office without her cane. She exited the post office carrying mail in her left hand. On March 11, 1998, defendant was videotaped entering and exiting the Workers’ Compensation Appeals Board office. Defendant walked slowly with the assistance of a cane. A videotape of defendant’s arrival at her home later that day showed her carrying the cane, but not using it as a crutch.

On March 26, 1998, defendant was videotaped as she walked a large oversized trash can on wheels to the curb from inside the house. Defendant then pulled a small trash can with one hand and walked another one to the curb. She then dragged another trash can to the curb. Defendant bent down to pick things up from her lawn. Defendant was not using a cane at any time during this videotaping.

At approximately 11:05 a.m. on April 25, 1998, defendant was taped as she exited the gate of her home. She was not using a cane to walk. She walked to the middle of the driveway. Defendant walked back to the garage door, where she bent over to unlock it. Defendant opened the garage door manually. She walked back to the side yard in a normal gait. Thereafter, she walked up the two stairs into her residence without assistance. Defendant stopped, bent from the waist down, and pulled a weed. Later the same day, defendant drove to a residence in El Monte. Defendant walked around the front yard of the residence with another woman, looking at plants and trees. Defendant did not use a cane for assistance. Defendant then lifted a chain saw and placed it in the rear of her car. She closed the hatchback of the car. Defendant got into the driver’s seat, reached for the shoulder strap with her right hand, secured the seat belt, and drove away with the other woman in the passenger seat.

Defendant and the woman drove to an outdoor market, arriving at 2:23 p.m. Defendant got out of the car. Defendant walked without her cane to the store with her purse on her left arm. Defendant filled two plastic bags with fruit. Defendant handed one to the other woman. Defendant left the store with her purse on her left arm and carrying a bag of fruit. The two women drove across the street to a grocery store. The two women exited the store with a grocery cart. Defendant picked up two grocery bags at the same time, walked to the driver’s side, opened the door, and pushed the driver’s seat forward. Defendant then leaned inside the car, placing the bags in the back of the automobile. Defendant then drove to another grocery store. Defendant was videotaped pushing a full shopping cart to her car. Defendant lifted two 6-packs of soft drinks in her left hand from the cart into her car. She continued to unload groceries into the car by bending and stooping. Defendant was walking without the assistance of a cane. Defendant next went to a Circle K market. Defendant drove home, arriving at 4:54 p.m.

On April 26, 1998, defendant was videotaped at her home. At 11:27 a.m., defendant was shown stooping over on her front porch. She appeared to be removing a hose. Defendant watered the garden with both hands on the hose. She was not using a cane. Defendant coiled up the hose. Approximately an hour later, defendant’s husband was cutting branches from a tree with a chain saw. Defendant was seen repeatedly bending from the waist, pulling up tree branches, and stuffing them into a trash can. She then dragged the trash can on the ground to the side yard. The trash can did not appear to have wheels. Defendant continued to bend to pick up branches. She then carried them to the side yard. Defendant was not using a cane for assistance. Defendant was also seen pulling out ivy plant material from the ground and

stuffing it into a trash container. She also broke small branches with both hands, bent from the waist down to pull weeds or flowers from the ground, dug into the ground with a small trowel, used her foot to press down the dirt, and squatted to pick up trash from the ivy. Defendant was also observed to pull branches down from the tree as they were cut. Defendant threw the branches with an overhand motion and pulled the cord of the chain saw. The videotape ended at 2:09 p.m.

Defendant was deposed under oath on April 28, 1998, in connection with her request to reopen her workers’ compensation claim. The deposition was transcribed by a certified shorthand reporter. Sonja Gipson was the attorney for Methodist Hospital conducting the deposition. Defendant was asked about her current complaint. Defendant indicated that she had low-back, neck, shoulders, and right hip pain. Defendant stated that her little toe no longer bothered her. Defendant testified the pain to her lower back was severe and constant. She stated “not too much of anything” relieved the pain. When asked if she uses her cane at all times, defendant testified she did not use it around the house and there were times when she did “limited” activities where she did not use it. Defendant related she could not walk for an hour straight. She also indicated under oath, she could only do things on her feet for a half hour without requiring rest because of increased symptoms to her back.

