People v. Podgurski CA4/1

Filed 8/14/15 P. v. Podgurski CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D064114

Plaintiff and Respondent,

v. (Super. Ct. No. SCD227563)

WANDA PODGURSKI,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Howard H.

Shore, Judge. Affirmed in part; reversed in part.

Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Kevin Vienna and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and

Respondent.

A jury found defendant and appellant Wanda Podgurski guilty of 29 counts of

insurance fraud. The jury found true that in the commission of the offenses (i) defendant
took funds and/or property of another in excess of $100,000, within the meaning of Penal

Code1 sections 1203.045, subdivision (a) and 186.11, subdivision (a)(1); (ii) the

aggregate losses to the victims from all counts exceeded $200,000 within the meaning of

section 12022.6, subdivision (a)(2); and (iii) defendant, in the commission of two or more

related felonies a material element of which was fraud and embezzlement and which

involved a pattern of related felony conduct, took more than $500,000 within the

meaning of section 186.11, subdivision (a)(2). The court sentenced defendant in absentia

to 20 years four months in state prison, after defendant failed to appear at sentencing.

Defendant on appeal raises a series of contentions including (1) prosecutorial

misconduct; (2) sentencing error; (3) failure to prosecute within the applicable statute of

limitations; and (4) insufficiency of the evidence on certain counts.

As we explain, because on this record we cannot determine whether counts 1-3 are

time-barred under the applicable statute of limitations, we reverse defendant's conviction

with respect to these counts only and remand the matter to the trial court to determine

after hearing both (i) when the prosecution of counts 1-3 commenced and, depending on

the outcome of that issue, (ii) whether in fact counts 1-3 were time-barred as defendant

contends. If the court determines counts 1-3 were timely commenced, it then can

reinstate defendant's conviction on these counts. In all other respects, the judgment of

conviction is affirmed.

1 All further statutory references are to the Penal Code.
2
 BACKGROUND2

A. Disability Claims

In October 1980, defendant began working as a reservations and information clerk

for Amtrak. In 1983, she purchased three disability insurance policies from Balboa

Insurance (Balboa). In February 1986, defendant purchased a disability income policy

from Reassure American Life Insurance (Reassure). About two months later, defendant

filed her first disability claim with Reassure. In 2008, Reassure had paid defendant about

$123,000 on this policy. Defendant was disabled under the Reassure policy for about 13

of the 22 years it was in place (determined in 2008), or for about 59 percent of the time.3

Between 1996 and 2000, defendant took an unpaid medical leave from Amtrak

after claiming she had suffered a slip-and-fall injury outside of work. Defendant in June

1996 submitted a claim to Reassure that was paid through early September 1999.

Defendant returned to work for Amtrak in March 2000, but then took another leave of

absence about a year later.

In 2001, defendant claimed she fell in the shower. Defendant took a leave of

absence from Amtrak and filed disability claims with Reassure and Balboa. Over the

next three years, defendant received the maximum disability payments available under

both polices.

2 We view the evidence in the light most favorable to the judgment. (See People v.
Osband (1996) 13 Cal.4th 622, 690.) Portions of the factual and procedural history
related to certain of defendant's contentions are discussed post.

3 The record shows this number rose to 64 percent because Reassure paid plaintiff
additional benefits after 2008.
3
 Defendant in August 2004 returned to work at Amtrak. Although Amtrak did not

pay defendant while she was on medical leave between March 2001 and August 2004,

defendant did receive some payments from the Railroad Retirement Board. After

defendant returned to work, she again went out on medical leave for a nonwork-related

injury. The record shows defendant over the next year or two took several additional

medical leaves from Amtrak, until September 2006, when she went on leave and never

returned.

During this period of time, and in particular in April 2004, defendant told her

doctor that she was taking a Vitamin C collagen drink and no longer had any pain or

disability. A few days later, at defendant's request, her doctor provided defendant's

medical records to various long-term care insurance providers for the purpose of

obtaining such insurance. Defendant ultimately obtained long-term care insurance

policies with Prudential Insurance Company (Prudential), MetLife Insurance (MetLife),

Kanawha Healthcare Solutions (Kanawha) and Unum Insurance (Unum) (sometimes

collectively long-term care insurers).

Defendant filed for disability benefits as a result of an alleged August 16, 2006 fall

that she claimed left her unable to perform at least two activities of daily living.

Defendant sought benefits from Amtrak, Balboa, Reassure and her long-term care

insurers. During the course of this disability claim, defendant received nearly $700,000

in tax-free benefits, broken down as follows: Amtrak paid $7,410; Reassure paid

$32,430; Prudential paid $305,500; Kanawha paid $243,833; and MetLife paid $26,800.4

4 Unum denied defendant's claim in February 2007. After defendant appealed that
decision and submitted additional documentation to support her disability claim, Unum
4
 Defendant did not include her disability payments on her 2007, 2008 and 2009

state tax returns, which ultimately resulted in almost $60,000 in lost taxes for the

California Franchise Tax Board. Defendant signed these tax returns under penalty of

perjury.

In February 2007, defendant gave a statement to an insurance investigator

regarding her August 2006 claim. Defendant stated she was in the process of moving a

table outside when she allegedly tripped on a can of bug spray and fell down some steps.

The interview was played for the jury. As a result of the fall, defendant the next day

hired her cleaning lady, Kristen Ian, as her full-time "caregiver."

The record shows that despite claiming she needed a full-time caregiver and

claiming she was disabled as a result of the August 2006 fall, defendant did not see her

doctor until the end of August 2006 and even then, it was noted during that appointment

that defendant had no trouble walking, sitting or standing. An MRI showed defendant

had back arthritis and a pinched nerve.

Defendant's doctor in January 2007 ultimately withdrew as her primary care

physician because, among other reasons, he believed there were "inconsistencies"

between what defendant was saying about her disability and the objective findings he

made. Such inconsistencies included the fact defendant was then living in Encinitas but

was able to travel to his office in Idyllwild for treatment, despite her back pain that

allegedly rendered her disabled.

again denied the claim. Its decision to deny the claim was upheld through an independent
appeal proceeding.
5
 These inconsistencies also were based on the fact that defendant, on the one hand,

was representing to the various insurance companies that she needed a caregiver every

day for eight to 10 hours to help her with "toileting," "dressing," "bathing" and getting in

and out of bed. On the other hand, from August 2006 to August 2007, defendant lived in

an upstairs apartment with no modifications to accommodate disabilities. In addition, the

property manager where defendant was then living only saw a "cleaning lady" with

defendant about "once a week" and witnessed defendant driving herself and walking up

and down stairs without difficulty. Toward the end of her tenancy, the property manager

observed defendant began parking about two blocks away from defendant's apartment.

