People v. Blick (153 Cal. App. 4th 759, 2007)

Opinion

PARRILLI, J.

In this case we hold that Penal Code section 550, subdivision (b)(3) (section 550(b)(3)) is a specific intent crime. Defendant Anita Beatriz Blick appeals the judgment and sentence imposed following her jury trial conviction premised on this section. Blick contends: (1) she was denied due process of law by the trial court’s section 550(b)(3) instruction, which allegedly described that count as a strict liability offense not requiring proof of a culpable mental state; (2) the trial court erred by failing to instruct sua sponte on mistake of fact as a defense on the section 550(b)(3) count. We vacate the judgment and remand.

FACTUAL AND PROCEDURAL BACKGROUND

A. Medical History and Treatment

In January 1994, Blick fell during her shift as a police dispatcher for the Town of Atherton. She injured her knee and strained her calf muscles. Blick visited Dr. Stephen Conrad, an orthopedic surgeon and her treating physician from 1994—2002, reporting pain in her right knee and episodes in which the knee buckled, causing her to fall. On July 14, 1994, Dr. Conrad performed arthroscopic surgery in an attempt to stabilize the knee and indicated Blick should remain off work because modified duty was unavailable. Blick went back to work in November 1994, but left again after only three days. She told Dr. Conrad she could not do her job because she experienced too much knee pain rising from her chair repeatedly throughout the day. Blick continued to report knee pain and buckling episodes, so Dr. Conrad carried out a second surgery in February 1995 to realign the kneecap. On April 11, 1995, Blick told Dr. Conrad she could not begin physical therapy sessions due to transportation problems, so Dr. Conrad agreed she should continue exercising at home.

Blick returned to full-time work around July 10, 1995, under modified conditions and reported no problems when she saw Dr. Conrad in September 1995. Blick next saw Dr. Conrad on October 18, 1995, and reported two episodes of her knee giving way and continued pain in the right knee. Dr. Conrad told Blick to remain off work, and on November 14, 1995, wrote a report stating Blick’s condition was “permanent and stationary,” meaning her condition was not improving and not expected to improve. Dr. Conrad’s report indicated Blick was unable to continue her job as a dispatcher and recommended vocational rehabilitation.

In March 1996, Dr. Conrad received a letter from Cities Group, the Town of Atherton’s worker’s compensation benefits provider, stating the town would provide modified working conditions in order to allow a return to work. At Blick’s request, Dr. Conrad wrote back to the Cities Group stating she could not return to work even under modified conditions because she was unable to drive or use public transportation.

On April 3, 1996, Blick saw Dr. Baciocco because Dr. Conrad was on vacation. Dr. Conrad subsequently learned Blick had returned to work on March 27, 1996, but had suffered another fall on April 1. Blick was kept off work and Dr. Baciocco’s note indicated Blick was presently walking with the aid of crutches. On April 10, 1996, Blick visited Dr. Conrad with a letter from her attorney requesting a statement Blick was unable to drive or use public transportation. Dr. Conrad provided the statement because he believed Blick when she said she could not drive or use public transportation. According to Dr. Conrad’s notes, Blick continued to experience knee pain and use crutches in May and June of 1996.

Blick returned to work again under modified conditions on July 22, 1996. On July 24, Blick told Dr. Baciocco prolonged sitting caused pain and swelling in the knee and she did not feel she could return to work. On September 4, 1996, Dr. Conrad wrote to the Cities Group stating Blick continued to experience considerable discomfort in the knee, a return to work under even modified conditions was contraindicated, and Blick was considered totally and permanently disabled.

When Dr. Conrad saw Blick in December 1996, she reported the pain in the knee had become worse and she was still using crutches. In March 1997, she reported she was using crutches when outdoors and a cane indoors. In September 1997, he provided an assessment of Blick’s disability to the Cities Group. His assessment of total disability was based on Blick’s preclusion from prolonged standing or walking and her necessary use of crutches.

In subsequent visits to Dr. Conrad in December 1997, and March and June 1998, Blick reported she had experienced episodes of her knee giving way as well as persistent knee pain. Also she continued to use crutches and maintain her swimming program. During visits to Dr. Conrad in September 1998, December 1998, March 1999, and May 1999, Blick reported the knee remained painful and periodically buckled under her, and that she continued to use crutches.

