Filed 10/2/13 P. v. Conner CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,
Plaintiff and Respondent,

v.
PRISCILLA CONNER et al.,
Defendants and Appellants. B236193
(Los Angeles County Super. Ct. No. BA336892)

APPEALS from judgments of the Supe rior Court of Los Angeles County, Lance A. Ito, Judge. Appeal dismissed as to Curtis Conner. Judgment affirmed as modified as to Priscilla Conner. Judg ment affirmed as to Delilah Johnson. Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant Priscilla Conner. Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Curtis Conner. Chris R. Redburn, under appointment by the Court of Appeal , for Defendant and Appellant Delilah Johnson. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Linda C. Johnson and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.

_____________ _____________2 Curtis Conner and his daughters, Prisc illa Conner and Delilah Johnson, appeal from the judgments entered after a jury conv icted them each of multiple counts of insurance fraud arising from staged or fabricated car accidents. Curtis, 1 the patriarch of the Conner family and ringleader of the fraud ulent scheme, was convicted of 17 counts of insurance fraud (Pen. Co de, § 550, subd. (a)) 2 and three counts of perjury (§ 118, subd. (a)). Priscilla, a chirop ractor, was convicted of 10 co unts of insurance fraud; and Delilah, a tow-truck driver employed by the family-owned body shop, MB Automotive,
was convicted of four counts of insurance fra ud. We affirm the convictions of Priscilla and Delilah. Because Curtis failed to appear at his sentencing and was declared and remains a fugitive, we dismiss his appeal.
FACTUAL AND PROCED URAL BACKGROUND 1. The Investigation In April 2004 Anne Luce, a senior inve stigator for Bristol West Insurance responsible for reviewing suspicious activity in claims made on vehicle insurance policies, received a referral from one of the co mpany’s adjusters raising a concern that a particular accident claim might be fraudulent. In that instance a man who had purchased a non-owner’s automobile insurance polic y three weeks before a November 2003 collision was driving a 1987 Chevrolet Celebrity registered to Ant hony McClure when he
rear-ended a 1995 Chevrolet Lumina. The Lumina had been registered earlier that day to the driver, who took the car to MB Automotive for repair. Bristol West issued a check for $2,900 payable to the insured, but the check was cashed by Curtis at Avalon Quik Check. The insured’s passengers made persona l injury claims throu gh an attorney named Daniel Chien and were treated for their injuri es (which included id entical complaints and unusual neurological fi ndings) by Priscilla.

1 Because several members of the families share the same last name, we refer to them by their first names for c onvenience and clarity. (See Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1191, fn. 1.)

2 Statutory references are to the Pe nal Code unless otherwise indicated.3 Although the personal inju ry claims were ultimately dropped, the collision triggered Luce’s investigation into Curtis’s fraudulent scheme. According to Luce, who later testified as an insurance fraud expert at trial and as the cu stodian of records for Farmers (which had acquired Bristol West a nd another targeted insurer, Coast National Insurance), indicators of fraud include the use of salvage cars in claims, repeated use of the same car and/or address, multiple cl aims by people who kno w each other, policies purchased or vehicles registered near the acci dent date, repeated appearance of the same lawyers, doctors, chiropractors, clinics a nd body shops in the same claims, vehicle damage inconsistent with the reported collis ions and unchanged od ometer readings. Using an online industry database maintained by the Insurance Services Organization (ISO), Luce discovered McClure’s Chevrolet Celebrity had been involved in several other actions within the precedin g year and had been flagged by the National
Insurance Crime Bureau. 3 Luce’s searches of other names connected with the accident disclosed multiple claims i nvolving Conner family members, 4 MB Automotive, 2800 Rodeo Road, 5 the Chien law firm and Avalon Quik Check. 6 Using Bristol West’s in-

3 McClure later pleaded guilty to one fe lony count of insurance fraud. He was recruited into the scheme by Juan Richardson Jr., who was raised with the Conner family in their house at 2800 Rodeo Road in Los Angeles.

4 In addition to Curtis, Priscilla and Delilah, Curtis’s sons Darryl (owner of Academy Tow), Jeffrey (employed by MB Automotive) and Billy Joe (owner of American Tow) were also operatives in the scheme. Priscilla’s son Darrel was a claimant, a capper (an operative who sells clai ms to attorneys and medical professionals) and a stager (who recruited claimants and stag ed accidents). Juan Richardson Sr., who lived with the Conner family for many years, and Richards on’s sons were all claimants, and Juan Jr. worked as a capper and stager for the ring. Billy Lovely, an employee of MB Automotive and American Tow, and member s of his family also acted as claimants in the scheme.

5 Luce dubbed the scheme the “Rodeo Ring” because the address of the Conner family home, 2800 Rodeo Road, wa s used repeatedly for regist ration of cars and filing of claims.