Defendant was asked if there was anything she was able to do prior to May 28, 1997, that she could no longer accomplish because of increased back pain. Defendant responded, “With the increased back pain I am not able to do things like going to the garden and, you know, pull weeds and doing that.” When the question was clarified, she modified her answer to state that before the award in 1997: “I did some, you know, light gardening. I didn’t go out and do anything vigorous or anything . . . .” However, she stated that at the time of the deposition she could not even do that because her back pain was more severe. Defendant testified, “My back is so stiff and I have such severe pain in it.” Defendant said the pain in her hip, neck, and right shoulder had also become worse. Defendant said she did very little housework and no gardening. A transcript of the foregoing deposition was received in evidence as exhibit 5. It is not executed by defendant.

On September 4, 1998, defendant was videotaped manually raising her garage door. Defendant drove her car out of the garage. She got out of her car and closed the garage door. Defendant was not using a cane. Defendant then walked fast to avoid some sprinklers. She walked up the two stairs to her residence. Later, the tape pictured defendant turning on sprinklers and

carrying two empty trash cans simultaneously to the side of the house. She also bent down to pick up some debris. Defendant also unwound the garden hose, bent over to pick it up, and watered trees and shrubs. In each instance, she was not utilizing a cane. Defendant then washed the car, reaching to wipe or clean with her right arm, and bending to reach the lower part of the car.

B. Verdicts

Defendant was convicted of perjury in counts 2 and 3. The verdict form for count 2 states in the relevant part: “We, the jury, in the above entitled action, find the defendant . . . Guilty of the crime of Perjury Under Oath as charged in Count 2 of the Information, in violation of Penal Code Section 118, a Felony . . . having taken an oath . . . did contrary to such oath state as true a material matter which she knew to be false, to wit: no Question: ‘Is there anything that you did prior to the award of May 28, 1997, that you are unable to do now because of an increase in your back pain? Answer: ‘Yes, with the increased back pain, I’m not able to do things like going to the garden and, you know, pull weeds and doing that or—.’ fl[] Question: ‘But were you doing that within the last year though, Betty? She’s not talking within the time you injured yourself in ’92, what you did before then, okay? She’s talking about when you signed the award, it was let’s say, May of ’97. So it was about a year ago. Within that year until today, are there things you can’t do now because of your increased pain? Were you doing gardening up until May of ’97?’ Answer: ‘No, I don’t.’ [^] Question: ‘Up until May of 1997, you had a certain level of pain and disability?’ Answer: ‘Uh-huh.’ Question: ‘Okay, and that case settled?’ Answer: ‘Uh-huh.’ flO Question: ‘Since then, you stated that you have had an increased level of pain and disability. Is there anything that you cannot do now that you were doing prior to May of ’97?’ Well, right at around May of ’97?’ ‘Yes, in that area.’ ‘Like last year at this time, if you think back, were you able to walk further distances or were you able to do some gardening? Did you go grocery shopping or did you go to the mall?’ Answer: T did some, you know, like gardening, I didn’t go out and do anything vigorous or anything but. . .’ [10 Question: ‘That was before the award?’ Answer: ‘That was before.’ Question: ‘And now you can’t even do that?’ Answer: ‘No. My back is so stiff, and I have such sever[e] pain in it.’ ”

The count 3 guilty verdict states in pertinent part: “We, the jury, in the above entitled action, find the defendant . . . Guilty, of the crime of Perjury Under Oath as charged in Count 3 of the Information, in violation of Penal Code Section 118, a Felony, who being a person having taken

an oath . . . did contrary to such oath state as true a material fact which she knew to be false, to wit: [^] Question: ‘You say you don’t do any gardening?’ Answer: ‘No.’ ”

A. Sufficiency of the Evidence Standard of Review

Defendant argues that there was insufficient evidence to support the verdicts. In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the judgment. (Jackson v. Virginia, supra, 443 U.S. at p. 319 [99 S.Ct. at p. 2789]; People v. Osband, supra, 13 Cal.4th at p. 690; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) Our sole function is to determine if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia, supra, 443 U.S. at p. 319 [99 S.Ct. at p. 2789]; People v. Bolin (1998) 18 Cal.4th 297 , 331 [ 75 Cal.Rptr.2d 412 , 956 P.2d 374 ]; People v. Marshall (1997) 15 Cal.4th 1 , 34 [ 61 Cal.Rptr.2d 84 , 931 P.2d 262 ]; People v. Ochoa (1993) 6 Cal.4th 1199 , 1206 [ 26 Cal.Rptr.2d 23 , 864 P.2d 103 ].) The Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ” (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745 , 755 [ 79 Cal.Rptr. 529 , 457 P.2d 321 ].)