Two doctors conducted independent medical examinations of defendant during the

time period she was collecting disability and long-term care benefits. Both doctors

opined that defendant neither was disabled nor in need of a caregiver during this period

of time.

In another instance, defendant consulted with an orthopedic surgeon in April 2009

regarding her August 2006 fall down the stairs. At one point, defendant asked the

orthopedic surgeon to fill out some disability forms stating she needed a daily caregiver

to aid and assist her with daily activities including "transferring and toileting, bathing and

dressing."

At some later point, the orthopedic surgeon saw a video of defendant that

suggested defendant was being untruthful regarding her subjective complaints about pain

due to the 2006 fall. Defendant also did not tell the orthopedic surgeon that in 2008, she

and a friend had traveled extensively together to China, Seattle, Cleveland, New York

City and the Dominican Republic. The orthopedic surgeon testified that, based on

6
pictures and/or video of defendant taken sub rosa and based on defendant's extensive

traveling, defendant "absolutely [did] not" need a caregiver to assist with daily activities.

In response to a fraudulent claim referral in August 2007, the California

Department of Insurance (DOI) commenced an investigation of defendant. During the

course of its investigation, the DOI learned of suspicious activities of defendant involving

other long-term care providers. The DOI noted there were discrepancies between the

timesheets provided by defendant's various caregivers and the timesheets submitted to the

various insurers by defendant. After a two-year investigation, the DOI referred the case

to the district attorney's office for consideration.

B. Other Insurance Claims

In 1998, defendant had an Allstate Insurance (Allstate) renter's policy and a

"personal articles floater policy" covering only "scheduled jewelry" issued by Nationwide

Insurance (Nationwide) for which she had submitted appraisals to support her policy

application. While on medical leave from Amtrak, defendant during this time period was

living in a rental property in Idyllwild. Defendant on September 6, 1998 reported to

police that her landlord had trespassed and entered her rental unit. Defendant at that time

did not report anything being stolen from her residence.

However, about three weeks later, defendant again contacted police and reported a

.38-caliber Smith & Wesson handgun and some credit cards had been taken during the

September 6 break-in of her unit. Defendant made no mention then of the theft of any

jewelry or other "heirloom items" during the break-in.

In February 1999, in connection with an insurance claim defendant again notified

police and for the first time reported $100,000 worth of jewelry had also been taken

7
during the September 6 break-in. Nationwide ended up paying defendant $98,383 on this

claim. More than a year later, defendant sent police a lengthy list of other items she for

the first time also claimed had been taken during the September 6 break-in, including

antique dolls, an ivory hair comb, comic books, French perfume, ornate Greek spoons, a

cigar box and an Hermes scarf. Defendant requested these additional items be

"documented . . . for purposes of an insurance company employee to review."

Allstate paid defendant $9,307 on her $9,489 claim for these and various other

items. Dissatisfied, defendant sued Allstate for breach of contract and bad faith.

Eventually, Allstate settled that suit for $5,000.

Defendant in 2001 hired a contractor, the husband of a "long-lost cousin[]," to do

some remodeling work and painting on a house after her former tenants had left it a

"mess." The contractor at the time lived in Colorado. When the contractor asked

defendant why she wanted him to do the work, defendant said "[s]he couldn't find a

decent contractor in the area." The contractor finished the work in about a week and was

paid less than $5,000, which included his travel expenses. Defendant, however,

subsequently filed a claim with Allstate alleging the rental had been vandalized and

presented myriad forged invoices on the contractor's letterhead showing she had paid the

contractor nearly $50,000 to repair the damage. Allstate in 2003 paid defendant $38,725

on this claim. When Allstate later sought to recover this money, defendant filed for

bankruptcy protection.

Defendant's "luck" went from bad to worse in 2004. In September 2004, she

claimed she was burglarized while living in a rental property in Fallbrook. Defendant

also claimed that $300,000 worth of jewelry and other items had been stolen. Defendant

8
submitted a claim in early October 2004 under her renter's policy. She subsequently

submitted an updated claim totaling about $1 million, stating she had lost at least 57

items in the alleged burglary including, among many other items, first-edition comic

books that she valued at more than $250,000 alone, a Tiffany lamp, a knee-length fur

coat, two bottles of 1958 Bordeaux wine, 500-year-old ancient Indian bowls and signed

Babe Ruth and Mickey Mantle baseball cards.

Although the insurer under her renter's policy denied the claim, Chubb5 paid

defendant about $50,000 on this claim under a "masterpiece valuable articles scheduled

policy" obtained by defendant. Chubb informed defendant her insurance policy would

not be renewed effective June 26, 2005 as a result of the claim activity.

Just a few days before her Chubb policy was to be cancelled, plaintiff reported yet

another loss. On June 20, 2005, defendant notified police that a Hispanic male had stolen

a camera and other items from her car including a bright pink purse containing about

$200,000 worth of jewelry, which defendant intended to sell that same day. Fortunately,

the thief did not take the appraisals for the jewelry that were also in the car. The

appraisals were attached to the police report. That report noted 28 items allegedly were

stolen from defendant's car. As later discovered, the appraisals, prepared by three

jewelers between 2001 and 2002, were done at or near the same time defendant

purchased and returned, sometimes on the same day, jewelry from Costco totaling more

than $100,000.

5 "Chubb" includes "Federal Insurance Company, Chubb Group, and Pacific
Indemnity Co."
9
 Chubb in January 2007 denied this claim, after defendant refused to be examined

under oath as required by the terms of the policy. Defendant in response sued Chubb,

and sought in excess of $200,000 in compensatory damages and punitive damages. As

discussed in more detail post, during discovery in late October 2009 defendant abruptly

agreed to settle her action against Chubb for $15,000, after some appraisals from Costco

were produced.

C. Defense and Rebuttal

Defense expert Daniel Plotkin, a psychiatrist, testified defendant "suffers from

mental illness, and the specific mental illness is what we call delusional disorder in which

a person has false beliefs that are quite fixed and the person believes them

wholeheartedly and genuinely believes them, but these beliefs are not really consistent

with reality." Dr. Plotkin's diagnosis was based on three meetings with defendant. Dr.

Plotkin observed that defendant initially seemed "normal," but on questioning, he

described defendant as a tormented soul who believed the "world" in some way was

"tilted against her."

Dr. Plotkin also opined that although "cognitively intact," defendant also suffered

from a "pain disorder with psychological factors being associated." Dr. Plotkin testified

it was not uncommon for a pain disorder to be associated with delusional disorder.