6 Check cashers are used to avoid deposit of insurance payments into bank accounts. The manager of Avalon Quik Ch eck agreed to pre-approve checks presented by Curtis or any family members or friends because Cu rtis and MB Automotiv e were such good4 house claim files, the ISO database and ot her resources (includi ng the Department of Motor Vehicles (DMV) online database), Luce identified a group of fraudulent claims she believed were connected. She presented th e claims to the Calif ornia Department of Insurance, which confirmed an ongoing inves tigation of these related claims but closed the investigation without action becau se of a lack of resources. In May 2005 Luce presented about 20 claims to the Los Angeles Police Department (LAPD). LAPD eventually acce pted a number of the claims for possible prosecution in November 2005. After investig ating the claims for more than two years, detectives from LAPD arrested 46 suspects based on their connection to the Rodeo Ring, including Curtis, Priscilla and Delilah.
2. Trial Proceedings Charges were initially filed against 42 defe ndants. By early 2009, after a lengthy preliminary hearing and multiple negotiated resolutions, 13 defendants were held to answer charges; by November 2010 only six re mained scheduled for trial. The amended
information on which the case was tried contained 26 counts of insurance fraud against the six defendants and three pe rjury counts against Curtis. 7 Priscilla was charged with 14 counts of insurance fraud; Delilah was charged with four counts.
In November 2010 Priscilla moved to sever her trial from that of the remaining defendants on the ground of jury confusio n and prejudicial association with other
defendants. The trial c ourt denied the motion. The People presented thei r case through LAPD Detective Juan Camacho, who relied on public records and witness statemen ts, and investigators from Farmers (Luce), State Farm Insurance Co., Me rcury Insurance Co. and Alls tate Insurance Co. These witnesses established that many of the re ported collisions involve d one vehicle rearending a second, which then rear-ended a third. Several vehicles appeared in multiple

customers. Curtis was able to call ahead to ensu re the check would be cashed for the person presenting it, and Aval on habitually waived the co-payee’s presence.

7 The perjury counts were based on Cur tis’s fraudulent applications for driver’s licenses and identification cards.5 claims. With respect to five of the cars involved in multiple claims, the odometer remained unchanged, suggesting these collisions were fabricated and never occurred.
MB Automotive was almost alwa ys the repair shop for both parties in the collision, and the drivers and passengers were often Conn er family members or coworkers. MB Automotive typically obtained the vehicles th rough lien sales or salvage and then sold them to employees or family members. Th ree different attorneys were shown to have been involved in the ring, all of whom were referred claims by a common office administrator, Jae Chang. With respect to the four counts against Delilah, she was the registered owner or
driver of three different vehicles rear-ended in four separate incidents by other persons
linked to the scheme. In two of the accident s the car driven by or registered to Delilah collided with a 1996 Nissan 240SX registered to Robert Williams, an alias used by Curtis. A 1996 Dodge Carava n driven by Delilah (and register ed in her name two weeks previously) was totaled in a December 2003 collision involving the Nissan. In May 2004 the same Caravan was rear-ended again, and Delilah (using the name Dee Johnson) collected a $4,200 check that wa s cashed at Avalon Quik Check. 8 A fourth collision in July 2006 involved a salvag ed vehicle gifted to Delila h by Michael Brown (of MB Automotive) and insured by her a month ea rlier. She and her three passengers were compensated for substantial personal injury claims. All vehicles involved in these collisions were inspected by MB Automotive, which provide d estimates for the property damage claims.
The evidence showed that Pr iscilla treated approximatel y 15 of the 50 drivers and passengers who made claims for injuries in the charged incidents, including claimants injured in different vehicles involved in the same accident. A board-certified chiropractic orthopedist testified that all of Priscilla’s reports containe d fabricated narratives. Her physical findings were identical among patient s; for instance, cervical spine findings