In August 1999, Blick reported a slight improvement, she was swimming twice a day, and had started using a cane rather than two crutches, but the knee still occasionally gave way. In November 1999, Blick reported ongoing knee pain, the knee had twice dislocated, she was no longer swimming, and she was walking with use of crutches. In March 2000, Blick’s knee pain persisted, she continued to walk with crutches, and Dr. Conrad noted she remains “permanent and stationary,” meaning her ability to function at work had not changed. In June 2000, Blick’s knee remained painful, she continued to use a cane or crutch, but informed Dr. Conrad she had purchased an uplift device to assist her in rising from a seated position. Dr. Conrad indicated in his notes her worker’s compensation case was close to resolution and it may be possible for Blick to return to some form of modified duty. As of June 2000, it was Dr. Conrad’s understanding Blick was using a cane or a crutch all the time she was moving around outdoors and he thought her level of disability was the same as it had been in 1997.

Dr. Conrad next saw Blick on March 7, 2001. Blick indicated she had improved but still experienced persistent right knee pain. She was beginning to walk without the continual use of crutches but had experienced one episode of falling. Dr. Conrad noted Blick was becoming less dependent on assistive devices, but was still under the impression Blick was using crutches the majority of the time. In March 2001, Dr. Conrad was also under the impression Blick could not drive and noted her husband had driven her to the appointment.

B. The Surveillance Tapes

The Cities Group hired private investigators to secretly videotape Blick engaging in various activities. Blick was placed under videotaped surveillance on December 26, 2000, February 1, 2001, March 7, 2001, and November 15, 2001. The videotapes were received in evidence and viewed by the jury.

The December 2000 tape shows Blick placing small rocks along a pathway. Blick is shown stooping and bending over at the waist, with her knees bent. At times she goes down on one knee. The February 2001 video shows Blick driving her truck. The March 2001 tape shows Blick working in her garden for over two hours. Blick is shown walking up and down slopes without the use of a cane or crutches while carrying out a variety of tasks. She is seen stooping, digging with the use of her upper body, lifting bags of potting soil, watering, raking and sweeping. She is seen driving off in her truck around noon. Later that same day, she is shown in the medical building on her way to see Dr. Conrad, walking with the use of crutches. Blick is shown walking with the assistance of crutches as she leaves the building.

C. Criminal Proceedings

An amended information filed on March 24, 2005, charged Blick as follows: count 1—making a knowingly false or fraudulent material statement or representation for the purpose of obtaining compensation, in violation of Insurance Code section 1871.4, subdivision (a)(1); count 2—grand theft, in violation of Penal Code section 487, subdivision (a); count 3—concealing or knowingly failing to disclose the occurrence of an event affecting the continued right to receive an insurance benefit, in violation of section 550(b)(3). The Town of Atherton through the Cities Group claimed total losses of $247,000, including the cost of the investigative process and attorney fees.

Trial began with opening statements on September 14, 2005, and closing arguments were delivered on October 4, 2005. At trial, Blick testified she never lied to Dr. Conrad, never misstated her condition, exaggerated her pain, or told him she could not do something unless she really believed she could not do it. She also testified she never hid her gardening activities from Dr. Conrad or any other physician. Further, Blick testified she only failed to disclose to Dr. Conrad on March 7, 2001, that she was driving again because the issue never came up and she did not think it important and not because she was trying to hide that from him. Blick stated she had no intent to obtain any more benefits than those to which she was entitled, and denied concealing or failing to disclose the occurrence of any event she believed would affect her entitlement to insurance benefits. Several witnesses gave corroborating testimony concerning Blick’s knee pain and use of assistive devices, as well as evidence of Blick’s reputation for honesty. Dr. Conrad, however, testified that after viewing the surveillance tapes he “was no longer able to back her on her assertion that she was unable to work.”

On October 7, 2005, the jury returned not guilty verdicts on counts 1 and 2, and a verdict of guilty on count 3, concealing or failing to disclose an event that affects entitlement to benefits. On January 6, 2006, the trial court sentenced Blick to a period of five years’ supervised probation with various conditions, including 90 days in county jail. Blick filed a timely notice of appeal.

