Filed 10/23/13 P. v. Xiong CA5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent 

 v. 

MOUA XIONG, 

Defendant and Appellant. 

F062259 

(Super. Ct. No. VCF203527A) 

OPINION

THE PEOPLE, 

Plaintiff and Respondent 

 v. 

YER THAO MOUA, 

Defendant and Appellant. 

F062262 

(Super. Ct. No. VCF203527B) 

THE PEOPLE, 

Plaintiff and Respondent 

 v. 

CHOU XIONG, 

Defendant and Appellant. 

F062263 

(Super. Ct. No. VCF203527C) 
2. 

THE PEOPLE, 

Plaintiff and Respondent 

 v. 

LINDA MOUA, 

Defendant and Appellant. 

F062264 

(Super. Ct. No. VCF203527D) 

 APPEALS from judgments of the Superior Court of Tulare County. Patrick J. 

O’Hara, Judge. 

 Nuttall Coleman & Wilson, Nuttall & Coleman, Roger T. Nuttall and Glenn M. 

Kottcamp for Defendants and Appellants. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. 

Farris, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOooA jury convicted appellants Moua Xiong, Yer Thao Moua, Chou Xiong, and 

Linda Moua (collectively defendants) of two counts of insurance fraud (Pen. Code, 

§ 550, subd. (a)(1))1 and one count of conspiracy to commit insurance fraud (§ 182, subd. 

(a)(1)). The convictions were based on insurance claims made for medical bills after an 

automobile collision. 

On appeal, defendants contend they were entitled to a judgment of acquittal after 

the close of the prosecution’s case. Moua Xiong and Yer Thao Moua also argue that 

 

1Subsequent statutory references are to the Penal Code unless noted otherwise. 
3. 

their convictions were not supported by substantial evidence.2 We disagree and affirm 

the judgments. 

FACTUAL AND PROCEDURAL SUMMARY

 As the defendants contend the prosecution failed to prove its case and two 

defendants contend their convictions were not supported by substantial evidence, we 

describe the trial in some detail. 

The charges 

The Tulare County District Attorney alleged in an information that all four 

defendants “did aid, abet, solicit, conspire with another and did knowingly present and 

cause to be presented . . . false and fraudulent claim[s] for the payment of a loss and 

injury” to Allied Insurance Company (Allied) (count 1) and Geico Insurance Company 

(Geico) (count 2). Count 3 alleged that defendants conspired “together and with another 

person and persons whose identity is unknown to commit the crime of INSURANCE 

FRAUD,” committing the following overt acts: “1. Obtained medical treatment[;] 

2. Submitted medical claims for payment to GEICO[;] 3. Executed powers of attorney.” 

A jury trial for all four defendants began on October 4, 2010. The trial court 

described its understanding of the case before the trial started: “[T]his is a traffic 

accident and the People allege that two defendants were in the car and the defendants 

indicated there are more than two.” The prosecutor and Yer Thao Moua’s attorney 

agreed this was the crux of the case.3 

 

 

2Both parties refer to defendants by their first and last names throughout their 

briefs. Because two pairs of defendants share last names and one defendant’s first name 

is the same as two other defendants’ last names, for clarity, we also will refer to 

defendants by their first and last names. 

3Defendants had separate attorneys during the trial. Moua Xiong was represented 

by Paul Storey, Yer Thao Moua by Albert Gordon, Chou Xiong by Mary Jarvis, and 

Linda Moua by Robert Bartlett. 
4. 

Prosecution’s evidence 

 Mark Stearns testified that he witnessed the collision. He lives in Las Vegas, and 

in October 2007 he was in Fresno with his motorcycle club for a motorcycle event. His 

wife Tracy and their two children also were with him in Fresno. Around 9:00 or 10:00 in 

the morning on October 6, 2007, his motorcycle club was on its way to breakfast. There 

were about 16 to 20 people; everyone was on a motorcycle except his wife Tracy. She 

was driving a rental van and the children were with her. Tracy had not rented the van 

and was not on the rental agreement, but she had permission to drive it from Randy 

Harvey, who had rented the van in Las Vegas to tow his motorcycle to Fresno. 

 That morning Mark was acting as a road captain. He explained that road captains 

block cross traffic so their motorcycle caravan can get through an intersection, even if the 

traffic signal turns red before everyone in the group has cleared the intersection. Before 

the collision, Mark was in the middle of an intersection on his motorcycle, blocking a bus 

that was in the left-turn lane of the street perpendicular to the street on which the caravan 

was traveling. He did not know the names of the streets, but other testimony indicates 

the collision occurred in the intersection of Fresno Street and “O” Street, with the 

motorcycle caravan traveling south on “O” Street and Moua Xiong’s 1991 Toyota Previa 

headed east on Fresno Street. 