B. Workers’ Compensation Insurance Fraud

Insurance Code section 1871.4 provides in pertinent part: “(a) It is unlawful to do any of the following: [^] (1) Make or cause to be made any knowingly false or fraudulent material statement or material representation for the purpose of obtaining . . . any compensation, as defined in Section 3207 of the Labor Code.” (See also People v. Webb (1999) 74 Cal.App.4th 688 , 691, fn. 1, 693 [ 88 Cal.Rptr.2d 259 ]; People v. Gillard (1997) 57 Cal.App.4th 136 , 153-154 [ 66 Cal.Rptr.2d 790 ].) In this case, defendant made both false material statements and misrepresentations regarding her physical condition as it related to her renewed claim. Although defendant used a cane and walked with difficulty when visiting the doctor and the Workers’ Compensation Appeals Board, videotapes taken surreptitiously by investigators showed her walking in a normal gait without the aid of any. type of a walking stick while performing various physical tasks. In addition, defendant testified under oath at her deposition that she was unable to

The Attorney General argues that there is no longer an absolute signature requirement in the Code of Civil Procedure that the deponent actually execute the deposition transcript. The problem with this contention though is that the Legislature has never indicated in any of these amendments to the Code of Civil Procedure that it was altering its section 124 signature requirement first adopted in 1872 and reiterated in 1905 which required the deposition be executed before the crime of perjury could be committed. We have carefully examined the available legislative intent documents for the Code of Civil Procedure amendments to the deposition statutes since 1905 and there is no evidence the Legislature intended to delete its section 124 delivery and signature requirement for purposes of perjury liability. Hence, without an executed deposition transcript, defendant could not be convicted of the completed offense of perjury. (Collins v. Superior Court (2001) 89

Cal.App.4th 1244 , 1247-1250 [ 108 Cal.Rptr.2d 123 ]; People v. Hjelm, supra, 224 Cal.App.2d at pp. 654-659.)

The jury had before it exhibit 5 which was a certified copy of defendant’s April 28, 1998 deposition. Exhibit 5 is not executed by defendant. We do note that exhibit 4, which was admitted at the preliminary examination in the former Municipal Court for the Los Angeles Judicial District, is a photocopy of the original deposition transcript. Defendant executed exhibit 4, which was received in evidence at the preliminary examination. However, preliminary hearing exhibit 4 was never received in evidence in defendant’s trial. In evaluating the sufficiency of the evidence, we may only evaluate those matters which were actually presented to the jury; after all, it was the jurors who were charged with returning verdicts. Because the only deposition transcript that was submitted to the jury was exhibit 5, which was not signed by defendant, the evidence is insufficient to support the counts 2 and 3 perjury verdicts.

However, we asked the parties to address the issue of whether a lesser-included offense, attempted perjury, has been committed. The Attorney General contends that defendant may be held criminally liable for the offense of attempted perjury. Section 664, subdivision (a), states in pertinent part: “Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: [ft] (a) If the crime attempted is punishable by imprisonment in the state prison, the person guilty of the attempt shall be punished by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense attempted.” (Italics added.) In People v. Toledo (2001) 26 Cal.4th 221 , 229-230 [ 109 Cal.Rptr.2d 315 , 26 P.3d 1051 ], Chief Justice Ronald M. George summarized California law concerning the law of attempt to commit a crime as follows, in part: “[U]nder California law, ![a]n attempt to commit a crime is itself a crime and [is] subject to punishment that bears some relation to the completed offense.’ (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 53, p. 262 . . . .) [ft] Furthermore, as provided by section 21a, ‘[a]n attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.’ As past decisions explain: ‘One of the purposes of the criminal law is to protect society from those who intend to injure it. When it is established that the defendant intended to commit a specific crime and that in carrying out this intention he committed an act that caused harm or sufficient danger of harm, it is immaterial that for some collateral reason he could not complete the intended crime.’ (People v.

Camodeca (1959) 52 Cal.2d 142 , 147 [ 338 P.2d 903 ].) When a defendant acts with the requisite specific intent, that is, with the intent to engage in the conduct and/or bring about the consequences proscribed by the attempted crime (2 LaFave & Scott, Substantive Criminal Law (1986) § 6.2(c)(1), p. 24), and performs an act that ‘go[es] beyond mere preparation . . . and . . . show[s] that the perpetrator is putting his or her plan into action’ (People v. Kipp (1998) 18 Cal.4th 349 , 376 [ 75 Cal.Rptr.2d 716 , 956 P.2d 1169 ]), the defendant may be convicted of criminal attempt.” (Fn. omitted.)

