P. v. Garcia




Filed 6/9/11 P. v. Garcia CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. FERDINAND MENDOZA GARCIA, Defendant and Appellant.

H036353 (Santa Clara County Super. Ct. No. C1079647)

Defendant Ferdinand Mendoza Garcia was charged by information filed July 22, 2010, with two counts of presenting a false or fraudulent insurance claim. (Pen. Code, § 550, subd. (a)(1).) On September 28, 2010, defendant made a Marsden motion,[1] and the court held a hearing on the motion. Following the hearing, the court denied the motion. The jury trial began the next day.
The Prosecution's Case
Dennis Gallagher, a special investigator with Century 21 Insurance, was assigned in September 2009 to investigate a claim by defendant and his wife involving a 2000 Dodge Durango. The deductible for defendant's Durango was $250 but the deductible on his other vehicle was $500, and a claim on the Durango was made on August 30, 2009, 10 days after it was added to defendant's policy. In addition, a second claim on the vehicle was made shortly after the first claim was made.
The first claim was that there was damage to the hood and entire driver's side of the Durango due to vandalism that had occurred on or around August 29, 2009. An adjuster was assigned the claim on August 31, 2009, and an appraiser inspected the car at defendant's workplace on September 2, 2009. Following the inspection, the appraiser estimated the reported damage to the left side of the vehicle and the front grill amounted to $2,508.98, and the insurance company paid defendant that amount less the $250 deductible, or $2,258.98. At the time of the inspection, the appraiser notified defendant that there was some existing damage to the car's rear bumper that the insurance company would not pay for.
Defendant's second claim on the car was made on September 11, 2009. Defendant reported that the Durango was hit while parked unoccupied outside his home. An appraiser made an estimate for this claimed loss to the car's rear bumper on September 15, 2009, at $635.36, which after the $250 deductible is $385.36. When an adjuster reviewed the claim, it was transferred to a special unit which assigned the matter to Gallagher.
Gallagher met with defendant on October 22, 2009, and they discussed both of defendant's claims. Defendant pointed to lateral scraping and paint chips on the right rear corner of the bumper and vehicle as part of his second claim. He also pointed to paint chips on the center of the rear bumper and on the left rear corner of the bumper. As part of the first claim, defendant pointed to damage to the gas cap cover that looked like glue or some other substance on the surface of the paint, as well as scraping damage to the paint on the entire driver's side of the car which appeared to have touch-up paint over it. Defendant said that he was not claiming any damage to the hood as part of this claim. Gallagher took pictures of all the reported damage.
Six days later, on October 28, 2009, Gallagher recorded a detailed statement from defendant. Defendant stated that the Durango had no body or paint damage when he bought it on August 20, 2009. Defendant said that he discovered the damage reported in the first claim about four or five days after he bought the car. He said that he and his wife had applied touch-up paint to the scratches to make the vehicle look more presentable. He said that he noticed the damage reported in the second claim for the first time during the inspection for the first claim, and that he had no idea how or when that damage occurred.
Gallagher sent two separate emails to the prior owner of the Durango, Natalie Thompson, asking her if she recognized the damage to the car as reported in defendant's two claims as having occurred while she owned it. After receiving a response from Thompson, Gallagher filed a report of a fraudulent claim with the Department of Insurance.
Auto Center West (ACW) purchased the Durango from Thompson in July 2009, and sold it to defendant in August 2009. At the time that Thompson sold the car, it had a long scratch on the driver's side front and passenger door that occurred in 2008, a long scrape on the panel behind the passenger door, scrapes on both corners of the back bumper, a crack in the front grille, a tear in the driver's seat, and the remnants of a sticker on the gas cap cover. The driver's side front door had been replaced in 2004, but Thompson never attempted to repair the scratches on the doors or the rear panel. No paint work was done on the Durango by ACW before its resale, and damage, such as scrapes and long scratches, that is common on nine-year-old cars was left. Some scratches could have been touched-up to make the car look better, but they would still have been visible at the time of the resale.
Danny Hernandez, a program representative for the Bureau of Automotive Repair, testified as an expert in the field of auto body repairs that he inspected and took pictures of defendant's Durango. The Durango had two 18-inch-long parallel scratches on the driver's door, an 18-inch-long horizontal scratch on the rear door, and a scratch on the rear quarter panel that appeared to have had clear fingernail polish applied to them. Although the driver's door had been completely repainted once, neither it nor the rear door nor the rear quarter panel had been previously repaired. The scratches had â€