People v. Gaspar

• Decision Date: 06 March 2023
• Docket Number: B316236
• Parties: THE PEOPLE, Plaintiff and Respondent, v. REBECCA GASPAR, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. REBECCA GASPAR, Defendant and Appellant.

B316236

California Court of Appeals, Second District, Fourth Division

March 6, 2023

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. BA460136, Curtis B. Rappe, Judge. Affirmed in part remanded with instructions.

Aurora Elizabeth Bewicke, under appointment by the Court of Appeal for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Stephanie A. Miyoshi Deputy Attorneys General, for Plaintiff and Respondent.

CURREY, J.

INTRODUCTION

A jury convicted defendant and appellant Rebecca Gaspar of one count of conducting an unlawful insurance transaction without a license. On appeal, she argues: (1) the trial court prejudicially erred by failing to adequately instruct the jury on the elements of the offense; (2) the trial court prejudicially erred by not giving a unanimity instruction; (3) retrial is barred on remand because her conviction is unsupported by substantial evidence; (4) the trial court improperly ordered restitution for alleged crimes on which the jury acquitted her; and (5) her upper term must be vacated and her case remanded for resentencing in light of Senate Bill No. 567 (2021-2022 Reg. Sess.) (SB 567) and Assembly Bill No. 124 (2021-2022 Reg. Sess.) (AB 124). We agree with Gaspar's fourth and fifth contentions, order her restitution and sentence vacated, and remand the matter for resentencing. On remand, the court may hold a new restitution hearing. In all other respects, the judgment is affirmed.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney filed an 80-count information, charging Gasper with 3 counts of workers' compensation fraud (Ins. Code, § 11760, subd. (a), counts 1-3), 69 counts of forgery (Pen. Code,^[1] § 470, subd. (c), counts 4-19, 22-23, 25-28, 30-31, 33-37, 39-62, 64-79), 7 counts of grand theft (§ 487, subd. (a), counts 20-21, 24, 29, 32, 38, 63), and 1 count of engaging in an unlawful insurance business transaction (Ins. Code, § 700, subd. (b), count 80).^[2] With respect to all counts, the information alleged: (1) the pattern of related felony conduct involved the taking and loss of more than $500,000 (§ 186.11, subd. (a)(2)); and (2) Gaspar took, damaged, and destroyed property of a value exceeding $3.2 million. (§ 12022.6, subd. (a)(4).)^[3]

The first jury to hear the case could not reach verdicts, and the trial court declared a mistrial. A second jury convicted Gaspar of count 80 (conducting an unlawful insurance business transaction), but acquitted her of the remaining counts. The jury found all the other allegations not true. The trial court sentenced Gaspar to an upper term of three years in county jail, suspended execution of sentence, gave her credit for time served, and placed her on mandatory supervision for the remaining 103 weeks of her term. One of the terms of mandatory supervision was that Gaspar pay restitution as ordered by the court. The court ordered Gaspar to pay a restitution total of $2,825,114.

Gaspar timely appealed.

FACTUAL BACKGROUND

Gaspar owned and managed a Professional Employer Organization under the name Prime Staff and later under the name Montclair Services. Her company offered services to other businesses, including managing payroll, paying taxes, and obtaining workers' compensation insurance. Several businesses contracted with Gaspar's company for these services, including Carlos Gutierrez's staffing business, Saundra Ward's transportation business, Marguerite Scomazzon's decorative business, Sergio Noches's staffing business, Mary Hilvers's family horse ranch, Alvaro G. Ayala's staffing business, and Beatriz Campos's staffing business.

Starting in 2015, Gaspar used insurance broker Kendra Aleman to obtain workers' compensation coverage on behalf of her clients. Upon request, Prime Staff/Montclair Services forwarded certificates of insurance to its clients, purporting to evidence this coverage. As both parties agree, however, the insurance purportedly obtained by the broker, Aleman, and evidenced through the certificates, turned out to be invalid.

Gaspar testified that, during the period of purported coverage, she followed Aleman's instructions and procedures in handling worker injury claims. Gaspar would collect a $5,000 deductible from her clients for each injured worker and forward related paperwork to Aleman. Aleman's communications with both Gaspar and her clients consistently indicated the claims were being handled and that the workers were covered when, in fact, they were not.