DISCUSSION

A. Trial Court’s Section 550(b)(3) Instruction

Section 550(b)(3) states in pertinent part: “It is unlawful to . . . [1] . . . [f] . . . [c]onceal, or knowingly fail to disclose the occurrence of, an event that affects any person’s initial or continued right or entitlement to any insurance benefit or payment, or the amount of any benefit or payment to which the person is entitled.” (§ 550(b)(3).) The trial court instructed the jury on this offense as follows: “The defendant is accused in Count Three of having violated section 550(b)(3) of the Penal Code. [j[] Every person who, with the specific intent to do so, conceals or knowingly fails to disclose the occurrence of an event that affects any person’s initial or continued right or entitlement to any insurance benefit or payment or the amount of any benefit or payment to which the person is entitled is guilty of a violation of section 550(b)(3) of the Penal Code. PjQ In order to prove this crime, each of the following elements must be proved: [][] A person, with the specific intent to do so, concealed or knowingly failed to disclose the occurrence of an event that affects any person’s initial or continued right or entitlement to any insurance benefit or payment or the amount of any benefit or payment to which the person is entitled.” (Italics added.)

According to Blick, the trial court’s instruction construed section 550(b)(3) as a strict liability offense which did not require a “specific intent to defraud, or . . an intent or purpose of affecting any insurance benefit, or . . . knowledge that the event would or . . . could affect benefits.” Blick asserts section 550(b)(3) is not a strict liability offense. Therefore, according to Blick, the trial court’s section 550(b)(3) instruction violated her right to due process because it failed to tell the jurors they had to find a culpable mental state before they could convict her of the offense. Specifically, Blick contends the mental state required for a section 550(b)(3) offense is the “intent to defraud.” The trial court’s failure to include this element in the section 550(b)(3) instruction, Blick continues, deprived her of a “good faith belief’ defense to the charge, meaning the jury could convict her by finding she “intentionally concealed] or fail[ed] to disclose something that turned out to affect her worker’s compensation even if the concealment was done in the innocent belief that what she did not disclose . . . was irrelevant to her worker’s compensation status.” Blick also asserts the alleged error was prejudicial. Before addressing these contentions in detail, we first review key events during the jury instruction conference and reading of the instructions.

(i)

Before trial, Blick submitted points and authorities in support of her special jury instructions. Special jury instruction No. 2 stated: “It is a defense to the allegation of intent to defraud that the accused acted in the good faith belief that his or her representations were true." Blick argued special instruction No. 2 “applies as written to Count 1 as well as Count 2.” Blick did not argue special instruction No. 2 applied to count 3 (the section 550(b)(3) offense).

After both sides had rested at trial, the trial court conferred with counsel to settle jury instructions. The trial court stated: “The way I have found it successful to do this is to go off the record while I’m reading through them, and we can go back on the record any time you want to make any arguments . . . .” No argument was received on CALJIC No. 3.31 (Concurrence of Act and Specific Intent), which the trial court gave in the modified form requested by both parties. As given, CALJIC No. 3.31 read: “In the crimes charged in Counts One, Two and Three there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists the crime to which it relates is not committed. The specific intent required is included in the definitions of the crimes set forth elsewhere in these instructions.” CALJIC No. 15.26 (Intent to Defraud—Defined) was given at the People’s request, over defense objection, modified as follows: “An intent to defraud is an intent to deceive another person for the purpose of gaining some material advantage over that person or to induce that person to part with money or to alter the person’s position to its injury and to accomplish that purpose by some false statement, false representation of fact, wrongful concealment or suppression of truth, or by any other artifice or act designed to deceive.” Also, the parties discussed Blick’s special instruction No. 2 as follows:

“Court: Okay. I will give that. HQ And for purposes of having it typed downstairs, I will strike the defendant’s Special Instruction No. 2, take out the brackets of the title. I’ll just make it ‘her representations.’ Is that all right? H] Silence, stony silence. I will take that as a yes. Requested by the defendant. Objection by the People. Given as modified. [|] . . . ffl

“Prosecutor: Your Honor, could I get a clarification on defense Special Instruction No. 2, the defense to the intent to defraud. Can I get a clarification as to whether that applies simply to Counts One and Two, which has [sic] the wording ‘intent to defraud’ within them, as opposed to Count Three, which does not?

“Defense: I think the brief—it says it goes to Counts One and Two.

“Prosecutor: Can we add that—

“Court: We might say this is a defense to an allegation of intent to defraud.

“Defense: And the Insurance Code.

“Court: I’m sorry[?]

“Defense: I think Count Two is the Insurance Code.

“Prosecutor: Count One is the Insurance Code; Count Two is the grand theft.

“Defense: So it applies to Counts One and Two.

“Prosecutor: Can we say: In Counts One and Two, comma, it is a defense?

“Court: Yes, that’s fine."

Subsequently, the following colloquy took place as the trial court was reading the section 550(b)(3) instruction to the jury after closing arguments:

“Court: In order to prove this crime, each of the following elements must be proved: [