8 A State Farm investigator reviewing th e accident after the claim had been paid opined the damage to the cars involved was not consistent with the details of the reported collision. He concluded the claim was fra udulent and should not have been paid.6 were identical for eight different patients in nine collisions and appeared to be constructed by cutting and pasting identical text. She also code d patient visits to produce higher billing, including levels reserved for patients with some risk of morbidity, even though X-rays were never taken.
The court also admitted evid ence, over Priscilla’s objec tion, of statements she made at an October 2007 depo sition taken by Farmers Insura nce that Luce attended. Discussing injuries to two patients whose claims had been submitted by Irvin Gevurtz, one of the attorneys associated with the fraud scheme, Prisc illa stated that each of the doctors at the La Tijera clinic where she worked administered his or her own office. She handled her own pape rwork and billings but later sent some files to outside services. She documented treatment on forms with daily not es and later transferred information from her charts to billing forms. She reviewed he r typewritten reports before she signed them. After the People rested, the charges ag ainst Darryl Conner (Curtis’s son and Priscilla and Delilah’s brother) were dismissed based on insufficient evid ence. (§ 1118.1.) When trial resumed, Juror 8 se nt the judge a note stating he had seen Darryl driving his tow truck shortly after the dismissal. Darryl stop ped the truck and, afte r explaining the charges against him had been dismissed, greeted Juror 8. At a hearing about the encounter Juror 8
admitted he had told Juror 9 a bout the event. Juror 9 told the court Juror 8 had described the incident and had acknowledged shaking Da rryl’s hand and congratulating him. Juror 9 also stated he had repeated th e story to Juror 6. After disc ussing the matter with counsel, the court discharged Juror 8 but dec lined to discharge Jurors 6 and 9.
None of the defendants testified at tria l. Priscilla defended the charges on the theory the medical reports apparently sign ed by her had been forged and she had no knowledge the claims were fraud ulent. Juan Richardson J r. testified on her behalf: Priscilla was his god-aunt, and they both lived at 2800 Rode o Road. Juan Jr. acknowledged working as a capper and stager of accidents when he was employed as a tow truck driver by American To w. He later worked as a stager for Chang, earning $700 in cash for each passenger. He acknowleged targeting innocent drivers in staged collisions, as well as drivers he had solicited. Juan Jr. directed McClure and others to7 Priscilla for care but never told her the collisions had been stag ed or the injuries faked. Richardson believed Chang fabricated medical reports and, on at l east one occasion, had forged Priscilla’s signature. Priscilla also presented evid ence that signatures can be forged through the use of so ftware like Adobe Photoshop.
3. Verdicts and Sentencing The jury convicted Curtis on all counts an d, as to the insurance fraud counts, found true the special allegation of a taking in excess of $100,000 (§ 186.11, subd. (a)).
Priscilla was convicted on 10 of 14 counts with a true fi nding on the same special allegation. Delilah was convicted on all four counts charged. Curtis failed to appear for sentencing and was sentenced in absentia to an aggregate term in state prison of 26 years. Priscilla was sentenced to an aggregate term of 14 years in state prison, consisting of thr ee years on the principal term (count 15), plus a two-year excessive-taking enhancement un der section 186.11, subdivision (a), and consecutive one-year subordinate terms (one -third the middle term) on the remaining nine counts. Delilah was sentenced to an ag gregate term of six ye ars in county jail, consisting of the middle term of three years on the prin cipal term (count 25) and consecutive one-year terms on the three remainin g counts. In addition to other fines and assessments, Curtis and Priscilla we re each fined $500,000 under section 550, subdivision (a); and Delilah was fined $10,000 under the same section. Curtis was ordered to pay $250,669 in dir ect victim restitution. Prisc illa was also ordered to pay $271,220 and Delilah $78,681 in direct victim restitution.
CONTENTIONS Priscilla contends the trial court abused its discretion in denying her motion to
sever her trial from that of her codefendant s, violated her Sixt h Amendment right of confrontation by admitting in surance fraud reports as subs tantive eviden ce of guilt, denied her a fair trial by refu sing to dismiss Jurors 6 and 9 and abused its discretion by allowing testimony about her “so-called admissions” at the 2007 deposition as evidence against her on charges preceding that date. Sh e also contends her convictions were not supported by substantial evidence.8 Delilah contends the convictions on three of the counts against her, which she asserts were based on allegations of conspiracy , must be reversed because of the lack of proof of overt acts. She also contends the cour t deprived her of her right to a jury trial in imposing victim restitution fine s and erred by failing to inst ruct the jury on the legal meaning of intent to defraud. Curtis contends the court erred in impos ing a two-year, rather than a one-year, enhancement under section 186.11, subdivision (a). He also contends the minute order from the sentencing hearing should be amended to reflect the fact he was not sentenced to a term of seven years for count one. Curtis also contends this court should deny the People’s motion to dismiss under the fugitiv e disentitlement doctrine based on the ground of judicial efficiency.
DISCUSSION 1. Curtis’s Appeal Is Dismissed “‘That the court, independent of statut ory authority, has power to dismiss the appeal of an appellant who is a fugitive from justice has long been accepted as a proper exercise of the jurisdiction of the appellate courts of this state.’” ( Polanski v. Superior
Court (2009) 180 Cal.App.4th 507, 531 ( Polanski ); accord, People v. Puluc-Sique (2010) 182 Cal.App.4th 894, 897; People v. Kubby (2002) 97 Cal.App.4th 619, 622.) “While the courts’ rationale for their power to dismiss th e criminal appeal of a fugitive from justice has been variously stated, it has ultimately been premised on the proposition that a fugitive has no right to ask th e courts to review the very judgment that the fugitive flouts.” ( Kubby, at p. 623; accord, Polanski, at p. 531 [“‘[a] party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state’”].)
“The disentitlement doctrine ‘serves an important deterrent function’ ( OrtegaRodriguez v. United States (1993) 507 U.S. 2 34, 242 [113 S.Ct. 1199 , 122 L.Ed.2d 581] ( Ortega-Rodriguez )): it discourages the felony of escape and encourages voluntary surrenders. [Citation.] Disentitlement also ‘“ promotes the efficient, dignified operation”9 of the courts.’ [Citation.] Finally, in appr opriate cases, disentitlement protects the [P]eople from prejudice by the passage of time in the event of a reversal on appeal. ( Ortega-Rodriguez, at p. 249 [disentitlement may be ‘an appropriate response’ where ‘a long escape . . . so delay[s] the onset of a ppellate proceedings that the Government would be prejudiced in locating witnesses and presen ting evidence at retria l after a successful appeal’] [citation].)” ( Polanski, supra, 180 Cal.App.4th at p. 533.) Although fugitive disentitlement remains “a discretionary tool of the courts that may only be applied when the balance of a ll equitable concerns leads the court to conclude that it is a proper sanction for a party’s flight” ( Polanski, supra, 180 Cal.App.4th at p. 533), we perceive no reason not to apply the doctrine to dismiss Curtis’s appeal in this case. Curtis is now 79 years old. Even were we inclined to consider the issues he raises on appeal, an outcome in his favor would have minimal effect on the length of time he serves under his se ntence of 26 years, which, were he to be recaptured and incarcerated, will likely exte nd beyond the end of his natural life.
2. The Trial Court Did Not Abuse Its Discre tion in Denying Pris cilla’s Motion To Sever or Violate Her Constitu tional Right to Due Process “When two or more defendants are jointly charged with any public offense, whether felony or misdemeano r, they must be tried join tly unless the court orders separate trials.” (§ 1098; see People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 [“[j]oint trials are favored b ecause they ‘promote [economy and] efficiency’ and ‘“serve the interests of justice by avoi ding the scandal and inequity of inconsistent verdicts”’”].) 9