 According to Mark, there were three road captains or blockers at the intersection -- 

Mark and another road captain were blocking the cross traffic to the right of the caravan, 

and a third road captain blocked cross traffic to the left of the caravan. As the 

motorcycles were going through the intersection, the traffic light facing them was green. 

Not everyone in the group cleared the intersection before the light turned red, however; 

Tracy, who was driving the rental van, did not make it through the intersection. 

 The light for the cross traffic turned green, but Mark was blocking a bus in the 

left-turn lane, while another road captain on a motorcycle was blocking two other lanes 

of traffic. A minivan proceeded into the intersection between Mark and the other road 
5. 

captain. The minivan ran into the rental van Tracy was driving, hitting it on the 

passenger side. Tracy had entered the intersection when her light was red, and the 

minivan had the green light. Mark signaled for the other road captain to get Harvey, who 

had rented the van, and Ferrer Vincent, who was another road captain. 

 After the collision, Tracy and the driver of the minivan went through the 

intersection and parked on the side of the road. Mark got off his motorcycle, took off his 

helmet, and went to Tracy’s van to make sure she and the children were okay. They were 

fine. Tracy and the children had gotten out of the van. 

Next, he went to the minivan to make sure the occupants were okay. Mark could 

not identify the driver as any of the defendants, but he described the driver as “oriental 

with black hair” and around five feet two inches to five feet four inches tall. There were 

two women in the minivan. The driver got out and walked around the front of the car to 

see the damage. The woman in the front passenger seat got out and stood to the side. 

Mark asked if they were okay, and the driver said yes. He spoke to her in English. 

The driver asked if his kids were okay, and Mark said yes. She asked if he was the owner 

of the van, and he explained it was a rental. Mark and Tracy exchanged insurance and 

driver’s license information with the driver. Asked whether he was able to converse 

freely in English with the driver, Mark responded, “It was, yes. Yes, no, or okay. So 

yes.” He also described the driver and passenger as speaking “broken” English. 

At some point, a woman stopped at the scene and helped translate for Tracy and 

the driver. (Mark did not know who she was, but at trial the translator was identified as 

Maysee Yang.) He believed the exchange of information had started before the translator 

arrived. Mark thought the translator pulled over within five or 10 minutes of the collision 

and she parked in front of both vehicles. 

 Mark had a camera and took photos to document the damage to the vehicles from 

the collision. The collision did not leave any debris on the ground, and Mark described 

the damage to both cars as minor. The damage to the minivan was on the lower part of 
6. 

the bumper on the driver’s side. At one point while taking photos, Mark stood in front of 

the minivan and looked through the windshield. He could see directly through and saw 

no one inside. He also saw the inside of the minivan when the driver opened the sliding 

door on the passenger side to retrieve her purse. Mark saw no one inside the minivan. 

While Mark was taking photographs, Tracy was talking to the driver and the translator. 

 Vincent and then Harvey arrived at the scene. Mark thought they arrived within 

two or three minutes of each other, and Harvey arrived about 10 or 15 minutes after the 

collision. Harvey and Tracy spoke with the translator. 

 After the exchange of information, everyone left the scene of the collision. Mark 

testified that the police were not called. Tracy got into the rental van with the children 

and the people from the minivan got back into their car. Mark believed Tracy drove off 

first and then the driver of the minivan. He also saw the translator get into a car and 

make a right turn. He thought from the time of the collision until everyone left was about 

45 minutes. 

 Tracy testified that she was driving the rental van on the morning of the collision. 

She drove through a red light because she was following the motorcycles in her group. A 

minivan bumped her on the right side. The collision “kind of just rocked [them],” and it 

was “not a big impact.” She and her children were not injured from the impact. 

 Tracy saw only one person get out of the minivan -- an Asian woman with short 

hair. Tracy was not paying attention when the woman got out of the minivan and could 

not say whether she was the driver or a passenger. Tracy and the woman exchanged 

information. Initially, Tracy gave information from Budget that she retrieved from the 

rental van’s glove compartment, but she also gave insurance information for her own 

carrier, Geico. Another Asian woman (Yang) was translating because the woman from 

the minivan did not understand. Tracy did not know where the translator had come from, 

but she appeared on the scene “really fast,” perhaps within two or three minutes. Tracy 

remembered seeing only these two people, the woman from the minivan and the 
7. 

translator. She did not look into the minivan. She did not hear any voices or noises 

coming from the minivan. Tracy did not remember seeing Harvey or Vincent at the 

collision scene. She thought the whole process of stopping and exchanging information 

took less than 10 minutes. 

 Vincent is from Las Vegas and was in Fresno for the motorcycle event. Twenty or 

more people from his motorcycle club attended the event. Vincent testified that he did 

not see the collision as he was at the front of the motorcycle caravan. He was a road 

captain, and it was his job to make sure everyone was safe. He was told there was a 

collision, and he turned around and went to the scene. 