Gaspar did not hold any professional license authorizing her to engage in workers' compensation insurance transactions. Because she was unlicensed, she could not lawfully administer claims. Nonetheless, in 2016, Gaspar's employees sent e-mails authorizing surgery and approving temporary disability payments for one injured worker, Linda Wiseheart. On February 2, 2016, an employee from Gaspar's company, Maria Olivas, wrote an e-mail authorizing Wiseheart's surgery. Then, on April 26, 2016, Caezar Evangelista, another employee of Gaspar's company, who was also Gaspar's son, sent an e-mail to Aleman stating Prime Staff had decided to place Wiseheart on temporary disability. Gaspar was cc'd on the e-mail, as was Maria Olivas.^[4]Wiseheart had the surgery, but her medical bills were not paid, nor did she receive workers' compensation. Although a representative from Prime Staff repeatedly insisted the situation would be resolved, it never was.

A forensic analyst called as a defense witness testified Gaspar paid Aleman's company, KMK Commercial Lines Insurance, a total of $2,308,548 for workers' compensation premiums on behalf of her clients between June 10, 2015 and July 27, 2017, and that Aleman, in turn, sent Gaspar fake bank records, purporting to show she had used that money to purchase workers' compensation insurance. Gaspar testified that she was unaware her clients did not have insurance coverage because Aleman had indicated the policies existed and provided documentation to that effect.^[5]

DISCUSSION

I. The trial court properly instructed the jury on the elements of the offense

Gaspar first argues the trial court prejudicially erred by failing to instruct the jury properly on the mental state elements required to secure a conviction under Insurance Code section 700. Specifically, she argues the court failed to instruct that the prosecution was required to prove she knew of the licensing requirement and willfully violated it. The Attorney General counters that the statute contains no such requirements. For the reasons discussed in greater detail below, we agree with the Attorney General.

A. Background

The court instructed the jury as follows using CALCRIM No. 252:

The crime[s] charged in this case require proof of the union, or joint operation, of act and wrongful intent.

The following crime requires general criminal intent: Unlawful Business Transaction. For you to find a person guilty of this crime, that person must not only commit the prohibited act or fail to do the required act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act or fails to do a required act; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime.^[6]

On count 80, the court instructed the jury as follows:

The defendant is charged in Count 80 with unlawful insurance business transaction in violation of Insurance Code section 700(b).

To prove the defendant is guilty of this crime, the People must prove: 1. The defendant willfully transacted workers' compensation insurance business; AND

2. When the defendant did so, she had not first procured a certificate of authority from the Insurance Commissioner of the State of California admitting her to transact workers' compensation insurance.

B. Analysis

Trial courts have "a sua sponte duty to instruct the jury on the essential elements of the charged offense." (People v. Merritt (2017) 2 Cal.5th 819, 824.) The failure to do so violates the defendant's right under the United States and California Constitutions to have a jury determine whether she is guilty of each element beyond a reasonable doubt. (Ibid.) We review de novo whether the jury instructions correctly stated the law. (People v. Serrano (2022) 77 Cal.App.5th 902, 909.)

Subdivision (b) of Insurance Code section 700 states: "The unlawful transaction of insurance business in this state in willful violation of the requirement for a certificate of authority is a public offense punishable by imprisonment ...."

"The word 'willfully,' when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage." (§ 7, subd. (1).) "'[T]he terms "willful" or "willfully," when applied in a penal statute, require only that the illegal act or omission occur "intentionally," without regard to motive or ignorance of the act's prohibited character.'" (People v. Atkins (2001) 25 Cal.4th 76, 85.) Similarly, citizens are required to apprise themselves of the law and are presumed to know the law. (People v. Hagedorn (2005) 127 Cal.App.4th 734, 748.) "[I]gnorance of the law is no excuse" for violating it. (Ibid.)

Applying these principles to the language of Insurance Code section 700, we reject Gaspar's assertion that the prosecution was required to prove she knew of the licensing...