9 The efficiency and benefits of a joint trial were described in People v. Bean (1988) 46 Cal.3d 919, 939-940: “A unitary trial requires a single courtroom, judge, and court attachés. Only one group of jurors need serve, and the ex penditure of time for jury voir dire and trial is greatly reduced over that re quired were the cases separately tried. In addition, the public is served by the reduced delay on dispos ition of criminal charges both in trial and through the appellate process.” (Accord, People v. Soper (2009) 45 Cal.4th 759, 772; see People v. Ochoa (1998) 19 Cal.4th 353, 409 [j oinder “‘ordinarily avoids needless harassment of the defendant and the waste of public funds which may result if the same general facts were to be tried in tw o or more separate tr ials [citation], and in several respects separate trials would result in the same factual issues being presented in both trials’”].)10 Thus, there is a legislative (and judicial) pref erence for joint trials when authorized. (See People v. Letner and Tobin (2010) 50 Cal. 4th 99, 150.) When a joint trial is authorized unde r section 1098, the trial court retains discretion to order separate tr ials if necessary to avoid un due prejudice to one of the defendants. ( People v. Letner and Tobin, supra, 50 Cal.4th at p. 150 [“‘the court may, in its discretion, order separate tr ials “in the face of an incrim inating confession, prejudicial association with codefendants, likely c onfusion resulting from evidence on multiple counts, conflicting defenses, or the possibility th at at a separate trial a codefendant would give exonerating testimony”’”]; accord, People v. Box (2000) 23 Cal.4th 1153, 1195, disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10;

see People v. Lewis (2008) 43 Cal.4th 415, 452 [“[t]he court may, in its discretion, order separate trials if, among other reasons, ther e is an incriminating confession by one defendant that implicates a codefendant, or if the defendants will present conflicting defenses”]; see also People v. Carter (2005) 36 Cal.4th 1114, 11 53 [“‘[r]efusal to sever may be an abuse of discretion wh ere: (1) evidence on the crim es to be join tly tried would not be cross-admissible in separate trials; (2 ) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’ case, so that th e ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case’”].)
A court’s denial of a motion for severance is reviewed for an abuse of discretion, “judged on the facts as they appe ared at the time of ruling.” ( People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41; see People v. Balderas (1985) 41 Cal.3d 144, 171 [appellate court reviews trial court’s denial of pretrial severance motion based on the facts known and the showing made at the tim e of the motion itself].) “Even if a trial court abuses its discretion in failing to grant severance, reversal is required only upon a showing that, to a reasonable probability, th e defendant would have received a more favorable result in a separate trial.” ( Coffman and Marlow, at p. 41.) Finally, though a11 trial court’s ruling on the motion to sever was proper when made, a reviewing court “‘may nevertheless reverse a conviction where, because of the consolidation, a gross unfairness has occurred such to deprive the de fendant of a fair trial or due process of law.’” ( People v. Cleveland (2004) 32 Cal.4th 704, 726; accord, People v. Lewis and
Oliver (2006) 39 Cal.4th 970, 998.)
Priscilla contends the cour t should have severed her tr ial from that of the other defendants (or, in the alternative, impane led two juries) because she claims she was unfairly prejudiced through association with her family. As Priscilla recognized, the People intended to introduce evidence of Cu rtis’s and Delilah’s former convictions for insurance fraud, 10 as well as a videotape of a pretrial police interview of Curtis and
Delilah that Priscilla claims would not have been admissible against her in a separate trial. In addition, Priscilla argues, the ev idence against her was weak and susceptible to her defense that the medical reports had been forged without her knowledge. Indeed, Priscilla points out the jury acquitted her on four of the 14 counts against her—the ones
in which she was the sole defendant. Notwithstanding Priscilla’s contention she was convicted because of her association with her family, this case presen ted a textbook example of the efficiencies of joint trials. (See People v. Keenan (1988) 46 Cal.3d 478, 499-500 [“‘classic’ case for joint trial is presented when defendants are charged wi th common crimes involving common events and victims”].) Under circumstances similar to those here, then-Court of Appeal Justice Corrigan, writing for Division Three of the First District, rejected a
defendant’s claim the trial court’s failure to sever his trial from that of his codefendant had violated his constitutional rights. (See People v. Singh (1995) 37 Cal.App.4th 1343, 1374-1375.) In Singh the defendant chiropractor who was convicted of fraudulent insurance billings contended he had been unduly prejudice d by the evidence of his
codefendant’s conduct as the driver and st ager of multiple auto mobile accidents and