As noted, section 664, subdivision (a) applies to “any crime.” The only exception to the “any crime” language in section 664, subdivision (a) involves offenses which must be committed unintentionally. (E.g., People v. Johnson (1996) 51 Cal.App.4th 1329 , 1332 [ 59 Cal.Rptr.2d 798 ] [because involuntary manslaughter is an unintentional killing, there is no crime of “ ‘attempted involuntary manslaughter’ ”]; In re Kent W. (1986) 181 Cal.App.3d 721 , 723-724 [ 226 Cal.Rptr. 512 ] [unlawfully setting a fire in violation of § 452 requires an unintentional burning and therefore the crime of attempt, with its specific intent element, of that form of arson cannot be committed].) Perjury does not fall within this exception to the plain language of section 664, subdivision (a). Perjury is a specific intent crime. (People v. Meza (1987) 188 Cal.App.3d 1631 , 1647 [ 234 Cal.Rptr. 235 ]; People v. Story (1985) 168 Cal.App.3d 849 , 853 [ 216 Cal.Rptr. 158 ]; see People v. Hagen (1998) 19 Cal.4th 652 , 664 [ 80 Cal.Rptr.2d 24 , 967 P.2d 563 ]; People v. Campbell (1999) 76 Cal.App.4th 305 , 309 [ 90 Cal.Rptr.2d 315 ].)

Apart from these narrow exceptions, the broad language “any offense” in section 664 had been recognized as applying to a variety of uncompleted crimes. For example, California recognizes the existence of the crime of attempted subornation of perjury. (People v. Meaders (1983) 148 Cal.App.3d 1155 , 1159 [ 197 Cal.Rptr. 1 ] [“the general attempt statute, Penal Code section 664, is a viable and legitimate tool for the protection of the People of this state from subornation of perjury in its inchoate stage”].) Also, section 664 has been applied to a variety of offenses where, at first thought, it might seem that an attempt to commit the crime is not a cognizable offense. (People v. Toledo, supra, 26 Cal.4th at p. 235 [attempted criminal threat]; People v. Downer (1962) 57 Cal.2d 800 , 806 [ 22 Cal.Rptr. 347 , 372 P.2d 107 ] [attempted incest]; People v. Anderson (1961) 55 Cal.2d 655 , 661-662 [ 12 Cal.Rptr. 500 , 361 P.2d 32 ] [attempted theft by fraud, trick, or device]; People v. Camodeca, supra, 52 Cal.2d at p. 147 [attempted extortion]; People v. Milne (1882) 60 Cal. 71 , 72 [attempted child stealing in violation of § 278]; In re Ryan N. (2001) 92 Cal.App.4th 1359 , 1384 [ 112 Cal.Rptr.2d 620 ] [“attempt to violate section 401 by deliberately aiding, advising and

encouraging another person to commit suicide”]; People v. Kinsey (1995) 40 Cal.App.4th 1621 , 1626-1627 [ 47 Cal.Rptr.2d 769 ] [attempted injury upon a cohabitant in violation of §§ 273.5, subd. (a) and 664]; People v. Imler (1992) 9 Cal.App.4th 1178 , 1182 [ 11 Cal.Rptr.2d 915 ] [attempted child molestation]; People v. Meyer (1985) 169 Cal.App.3d 496 , 501-506 [ 215 Cal.Rptr. 352 ] [attempted sale of methylamine]; People v. Siu (1954) 126 Cal.App.2d 41 , 43-44 [ 271 P.2d 575 ] [attempted heroin possession]; People v. Garcia (1989) 214 Cal.App.3d Supp. 1 , 3-5 [ 262 Cal.Rptr. 915 ] [attempted driving under the influence of alcohol]; People v. Wright (1980) 105 Cal.App.3d 329 , 331-332 [ 164 Cal.Rptr. 207 ] [attempted receiving stolen property]; People v. Lorenzo (1976) 64 Cal.App.3d Supp. 43 , 47 [ 135 Cal.Rptr. 337 ] [attempted theft by false pretenses].) Therefore, under California law, the crime of attempted perjury can be committed. (See Note, Criminal Law: Attempted Perjury Is a Crime (1955) 6 Hastings LJ. 386 .)

