People v. Post

• Decision Date: 11 December 2001
• Docket Number: No. B143588.,B143588.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Setsuko Betty POST, Defendant and Appellant.

114 Cal.Rptr.2d 356

94 Cal.App.4th 467

The PEOPLE, Plaintiff and Respondent, v. Setsuko Betty POST, Defendant and Appellant.

No. B143588.

Court of Appeal, Second District, Division 5.

December 11, 2001.

Certified for Partial Publication.^*

Rehearing Denied Jan. 2, 2002.

Review Denied Feb. 20, 2002.

David H. Goodwin, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Marc E. Turchin, Acting Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Jeffrey A. Hoskinson, Deputy Attorney General, for Plaintiff and Respondent.

TURNER, P.J.

I. INTRODUCTION

In the decision of In re Michael (1945) 326 U.S. 224, 227, 66 S.Ct. 78, 90 L.Ed. 30, Associate Justice Hugo Black wrote: "All perjured relevant testimony is at war with justice...." California has virtually surrendered in this war when it comes to perjury during depositions. As will be noted, we conclude that unless a deposition transcript in a workers compensation matter is executed by the deponent, the crime of perjury cannot be committed. In reaching this conclusion which is clearly at odds with the public interest, we urge our Legislature to promptly bring California into line with federal law which quite intelligently provides that the crime of perjury is committed when a deponent lies as to a material issue at a deposition.

Defendant, Setsuko Betty Post, appeals from her convictions for one count of workers' compensation insurance fraud (Ins. Code, § 1871.4, subd. (a)(1)) and two counts of perjury. (Pen.Code,¹ § 118.) Defendant argues there was insufficient evidence to support the verdicts; the trial court improperly refused to instruct the jury with a special instruction; and the trial court improperly instructed the jury with CALJIC No. 17.41.1. In the published portion of this opinion, we will discuss some of defendant's sufficiency of the evidence contentions relating to the insurance fraud and perjury allegations. We will modify the judgment to state defendant has been convicted of attempted perjury in counts 2 and 3. In all other respects, we will affirm the judgment.

II. BACKGROUND

A. Factual Matters

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560; People v. Osband (1996) 13 Cal.4th 622, 690, 55 Cal. Rptr.2d 26, 919 P.2d 640; Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908-909.) On August 14, 1992, defendant was employed by Methodist Hospital Southern California, where she allegedly tripped and fell. Defendant claimed she injured her neck, back, and toe as a result of the fall. She also claimed she suffered from general body aches. Defendant was initially off work and received temporary disability workers' compensation benefits from August 15, 1992, to August 2, 1995. Thereafter, defendant received permanent disability benefits until May 28, 1997. On May 28, 1997, defendant settled her claim with Methodist Hospital. The settlement provided for free medical treatment for all body parts injured on the job. On July 15, 1997, defendant filed a petition to reopen her initial claim, alleging new and further disability as a result of her original injuries. Thereafter, Keenan and Associates, the insurance company administering the disability payments to defendant, filed opposition to her petition to reopen her claim. Company employees also began an investigation to determine whether defendant had sustained a new and further disability. The investigation included surveillance and videotaping of defendant's activities.

On February 25, 1998, defendant was seen using a cane as she walked into her doctor's office. Defendant was videotaped leaving the doctor's office later in the day. Defendant was carrying her cane and purse, but did not use the cane to walk to her husband's car. Thereafter, defendant was observed walking into a computer store in a normal gait without the use of her cane. A few hours later, the videotape showed defendant entering a post office without her cane. She exited the post office carrying mail in her left hand. On March 11, 1998, defendant was videotaped entering and exiting the Workers' Compensation Appeals Board office. Defendant walked slowly with the assistance of a cane. A videotape of defendant's arrival at her home later that day showed her carrying the cane, but not using it as a crutch.