10 In 1990 Priscilla was char ged with one count of forger y but was acquitted. Curtis and Delilah were convicted of fraud during the same prosecution.12 preparer of fraudulent declarations. The court concluded the evidence was not unduly prejudicial, was in fact proba tive, and, in light of the Legi slature’s preference for joint trials, was “a ‘“classic”’ case” warranting jo int trial because of the “‘common crimes involving common events and victims.’” ( Id . at p. 1374.)
In the instant case th e People presented 50 witnesse s and more than 700 exhibits
over the course of three months. Of the 29 co unts tried against five defendants, Priscilla was a defendant in 14, 10 of which were filed jointly agai nst other defendants. Her individually signed medical re ports and bills linked her to multiple collisions, including those in which other members of the ring were charged. The evidence against her was no weaker than that against other defendants; i ndeed, her brother Darryl was dismissed at the close of the People’s case because the evidence failed to implicate him. In short, the cost of separately trying the charges against he r would have been, as the People argue, staggering, and Priscilla has failed to establis h the “substantial danger of prejudice” that might have justified separate trials. ( People v. Vines (2011) 51 Cal.4th 830, 855.) There was no abuse of discretion in the denial of her motion. We are equally convinced the
denial of the motion to sever did not result in “gross unfairness” to Priscilla so as to violate her right of due process. (See People v. Cleveland
, supra, 32 Cal.4th at p. 726.)
3. Priscilla’s Sixth Amendment Right of Confrontation Was Not Violated By Admission of the Contents of the Farme rs Insurance Claims Files as Business Records The confrontation clause provides that “[i] n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted w ith the witnesses against him.” (U.S. Const., 6th Amend.) The purpose of th at clause is to “ensure th e reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” ( Maryland v. Craig (1990) 497 U.S. 836, 845 [110 S.Ct. 3157, 111 L.Ed.2d 666].) “A hearsay statement that otherwise satisfies a statutory exception may be admitted against a criminal defendant without violating the confrontation clause as long as the statement is not ‘testimonial.’” ( People v. Lopez (2012) 55 Cal.4th 569, 590 ( Lopez ), citing Crawford v. Washington (2004) 541 U.S. 3613 [124 S.Ct. 1354, 158 L.Ed.2d 177] ( Crawford ).) Thus, “[a]dmissi on of a relevant
business record does not violat e the confrontation clause unl ess its contents qualify as a testimonial statement. The Supreme Court cas es counsel that it is the formality of the statement and the primary purpose for which it was made that resolve that question. A notation made for the primary purpose of ‘the administration of an entity’s affairs’ [citation] is not testimonial.” ( Lopez, at p. 589, citing Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 324 [129 S. Ct. 2527, 174 L.Ed.2d 314] ( Melendez-Diaz ).) 11
Since its decision in Crawford the Supreme Court has struggled to identify a coherent test for courts to apply in identifyi ng those statements th at are testimonial in nature. (See Melendez-Diaz, supra, 557 U.S. at pp. 310, 324 [finding evidence certificates prepared by la boratory analyst attesting s ubstance was cocaine were testimonial; “[w]hether or not they qualify as business or official records, the analysts’ statements here—prepared specifically fo r use at petitioner’s trial—were testimony against petitioner, and the analysts were s ubject to confrontation under the Sixth Amendment”]; Bullcoming v. New Mexico (2011) 564 U.S. ___ [131 S.Ct. 2705, 180 L.Ed.2d 610] [certified blood alcohol report prepar ed by nontestifying laboratory analyst was testimonial]; Williams v. Illinois (2012) 567 U.S. ___ [132 S.Ct. 2221, 183 L.Ed.2d 89] (plur. opn. by Alito, J.) ( Williams ) [uncertified results of DNA analysis performed by nontestifying laboratory analysts were nont estimonial; primary purpose of report was to
assist in identification of ra pist not to convict him].) Wrestling with the same issue, the Californi a Supreme Court recen tly issued a trio of decisions examining the various approa ches of the United States Supreme Court

11 In Crawford the United States Supreme Court concluded that nontestimonial hearsay remains subject to state hearsay la w and may be exempted from confrontation clause scrutiny entirely. ( Crawford, supra, 541 U.S. at p. 68.) But where testimonial hearsay is involved, “the Sixth Amendmen t demands what the common law required: unavailability and a prior opportun ity for cross-examination.” ( Ibid. ) While the Supreme Court declined to provid e a comprehensive definiti on of “‘testimonial’” ( ibid. ), the term includes “‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” ( Id. at p. 52.)14 justices in these cases and concluded: “Although the high court has not agreed on a definition of ‘testimonial,’ a review of [its ] decisions indicates that a statement is
testimonial when two critical co mponents are present. [¶] First, to be testimonial the
out-of-court statement must have been made with some degree of formality or solemnity. [Citations.] The degree of fo rmality required, however, remains a subject of dispute in the United States Supreme Court. [Citations.] [¶] Second, all nine high court justices agree that an out-of-court stat ement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution, but they do not agree on what the statement’s primary purpose must be.” ( Lopez, supra, 55 Cal.4th at pp. 581-582; see People v.
Mercado (2013) 216 Cal.App.4th 67, 86.)
In Lopez the Court treated the first pron g—the degree of formality—as a controlling threshold determina tion: Because the blood alco hol report at issue had not been “made with the requisite degree of formality or solemnity to be considered testimonial,” the Court concluded it need no t consider the reason the report had been generated. ( Lopez, supra , 55 Cal.4th at p. 582.) 12 The Court took a s lightly different tack
in People v. Dungo (2012) 55 Cal.4th 608: “We begin with the issue of formality. An autopsy report typically contains two types of statements: (1) statements describing the pathologist’s anatomical and physiological observations about the condition of the body, and (2) statements setting forth the pathologi st’s conclusions as to the cause of the
victim’s death. The out-of-court statements at issue here . . . fall into the first of the two categories. These statements, which merely r ecord objective facts, are less formal than statements setting forth a path ologist’s expert conclusions. They are comparable to