When Vincent arrived, the vehicles involved in the collision were already pulled 

over and the drivers had gotten out. He checked to make sure everyone was okay. He 

asked the women in the other vehicle if anyone was hurt or needed medical attention and 

called for police assistance. Another woman (Yang) also had stopped at the scene of the 

collision. This woman was translating because “the two that [were] in the other vehicle 

that struck Mrs. Stearns’ van, they didn’t understand too well.” Vincent thought the 

translator arrived close to the time he did because he saw her getting out of her car as he 

was arriving. With the help of the translator, he again asked if anyone was hurt and 

everyone said they were fine and they did not need medical assistance. 

 Vincent saw two women from the minivan that hit Tracy’s van. He did not see 

anyone else get out of the minivan. He walked around the minivan and looked through 

the windshield and did not see anyone else. He did not hear any voices or noises coming 

from the minivan. The passenger door was open, but he did not think the sliding door 

was open. 

Vincent contacted the police, but they did not come to the collision scene. He 

testified that the police “said they were more or less overwhelmed with all the other 

motorcycle clubs going on in the area” and told him the drivers should exchange 
8. 

information as best they could. He looked at the minivan for damage and thought it was 

not significant. He also inspected the rental van Tracy was driving. 

 Vincent thought he was at the collision scene for roughly 15 to 20 minutes. He 

could not remember whether Harvey was there. Vincent left the scene with Mark and 

they left before the minivan did. 

 Harvey also is from Las Vegas and was in Fresno for the motorcycle event. He 

testified that he rented a van in Las Vegas and drove it to Fresno with his motorcycle on a 

trailer. In Fresno he rode his motorcycle, and he gave Tracy permission to drive the van. 

 On the morning of the collision, Harvey was already seated at a restaurant when 

someone came in and told him Tracy had been involved in a collision. He rode over to 

the scene with Vincent. When he arrived, the cars were parked and people were out of 

their cars. Tracy was on the sidewalk, but her two children were in the rental van. The 

people from the other vehicle were an Asian woman and a girl, and they were standing on 

the sidewalk. The girl appeared to be about seven or eight years old to Harvey. Another 

Asian woman (Yang) was translating; Harvey thought she worked for the city or county. 

Harvey tried to talk to the driver, but she did not know what he was talking about. 

Through the translator, Harvey told the driver everything was fine and he had insurance. 

He asked if everyone was fine and they said yes. 

 Harvey looked at damage to the rental van and realized the collision had not really 

been that bad. It appeared the damage would only cost a couple hundred dollars. He also 

walked around the other car, which had sustained even less damage. He said, “[A]ll you 

have to do is paint the bumper core and that was it.” When he walked around the other 

car, he could see inside and there was nobody there. He saw that Tracy’s kids were 

crying and shaken up from the collision, but he did not hear any crying coming from the 

other car. Harvey knew that the woman and the girl were from the other car involved in 

the collision because after everyone exchanged information, he saw them get in the car 
9. 

and drive away. He also saw the translator walk away. He was at the collision scene for 

about 15 to 20 minutes. 

 Yang, who acted as translator after the collision, is fluent in Hmong, Laotian, and 

English and works for the Fresno County Department of Social Services (adoption). On 

October 6, 2007, she was working, driving a county car to transport a child to an 

appointment. Prior to the collision, Yang was on Fresno Street headed west, and Moua 

Xiong’s minivan was on the other side of the intersection headed east. She saw the 

collision and pulled over “because it was unusual that my light was green, but there was a 

gentleman who was blocking the street.” She spoke to both drivers involved in the 

collision, in English with one and in Hmong with the other. Yang testified that one of the 

drivers “look[ed] like a typical Hmong”4 and she assumed that the driver spoke Hmong. 

Yang translated and helped the drivers exchange information. She also spoke to the man 

who had been blocking the street. She was not sure if he was on a motorcycle. These 

were the only three people she spoke to directly. 

 Both drivers had gotten out of their cars when Yang spoke to them. Yang did not 

remember if anyone else got out of the Hmong-speaker’s car. She did not remember 

speaking to anyone else. She testified that as the collision occurred, she saw into the 

Hmong-speaker’s vehicle and saw “several people in the car.” She testified, “[I]t is a 

typical, you know, looks like a typical Hmong car with people -- you know, a lot of 

people in there.” Asked how many, Yang responded, “I don’t know how many, but I 

know I saw several people like in the cars.” When she pulled over and translated for the 

drivers, she did not look into their cars, but she had “a feeling that both car[s had] people 

in there.” Yang believed people had come out of both cars, but she was not paying 

attention because she was talking with the drivers. She explained, “I have a feeling that 

 

4Yang explained, “I mean it is hard to explain but, you know, when you live the 

culture all your life, it is like a typical Hmong woman who [doesn’t] speak a lot of 

English, the way she dress[es] or, you know, how she look[s] ....” 
10. 

both cars have people in the cars . . . because they were like people around me, you 

know, trying to share the information and the Hmong speaking car like I said . . . it is just 

a typical car that when I drove by, you know, but I didn’t actually, I don’t think they 

come out, all of them come out of the car.” 

