P. v.
Filed 10/15/10 P. v.
Henderson CA4/1
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
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purposes of rule 8.1115.
COURT OF APPEAL, FOURTH
APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff
and Respondent,
v.
ANDREW C. HENDERSON,
Defendant
and Appellant.
D055580
(Super. Ct. No. SCD211511)
APPEAL from a judgment of the Superior Court of San Diego
County, Michael D. Wellington, Judge. Judgment affirmed.
A jury convicted Andrew C. Henderson
of three counts each of workers' compensation fraud (counts 1, 2, 6) and perjury
(counts 3, 4, 5). Henderson appeals,
claiming the evidence does not support his convictions. We reject his contentions and affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Henderson worked as
a truck driver for a company that sold and delivered construction
materials. Henderson's job
required him to secure the load on a flatbed trailer with tie-downs, untie the
load at the customer's location, and move a two-by-four or four-by-four piece
of lumber to elevate the load so that fork lifts could get under it. Other than the initial lobbing of the
tie-down over the load, a driver was not regularly required to work "over
the head." A typical shift for a
driver was from 6:30 a.m. to 3:00 p.m.
On November 10, 2005, Henderson sideswiped
a tree with his truck after a tire blew out.
Henderson advised
his employer about the incident, but did not report any injuries. Henderson had the
two front tires of his truck replaced and resumed his delivery. During the next few weeks Henderson worked his
normal hours without expressing any difficulty in performing his job.
On November 30, 2005, Henderson saw
Dr. Larry Dodge, an orthopedic surgeon, complaining of neck pain. Henderson advised
Dr. Dodge that a previous work-related neck injury, for which
Dr. Dodge had treated him, flared up after he had to veer off the road in
his truck. An X‑ray of Henderson's
neck showed some arthritic disease and disc degeneration. Dr. Dodge prescribed medication and told
Henderson that
"it would probably settle down over the next month."
In December 2005, Henderson initiated
a workers' compensation claim based on the injuries he suffered during the
November incident. When Dr. Dodge
saw Henderson in January
2006, he believed that Henderson could
continue working. (All further dates are
in 2006, unless otherwise indicted.) In
March, Henderson saw
Dr. Dodge because his neck injury had flared up. At that time Dr. Dodge believed Henderson could
continue working.
In September, Henderson saw
Dr. Dodge because he was experiencing "severe pain in his neck, radiating
pain into his shoulders and upper arms."
Dr. Dodge recommended that Henderson take one
week off work, and prescribed oral steroids.
When Dr. Dodge saw Henderson later that
month, Henderson claimed to
be in pain and unable to freely move his neck.
Based on Henderson's
representation of his physical condition, Dr. Dodge continued to find him
unable to work. An MRI of Henderson's
neck revealed a herniated disc. A
herniated disc can be asymptomatic or symptomatic, and determining which it is
and how to treat it depends on the patient's subjective complaints. Some people with a herniated disc may
experience no pain. Dr. Dodge
treated Henderson again on
October 18, November 8, and December 6.
On January
10, 2007, Dr. Dodge declared Henderson permanently
disabled from working as a truck driver.
On December 8, Henderson's workers'
compensation insurance carrier deposed him to determine the validity of his
claim. Henderson understood
that perjury was a felony, and that providing false or misleading material
information for the purposes of obtaining workers' compensation benefits could
be a felony. Henderson testified that he
could no longer work as a truck driver because he: (1) could not quickly turn his neck in either
direction; (2) had difficultly looking up and down; and (3) felt pain when he
raised his hands above his head. Henderson
demonstrated his range of motion by lifting his hands so his thumbs were level
with the top of his head. He explained
that he could raise his hands higher, but that it was very painful to even
raise his hands just to head level. Henderson claimed
that he needed to raise his hands and move his neck to perform his job.
Henderson stated
that his condition was getting worse, and that he could no longer play
basketball; work out; ride bicycles; wash his car; or do housework such as
mopping, vacuuming, and sweeping. Henderson claimed he
went to the gym to use the treadmill or stair climber, or use the sauna. Henderson denied
engaging in any other activities at the gym, stating he could not play
basketball because his doctor did not recommend reaching or jumping. He claimed to have difficulty getting in and
out of his car, and that he had to do it "slowly and carefully and guardedly." Dr. Dodge reviewed the deposition transcript
and found that Henderson's
representations during his deposition were consistent with how Henderson presented
during multiple visits.