On cross-examination, Dr. Plotkin testified his opinion of defendant was based on

her disability claims only, and not based on any claims including those involving jewelry

thefts and/or home and/or car burglaries.

Orthopedic surgeon Raymond Vance testified he examined defendant and

reviewed the various reports and medical records of defendant. Dr. Vance concluded

10
defendant suffered from "degenerative spondylosis and degenerative disc disease of her

spine." Dr. Vance opined this condition was "consistent with the aging process with what

. . . might be call[ed] wear and tear." After reviewing the surveillance films of defendant

taken sub rosa, Dr. Vance found there was no inconsistency between what defendant said

about her condition and what she was seen doing in the films.

On rebuttal, psychiatrist Mathew Carroll testified he disagreed with Dr. Plotkin's

diagnosis that defendant suffered from delusional disorder. Dr. Carroll testified

defendant was not delusional but instead was out for personal financial gain when she

asked her doctors to falsify documents supporting her disability claims and when she

claimed rare comic books and/or baseball cards had been stolen.

He further opined defendant was not paranoid, as suggested by Dr. Plotkin,

because much of defendant's paranoia in this case was based on "true facts that people

[were] legitimately following her, videotaping her, going through her bank records,

checking whether she owned jewelry or not, going back and looking at previous police

reports, going back and looking at previous depositions. These things [were] all true."

Ultimately, Dr. Carroll believed defendant had a personality disorder related to character

and a sense of entitlement.

DISCUSSION

A. Prosecutorial Misconduct

Defendant contends one remark made by the prosecutor during closing argument

and certain remarks made during rebuttal constituted prejudicial misconduct.

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 1. Additional Background

During opening statements, the defense argued the prosecutor was representing the

insurance companies in this case. In particular, the defense argued the insurance

companies wanted their money back from defendant, but "[t]heir time has come and

gone. And so what vehicle do they now have to try to get their money back? That

vehicle is the Department of Insurance . . . in conjunction with the State of California. [¶]

So [the prosecutor] was right: she does represent the insurance company. That's a scary

proposition. It's a scary proposition to have the insurance company at no loss for profits

and no loss for funds to support their litigation use the district attorney's office as

basically their collection agency."

In addition, the defense argued in opening that the entire case hinged on whether

defendant actually believed her claims were "righteous. They don't need to be right. This

ain't about money. It's not a civil case where the insurance company is just saying, 'We

want our money back.' This is a specific intent crime. . . . [T]he key is, there's really two

instances that we're talking about: [¶] The theft of jewelry from the car and whether or

not she believes she qualifies for disability. She could be absolutely wrong, and she very

well may be, but if she believes it, she's not guilty." The defense further noted that

defendant was "delusional" and that she was "overly sensitive, not just to words but to

pain, to her belief as to what the pain d[id] to her . . . . She doesn't have to be right. She

just has to have believed it. That's what this entire case is about."

To support its claim defendant was delusional and lacked the specific intent to

commit the offense, the defense noted the evidence would show "a pattern. In the face of

logic, in the face of black-and-white facts, [defendant] holds to these unreasonable,

12
irrational and wrong beliefs, but yet if she believed them, she ain't guilty of fraud.

Certainly [she] may owe that money back to the insurance company. That's not what

we're here to decide. We're here to decide did she commit the criminal act of fraud?"

With respect to the one remark during closing, the record shows the prosecutor

was summarizing the evidence of defendant's travels during the same time defendant was

representing she was disabled and unable to perform daily life skills. The prosecutor

noted that defendant and her friend during this same period traveled to the Dominican

Republic, China, San Francisco, New York City (more than once), Seattle, Catalina

Island, Florida (more than once) and Key West, Boston and New England; took road trips

to Truckee, the Lake Tahoe area; and went ballooning in Temecula among many other

trips and/or activities.

After going through defendant's busy travel schedule, the prosecutor commented:

"I'm exhausted just looking at the itinerary and very jealous, but it's not --

"[The defense]: You[r] honor, I'm going to object to improper argument.

"The Court: Overruled for now. [¶] Go ahead.

"[The Prosecutor]: But honestly, that type of itinerary is not consistent with

someone who needs a caregiver to assist them with activities of daily living, it's not

consistent with someone who believes that they had chronic pain and cannot predict

when pain will come and go."

During its closing, the defense reiterated the "overriding issue in this entire case"

was "the psychological, the psychiatric and the mental state of [defendant]." The defense

argued the evidence allegedly was "unrebutted" that defendant "suffers from Axis I

delusional disorder in conjunction with paranoia and the subsets that go along with that."

13
 The defense also reiterated what it had argued during the opening, that the

prosecutor was representing the insurance companies and was the insurance companies'

"collection agency" in this case. The defense also attacked the insurance companies'

request for restitution, noting Kanawha was seeking $296,000 and Prudential $305,000

from defendant. The defense argued that the insurance companies and law enforcement

were "intertwined" in this case; that if there was no conviction, there would be no

restitution; and thus, that the various witnesses (including experts) testifying on behalf of

the insurance companies had a motive and a "vested interest in the outcome" of this case.

Finally, the record shows the defense argued certain insurance companies in this

case had made $495 million in profits in 2011. The defense asked the jury rhetorically,

"Do you think they get enough already?"

The record shows on rebuttal, the prosecutor responded as follows to the defense's

argument that the district attorney was merely a collection agency for the insurance

companies: "I think that really upsets probably us the most because first of all, I'm not

getting a commission, but second of all, that basically controverts our laws about

restitution. Every victim, whether you're a rape victim, whether a residential burglary

victim, whether you're a bank who's had a bank robbery, or whether you're a corporation,

or whether you're Amtrak or [a] government entity is entitled by law to ask for restitution

in every case.

"But I've never heard in any one of my cases where someone would say, 'Oh, how

dare you residential burglary victim ask for restitution from the defendant for the money

that he stole from your house or things that he did or not paid back for psychological

counseling for a rape victim.'

14
 "I mean, that's very unusual to call a prosecutor a collection agent for someone, a

victim, just . . . exercising their right as every victim does for restitution.

"And the people don't represent just insurance companies, I represent the people of

the State of California. That's why I'm here. If an agent does something bad and there

comes a case where an agent does something illegal, we prosecute them all the time. We

don't play favorites. If there's a an agent who rips off somebody, takes the money,

doesn't invest it the way they're supposed to, we'll be the first one in line if the evidence

is there to prosecute them.

"Similarly with insurance companies, if you're the [DOI], again, equal opportunity

agency. If an insurance company does something wrong, too, the consumers have rights.