Other jurisdictions recognize in varying circumstances the existence of the crime of attempted perjury. (See State of La. ex rel. Gwin v. Dees (5th Cir. 1969) 410 F.2d 321 , 324 [Louisiana]; Miscovsky v. State (2001) 2001 Okla. 26 [ 31 P.3d 1054 ), 1058 [Oklahoma]; Commonwealth v. D’Amour (1999) 428 Mass. 725 [ 704 N.E.2d 1166 , 1170] [Massachusetts]; State v. Cooks (1997) 125 Ohio App.3d 116 [ 707 N.E.2d 1176 , 1177] [Ohio]; People v. Hudson (1997) 237 A.D.2d 759 [ 655 N.Y.S.2d 142 ] [New York]; State v. Hyde (1977) 28 Or.App. 809 [ 561 P.2d 659 , 661] [Oregon].) Only one state, Florida, has refused to recognize that the crime of attempted perjury can be committed. (Adams v. Murphy (Fla. 1981) 394 So.2d 411 , 414-415 (plur. opn. of Boyd, J.).) The Florida Supreme Court reasoned that the crime of perjury was complete once the false statement was uttered. The court held: “The lack of such elements of the crime of perjury as the materiality of the testimony, the lawfulness of the oath, or the official judicial nature of the proceeding is not, we think, what is contemplated by the common law and statutory concepts of failure, intervention, interception or prevention. When the elements of materiality, lawful oath, and official judicial proceeding are established, the crime of perjury is fully proven by an ‘attempt’ to commit perjury. That is, it is fully proven by the overt act of a willful false statement.” (Ibid.) California law differs. In California, the crime of perjury by a deponent, such as defendant, is not committed unless the deposition transcript is signed and delivered. For the reasons previously expressed, we respectfully conclude the views of the Florida Supreme Court, which were construing statutory perjury requirements different from those in California which apply specifically to deposition transcripts, are not controlling. We express no opinion as to the remainder of the Florida Supreme Court plurality’s analysis in Adams.

Accordingly, defendant cannot not be convicted of perjury as charged in counts 2 and 3. Rather, the offense she committed in counts 2 and 3 was attempted perjury. We have the authority to reduce the judgment as to counts 2 and 3 to state that defendant has been convicted of attempted perjury. Penal Code section 1260 provides in part, “The court may . . . modify a judgment appealed from, or reduce the degree of the offense or attempted offense . . . .” Penal Code section 1260 has been interpreted to allow an appellate court to reduce a judgment of a completed crime to a lesser-included attempted offense. (People v. Rojas (1961) 55 Cal.2d 252 , 261-262 [ 10 Cal.Rptr. 465 , 358 P.2d 921 , 85 A.L.R.2d 252 ] [receiving stolen property conviction reduced to lesser included offense of attempted receiving stolen property]; People v. Jones (1999) 75 Cal.App.4th 616 , 626-628 [ 89 Cal.Rptr.2d 485 ] [carjacking conviction reduced to lesser included offense of attempted carjacking].) In the present case, the evidence before the jury did not prove defendant signed her deposition transcript which reflected her obviously false statements. Her testimony at the deposition concerning her alleged injuries was demonstrably untrue as evidenced by the videotapes. Defendant had a motive to lie—she was seeking to receive more workers compensation benefits. The deposition provisions of the Code of Civil Procedure apply in workers’ compensation proceedings. (Lab. Code, § 5710, subd. (a); 2 Cal. Workers’ Compensation Practice (Cont.Ed.Bar 4th ed. 2001) § 14.74, p. 893.) There was testimony, independent of the deposition transcript, of defendant’s false statements made after she swore to tell the truth. No evidence was introduced by the defense to suggest any mistake of fact or confusion on defendant’s part at her deposition. This is an appropriate case to reduce defendant’s convictions under counts 2 and 3 to attempted perjury. (Pen. Code, §§ 118, 664, subd. (a).)

One final thought is in order. As noted in the first paragraph of this opinion, the requirement that a deponent sign and deliver the deposition transcript, which finds its basis in statutory law first adopted in 1872, over 129 years ago, warrants reevaluation by the California Legislature. In federal courts, the crime of perjury as defined in title 18 United States Code section 1621, is complete once a materially false statement is spoken at a deposition and there is no requirement the transcript be executed by the deponent. (U.S. v. Markiewicz (2d Cir. 1992) 978 F.2d 786 , 808; see United States v. Noveck (1927) 273 U.S. 202 , 206 [ 47 S.Ct. 341 , 341-342, 71 L.Ed. 610 ]; Hale v. United States (10th Cir. 1969) 406 F.2d 476 , 479-480.) Truth must be the heart and soul of California’s justice system. Without truth, there is no justice, none at all. Whatever purposes have been served by the century-old Penal Code section 124 signature and delivery requirements, they are now far outweighed by the morally impelled unrelenting demand for the whole