Dr. William Tontz, Jr., an
orthopedic surgeon with a subspecialty in spinal surgery, evaluated Henderson in July
2007 to determine Henderson's work
disability, if any. Dr. Tontz based
his evaluation on his examination of Henderson, including
a discussion of Henderson's
subjective complaints, and a review of Dr. Dodge's medical records. Dr. Tontz concluded that Henderson had
"slight restriction of range," and that Henderson could not
work.
In the meantime, unbeknownst to
Henderson or his physicians, Henderson's employer
learned that Henderson had been
observed at a gym playing basketball. In
October, Henderson's workers'
compensation insurance carrier initiated video surveillance of him. Extensive video surveillance was conducted on
multiple days in October, November, and December, including the day after Henderson's
deposition. The three private
investigators that conducted the surveillance observed Henderson spend
hours at the gym shooting a basketball, extending his arms, making jump shots
and lay-ups with no indication of any pain or discomfort. They also observed Henderson turn his head
over his shoulder to back up his car, hold a cell phone to his ear with his
shoulder while retrieving something from his trunk, and get in and out of his
car without any indication of pain.
On December 9, the day after his
deposition, Henderson went to
the gym around 10:00 a.m. and stayed
there until 2:42 p.m. Two private investigators observed Henderson shooting a
basketball without any obvious signs of pain or discomfort. One investigator observed Henderson tilt his
head all the way back to drink out of a bottle.
The following day, Henderson spent over
three hours in the basketball area of the gym shooting a basketball, doing
lay-ups and jump shots without any signs of pain or discomfort.
After reviewing the surveillance
videos, Drs. Dodge and Tontz reversed their earlier opinions, finding that Henderson could work
without restrictions. Dr. Dodge
found Henderson's
movements in making jump shots, having both arms over his head with his feet
leaving the floor and throwing a basketball into a hoop to be
"fluid." Dr. Dodge did
not consider Henderson to be
disabled. Dr. Tontz reviewed all of
the surveillance tapes for any evidence to corroborate Henderson's
representations during his office visits.
Dr. Tontz observed no evidence of pain, or any indication that Henderson required
vocational rehabilitation.
Henderson testified
on his own behalf and described his job functions to the jury. Although Dr. Dodge denied any
conversation with Henderson in which
he authorized or recommended that Henderson play
basketball, Henderson claimed
that Dr. Dodge told him it was "okay" to shoot a basketball for
"therapeutic reason[s]." Henderson called as
witnesses five friends to testify regarding his honesty, and to corroborate
that Henderson used to
play five-on-five, full-court basketball and that they did not consider
shooting hoops and doing jump shots to be "playing basketball." During closing
argument, defense counsel played a video tape showing a basketball game to
demonstrate how playing basketball differed from simply shooting a basketball.
A jury found Henderson guilty on
all counts. The trial court granted Henderson formal
probation, and ordered restitution in the amount of $64,645.18 for workers'
compensation benefits improperly received.
Henderson timely
appealed.
DISCUSSION
I.
Standard of Review
In reviewing challenges to the
sufficiency of the evidence, we review the whole record in the light most
favorable to the judgment to determine whether substantial evidence supported
it. (People
v. Hill (1998) 17 Cal.4th 800, 848-849.)
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 (
331; People v. Marshall (1997) 15
Cal.4th 1, 34), resolving all conflicts in the evidence and questions of
credibility in favor of the verdict, and indulging every reasonable inference
the jury could draw from the evidence (People
v. Autry (1995) 37 Cal.App.4th 351, 358).
The standard does not differ where a case rests mainly on circumstantial
evidence (People v. Bean (1988) 46
Cal.3d 919, 932-933), and the testimony of even one witness constitutes
substantial evidence, so long as that testimony is not inherently incredible (
Cal.App.3d 290, 306). If the verdict is
supported by substantial evidence, we are bound to give due deference to the
trier of fact and not retry the case ourselves.
(People v. Ochoa (1993) 6
Cal.4th 1199, 1206.)
II.
Workers' Compensation Fraud
Convictions
A. Legal Principles
It is a crime to make false or
fraudulent statements to obtain workers' compensation benefits. (Ins. Code, § 1871.4, subd.