They can report that as well to have, again, sanctions taken against that insurance

company. So, again, it's not as one-sided as [the defense] would have you believe."

Later, the prosecutor noted the defense blamed everyone else for defendant's

conduct except defendant: " 'Oh, it's . . . the insurance companies' fault, the doctor's fault

in enabling her. Everyone is at fault except for the real person who has made the most

money here, [defendant].' Isn't she at fault?

"You know, and I guess looking at their own theory, if all these people are

enabling her to commit these crimes, then I guess they're asking you to enable her by

acquitting her and saying that she is above the law and that she shouldn't follow it.

"And I'm asking you something different. You know, we've heard a lot of

evidence in this case. And people hear about egregious cases. You know, we've heard

about millions earned by insurance companies where there's billions lost in fraud.

"People don't like paying extra money for health insurance or car insurance --

15
 "[The defense]: Objection, your honor. It's improper argument.

"The Court: I'll allow passing references to general concepts, but if it's not in the

evidence, please restrict it.

"[The prosecutor]: Nobody likes to pay extra because of fraud. And every

consumer has a right, not just the insurance companies, but consumers have a right.

That's why I say the People of the State of California, not [the prosecutor], representative

of the insurance company.

"And I'm asking that when you hear these cases and you say, 'Gosh, you know,

why doesn't somebody do something about this? Someone is so egregious in taking

advantage of the system.'

"Well, today, given the facts of this case, you don't only have the opportunity but

the responsibility to do something about it, to say, 'Enough is enough. You know,

[defendant], it's a shame that you have some of those personality disorders, but it doesn't

excuse your conduct.' [¶]

". . . And the only person who can send a message to her that she needs to be held

accountable for her actions and stop victimizing others because she has a sense of

entitlement is you. [¶] And because of that, I'm asking you to find [defendant] guilty of

all 29 counts and allegations."

2. Guiding Principles and Analysis

"The standards under which we evaluate prosecutorial misconduct may be

summarized as follows. A prosecutor's conduct violates the Fourteenth Amendment to

the federal Constitution when it infects the trial with such unfairness as to make the

conviction a denial of due process. Conduct by a prosecutor that does not render a

16
criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it

involves the use of deceptive or reprehensible methods to attempt to persuade either the

trial court or the jury. Furthermore, and particularly pertinent here, when the claim

focuses upon comments made by the prosecutor before the jury, the question is whether

there is a reasonable likelihood that the jury construed or applied any of the complained-

of remarks in an objectionable fashion." (People v. Morales (2001) 25 Cal.4th 34, 44.)

Moreover, at closing argument a party is entitled both to discuss the evidence and

to comment on reasonable inferences that may be drawn therefrom. (See People v.

Bemore (2000) 22 Cal.4th 809, 846 [noting a prosecutor "has wide latitude in describing

the deficiencies in opposing counsel's tactics"].) "In so doing, the prosecutor may

highlight the discrepancies between counsel's opening statement and the evidence.

[Citation.] Misconduct claims also have been rejected where the prosecutor anticipates

the flaws likely to appear in counsel's closing argument based on evidence that was

introduced [citation], and where the prosecutor criticizes the defense theory of the case

because it lacks evidentiary support [citation]." (Ibid.) A prosecutor's remarks must be

reviewed in the context of his or her whole argument and the jury instructions. (People v.

Marshall (1996) 13 Cal.4th 799, 831.)

Here, as noted, the prosecutor made one comment during closing about being

"jealous" with regard to defendant's travel schedule and activities, when defendant at the

same time claimed she was disabled, needed a full-time caregiver and could not perform

daily life activities including toileting, bathing, dressing and transferring. Also, the

prosecutor later remarked in rebuttal—after repeatedly being accused by the defense both

in opening and closing argument of merely being a "collection agent" for the insurance

17
companies and being "intertwined" with their interests in seeking restitution—about

insurance fraud and made a fleeting reference to how such fraud generally impacts the

costs of insurance to the public.

Viewed in this context, we conclude there is no reasonable likelihood that the jury

construed or applied the complained of remarks in an objectionable fashion. (See People

v. Morales, supra, 25 Cal.4th at p. 44; see also People v. Thomas (2012) 54 Cal.4th 908,

946 [noting prosecutor's statements that defendant should be held accountable for his

actions were not improper]; People v. Wash (1993) 6 Cal.4th 215, 261-262 [noting no

misconduct when prosecutor urged the jury to " 'make a statement,' " to "do 'the right

thing' " and to restore confidence in criminal justice system by convicting defendant]; see

People v. McDaniel (1976) 16 Cal.3d 156, 177 [rejecting contention prosecutor engaged

in misconduct during argument when prosecutor asked the jury if defendant did not

commit the crime, then who did because "the prosecutor was merely responding to a

defense counsel argument that other persons may be responsible" for the crime and

noting that even if such a statement was misconduct (by shifting the burden of proof), it

was not prejudicial because the statement was "made within proper limits in rebuttal to

arguments of defense counsel"].)

Moreover, even assuming the prosecutor may have committed misconduct in

making the above remarks, we conclude defendant suffered no resulting prejudice under

either Chapman v. California (1967) 386 U.S. 18, 24 (harmless beyond a reasonable

doubt) or People v. Watson (1956) 46 Cal.2d 818, 836 (reasonable probability the alleged

error did not affect the outcome). For one thing, the record shows the trial court

instructed the jury with CALCRIM No. 222 in part as follows: "Nothing that the

18
attorneys say is evidence. In their opening statements and closing arguments, the

attorneys discuss the case, but their remarks are not evidence. Their questions are not

evidence. Only the witnesses' answers are evidence."

The court also instructed the jury with CALCRIM No. 200, which provided in

part: "You must decide what the facts are. It is up to all of you, and you alone, to decide

what happened, based only on the evidence that has been presented to you in this trial.

[¶] Do not let bias, sympathy, prejudice, or public opinion influence your decision. Bias

includes, but is not limited to, bias for or against the witnesses, attorneys, defendant or

alleged victims, based on [among other things] socioeconomic status."

We presume the jury followed the trial court's instructions when it was instructed

to ignore the remarks of the attorneys during opening and closing argument and to decide

the facts of the case. (See People v. Sanchez (2001) 26 Cal.4th 834, 852.)

In addition, as summarized ante there was overwhelming evidence of defendant's

guilt in this case, as it is clear the jury rejected defendant's contention she lacked the

specific intent to commit the various offenses because she was delusional. As such, any

asserted error in the prosecutor's fleeting remarks, particularly under the circumstances of

this case, was harmless beyond a reasonable doubt. (See Chapman v. California, supra,

386 U.S. at p. 24; see also People v. Booker (2011) 51 Cal.4th 141, 186 [noting that when

viewing the prosecutor's statements in the context of the entire argument, there was no

resulting prejudice under Chapman or Watson when the evidence of defendant's guilt was

overwhelming].)