 Yang recalled that she turned around and came back to the scene. At that point, 

the rental van had already pulled over, and Yang parked in front of the rental van. The 

Hmong-speaker’s car had not moved and was still in the middle of the street. She told 

them they needed to move and they parked behind the rental van. 

 Fresno Police Officer David Unruh testified that on October 6, 2007, he was 

notified there had been a collision at Fresno Street and “O” Street. He went to that 

location at approximately 12:45 p.m. One car was still there. Unruh spoke to an Asian 

man. He could not recall if anyone else was there. He did not generate a police report 

because it is department policy not to write a police report for a noninjury traffic 

collision. Unruh asked the man if anyone had been injured and he said there were no 

injuries. 

 Wadoua Xiong testified that he speaks English and Hmong. Moua Xiong, who is 

his niece, does not speak English very well. He learned of the traffic collision when 

Moua Xiong and her husband Tong Moua called him a day or two after the collision. 

They needed Wadoua to translate for them and asked him to contact their insurance 

company.5 Wadoua explained that he would help anyone in the Hmong community with 

translating. 

When he first called Allied, he was told they could not speak to him about the 

claim until Moua Xiong gave permission for him to speak on her behalf. Wadoua met 

with all four defendants at one time at Moua Xiong’s house, and they all asked him to 

 

5Because Wadoua Xiong shares a last name with two of the defendants, we refer 

to him by his first name. 
11. 

speak to the insurance company on their behalf. He bought a form from the store and had 

defendants sign it. He testified that he explained the form to the four defendants in 

simple terms: “I just give them simple like as you sign this that means you will give me 

permission to speak with your insurance and represent you to talk to them.” 

 Wadoua testified that Moua Xiong told him to report to Allied that they were in a 

collision and needed to go to the doctor. Allied told Wadoua to contact the other party 

involved in the collision directly, but he was unsuccessful in trying to find the other 

driver. Later, around January 2008, Allied called Wadoua with information about the 

other driver’s insurance company, Geico. Wadoua was told that he just needed to contact 

Geico and they would take care of his niece’s case. 

 The four defendants signed a document giving Wadoua permission to speak to 

Geico on their behalf. In addition, Tong Moua signed a form allowing Wadoua to speak 

on behalf of Gaohnou and Pang (Moua Xiong’s children), and Linda Moua signed a form 

allowing him to speak for her daughter Michelle. Wadoua contacted Geico on behalf of 

the four defendants to seek payment for their medical bills. Wadoua’s purpose in calling 

Geico was to have Geico compensate Allied for the medical bills Allied had already paid. 

 Lani Chevoya testified that she works for Allied inspecting vehicles for damage. 

She inspected Moua Xiong’s minivan for damage after the collision. The damage was on 

the bumper, and the repair cost was approximately $300, below the insured’s deductible. 

 Ralph Edwards investigates suspicious insurance claims for Allied and other 

insurance companies. He testified about Allied’s claim file for its insured, Moua Xiong, 

involving a traffic collision that occurred in Fresno on October 6, 2007. Allied received 

claims from seven claimants for medical bills totaling $8,396.86. The claimants were the 

four defendants and three children -- Linda Moua’s daughter, Michelle Moua, and Moua 

Xiong’s children, Gaohnou Moua and Pang Moua. Allied paid the claim amount directly 

to the treatment provider, chiropractor Ronald Ybarra. 
12. 

 John Palisoc, a senior security investigator at Geico, testified that a claim existed 

for Tracy Stearns, who was the other driver in the collision. She had received a demand 

from Allied. 

Section 1118.1 motion 

 At the close of the prosecution’s case, Yer Thao Moua’s attorney stated that he 

wanted to make a motion pursuant to section 1118.1. Moua Xiong’s attorney added that 

he wanted to make a motion in regard to count 2, specifically. He argued there was no 

evidence that an insurance claim had been made for pain and suffering. Chou Xiong’s 

attorney joined in the motion as to all counts, and Yer Thao Moua’s attorney stated, “I 

concur.” 

 The prosecutor argued that whether the false claim made to an insurance company 

was for medical bills or for pain and suffering made no difference; the falsity of the claim 

“lies in the fact that there were not 7 people in the car, there were only 2 people.” Aside 

from the statement regarding count 2, defendants’ attorneys made no argument in support 

of the motion for judgment of acquittal. The trial court denied the motion, explaining, 

“The issue is whether there was a false claim made and for the reasons stated by the 

prosecution, the 1118.1 motion is denied.” 