(a)(1).) The elements of this crime are: (1) a materially false statement; (2) made
with knowledge that it was false or fraudulent; and (3) with the specific
intent to obtain workers' compensation benefits. (People
v. Dieguez (2001) 89 Cal.App.4th 266, 278 (Dieguez).) A specific intent
to defraud is not an element of the crime, but is subsumed within the required
elements. In other words, "a jury
when it convicts a defendant upon a finding of all the elements
listed." (Id. at pp. 279-280.) A
misrepresentation is "material" if it " 'concerns a subject reasonably relevant to the insured's investigation,
and if a reasonable insurer would attach importance to the fact misrepresented . . . .' (Cummings
[v. Fire Ins. Exchange (1988) 202
Cal.App.3d 1407,] 1417, italics in original.)" (People
v. Gillard (1997) 57 Cal.App.4th 136, 151.)
B. Analysis
1. Misrepresentation to
Dr. Dodge (Count 1)
Count 1 alleged that Henderson
misrepresented his physical condition to Dr. Dodge between October 4, 2006, and November 20, 2007. The verdict form asked the jury to determine
whether Henderson had
"misrepresented his physical condition" to Dr. Dodge. Henderson asserts
the jury's guilty verdict on this count must be reversed because vague and
ambiguous language used in the verdict form denied him due process. He also maintains the prosecution failed to
prove that he made a false claim on the dates alleged.
We conclude that Henderson forfeited
any claim of error regarding the verdict form by failing to raise it
below. (People v. Vera (1997) 15 Cal.4th 269, 275-276 ["an appellate
court will not consider claims of error that could have been -- but were
not -- raised in the trial court"].)
Had Henderson not
forfeited the contention, we still would have rejected it. The jury expressed no confusion regarding the
language used in the verdict form.
Moreover, Henderson has not
explained how the term "physical condition" is vague or ambiguous
given the circumstances of this case.
The jury was asked to decide whether Henderson made false
or fraudulent statements or representations to obtain workers' compensation
benefits. Naturally, the jury would have
correctly assumed that the term "physical condition" referred to the
condition of Henderson's body.
We also reject Henderson's claim
that he had multiple appointments during the time period alleged, but no
reasonable jury could have concluded that he knowingly made a specific untrue
claim on one of the dates alleged. Our
review of the record reveals facts and inferences which, if found true by the
finder of fact, support the jury's verdict.
The trial court properly instructed
the jury on the elements the prosecution needed to prove to establish Henderson's guilt on
this charge. It instructed the jury that
the prosecution did not need to prove the exact date the crime occurred, only
that the crime occurred reasonably close to the dates alleged. It also instructed the jury members that they
could not find Henderson guilty on
this count unless they unanimously agreed that he committed one of the acts,
and the date he committed the act.
During the time period alleged,
Dr. Dodge testified that Henderson had office
visits on October 18, November 8, and December 6. Dr. Dodge confirmed that he had reviewed
Henderson's
deposition dated December 8.
Dr. Dodge noted that Henderson testified
at deposition that it was very painful to raise his arms above his head, and
that this representation was consistent with how Henderson presented
at office visits during the same time frame.
Henderson also
stated at his deposition that it was painful for him to turn his neck, and
difficult to move his neck up and down.
Dr. Dodge testified that these representations were also consistent
with how Henderson presented
during his office visits. Specifically,
Dr. Dodge stated that from December 13 until he stopped treating Henderson in January
2008, Henderson's ability
to move his neck never improved.
The jury could reasonably conclude
from this testimony that during the December 6 office visit, just two days
before his deposition, Henderson represented
that it was painful for him to raise his arms above his head, turn his neck, or
move his neck up and down. The jury
could also have reasonably concluded after viewing the surveillance video taken
on December 9, the day after Henderson's
deposition, that Henderson's
representations about his physical condition to Dr. Dodge on December 6
had been knowingly false. On December 9,
two private investigators watched Henderson at a gym,
but did not observe any indication that he had pain or difficultly moving his
neck or raising his arms. The jury also
watched several video clips of Henderson taken that
day at the gym. Henderson testified
that he had taken three or four pain pills on December 9, and claimed that the
pills explained his basketball activity that day. However, it was for the jury to determine the
credibility of Henderson's
explanation.