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 B. Unanimity Instruction (Counts 6-23)

Defendant was charged in counts 6-22 of presenting false insurance claims (§ 550,

subd. (a)(1)); of submitting false documentation supporting those claims (§ 550,

subd. (b)(1)); and, with the exception of Unum (which denied defendant's claim for

benefits), with grand theft from each insurance provider. (Counts 6-8 [Balboa]; 9-11

[Reassure]; 12-14 [Prudential]; 15-17 [Kanawha]; 18-20 [MetLife]; and 21-22 [Unum].)

In count 23, defendant was charged with grand theft from Amtrak.

Defendant contends reversal of counts 6-23 is required because each of the

policies at issue in this case required defendant to continually submit claims for payment

and supporting documentation. Defendant further contends a unanimity instruction was

required because each of the separate acts of submitting a claim and/or supporting

documentation in support thereof could have been charged separately, as noted by the

prosecutor.

1. Guiding Principles

We review a claim of instructional error de novo. (People v. Manriquez (2005) 37

Cal.4th 547, 581.) A criminal defendant is constitutionally entitled to a unanimous

verdict "in which all 12 jurors concur, beyond a reasonable doubt, as to each count

charged." (People v. Jones (1990) 51 Cal.3d 294, 305.) A unanimity instruction is one in

which the court explains to the jury " 'the need for unanimous agreement on the distinct

criminal act or event supporting each charge.' " (People v. Whitham (1995) 38

Cal.App.4th 1282, 1295.) In other words, when a defendant is charged with a criminal

offense but evidence of more than one act constituting the charged offense is introduced,

the jury must be instructed that it must unanimously agree upon the particular act

20
committed in order to convict. (Ibid.; see People v. Beardslee (1991) 53 Cal.3d 68, 92

[unanimity is required when there is evidence of "acts that could have been charged as

separate offenses"].) A trial court has a sua sponte duty to give a unanimity instruction

" '[w]hen the evidence tends to show a larger number of distinct violations of the charged

crime than have been charged and the prosecution has not elected a specific criminal act

or event upon which it will rely for each allegation.' " (People v. Whitham, supra, at p.

1295.)

The standard unanimity instruction that defendant argues should have been given

is CALCRIM No. 3500 (entitled, Unanimity), which provides:

"The defendant is charged with __________ < insert description of alleged

offense> [in Count _____] [sometime during the period of ____ to ____].

"The People have presented evidence of more than one act to prove that the

defendant committed this offense. You must not find the defendant guilty unless you all

agree that the People have proved that the defendant committed at least one of these acts

and you all agree on which act (he/she) committed."

We need not decide in this case whether the court erred in failing to give sua

sponte the unanimity instruction because we conclude that error was harmless under

either Chapman v. California, supra, 386 U.S. at page 24 or People v. Watson, supra, 46

Cal.2d at page 836.6 California courts have held that the failure to give a unanimity

6 We note there appears to be a split in authority regarding which error standard
applies for the failure to give a unanimity instruction. (See People v. Matute (2002) 103
Cal.App.4th 1437, 1448–1449 [noting that "[s]ome cases hold that the ensuing conviction
must be overturned unless the constitutional error can be demonstrated to be harmless
beyond a reasonable doubt," whereas "[o]ther cases find appropriate the test [is] . . .
21
instruction is harmless "[w]here the record provides no rational basis, by way of

argument or evidence, for the jury to distinguish between the various acts, and the jury

must have believed beyond a reasonable doubt that defendant committed all acts if he [or

she] committed any." (People v. Thompson (1995) 36 Cal.App.4th 843, 853; see People

v. Hernandez (2013) 217 Cal.App.4th 559, 577 [failure to give unanimity instruction is

harmless error "where the defendant offered the same defense to all criminal acts and 'the

jury's verdict implies that it did not believe the only defense offered' "], citing People v.

Diedrich (1982) 31 Cal.3d 263, 283; People v. Wolfe (2003) 114 Cal.App.4th 177, 188

[failure to give unanimity instruction was harmless where jury rejected defendant's single

defense to all instances of firearm possession].)

Here, throughout the course of committing the insurance fraud in counts 6-22, the

record shows that defendant provided each of the six insurers statements and supporting

documentation claiming she was disabled as a result of a back injury she sustained from a

fall that occurred in August 2006, while she was moving a piece of furniture outside; and

that as a result of this accident, she needed a full-time caregiver to help with daily life

activities, including toileting, bathing, dressing and transferring. Clearly, the same

accident and the same injury was the basis of each specific count involving the various

insurers.

In addition, the record shows defendant offered the same defense to all such

counts: that she was incapable of forming the specific intent necessary for these crimes

because she suffered from delusional disorder. In fact, as noted ante the record shows

whether 'it is reasonably probable that a result more favorable to the appealing party
would have been reached in the absence of the error' "].)
22
defense counsel aggressively argued during closing that defendant was innocent of all

charges because she actually believed, rightly or wrongly, she was disabled and was the

victim of various home and/or car burglaries. We thus conclude the record in this case,

including the trial testimony, closing argument and the fact defendant offered a unitary

defense to all counts, ensured that the jury must have believed beyond a reasonable doubt

that defendant committed all of the criminal acts related to insurance fraud that she was

accused of in counts 6-23, if she committed any of them. (See People v. Thompson,

supra, 36 Cal.App.4th at p. 853.)

C. Statute of Limitations (Counts 1-3)

Defendant next contends her conviction on counts 1-3 must be reversed because

the applicable four-year limitations period applicable to fraud-related offenses ran before

the prosecution of such offenses commenced.

1. Additional Background

Counts 1-3 pertained to Chubb. Count 1 alleged that, between June 20, 2005—the

date when defendant reported to police that a pink purse containing about $200,000 in

jewelry had been stolen from her car—and November 11, 2009—the date when Chubb

and defendant settled her lawsuit after Costco was referenced, defendant unlawfully and

knowingly filed a false and fraudulent claim under a contract of insurance in violation of

section 550, subdivision (a)(1). Count 2 alleged between these same dates defendant

unlawfully presented a statement in support of her claim for payment under an insurance

contract that she knew contained false and misleading information concerning a material

fact, in violation of section 550, subdivision (b)(1). Finally, count 3 alleged defendant

prepared a false paper for a fraudulent and deceitful purpose in violation of section 134.