12 Lopez is one of three cases issued the sa me day addressing confrontation clause challenges to the admission of technical re ports whose contents were described by someone other than the person con ducting the test. The others are People v. Dungo (2012) 55 Cal.4th 608 ( Dungo ) and People v. Rutterschmidt (2012) 55 Cal.4th 650 ( Rutterschmidt ). Justice Liu, who dissented from the decision in Lopez , disagreed with the Court’s reductive analysis of Williams that emphasized the formal nature of the statement and argued “the proper determination of a stat ement’s formality for purposes of the confrontation clause is closely intertwine d with the nature and purpose of the process that produced the statement.” ( Lopez, supra , 55 Cal.4th at p. 594 (dis. opn. of Liu, J.).)15 observations of objective fact in a report by a physician who, after examining a patient, diagnoses a particular injury or ailment and determines the appropri ate treatment. Such observations are not testimonial in nature.” ( Id. at p. 619.) Notwithstanding its threshold conclusion the autopsy report consisted of non-testimonial statements, the Court
continued: “The usefulness of autopsy reports, including the one at issue here, is not limited to criminal investiga tion and prosecution; such re ports serve many other equally important purposes. For example, the deceden t’s relatives may use an autopsy report in determining whether to file an action for wr ongful death. And an insurance company may use an autopsy report in determining whet her a particular death is covered by one of its policies. [Citation.] Also, in certain cas es an autopsy report ma y satisfy the public’s interest in knowing the cause of death, par ticularly when (as here) the death was reported
in the local media. In additio n, an autopsy report may prov ide answers to grieving family members. [¶] In short, crim inal investigation was not the primary purpose for the autopsy report’s description of the condition of [the] body; it was only one of several purposes. The presence of a detective at th e autopsy and the statutory requirement that suspicious findings be reported to law enforc ement do not change that conclusion. The autopsy continued to serve several pur poses, only one of which was criminal investigation. The autopsy report itself was si mply an official explanation of an unusual death, and such official records are ordinarily not testimonial.” ( Id. at pp. 620-621; accord, People v

. Mercado, supra, 216 Cal.App.4th at pp. 88-90.) 13

13 Dungo by no means ended the debate over this aspect of the confrontation clause: Justice Corrigan, joined by Justice Liu, dissented from the analysis in Dungo , arguing the majority had, in this instance, “confla te[d] the two prongs of the testimonial determination: formality and primary purpose” by crea ting a distinction between conclusions (which it treated as formal) and observations (which it viewed as informal). ( Dungo, supra , 55 Cal.4th at p. 639 (dis. opn. of Co rrigan, J.).) In the dissent’s view the autopsy report, although not certified, wa s signed and dated and was “manifestly an official report.” ( Id. at p. 641.) Moreover, the majo rity’s “blanket approach” on the second prong relating to purpose—that is, finding the st atements nontestimonial because they were created for multiple purposes —improperly eschewed the “highly fact dependent” inquiry required by Supreme Court precedent. ( Id . at p. 644.) Justice Corrigan suggested the appropriate inquiry should instead be “whether, viewed16 No matter how courts apply th ese decisions in the future , it is unlikely the records objected to in this case would be viewed as testimonial. Pr iscilla describes these records as “reports in which insurance investigators and adjustors alleged that the accidents were staged and the claims were fraudulent” and claims the investigators were acting as a “de facto arm of the police.” These reports, however, although automatically part of the record on appeal (Cal. Rules of Court, rule 8.320(e)), were not tr ansmitted to this court (see id., rule 8.224), and the only factual descrip tion contained in the record is the court reporter’s list of exhibits admitted during Luce’s testimony. The list includes insurance applications, correspondence between the insu rers and counsel and claimants, damage appraisals and photogr aphs, tow bills, medical reports a nd billing records, claim checks, DMV records and other documents that appear to be routine record s maintained in the
Farmers claim files. None of these docum ents may be considered “testimonial” as applied in Williams, Lopez or Dungo : They were not creat ed with any degree of formality, and they served a plain business function unrelate d to the ultimate criminal prosecution. There are two exceptions: an audio record ing (with transcript) of an interview conducted by a Bristol West employee with Delilah Johnson in July 2006, a day after

objectively, a sufficiently formal statem ent was made for the primary purpose of establishing or proving past facts for possible use in a criminal trial.” ( Ibid. ) Justice Chin, however, who wrote separately in support of the decision considered it key that the opinion concerning the manner of death came from the testifying expert who was subject to full cross-examination a nd not from the report, which was not placed in evidence. ( Dungo, supra, 55 Cal.4th at p. 632 (conc. opn. of Chin, J.).) In Justice Chin’s view the statements in the autopsy re port concerning the condition of the victim’s body were “objective observations of the ty pe routinely placed in to autopsy reports, whether or not a specific suspect exists. Th ey [were] not statements with a primary purpose of accusing defenda nt, or anyone else, of criminal conduct. The fact that the larynx and hyoid bone were not broken, like most of the other observations memorialized in the report, ‘was not inhere ntly inculpatory.’ [Citation.] There was no prospect of fabrication or incentive to produ ce anything other than an accur ate description of the state of the body.” ( Ibid .; see People v. Barba (2013) 215 Cal.Ap p.4th 712, 738.)17 Delilah reported an acciden t; and a document prepared by Luce entitled “Bristol
West/Coast National Insurance Clai m Investigation Timelines.” Neither of these records, however, poses a confrontation clause issue. The recording, which presumably contains statements by the em ployee as well as Delilah, is not necessarily hearsay as th e statements were not admitted for their truth but for the purpose of establishing a claim was made. (See Evid. Code, § 1200; People v. Harvey (1991) 233 Cal.App.3d 1206, 1220 [“[i]f the statement is re ceived as proof of something
other than the truth of the statem ent itself, it is not hearsay”]; People v. Henry (1948) 86 Cal.App.2d 785, 789 [“[t]here is a well-es tablished exception or departure from the hearsay rule applying to cases in which the ve ry fact in controversy is whether certain things were said or done and not as to whether these things were true or false”], quoted in
Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 109 .) Luce’s report, on the other hand, might properly be considered test imonial, but she testified at trial and was thoroughly cross-examined about her report. In sum, Priscilla has failed to identify the reports she claims violated her right of confrontation. Even assuming one of the exhi bits listed might have been testimonial in nature and was not created by Luce, 14 the possible violation of Priscilla’s right of confrontation through that single document woul d constitute harmless error. As the Court explained in People v. Pearson (2013) 56 Cal.4th 393, “ ‘[W]e need not decide whether, following our decision in Dungo, the evidence here is testimonial because any error in the admission of the autopsy report s and [the doctor’s] testimony was harmless beyond a reasonable doubt. [Citations.] [¶] “The beyond-a-reasonable-doubt standard of Chapman [15] ‘requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ [Citation.] ‘To say that an error di d not contribute to the en suing verdict is . . .