The evidence also supported the
jury's implied finding that Henderson's
representations to Dr. Dodge were material to the insurer because they
influenced its decision to award benefits.
Dr. Dodge relied on Henderson's
subjective statements to dictate Henderson's
treatment, and determine whether Henderson was
incapable of working as a truck driver.
In turn, the insurer relied on Dr. Dodge's reports to provide Henderson workers'
compensation insurance benefits, stating the reports were
"critical." After reviewing
the surveillance videos, Dr. Dodge reversed his earlier opinion, finding
that Henderson was able
to work without restriction. Thus, the
evidence supported the jury's verdict on count 1.
2. Misrepresentation to
Dr. Tontz (Count 2)
Count 2 alleged that Henderson
misrepresented his physical condition to Dr. Tonz on July 25, 2007. Henderson asserts
that Dr. Tontz based his conclusions regarding Henderson's physical
condition on Henderson's medical
records and unsworn answers in a written questionnaire, not verbal
statements. Accordingly, Henderson claims
that the guilty verdict on this count must be reversed because there is no
evidence to prove that he made a false verbal statement to Dr. Tontz. We reject this contention.
The Insurance Code provides it is
unlawful to "[m]ake or cause to be made a knowingly false or fraudulent
material statement or material representation for the purpose of obtaining or
denying any compensation . . . ." (Ins. Code, § 1871.4, subd.
(a)(1).) Henderson has
provided no authority to support his contention that to be actionable the
statement or representation must be verbal.
Rather, the jury was entitled to consider all relevant evidence in
deciding this claim, including Henderson's written
responses to Dr. Tontz's questionnaire, and any nonverbal representations Henderson made
during Dr. Tontz's physical examination.
(Evid. Code, § 210.) Thus, we
reject Henderson's challenge
to the sufficiency of the evidence supporting his conviction on count 2.
3. Misrepresentations During
Deposition (Count 6)
Count 6 alleged that on
December 8, Henderson falsely claimed he:
(1) "could not work because of the pain in his neck and pain in
lifting his arms above his head"; (2) "could not do basketball and
had not done basketball since September 2006"; and (3) did not engage in
additional activity at the gym other than "the stairclimber, treadmill and
sauna." The jury found Henderson guilty as
charged. On appeal, Henderson asserts
his conviction on count 6 must be reversed because: (1) the verdict form did not specify to whom
or where the alleged misstatements were made; (2) the information charged him
with a single count of making a false statement as to three subjects, and the
jury was not given a unanimity instruction; and (3) it is not supported by
substantial evidence. We disagree.
The jury heard testimony that Henderson's workers'
compensation insurer deposed him on December 8 to determine the precise nature
of Henderson's
disability, and make a determination regarding the validity of Henderson's
claim. From this evidence, the jury
could reasonably conclude that count 6 pertained to the statements Henderson made under
oath at his deposition. Although Henderson made
multiple statements during his deposition, counsel and the court agreed that a
unanimity instruction was not required for this count because the conduct fell
within the continuous course of conduct exception. (Dieguez,
supra, 89 Cal.App.4th at
pp. 275-276 [a unanimity instruction was held unnecessary under the
"continuous course of conduct" exception where an insurance fraud
count was based on six different statements made during a single doctor's
appointment].) Thus, by agreeing that
this exception applied, Henderson forfeited
his contention regarding the need for a unanimity instruction.
Finally, substantial evidence
supported the jury's guilty verdict. Henderson does not
dispute that he made the statements alleged in this count. Indeed, the verdict forms pertaining to the
perjury charges contained excerpts of Henderson's
deposition testimony, and referenced the page and line numbers where the
testimony appeared in Henderson's
deposition transcript. By comparing Henderson's
deposition testimony with his physical activities on the surveillance videos,
the jury could reasonably conclude that Henderson's
representation during his deposition that pain prevented him from working was
false.
During the deposition, Henderson testified
that he went to the gym to walk on the treadmill. When counsel asked Henderson if he did
anything else at the gym other than walking on the treadmill, Henderson replied
that he walked on the stair climber and used the sauna. Counsel then specifically asked Henderson about
"[a]ny other activities in the gym," to which Henderson replied
"No." The surveillance videos
and the testimony of numerous witnesses established the falsity of this
testimony by showing that Henderson spent
hours at the gym shooting a basketball.