23
 With respect to these counts, the record shows defendant on April 28, 2006

submitted her insurance claim to Chubb with respect to the June 20, 2005 car burglary.

As noted, Chubb in January 2007 denied this claim not because of fraud, but because

defendant would not agree to be examined under oath with respect to that claim as

required under the terms of the policy. Defendant in late January 2008 sued Chubb for

breach of contract and bad faith for denying her claim.

In addition, the record shows discovery did not begin in earnest until the middle of

2009, after various motions were heard and decided. Depositions commenced in October

2009. During the course of that discovery, one of the Chubb entities (see fn. 5, ante)

filed a motion seeking leave to file a counterclaim against defendant as a result of an

earlier claim. The court never ruled on that motion, however, because as noted ante the

case settled was settled on November 11, 2009, before the January 2010 trial date.

Finally, as also relevant to this issue, defendant on May 26, 2010 was charged by

complaint with numerous fraud-related offenses, including several counts under section

550, subdivision (a)(1). That same day, an arrest warrant issued for defendant.

An amended complaint was filed on July 20, 2011 that included additional counts

including count 39 (presenting a false claim between June 20, 2005 and September 22,

2009) and count 40 (presenting false and misleading information between the same dates

to support a claim). Neither count 39 nor 40 named a victim. On December 14, 2011,

the amended complaint was deemed the information. On September 14, 2012, the

24
information was amended and counts 1, 2 and 3 for the first time alleged the offenses

involving Chubb for which defendant ultimately was convicted.7

2. Guiding Principles

The parties agree counts 1-3 are governed by the limitations period in section

801.5. It provides in pertinent part: "[P]rosecution for any offense described in

subdivision (c) of Section 803 shall be commenced within four years after discovery of

the commission of the offense, or within four years after completion of the offense,

whichever is later." (Italics added.) Section 803, subdivision (c) in turn provides: "A

limitation of time prescribed in this chapter does not commence to run until the discovery

of an offense described in this subdivision. This subdivision applies to an offense

punishable by imprisonment in the state prison or imprisonment pursuant to subdivision

(h) of Section 1170, a material element of which is fraud or breach of a fiduciary

obligation, the commission of the crimes of theft or embezzlement upon an elder or

dependent adult, or the basis of which is misconduct in office by a public officer,

employee, or appointee, including, but not limited to, the following offenses: [¶] . . . [¶]

(6) Felony insurance fraud in violation of Section 548 or 550 of this code . . . ."

As relevant here, "prosecution for an offense is commenced when any of the

following occurs: [¶ ] (a) An indictment or information is filed. [¶] . . . [¶] (d) An arrest

warrant or bench warrant is issued, provided the warrant names or describes the

defendant with the same degree of particularity required for an indictment, information,

or complaint." (§ 804.)

7 Counts 1, 2 and 3 were not altered when the information was again amended on
November 2, 2012, shortly before trial.
25
 Also relevant here is section 803, subdivision (b). It provides: "No time during

which prosecution of the same person for the same conduct is pending in a court of this

state is a part of a limitation of time prescribed by this chapter." (Italics added.) The

Law Revision Commission comment to section 803 states that the term "same conduct"

contemplates "some flexibility of definition" to " 'meet the reasonable needs of

prosecution, while affording the defendant fair protection against an enlargement of the

charges after running of the statute.' " (People v. Whitfield (1993) 19 Cal.App.4th 1652,

1659.)

Courts of appeal have determined that section 803, subdivision (b) tolls the

running of the statute of limitations for disparate charges that arise from a course of

conduct; new counts, therefore are deemed filed as of the date of the original complaint.

(See, e.g., People v. Greenberger (1997) 58 Cal.App.4th 298, 369 [noting murder and

aggravated kidnapping charges were based upon the "same conduct," permitting the jury

to be instructed on the lesser offense of simple kidnapping without running afoul of the

statute of limitations]; People v. Bell (1996) 45 Cal.App.4th 1030, 1064 [noting charges

of forgery and false filings of bankruptcy petitions or grant deeds were found to be based

upon the "same conduct" for purposes of subdivision (b) of section 803 as rent skimming

where "the forgery and false filings were merely aspects of [the] rent skimming

scheme"]; People v. Whitfield, supra, 19 Cal.App.4th at pp. 1658-1660 [noting that filing

an information charging a defendant with forcible rape among many other sexual

offenses against two victims that occurred within the course of a couple of months tolled

period of limitations as to lesser related offense of prostitution for purposes of

subdivision (b) of section 803 because the " 'conduct' at issue was sexual intercourse

26
between defendant [and the two victims], both of whom claimed the conduct constituted

rape while defendant claimed it was in each case simply an act of prostitution"].)

The question of whether a prosecution is barred by the statute of limitations is

reviewed as an issue of law concerning a jurisdictional defect. When the facts are not in

dispute, we exercise our independent judgment. (People v. Wetherell (2014) 223

Cal.App.4th Supp. 12, 16–17; Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444,

1448.)

3. Analysis

Here, the threshold issue is, when did the criminal prosecution commence for

purposes of the limitations period with respect to counts 1, 2 and 3 involving Chubb.

Defendant contends the prosecution may have commenced on May 26, 2010, when the

criminal complaint was filed and the arrest warranted was issued. Even using May 26,

2010 as the commencement date, defendant further contends the applicable four-year

limitations period bars criminal prosecution for counts 1-3.

The People contend May 26, 2010 controls for purposes of the statute of

limitations because the September 14, 2012 amended information involved the "same

conduct" as the May 26 criminal complaint/arrest warrant. The People make this

argument despite the fact the May 26 criminal complaint did not include the counts

involving Chubb that ultimately defendant was convicted of by the jury.

We need not resolve this threshold issue because regardless of how it is resolved,

we are unable to determine on this record whether counts 1-3 are time-barred. Indeed,

although there is evidence in the record suggesting Chubb did not "discover" (as provided

in sections 801.5 and section 803, subdivision (c)) defendant's alleged fraud until late

27
2009, when discovery began in earnest and defendant was deposed, the record also shows

defendant was expressly charged in counts 1-3 of engaging in fraudulent acts with respect

to her claim (i.e., June 20, 2005) that fall outside the four-year limitations period of

section 801.5, even assuming the May 26, 2010 date governs for this issue.

When a charging document suggests or "indicates on its face that the action is

time-barred, a person convicted of a charged offense may raise the statute of limitations

at any time," including on appeal. (See People v. Williams (1999) 21 Cal.4th 335, 341.)