14 The People also point out that Det ective Camacho’s testimony in large part tracked Luce’s testimony. The testimony of both witnesses was based on the documents contained in the insurance claim files, and both witnesses were cross-examined.

15 Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].18 to find that error unimportant in relation to everything else the ju ry considered on the issue in question, as revealed in the record.’ [Citation.] Thus , the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the
issue is ‘whether the . . . verd ict actually rendered in this tr ial was surely unattributable to the error.’”’” ( People v. Mercado, supra, 216 Cal.App.4th at p. 91, quoting Pearson, at p. 463; see also Rutterschmidt, supra, 55 Cal.4th at p. 661 [“ [v]iolation of the Sixth Amendment’s confrontation right requires reve rsal of the judgment against a criminal defendant unless the prosecution can show ‘bey ond a reasonable doubt’ that the error was harmless”].)
4. The Trial Court Did Not Err in Admitting Priscilla’s 2007 Deposition Testimony About Her Handling of Reports and Billing Statements At trial the People proffered statements Priscilla made during a 2007 deposition relating to the manner in which she prepared treatment reports and billing statements. Priscilla objected on the grounds of relevance and hearsay. The trial court overruled the objections, allowing introduction of testim ony concerning Priscilla’s preparation of reports and billing statements. Priscilla re news her objections an d additionally argues admission of the testimony violat ed her privilege against self-incrimination. “We review
the trial court’s determination as to the admissibility of eviden ce (including the application of the exceptions to the hearsay rule) for abuse of discretion [citations] and the legal question whether admission of th e evidence was constitu tional de novo.” ( People v. Mayo (2006) 140 Cal.App.4t h 535, 553; see also People v. Lee (2011) 51 Cal.4th 620, 643 [“[r]ulings regarding relevancy and Evid ence Code section 352 are reviewed under an abuse of discretion standard”]; People v. Seijas (2005) 36 Cal.4th 291, 304 [proper standard for review of constituti onal challenges is “‘independent, de novo,
review rather than the more deferen tial abuse of discretion test’”].)
Priscilla first contends a de position authorized in civil proceedings un der Code of
Civil Procedure section 2025.620 may only be used as contemplat ed in that statute, that is, by a party to the action in the same case. (See Code Civ. Proc., § 2025.620, subd. (a) [“[a]ny party may use a deposition for the purpose of contradicting or impeaching the19 testimony of the deponent as a witness, or for any other purpose permitted by the Evidence Code,” italics added].) This pur ported limitation on th e use of deposition testimony in other actions has no support in the case law. As Evidence Code section 351 provides, “all relevant eviden ce is admissible,” subject to statutory exceptions or constitutional prohibitions. The question inst ead is whether the deposition testimony, which was presented for its truth in support of the People’s case, is admissible pursuant to a hearsay exception and was not otherwise prohi bited by the federal or state constitution. (See Evid. Code, §§ 1200, 1201.) The statements of a party are admissibl e under Evidence Code section 1220, 16 which has been broadly construed. (See People v. Horning (2004) 34 Cal.4th 871, 898 & fn. 5 [“[t]he hearsay rule does not bar statemen ts when offered agains t the declarant in an
action in which the declarant is a party”; § 1220 “covers all statements of a party, whether or not they might otherwis e be characterized as admissions”]; People v. Carpenter (1999) 21 Cal.4th 1016, 1049 [“The ev idence was of statements, defendant was the declarant, the statemen ts were offered against him, and he was a party to the action. Accordingly, the hearsay rule does not make the statements inadmissible.”].) Priscilla’s testimony about how she ordinarily documented and billed for treatment in 2007 was plainly relevant to the charges ag ainst her even if the charges predated her testimony; that concern went to the weight th e jurors might have placed on the evidence, not its admissibility. ( People v. Rodrigues (1994) 8 Cal.4th 1060, 1115-1116 [“we must assume that the jurors were intelligent people and that they understood and took into
account the differences iden tified . . . on appeal”].) Attempting to invoke a constitutional bar to the testimony, Priscilla argues use of statements from her civil depos ition as substantive evidence in an unrelated criminal case eviscerated her privilege against self-incrimina tion; in other words, the People should not

16 Evidence Code section 1220 provides: “Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or re presentative capacity, re gardless of whether the statement was made in his indivi dual or representative capacity.”20 be permitted to exploit testimony they coul d not have compelled in the criminal proceeding itself. Although Priscilla did no t raise this issue belo w and has forfeited it, simple reflection reveals the fallacy of he r theory: The Fifth Amendment bars the compulsion of self-incriminating testimony. (See, e.g., Maldonado v. Superior Court (2012) 53 Cal.4th 1112, 1128 [“‘In the Fifth Amendment context, we have created prophylactic rules designed to safeguard the core constitutional right protected by the Self-Incrimination Clause. [Citations.] Am ong these rules is an evidentiary privilege that protects witnesses . . .’ who invoke th eir Fifth Amendment rights ‘from being forced to give incriminating testimony, even in n oncriminal cases, unless that testimony has
been immunized from use and derivative use in a future criminal pr oceeding before it is compelled.’”]; People v. Haley (2004) 34 Cal.4th 283, 3 03 [“‘“Any statement given freely and voluntarily without an y compelling influences is, of course, admissible in
evidence. . . . There is no requirement that police stop a person who enters a police
station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he de sires to make. Volunteered statements of any kind are not barred by the Fifth Amendment . . . .”’”]; People v. Kurtenbach (2012) 204 Cal.App.4th 1264, 1286 [“[t]he privilege against self-incrimina tion arises only when testimony is compelled ”].) Priscilla was not compelled to testify at her deposition; she freely and voluntarily testified about her office practices. The Fifth Amendment did not
bar use of those statements at trial. 17