Although Henderson testified
at trial that he believed the deposition question related only to what he did
in the workout area of the gym, the jury was free to disbelieve this
explanation.
At deposition Henderson also
testified that basketball was one of the activities he could no longer do
because his doctor recommended that he not reach or jump, and that he had not
played basketball since September 2006.
This testimony was contradicted by the surveillance videos taken after
September 2006, showing Henderson jumping
and shooting a basketball with his arms over his head. Additionally, Dr. Dodge testified that
he had no discussions with Henderson about
playing basketball. Henderson claimed
his deposition testimony was truthful because he understood "do[ing]
basketball" to mean playing full-court basketball with opposing teams, and
that he forgot to correct this portion of the deposition transcript. Again, however, it was for the jury to
determine Henderson's
credibility. (People v. Jones (1990) 51 Cal.3d 294, 314.)
III. Perjury
Convictions
Counts 3, 4 and 5 alleged that
Henderson committed perjury at his deposition by falsely claiming that he: (1) "could not work because of the
pain in his neck and pain in lifting his arms above his head";
(2) "could not do basketball and had not done basketball since
September 2006"; and (3) engaged in no additional activity at the gym
other than "the stairclimber, treadmill and sauna." To find Henderson guilty on these counts, the
prosecution was required to prove:
(1) Henderson took an oath to depose truthfully before a competent
tribunal or officer under circumstances in which the oath of the State of
California lawfully may be given; (2) when Henderson was deposed, he
willfully stated that the information was true even though he knew it was
false; (3) the information was material; (4) Henderson knew he was
making the statement under oath; (5) when Henderson made the false statement, he intended to depose falsely
while under oath; and (6) Henderson signed and delivered his deposition to
someone else intending that it be circulated or published as true. (Pen. Code, § 118.)
Henderson asserts
that his perjury convictions must be reversed because none of his alleged
misstatements were material to the outcome of his claim. He contends that the pain medication
prescribed by Dr. Dodge prevented him from working, because the Vehicle
Code makes it unlawful to drive a vehicle while under the influence of any
drug. (Veh. Code, § 23152, subd.
(a).) Consequently, he asserts that his
claim for benefits would have been approved notwithstanding the disputed
severity of his neck injury. We reject
this assertion.
Dr. Dodge prescribed Vicodin, a
synthetic opiate, to Henderson based on Henderson's representations
to Dr. Dodge about his pain.
However, Dr. Dodge explained that Henderson's
subjective complaints dictated the treatment he pursued. Accordingly, if the jury concluded that Henderson
exaggerated the level of pain he experienced, it would necessarily conclude
that Henderson did not
need pain medication. In any event, Henderson testified
that he did not take pain medication every day; rather, he took it when his
pain was "unbearable." Based
on this testimony alone, the jury could have concluded that Henderson's
occasional use of pain medication did not render him permanently disabled. (To the extent Henderson repeated
this argument for his fraud convictions, we reject it for the same reasons.)
As to his deposition statement that
he
"could not work because of the pain in his neck and pain in lifting his
arms above his head," Henderson asserts
the conviction must be reversed because nothing in the surveillance videos
showed he could perform his job functions.
We disagree.
Henderson described
in detail the demands of truck driving.
The jury also heard testimony from Drs. Dodge and Tontz that after
viewing the surveillance videos they concluded that Henderson was not
disabled, and could drive a truck.
Dr. Tontz watched the video tapes in their entirety, but never saw
any evidence that Henderson
experienced pain, or an inability to move his neck or lift his arm above his
head. Deciding which of these witnesses
to believe was a credibility determination for the jury. Here, the jury necessarily believed the
doctors that Henderson was able
to perform his job functions.
Finally, Henderson contends
that his perjury convictions must be reversed because the statements he made
during his deposition were true. As
discussed above, we concluded that substantial evidence supported the jury's
verdict on count 6 that Henderson made
material misrepresentations during his deposition. (Ante,
part II.B.3.) These same
misrepresentations formed the perjury counts.
The evidence cited above in relation to count 6 similarly supports
the jury verdict on the perjury counts, thus we do not repeat it here.
DISPOSITION
The judgment is affirmed.
McINTYRE,
J.
WE
CONCUR:
HALLER, Acting P.J.
O'ROURKE, J.
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