Defense evidence 

 Moua Xiong testified that she had children but could not remember how many.6 

Her younger children are Gaohnou and Pang, but she could not remember how old they 

were. She had recently had a medical condition and surgery, which caused her not to 

recall things well. She did remember that on October 6, 2007, she was in Fresno at a 

relative’s funeral. At some point, she left the funeral with six others to get something to 

eat. Moua Xiong drove her minivan. Yer Thao Moua was next to her, Linda Moua was 

 

6Moua Xiong testified using an interpreter. Linda Moua, her daughter Michelle, 

and Moua Xiong’s children, Pang and Gaohnou, also used interpreters when they 

testified. 
13. 

behind Moua Xiong, and Chou Xiong was behind Yer Thao Moua. There were three 

children in the back, Gaohnou, Pang, and Michelle. 

 Recalling the collision, Moua Xiong testified that she had the green light and 

“there was one coming from the other side, before I knew it I had slowed but we hit each 

other.” Her minivan was “stuck with” the vehicle. Yang noticed they were Hmong and 

talked to them. Yang told Moua Xiong to back up so they would be able to move to the 

side. Moua Xiong gave her insurance information to Yang, and Yang gave her the 

information from the other people involved in the collision. Moua Xiong did not recall 

what time of day it was or what the weather was like. If Yang had not asked her to move 

her car, she would have remained there until the police came. Moua Xiong did not check 

on her children, and she did not know if they were crying. She got out of her car and 

talked to Yang. She testified that only Yang spoke to her, and nobody else spoke to her. 

 Asked whether she felt like she had been hurt, Moua Xiong responded that she 

was too frightened to feel hurt. She noticed pain later. She went to the doctor but could 

not recall how long it was after the collision. She also took Gaohnou and Pang to the 

doctor. They complained of neck and back pain. She did not recall how long the 

treatment lasted, and she did not know if she contacted her insurance for treatment. 

Wadoua set up the doctor’s appointments for them. All four defendants went to the same 

clinic for treatment. She did not know how they all decided to go to the same clinic. 

 Moua Xiong testified that she did not contact her insurance company as she does 

not speak the language. Asked if she had Wadoua call her insurance company for her, 

she responded, “I don’t know.” She did recall signing a form. Asked why she signed the 

form, she responded, “Because my insurance has coverage, there is coverage and I don’t 

speak the language so [Wadoua] speaks the language.” 

 Linda Moua testified that she was in the minivan with Moua Xiong. There were 

seven people in the minivan, including her daughter, and they were going to the store. 

They were in a collision, and, as a result, she went to a chiropractor for treatment. She 
14. 

testified that she did not get out of the minivan until her husband came to the scene. 

They were all there when the police arrived. 

 Pang was 11 years old at the time of the trial. He testified that he remembered 

going to a funeral in Fresno for an uncle and they went to get something to eat. He was 

in his mother’s car with Linda Moua, Chou Xiong, Yer Thao Moua, his mother, 

Gaohnou, and Michelle. The car had three rows and he was in the third row in the back 

wearing a seatbelt. He was eight when the collision happened. He could not see through 

the front windshield. After the collision occurred, he stayed in the car. His mother got 

out of the car. He did not remember if anyone else got out of the car. He did not 

remember if his mother ever opened the door to the car. He did not remember whether 

he saw the other driver or anyone else. He did not remember if anyone talked to his 

mother or if anyone walked around their car. He saw a man on the sidewalk on a 

motorcycle. He did not remember if that man spoke to his mother. He did not feel pain 

then, but when he got home his back and neck started to hurt. 

 Gaohnou was 10 years old at the time of the trial. She testified that she went with 

her mother and brother to a funeral in Fresno. They left in her parents’ van. There were 

seven people in the van, including her mother and three other adults. She sat in the back 

of the van. She said there was a collision “because our direction was green light and 

theirs was a red light, we went and there is a car accident.” According to Gaohnou, after 

the collision she “went outside.” She testified that Yang asked them to move their car. 

The prosecutor asked if she saw any motorcycles, and Gaohnou responded, “They did not 

look at us.” “When they came they did not look at us.” Asked who did not look at them, 

she said, “Police.” 

Michelle, who was 11 years old, also testified there were seven people in the 

minivan. She identified Moua Xiong as the driver and Yer Thao Moua as “the one who 

sits next to the sliding door.” 
15. 

 Two witnesses testified they saw seven people in Moua Xiong’s minivan before 

the collision. Nao Tou Moua testified that on October 6, 2007, he was at a church in 

Fresno because a relative had passed away.7 He saw four women and three children get 

into a blue van. Later, he became aware that a collision had occurred. This was about 20 

minutes after he saw the blue van leave the parking lot. Another witness, Yia Moua, 

similarly testified that he was at a funeral and saw four women and three children leave in 

a minivan. He identified defendants as the women in the minivan. He did not recall any 

other people getting into their cars that day, and he could not remember with whom he 

was standing when he saw the minivan. He learned about the collision while he was still 

at the funeral. 

