People v. Gillard
| Decision Date | 20 August 1997 |
| Docket Number | No. D024695,D024695 |
| Citation | 57 Cal.App.4th 136,66 Cal.Rptr.2d 790 |
| Parties | , 62 Cal. Comp. Cases 1080, 97 Cal. Daily Op. Serv. 6714, 97 Daily Journal D.A.R. 10,839 The PEOPLE, Plaintiff and Respondent, v. Vernell GILLARD, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Keith I. Motley and Holly D. Wilkens, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Vernell Gillard (Gillard) was convicted of three counts of violating INSURANCE CODE SECTION 1871.41, subdivision (a)(1) () and one count of violating Penal Code section 118, subdivision (a) (perjury). In a bifurcated proceeding, the court found true the allegations that Gillard had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b), and had two prior serious or violent felony convictions within the meaning of Penal Code section 667, subdivisions (b)-(i). Gillard was sentenced to a prison term of 26 years to life.
In July 1993 Gillard claimed he suffered a work-related injury during employment by the Del Mar Fair (the Fair). The fraud and perjury counts charged Gillard with making material misstatements about his medical history to obtain workers' compensation benefits from the Fair for the injury.
Gillard has a long history of mishaps. In 1976 he filed a lawsuit alleging an injury in a 1975 slip and fall accident. His medical records contained references to back injuries he allegedly sustained in 1976 and 1979. He claimed a neck injury from a 1982 car accident, and an injury to his right leg from a 1983 car accident for which he received a $3,000 settlement.
In 1985 Gillard claimed he injured his back and tailbone in an April slip and fall accident but received nothing on the claim. He sought compensation for an alleged injury incurred in a May 1985 slip and fall accident and recovered a $4,250 settlement for that claim.
In 1986 Gillard made his first claim for workers' compensation benefits. He alleged he had injured his back during a fall while working for Abache Construction. He received a $3,000 settlement for a permanent partial disability to his back.
On April 18, 1987, Gillard was injured when he walked into the path of an oncoming car. He retained attorney Gregory Montegna (Montegna) to represent him in a personal injury claim arising from that accident. Although Montegna did some initial work, including obtaining photographs depicting Gillard's injuries, Montegna concluded he could not assist Gillard and closed his file. 2
On May 6, 1987, Gillard was examined by Doctor Hansen in connection with the April 18 accident. Gillard denied any prior history of injuries to his back or extremities and complained of headaches, blurred vision, dizziness, and pain in his neck, lower back, left ankle and both knees.
Dr. Hansen noted significant problems in Gillard's right knee, including swelling and effusion in the joint and extreme pain and swelling around the medial collateral ligament. Dr. Hansen's clinical impressions of Gillard's injuries were a torn right knee, fractured rib, and sprains of the right ankle, neck and low back.
Dr. Hansen ordered X-rays be taken. Dr. Gilligan interpreted those X-rays and reported that Gillard's right knee showed an osseous fragment (piece of bone), measuring three by eight millimeters, above the lateral intercondyloid eminence. Dr. Hansen said a bone fragment could cause popping sounds in the knee and pain when squatting; he said it was not probable the fragment would heal without surgery.
Later in 1987 Gillard was employed by Allied Builders. On November 9, 1987, Gillard allegedly injured his right knee at work. On November 10, 1987, Gillard visited Dr. Dentice, a chiropractor Gillard had previously seen for other injuries, and complained of pain in his right knee, right ankle and lower back. Gillard claimed the injury occurred when a brick struck his right knee.
On January 28, 1988, Dr. Bowman examined Gillard for purposes of evaluating Gillard's alleged industrial injury. Gillard's principal complaint was right knee pain from a twisting injury, which he claimed was the result of being injured at work when he was struck by a brick. Gillard denied any prior injury to that knee. The symptoms Gillard described included his knee "giving way" and his inability to do deep knee bends. Dr. Bowman diagnosed injury to the inner medial and the anterior cruciate ligaments, recommended surgery, and opined that without surgery "[Gillard] will continue to experience giving way and disability as a result of the injury."