Thereafter, if the record establishes that the action is not time-barred, the conviction may

stand; if, however, the appellate court cannot determine from the record whether the

action is time-barred, it should remand for a further hearing. (Id. at pp. 341, 345–346.)

We conclude the matter should be remanded.

We reiterate that we do not decide in this case (i) when the prosecution

commenced under section 804 on counts 1-3 (i.e., on May 26, 2010, on September 14,

2012 or perhaps some other date) and (ii) depending on the resolution of that issue,

whether counts 1-3 are time-barred by the four-year limitations period set forth in section

801.5. These matters are better left to the trial court to decide after a hearing. (See

People v. Williams, supra, 21 Cal.4th at p. 345 [noting the "silent record" such as in the

instant case regarding the statute of limitations defense "is partly the defendant's fault for

not raising the issue at trial," but is also "the prosecution's fault in the first instance for

filing an information that, on its face, was [perhaps] untimely," and thus noting in this

situation the "the fairest solution is to remand the matter to determine whether the action

is, in fact, timely"].)

28
 D. Sufficiency of the Evidence (Count 5)

Defendant contends there is insufficient evidence in the record to show Chubb

relied on her representations regarding the jewelry theft in settling the lawsuit against it

for $15,000.

With respect to count 5, theft by false pretense in violation of section 487, the jury

was instructed in part as follows:

"To prove that the defendant is guilty of this crime, the People must prove that:

[¶] 1. The defendant knowingly and intentionally deceived a property owner by false or

fraudulent representation or pretense; [¶] 2. The defendant did so intending to persuade

the owner to let the defendant take possession and ownership of the property; [¶] AND

[¶] 3. The owner let the defendant take possession and ownership of the property because

the owner relied on the representation or pretense." (Italics added.)

" 'When considering a challenge to the sufficiency of the evidence to support a

conviction, we review the entire record in the light most favorable to the judgment to

determine whether it contains substantial evidence—that is, evidence that is reasonable,

credible, and of solid value—from which a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt. (People v. Valdez (2004) 32 Cal.4th 73,

104.) . . . We presume in support of the judgment the existence of every fact the trier of

fact reasonably could infer from the evidence. (People v. Ramirez (2006) 39 Cal.4th 398,

463.) If the circumstances reasonably justify the trier of fact's findings, reversal of the

judgment is not warranted simply because the circumstances might also reasonably be

reconciled with a contrary finding. (People v. Valdez, supra, 32 Cal.4th at p. 104.) A

reviewing court neither reweighs evidence nor reevaluates a witness's credibility.

29
(People v. Guerra (2006) 37 Cal.4th 1067, 1129.)' (People v. Lindberg (2008) 45 Cal.4th

1, 27.)" (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)

A lawyer representing Chubb in the breach of contract/bad faith action brought by

defendant testified that Chubb agreed to settle that action for $15,000 because defendant

claimed she owned $200,000 of jewelry that was stolen. The Chubb lawyer also testified

that in evaluating defendant's claim, Chubb had to rely on defendant's credibility because

"[t]here were no real witnesses to the transaction where she allegedly first obtained that

jewelry"; that defendant provided Chubb with about 38 pages of appraisal certificates

supporting her claim she owned the jewelry in question; that Chubb relied on the

accuracy of a police report that was prepared in connection with the June 20, 2005 car

burglary; that ultimately, whether or not there was fraud was not for Chubb to decide but

for a jury to determine; that when Chubb was first sued it did not file a cross-complaint

against defendant as a result of any alleged misstatement or omission, thereby suggesting

at least initially Chubb did not believe the claim was false or fraudulent; that during

discovery in the action, evidence was uncovered suggesting the car burglary was

"perhaps false"; that when the case settled for $15,000, there was still "a significant

amount of discovery yet to be completed in contemplation of a trial date which had been

scheduled in January of 2010"; that Chubb did not contact the district attorney's office in

connection with defendant's claim on or the parties' settlement, but instead the district

attorney contacted Chubb and served a subpoena requesting Chubb produce its claim's

file; and that when the Chubb lawyer questioned defendant regarding an appraisal from

Costco, defendant said she had never seen it before and "right after that" defendant

30
agreed to settle with Chubb before Chubb's attorney "had the opportunity to explore" the

Costco appraisal further.

That there was also evidence in the record suggesting Chubb settled with

defendant in part because it wanted to avoid the costs of litigation does not change our

conclusion on this issue. (See People v. Valdez, supra, 32 Cal.4th at p. 104 [noting that if

substantial evidence exists, a reversal of a finding or judgment is not warranted simply

because the record includes evidence that, if credited, might support a contrary finding].)

On this record, we conclude the above evidence, including the inferences to be

drawn from it, supports the finding of the jury that Chubb "relied" on defendant's

representation that she owned $200,000 worth of jewelry and that this jewelry was stolen

when her car was burglarized on June 20, 2005 in settling her breach of contract/bad faith

action for $15,000 in late 2009. (See People v. Miller (2000) 81 Cal.App.4th 1427, 1440-

1441 [noting to establish criminal fraud, the victim must have in fact relied on the

defendant's false representations or material omissions—i.e., that " 'the false

representation "materially influenced" the owner's decision to part with his property' "].)

E. Sufficiency of the Evidence (Count 23)

Defendant also contends there is insufficient evidence in the record to support her

conviction on count 23, grand theft of personal property involving Amtrak. Count 23

provided that between April 1, 2009 and April 26, 2010, defendant stole money or

personal property of Amtrak in excess of $400. The record shows a claims representative

testified defendant made a disability claim based on her August 2006 fall. That claim

was accompanied by a doctor's note dated September 30, 2006. As a result, defendant

received payments from Amtrak from November 2006 through March 2008.

31
 The record shows, and defendant does not dispute (in her reply), that during

deliberations the jury sent a note requesting clarification of the date range for "Amtrak,

count 23." The note stated count 23 " 'says 4-1-2009–4-26-2010 but People's [Exhibit]

# 112 has other dates.' " According to the minute order, the prosecutor was present in the

courtroom when the note was received and she and the trial judge spoke to defense

counsel "via conference call . . . regarding the proposed changes to the verdict forms and

the Court's proposed response" to this note and to another note that is not relevant here.

The record also shows the verdict form used by the jury stated that defendant in

count 23 committed grant theft in violation of former8 section 487, subdivision (a)

against Amtrak between August 16, 2006 and January 29, 2008.

Thus, the record shows the jury verdict form for count 23 removed any ambiguity

or uncertainty regarding the date or dates defendant was alleged to have committed grand

theft against Amtrak. What's more, substantial evidence in the record supports

defendant's conviction on count 23, as the record shows Amtrak (through its claim

representative) paid defendant benefits in excess of $400 during the dates included on the

verdict form. (See People v. D'Arcy, supra, 48 Cal.4th at p. 293.)