 Ybarra is a chiropractor. He testified about treating all four defendants and the 

three children. All seven began treatment on the same day, October 10, 2007. Yer Thao 

Moua, for example, complained of neck and low back pain, and her treatment plan 

included manual manipulation of the cervical mid and lower back, electrical muscle 

stimulation, and therapeutic massage. She received 17 treatments, and her treatment 

ended on December 5, 2007. She improved gradually, and her course of treatment was 

typical for patients who have been in an automobile collision. Ybarra submitted his bills 

directly to, and received payment directly from, the insurance company. Defendants all 

had the same type of injuries. Ybarra’s understanding was the injuries were related to a 

collision, but this was based on the statements of the patients. 

 In her closing statement, the prosecutor argued that the defense witnesses were not 

reliable. Moua Xiong had significant memory problems. Linda Moua testified that she 

sat in the minivan until the police came, which would have been almost three hours after 

the collision, and this “just doesn’t make any sense.” She reminded the jury that the 

other driver involved in the collision described it as a “bump,” and suggested that it could 

 

7This witness also used an interpreter. 
16. 

not have caused injuries requiring so much chiropractic treatment. “Use your common 

sense,” the prosecutor said. “Do 7 people need 2 and a half months of chiropractor care 

from this?” In her rebuttal, she argued, “We don’t know what [the injuries] were caused 

by. Quite frankly we don’t know that they even exist .... They can’t be x-rayed, we don’t 

know.” 

Verdict and posttrial motions 

 On October 12, 2010, the jury found Moua Xiong, Yer Thao Moua, Chou Xiong, 

and Linda Moua guilty of counts 1, 2, and 3. 

 Defendants filed a number of posttrial motions. On November 2, 2010, Linda 

Moua filed a motion for new trial. On March 9, 2011, Moua Xiong filed a motion for 

new trial. On March 14, 2011, Yer Thao Moua, Chou Xiong, and Linda Moua filed a 

motion for reconsideration of the denial of the motion for judgment of acquittal.8 They 

argued that the prosecution presented no evidence about the identity of the front seat 

passenger. Four days later the same three defendants filed a motion for new trial. 

 A hearing on the motions was held on March 23, 2011. The trial court denied the 

motion for reconsideration in the following discussion: 

“THE COURT: Your position is that you didn’t have to name exactly who 

was in the automobile as long -- because the gravamen of the crime is the false 

statements in order to obtain insurance proceeds. 

“[PROSECUTOR]: Correct, all members of the conspiracy 

together, then there are -- all members of the conspiracy are all guilty of the 

underlying crime if it is committed, which in this case it was. [¶]...[¶] 

 

8As noted above, each defendant had her own attorney during the trial. By the 

time this motion was filed, defendants’ current appellant counsel, Roger T. Nuttall, was 

representing Yer Thao Moua, Chou Xiong, and Linda Moua. Separate counsel 

represented Moua Xiong at the hearing on the posttrial motions. Now on appeal, Nuttall 

represents all four defendants. 
17. 

“THE COURT: I agree with the prosecutor’s position in this matter, 

the crime is the insurance fraud, and so the [section 1118.1] I think was 

denied appropriately.” 

 The trial court next considered the motion for new trial. Nuttall described some of 

the witness testimony, emphasizing Yang’s statement that there were several people in 

the car. He concluded, “So my position simply is that there were more than two people 

in the [Hmong] vehicle, and as testified to, these people were injured, sought medical 

help for their treatment, had the medical bills paid, didn’t recover a dime. [¶] This does 

not import as fraud of any type, let alone insurance fraud.” The trial court denied the 

motion, explaining: 

“Ms. Yang did testify that she believed that there were other people in the 

car, and she did clarify that upon further examination as she got this feeling 

this was a typical [Hmong] car, and she had that feeling, but the jury chose 

to believe the particular witnesses who were there at the scene who looked 

at the car. Their job was to look at the car and found -- and saw that there 

were two people in the car. The jury believed that, and I agree with the 

jury. [¶] There is no basis for a new trial.... [Defendants were] ably 

represented at the trial.” 

Sentence 

 The trial court proceeded to sentencing, granting each defendant probation for 

three years. For count 1, each defendant was ordered to serve 180 days in county jail; for 

counts 2 and 3, no time was imposed. In addition, the trial court ordered defendants, 

jointly and severally, to pay restitution of $8,396.86. 

 Each defendant filed a notice of appeal on April 5, 2011. We consolidated the 

appeals by order dated August 6, 2013. 

DISCUSSION 

I. Motion for Judgment of Acquittal

 All four defendants contend that the trial court erred by denying their motion for 

judgment of acquittal at the close of the prosecution’s case. (§ 1118.1.) We disagree. 
18. 

 “‘The standard applied by a trial court in ruling upon a motion for judgment of 

acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate 

court in reviewing the sufficiency of the evidence to support a conviction, that is, 

“whether from the evidence, including all reasonable inferences to be drawn therefrom, 

there is any substantial evidence of the existence of each element of the offense 

charged.”’ [Citation.]” (People v. Stevens (2007) 41 Cal.4th 182, 200 (Stevens).) 