Because Dr. Bowman was unaware of Gillard's April 1987 knee injury, Dr. Bowman's 1988 report opined the damage to Gillard's knee arose from the brick incident. However, Dr. Bowman testified that had he been aware of the April 1987 injury and seen Hansen's and Gilligan's reports and the photographs of Gillard's knee, he would have formed a different opinion as to the cause of the ligament damage and also would have changed his views on "apportionment." 3 Dr. Bowman testified the ligament damage he found in 1988 was more consistent with the April 1987 injury than with the brick injury. Bowman opined it was unlikely Gillard's April 1987 injury would have healed without surgical intervention.
On April 20, 1988, Gillard was examined by Dr. Wieseltier, to whom he complained of knee and lower back pain. Gillard again denied prior injuries. Based on Gillard's description of the alleged injury, Dr. Wieseltier questioned whether Gillard had a preexisting knee injury because: (1) an "MRI" scan of the knee in November 1987 revealed degeneration of the medial and lateral menisci suggestive of a preexistent pathology; and (2) the alleged cause of injury (a sliding brick striking Gillard's knee) would not by itself have caused the types of injuries found by Dr. Wieseltier. However, Gillard's denial of prior injuries prevented Dr. Wieseltier from disproving that Gillard's knee injuries were unrelated to the brick injury. On June 17, 1988, Dr. Wieseltier reexamined Gillard and reported that Gillard was impeding his own progress by not complying with the prescribed course of therapy. Dr. Wieseltier's final report, dated September 14, 1988, stated Gillard's knee was improving and his condition was permanent and stationary. 4 Dr. Wieseltier believed that Gillard was not in need of surgery. Regarding apportionment, Dr. Wieseltier's report opined:
"The patient denies any prior history of knee problems; however, as stated in my initial report ..., I questioned whether or not the patient had a preexistent knee condition, and it may be important in the future to deal [sic] more into the patient's past history, if he is found to have any permanent disability by another examiner."
On October 18, 1988, Gillard's claim against Allied Builders for his alleged back and leg injuries was settled for $2,350. This compromise was approved by the Workers' Compensation Appeals Board (WCAB) on December 12, 1988.
In December 1988, eight weeks after settling with Allied Builders, Gillard claimed he suffered a back injury when he tripped and fell while working for McDowell Construction Company. After receiving initial treatment from Dr. Dentice, Gillard was examined by Dr. Doholis to evaluate Gillard's residual disability. Gillard again denied any prior injuries to his lower back and to any other part of his body. Dr. Doholis believed that Gillard was exaggerating his complaints and had lied about the absence of prior injuries.
Gillard collected nearly $5,000 in "temporary disability" pay from the McDowell injury for the period December 1988 through May 1989, at which time he was declared "permanent and stationary" because he had reached his pre-injury level of capability. In September 1989 Gillard was referred to Dr. Auerbach for evaluation of any residual disability. Gillard told Dr. Auerbach about his 1986 back injury at Abache Construction and 1983 knee injury, but he did not disclose his other back injuries or his 1987 car accident. Knowledge of Gillard's prior back injuries would have "weighed heavily" on Dr. Auerbach's assessment of what portion of Gillard's residual disability should have been apportioned to preexisting disabilities. Dr. Auerbach ultimately concluded that Gillard's residual disability should preclude him from very heavy work, and that 25 percent of Gillard's disability was apportionable to the 1986 injury and the remaining 75 percent apportionable to the injury incurred while working for McDowell. Gillard settled his claim against McDowell for more than $12,000.
Gillard was hired as a janitor at the Fair. On July 2, 1993, two weeks after beginning work and two days before the end of the Fair season, he claimed he was injured when struck by a security cart. The criminal charges in this case arise from Gillard's efforts to collect workers' compensation benefits for injuries he claimed he received in this incident.
Robert Todd (Todd) was a security guard at the Fair. At approximately 9 a.m. on July 2, Todd parked his electric cart near the pay windows on a slight incline. 5 Todd was accompanied by Greg Pratt and two other guards. The four men had returned to the cart and climbed into it. Todd drove and had looked behind the cart approximately...
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