Filed 12/7/05 P. v. Delaine CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County,

Samuel Mayerson, Judge. Affirmed.

Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________

Anita Miriam Delaine appeals from the judgment entered following her conviction after a jury trial of several counts of making a knowingly false material statement to obtain workers' compensation benefits, presenting a knowingly false written or oral statement in support of a workers' compensation benefit claim, and attempted perjury. Delaine contends the trial court committed reversible error by instructing the jury with CALJIC Nos. 2.21.2 and 17.41.1, and the prosecutor committed misconduct during closing argument. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In an amended information, Anita Miriam Delaine was charged with eight counts of making a knowingly false material statement to obtain workers' compensation benefits, four counts of presenting a knowingly false written or oral statement in support of a workers' compensation benefit claim, and three counts of perjury.[1]

According to the evidence adduced at trial Delaine submitted a series of workers' compensation claims in 2001 and 2002, falsely representing she was no longer working, had never suffered prior injuries, and had never previously filed a workers' compensation claim. Delaine made these false statements on her insurance claim forms to examining physicians and during depositions on one of her claims. She also submitted claim forms inflating her mileage reimbursement and the number of treating physician visits. As a result, Delaine received temporary and permanent disability benefits and mileage reimbursements to which she was not entitled.

At trial, Delaine testified in her own defense she did not intentionally make false statements or fraudulently report her mileage. Rather, Delaine was unaware she could not work while collecting benefits, and her excessive mileage claim was a mistake. As for her deposition testimony, Delaine did not intend it to be false, but she was suffering from migraine pain and other problems at the time.

At the close of the evidence, the court charged the jury with CALJIC Nos. 2.21.2 and 17.41 among other instructions.[2]

The jury found Delaine guilty of 12 of the 15 counts alleged, acquitting her of three counts of violating Insurance Code section 1871.4, subdivision (a)(1). At sentencing, the trial court suspended imposition of sentence, granted Delaine five years of formal probation on condition she serve 365 days in county jail, with the sentence stayed upon successful completion of probation, and ordered her to pay victim restitution.

DISCUSSION

The Trial Court Properly Instructed the Jury

1. CALJIC No. 2.21.2

Delaine contends the trial court prejudicially erred by giving CALJIC No. 2.21.2. In particular, she argues the instruction should be avoided where, as here, it might appear directed primarily towards a defendant's exculpatory testimony.[3] Furthermore, Delaine contends the error reduced the prosecution's burden of proof by lessening the impact of her defense and thereby violated her rights to due process and trial by jury.

Delaine's reliance on Lescallett is misplaced, as Lescallett has been discredited for the precise proposition on which she relies. In People v. Lescallett, supra, 123 Cal.App.3d 487, the court stated in dicta that â€