 The question “is simply whether the prosecution has presented sufficient evidence 

to present the matter to the jury for its determination.” (People v. Ainsworth (1988) 45 

Cal.3d 984, 1024.) We review the question independently. (Stevens, supra, 41 Cal.4th at 

p. 200.) 

 As to count 1, insurance fraud against Allied, defendants argue, “To prove that 

appellant’s claim with Allied was false and fraudulent, the prosecution needed to prove 

either that appellant was not injured at all or, if she was injured, the injuries were not 

sustained in the underlying collision in this case. Such evidence was lacking at the time 

appellant made her 1118.1 motion.”9 

Defendants’ position—that the prosecution was required to prove that each 

defendant’s insurance claim for her own injuries was false—is not correct. Section 550, 

subdivision (a)(1) makes it a crime “to do ... or to aid, abet, solicit, or conspire with any 

person to do” the following: “Knowingly present or cause to be presented any false or 

fraudulent claim for the payment of a loss or injury ... under a contract of insurance.” It 

was, therefore, sufficient for the prosecution to present evidence from which it could be 

inferred that defendants conspired to present a false claim or aided another in presenting 

a false claim. 

 

9We have quoted the argument as it appears in the briefs for three of the four 

defendants. The wording of Moua Xiong’s brief on this point is slightly different, but the 

argument is exactly the same. 
19. 

 Here, the prosecution presented evidence that witnesses after the collision saw 

only two women get out of Moua Xiong’s minivan and saw no one else inside the 

minivan (testimony of Mark and Vincent); all four defendants met together with Wadoua 

and asked him to make claims with Allied on their behalf (testimony of Wadoua); and 

claims were made for chiropractic care for all four defendants plus three children 

(testimony of Edwards). This was evidence from which a reasonable jury could infer that 

there were only two women in the minivan when the collision occurred and, 

consequently, at least five of the seven claims for chiropractic care were fraudulent.10 

At the meeting with Wadoua, the two defendants who had been in the minivan 

during the collision would have known that the other two defendants had not been there 

and could not have valid claims, yet all four defendants together asked Wadoua to make 

claims for them. This was circumstantial evidence from which the jury could infer that 

defendants conspired together to make fraudulent claims (that is, the claims of the 

defendants who were not in the minivan and the claims for the three children). (See 

People v. Vu (2006) 143 Cal.App.4th 1009, 1025 [“[I]t is not necessary to establish the 

parties met and expressly agreed; rather, ‘a criminal conspiracy may be shown by direct 

or circumstantial evidence that the parties positively or tacitly came to a mutual 

understanding to accomplish the act and unlawful design.’”].) 

Furthermore, someone must have told the defendants who were not involved in the 

collision about the meeting with Wadoua and the opportunity to make fraudulent 

insurance claims. This too was circumstantial evidence from which the jury could infer 

 

10In their reply briefs, defendants assert, for the first time, that any apparent 

conflict in the testimony regarding how many people were in Moua Xiong’s minivan at 

the time of the collision was “illusory,” suggesting that Yang’s testimony conclusively 

proved there were more than two people in the minivan. “It is axiomatic that arguments 

made for the first time in a reply brief will not be entertained because of the unfairness to 

the other party.” (People v. Tully (2012) 54 Cal.4th 952, 1075 (Tully).) In any event, 

defendants’ new assertion is no more than an attempt to reargue the weight of the 

evidence. 
20. 

that defendants together conspired to present fraudulent claims and/or one or more of the 

defendants aided and abetted other defendants in presenting fraudulent claims. 

 In addition, the prosecution presented evidence that the collision was minor and 

caused very little physical damage to the vehicles. Tracy testified that Moua Xiong’s 

minivan “bumped” her van and she and her children were not injured in the collision. 

Witnesses at the scene testified that everyone said they were fine immediately after the 

collision, and a police officer testified that more than two hours after the collision an 

Asian man associated with the minivan reported it was a noninjury collision. Given the 

state of the evidence at the close of the prosecution’s case, it reasonably could be inferred 

that the collision did not cause any injuries, and therefore all claims for chiropractic care 

for alleged injuries resulting from the collision necessarily were false. 

 Defendants next argue they were entitled to acquittal on count 2 because there was 

no evidence that any of them submitted a claim to Geico. They rely on the claim on 

Tracy’s insurance being opened because Allied made a subrogation claim against Geico. 

The prosecution was not required to show that defendants personally submitted 

claims to Geico. Section 550, subdivision (a)(1) makes it unlawful to “cause to be 

presented any false or fraudulent claim.” Here, the evidence was sufficient for the jury to 

find that defendants caused the claims to be made to Geico. (See People v. Singh (1995) 

37 Cal.App.4th 1343,1369-1370 [chiropractor who did not directly present fraudulent 

claims to insurers properly convicted of insurance fraud; sufficient that he sent fraudulent 

billings to attorneys, knowing billings would be forwarded to insurers].) 

