P. v. Machesky
Filed 3/12/10 P. v. Machesky CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. MICHELLE MACHESKY, Defendant and Appellant. | D055509 (Super. Ct. No. SCD212902) |
APPEAL from a judgment of the Superior Court of San Diego County, Albert T. Harutunian III, Judge. Affirmed.
A jury convicted Michelle Machesky of one count of attempted perjury (Pen. Code, 118/664), two counts of insurance fraud by misrepresentation (Ins. Code, 1871.4, subd. (a)(1)) and one count of insurance fraud by concealment (Pen. Code, 550, subd. (b)(3)). The trial court denied Machesky's motion to reduce the insurance fraud counts to misdemeanors. The court placed Machesky on five years' probation, conditioned on, among other things, she perform 400 hours of volunteer work. The court ordered Machesky to pay the insurance company $12,000 in restitution.
FACTS
On May 6, 2006, Machesky slipped and fell in a freezer while working at a grocery store in Coronado; four days later, she filed a claim for workers' compensation.
On May 18 the store's workers' compensation insurance carrier, Springfield Insurance Company (Springfield), began paying temporary total disability benefits to Machesky.
On May 19 Dr. Larry Dodge, who was assigned by Springfield to treat Machesky, examined her and determined she was capable of doing light work, four hours a day. While at Dodge's office, Machesky stated on a patient questionnaire that she had never suffered any prior work-related injuries.
On June 5 Machesky executed authorizations for release of her medical records from the University of California at San Diego, Kaiser Permanente and Specialty Risk Services.
On January 18, 2007, Dodge examined Machesky and characterized her disability as permanent and stationary. Based on his examination, MRI results and Machesky's complaints, Dodge determined she had an eight percent disability. He also determined that 70 percent of this disability was based on the May 6 work accident and 30 percent resulted from arthritis. At this time Dodge was not aware of prior similar injuries to Machesky.
On May 9 Springfield deposed Machesky, who testified that she was suffering pain in her lower neck as a result of the May 6, 2006, work accident. Machesky testified the only time she received medical treatment for her neck or back was after she had injured her lower back in a car accident approximately five years earlier. Machesky denied she received treatment for her neck as the result of her car accident despite being shown a chart in which she indicated pain at the upper part of her back. After the car accident, Machesky told emergency room doctors at Scripps Memorial Hospital that she had mild neck pain. The emergency room report stated a clinical impression of mild cervical strain. Machesky also testified she had only one work-related injury before the May 6, 2006, work accidenta hand injury while she was working for Boney's in December 2005.
Machesky's medical records indicated she suffered five work-related injuries to her neck or back while she was employed by Albertson's. In November 2001 Machesky experienced pain in the middle of her back while pushing carts and missed 12 days of work. In April 2002 Machesky suffered back pain after picking up a turkey. In April 2003 Machesky slipped and fell in a freezer, injuring her lower back. On June 22, 2004, Machesky slipped and fell hard on her mid-back against a shelf. On January 31, 2005, Machesky filed a workers' compensation claim for injuries to her middle and lower back resulting from a fall.
The medical records also indicated Machesky had suffered back pain after slipping in a bathtub on April 1, 2000. She also suffered back pain after falling off her front porch on May 3, 2001. Machesky suffered neck pain after a car accident on July 28, 2001, and she underwent chiropractic treatment.
After reviewing Machesky's medical records, Dodge changed his conclusions about her disability from the May 6, 2006, work accident. Dodge attributed 90 percent of Machesky's disability to her previous injuries and 10 percent to the May 6, 2006, accident.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable, issues: (1) whether the trial court abused its discretion by refusing to reduce the insurance fraud counts to misdemeanors; and (2) whether the verdict forms on the attempted perjury count were impermissibly confusing.
We granted Machesky permission to file a brief on her own behalf. She has not responded.
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no other reasonably arguable appellate issue. Competent counsel has represented Machesky on this appeal.
DISPOSITION
The judgment is affirmed.
McINTYRE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
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