On March 26, 1998, defendant was videotaped as she walked a large oversized trash can on wheels to the curb from inside the house. Defendant then pulled a small trash can with one hand and walked another one to the curb. She then dragged another trash can to the curb. Defendant bent down to pick things up from her lawn. Defendant was not using a cane at any time during this videotaping. At approximately 11:05 a.m. on April 25, 1998, defendant was taped as she exited the gate of her home. She was not using a cane to walk. She walked to the middle of the driveway. Defendant walked back to the garage door, where she bent over to unlock it. Defendant opened the garage door manually. She walked back to the side yard in a normal gait. Thereafter, she walked up the two stairs into her residence without assistance. Defendant stopped, bent from the waist down, and pulled a weed. Later the same day, defendant drove to a residence in El Monte. Defendant walked around the front yard of the residence with another woman, looking at plants and trees. Defendant did not use a cane for assistance. Defendant then lifted a chain saw and placed it in the rear of her car. She closed the hatchback of the car. Defendant got into the driver's seat, reached for the shoulder strap with her right hand, secured the seat belt, and drove away with the other woman in the passenger seat.

Defendant and the woman drove to an outdoor market, arriving at 2:23 p.m. Defendant got out of the car. Defendant walked without her cane to the store with her purse on her left arm. Defendant filled two plastic bags with fruit. Defendant handed one to the other woman. Defendant left the store with her purse on her left arm and carrying a bag of fruit. The two women drove across the street to a grocery store. The two women exited the store with a grocery cart. Defendant picked up two grocery bags at the same time, walked to the driver's side, opened the door, and pushed the driver's seat forward. Defendant then leaned inside the car, placing the bags in the back of the automobile. Defendant then drove to another grocery store. Defendant was videotaped pushing a full shopping cart to her car. Defendant lifted two 6-packs of soft drinks in her left hand from the cart into her car. She continued to unload groceries into the car by bending and stooping. Defendant was walking without the assistance of a cane. Defendant next went to a Circle K market. Defendant drove home, arriving at 4:54 p.m.

On April 26, 1998, defendant was videotaped at her home. At 11:27 a.m., defendant was shown stooping over on her front porch. She appeared to be removing a hose. Defendant watered the garden with both hands on the hose. She was not using a cane. Defendant coiled up the hose. Approximately an hour later, defendant's husband was cutting branches from a tree with a chain saw. Defendant was seen repeatedly bending from the waist, pulling up tree branches, and stuffing them into a trash can. She then dragged the trash can on the ground to the side yard. The trash can did not appear to have wheels. Defendant continued to bend to pick up branches. She then carried them to the side yard. Defendant was not using a cane for assistance. Defendant was also seen pulling out ivy plant material from the ground and stuffing it into a trash container. She also broke small branches with both hands, bent from the waist down to pull weeds or flowers from the ground, dug into the ground with a small trowel, used her foot to press down the dirt, and squatted to pick up trash from the ivy. Defendant was also observed to pull branches down from the tree as they were cut. Defendant threw the branches with an overhand motion and pulled the cord of the chain saw. The videotape ended at 2:09 p.m.

Defendant was deposed under oath on April 28, 1998, in connection with her request to reopen her workers' compensation claim. The deposition was transcribed by a certified shorthand reporter. Sonja Gipson was the attorney for Methodist Hospital conducting the deposition. Defendant was asked about her current complaint. Defendant indicated that she had low back, neck, shoulders, and right hip pain. Defendant stated that her little toe no longer bothered her. Defendant testified the pain to her lower back was severe and constant. She stated "not too much of anything" relieved the pain. When asked if she uses her cane at all times, defendant testified she did not use it around the house and there were times when she did "limited" activities where she did not use it. Defendant related she could not walk for an hour straight. She also indicated under oath, she could only do things on her feet for a half hour without requiring rest because of increased symptoms to her back.

Defendant was asked if there was anything she was able to do prior to May 28, 1997, that she could no longer accomplish because of increased back pain. Defendant responded, "With the increased back pain I am not able to do things like going to the garden and, you know, pull weeds and doing that." When the question was clarified, she modified her answer to state that before the award in 1997: "I did some, you know, light gardening. I didn't go out and do anything vigorous or anything ...." However, she stated that at the time of the deposition she could not even do that because her back pain was more severe. Defendant testified, "My back is so stiff and I have such severe pain in it." Defendant said the pain in her hip,...