F. Remaining Contentions

1. Enhancements

Defendant next contends that if any of her convictions are reversed, the three

enhancements also must be reversed. We disagree.

8 Section 487, subdivision (a) has since been amended to provide that grand theft
occurs when "money, labor, or real or personal property taken is of a value exceeding
nine hundred fifty dollars ($950) . . . ." (See Stats. 2010, ch. 694, § 1.)
32
 Briefly, as noted the jury found true that in the commission of the offenses (i)

defendant took funds and/or property of another in excess of $100,000, within the

meaning of sections 1203.045, subdivision (a) and 186.11, subdivision (a)(1); (ii) the

aggregate losses to the victims from all charges exceeded $200,000 within the meaning of

section 12022.6, subdivision (a)(2); and (iii) defendant, in the commission of two or more

related felonies a material element of which was fraud and embezzlement and which

involved a pattern of related felony conduct, took more than $500,000 within the

meaning of section 186.11, subdivision (a)(2). For each of these enhancements, the jury

was instructed it could find the aggregate loss if it found defendant guilty of two or more

crimes charged in counts 1, 2, 5-24, 26 and 28.

Here, although we are reversing counts 1-3 involving Chubb and remanding the

matter with instructions for a hearing, there is ample evidence in the record to support the

true findings of the jury with respect to each enhancement, as evidenced by the jury's

guilty verdicts on the remaining counts and by the monetary loss suffered by the victims,

which amounts clearly exceed the aggregate loss of each enhancement. We thus reject

this contention.

2. Stay

Defendant's final contention is that counts 4, 25, 27 and 29 must be stayed under

subdivision (a) of section 654, which provides in part: "An act or omission that is

punishable in different ways by different provisions of law shall be punished under the

provision that provides for the longest potential term of imprisonment, but in no case

shall the act or omission be punished under more than one provision."

33
 " ' "Whether a course of criminal conduct is divisible . . . depends on the intent and

objective of the actor." [Citations.] "If all the offenses were merely incidental to, or were

the means of accomplishing or facilitating one objective, defendant may be found to have

harbored a single intent and therefore may be punished only once." [Citation.]' " (People

v. Spirlin (2000) 81 Cal.App.4th 119, 129.) However, if a defendant entertained

"multiple or simultaneous objectives, independent of and not merely incidental to each

other, the defendant may be punished for each violation committed in pursuit of each

objective even though the violations share common acts or were parts of an otherwise

indivisible course of conduct." (People v. Cleveland (2001) 87 Cal.App.4th 263, 267–

268.)

Whether section 654, subdivision (a) applies "is a question of fact for the trial

court, which is vested with broad latitude in making its determination. [Citations.] Its

findings will not be reversed on appeal if there is substantial evidence to support them.

[Citations.] We review the trial court's determination in the light most favorable to the

respondent and presume the existence of every fact the trial court could reasonably

deduce from the evidence." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

Defendant was convicted in count 4 of attempted perjury stemming from the

October 20-22, 2009 depositions taken by Chubb. In count 5, as discussed ante

defendant was convicted of grand theft in accepting the $15,000 settlement check from

Chubb. We note from the record that the settlement between defendant and Chubb was

not finalized until on or about November 11, 2009. Thus, the record shows that

defendant had ample opportunity to reflect between the two offenses, which supports the

court's finding that defendant's receipt of the $15,000 check was a distinct act from her

34
false depositions statements. (See People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11

[noting "a course of conduct divisible in time, although directed to one objective, may

give rise to multiple violations and punishment [for purposes of section 654]"]; see also

People v. Felix (2001) 92 Cal.App.4th 905, 915 (Felix) [noting "multiple crimes are not

one transaction where the defendant had a chance to reflect between offenses and each

offense created a new risk of harm"].)

Defendant was convicted in counts 25, 27 and 29 of perjury by declaration. She

contends section 654, subdivision (a) applies to stay punishment on each of these counts

because they allegedly were part of an indivisible course of conduct with the fraud at

issue in counts 1-22. We disagree.

Counts 25, 27 and 29 alleged defendant committed perjury when she signed and

filed her 2007, 2008 and 2009 state tax returns, respectively, because she failed to

disclose the payments she was receiving under the various insurance policies at issue in

this case. We note from the record that defendant filed her 2007, 2008 and 2009 returns

on January 7, 2009, August 13, 2010 and August 10, 2010.

We conclude section 654, subdivision (a) does not apply to stay punishment on

counts 25, 27 and 29 because there is evidence in the record supporting the finding that

defendant had a separate intent and objective in signing and filing each tax return.

Indeed, we note all were filed on separate dates, with the 2007 return being filed more

than a year before the 2008 and 2009 returns. (See Felix, supra, 92 Cal.App.4th at p.

915; People v. Andra (2007) 156 Cal.App.4th 638, 640 [noting section 654, subdivision

(a) does not apply " 'where the offenses are temporally separated in such a way as to

afford the defendant opportunity to reflect and to renew his or her intent before

35
committing the next one, thereby aggravating the violation of public security or policy

already undertaken' "].) Moreover, each time defendant signed and filed a tax return

involved a separate and factually distinct act/crime. (See People v. Correa (2012) 54

Cal.4th 331, 341 [noting a " 'person who commits separate, factually distinct, crimes,

even with only one ultimate intent and objective, is more culpable than the person who

commits only one crime in pursuit of the same intent and objective' "].)

In addition, with respect to the 2008 and 2009 returns, the record shows defendant

filed her returns after she had been charged with 38 counts of insurance fraud. This

evidence further supports the finding that, at least with respect to these two returns,

defendant's intent and objective in submitting false tax returns was separate and distinct

from her intent to "obtain" money from the various insurers. We thus conclude section

654, subdivision (a) does not apply to stay punishment on counts 25, 27 and 29.

36
 DISPOSITION

Because on this record we are unable to determine whether counts 1-3 are time-

barred based on the applicable statute of limitations, we reverse defendant's conviction

with respect to these counts only and remand the matter to the trial court to determine

both (i) when the prosecution of counts 1-3 commenced and, depending on the outcome

of that issue, (ii) whether in fact counts 1-3 are time-barred by the applicable limitations

period. If the court ultimately determines counts 1-3 were timely commenced, it then can

reinstate defendant's conviction on these counts. If it concludes these counts were not

timely commenced, defendant is to be resentenced accordingly. In all other respects, the

judgment of conviction is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

McINTYRE, J.

37