 Defendants also claim the prosecution failed to prove counts 1 and 2 because, 

accepting the prosecution’s theory that there were only two women in the minivan at the 

time of the collision, the identity of these two occupants was not established. Defendants 

posit that the two occupants of the minivan are “on a much different legal footing” from 

the remaining defendants because “the [insurance] claims of the two [mini]van occupants 

were not shown by the prosecution to be anything but proper.” 
21. 

This claim fails for the reasons we already have discussed. First, the prosecution 

was not required to prove that each defendant’s insurance claim was false; it was 

sufficient to present evidence that each defendant conspired to present a false claim or 

aided and abetted another to present a false claim. Second, at the close of the 

prosecution’s case, the jury reasonably could have determined that no one was injured in 

the collision and, as a result, even the insurance claims made by the two occupants of the 

minivan were false. 

As to count 3, conspiracy to commit insurance fraud, defendants contend the 

evidence of overt acts was insufficient to withstand the section 1118.1 motion. 

“The crime of conspiracy is defined in the Penal Code as ‘two or more persons 

conspir[ing]’ ‘[t]o commit any crime,’ together with proof of the commission of an overt 

act ‘by one or more of the parties to such agreement’ in furtherance thereof. (Pen. Code, 

§§ 182, subd. (a)(1), 184.)” (People v. Swain (1996) 12 Cal.4th 593, 600.) 

Defendants challenge the sufficiency of the evidence for each of the overt acts 

alleged in the second amended information, but all the prosecution was required to show 

was a single overt act in furtherance of the conspiracy committed by one of the 

defendants. The prosecution met this burden by presenting evidence that all four 

defendants signed “power of attorney” documents intended to give Wadoua permission 

to make insurance claims on their behalf. If there were only two women in the minivan, 

then the signatures of at least two of the defendants furthered the conspiracy by allowing 

Wadoua to make false claims on their behalf. 

In their reply briefs, defendants also argue, for the first time, that they could not be 

convicted of both the crime of conspiracy and the substantive crime of insurance fraud. 

Although we need not consider it, see Tully, supra, 54 Cal.4th at page 1075, this 

argument fails. Conspiracy is a distinct offense from the commission of the offense that 

is the object of the conspiracy, and a defendant may legally be convicted of both 

offenses. (People v. Moore (1956) 143 Cal.App.2d 333, 340.) 
22. 

In summary, defendants have failed to show they were entitled to a judgment of 

acquittal as to any of the charges at the close of the prosecution’s case. The trial court 

correctly denied their section 1118.1 motion. 

II. Sufficiency of Evidence 

 Defendants Moua Xiong and Yer Thao Moua raise the additional claim that their 

convictions were not supported by substantial evidence. The defense presented evidence 

that Moua Xiong was the driver and Yer Thao Moua was in the front passenger seat at 

the time of the collision. Ybarra also testified that he provided treatment to these 

defendants (as well as the five other claimants). Moua Xiong and Yer Thao Moua argue 

there was no evidence to show they were not in the minivan and were not injured, and 

therefore an inference of guilt was not warranted. 

 This claim fails because it is premised on the incorrect assumption that a 

defendant can be guilty of insurance fraud only if it is proved that his or her own claim is 

fraudulent. As we have discussed, this is not the law; a defendant also is guilty of 

insurance fraud when he or she conspires with another to cause a fraudulent claim to be 

made or aids and abets another in making a fraudulent claim. (§ 550, subd. (a)(1).) 

 In reviewing a challenge to the sufficiency of the evidence, “[w]e presume in 

support of the judgment the existence of every fact the trier of fact reasonably could infer 

from the evidence. [Citation.] 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. [Citation.] A reviewing 

court neither reweighs evidence nor reevaluates a witness’s credibility. [Citation.]” 

(People v. Lindberg (2008) 45 Cal.4th 1, 27.) 

 Here, the evidence was sufficient to support a finding that all four defendants 

conspired to present insurance claims for persons who were not in the minivan at the time 

of the collision. The jury also was free to discredit Moua Xiong’s testimony that she felt 

pain the day after the collision. (Yer Thao Moua did not testify). Moreover, regardless 
23. 

of Moua Xiong’s credibility, in light of the evidence presented that the collision was 

minor, the jury reasonably could have rejected the inference that any pain experienced by 

Moua Xiong was caused by the collision. Accordingly, Moua Xiong and Yer Thao 

Moua’s convictions were supported by substantial evidence. 

DISPOSITION

 The judgments are affirmed. 

 _____________________ 

CORNELL, J. 

WE CONCUR: 

 _____________________ 

LEVY, Acting P.J. 

 _____________________ 

FRANSON, J.