17 Priscilla also contends the statements —which were made in 2007, nearly two years after the latest charge at issue in the case—were barred as subsequent remedial measures under Evidence Code section 1151. Th is issue, too, was not raised at trial and is forfeited on appeal. (See People v. Williams (2008) 43 Cal.4th 584, 620 [“‘“questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial c ourt on the ground so ught to be urged on appeal”’”]; see generally Evid. Code, § 353, subd. (a) [“[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence un less: [¶] . . . [t]h ere appears of record an objection to or a motion to exclude or to st rike the evidence that was time ly made and so stated as to make clear the specific ground of the objection or motion”].)21 5. The Trial Court Did Not Abuse Its Disc retion in Declining To Discharge the Two Additional Jurors “‘[T]he right to unbiased and unprejudiced ju rors is an inseparable and inalienable part of the right to a trial by jury guaranteed by the constitution.’” ( People v. Earp (1999) 20 Cal.4th 826, 852; see In re Hitchings (1993) 6 Cal.4th 97, 110 [“one accused of a crime has a constitutional right to a trial by impartia l jurors”].) Priscilla contends the trial court’s failure to replace Juro rs 6 and 9, who learned abou t the contact between Juror 8 and Darryl Conner and could have inferre d from his dismissal that the remaining defendants were guilty, violated her ri ght to trial by impartial jurors. The trial court may discharge a juror for good cause during deliberations if it finds the juror is unable to perfo rm his or her duty. (See People v. Lomax (2010) 49 Cal.4th 530, 589; People v. Bennett (2009) 45 Cal.4th 577, 621 [“tr ial court ‘has broad discretion to investigate and remove a juror in the mids t of trial where it finds that, for any reason, the juror is no longer able or qualified to serve’”].) Section 1089 provides, if a juror upon “good cause shown to the court” is found to be unable to perform his or her duty, the court may order the juror discharged and an alternate juror seated. 18 Good cause includes a “juror’s ‘unwillingness to engage in the de liberative process’” and “refusal to follow
the law set forth in the in structions . . . .” ( People v. Alexander (2010) 49 Cal.4th 846, 926.) “‘[A]n inquiry sufficient to determine the facts is required wh enever the court is
In any event, like Priscilla’s claim that use of the depos ition testimony violated her privilege against self-incrimination, this c ontention borders the frivolous. Priscilla’s testimony about her billing and recordkeeping practices was admitted to show how she personally maintained her records during the re levant time period, not to prove that she changed those procedures as evidence of prior culpable conduct. (See Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1169 [evidence of subsequent me asures admissible when offered to show ownership or control].)

18 Section 1089 states in part, “If at a ny time, whether before or after the final submission of the case to the jury, a juror dies or become s ill, or upon ot her good cause shown to the court is found to be unable to pe rform his or her duty, or if a juror requests a discharge and good cause appear s therefor, the court may order the juror to be discharged and draw the name of an alternate, who sha ll then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors.”22 put on notice that good cause to di scharge a juror may exist.’” ( People v. Williams (1997) 16 Cal.4th 153, 231.)
“‘We assess the effect of out-of-court in formation upon the jury in the following manner. When juror misconduct involves the receipt of info rmation about a party or the case from extraneous sources, the verdict will be set aside only if there appears a substantial likelihood of juror bias. [Citation.] Such bias may appear in either of two ways: (1) if the extraneous material, judged ob jectively, is so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror; or (2) even if the information is not “inherently” prejudicial, if, from the nature of the misconduct and the surrounding circumstances, the court determines that it is substantially likely a juror was “actually biased” against the defendant. If we find a substantial likelihood that a juror was actually biased, we must set aside the ve rdict, no matter how convinced we might be that an unbiased jury would have reached the same verdict, because a biased adjudicator
is one of the few structural trial defects th at compel reversal without application of a harmless error standard.’” ( In re Boyette (2013) 56 Cal.4th 866, 890-891 ( Boyette ), quoting People v. Nesler (1997) 16 Cal.4t h 561, 578-579 ( Nesler ).) “Although juror misconduct raises a presumption of prejudic e [citations], we determine whether an
individual verdict must be reversed fo r jury misconduct by applying a substantial likelihood test. That is, the ‘presumption of prejudice is rebu tted, and the verdict will not be disturbed, if the entire record in the pa rticular case, including the nature of the misconduct or other event, and the surroundin g circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.’” ( Boyette, at pp. 889-890.) 19

19 Whether juror misconduct has occurre d is “a legal question we review independently.” ( People v. Collins (2010) 49 Cal.4th 175, 242). However, we “‘accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.’” ( Ibid. ) Similarly, whether mi sconduct is prejudicial is reviewed independently as a mixed question of law and fact when the trial court denies a motion for new trial. ( People v. Ault (2004) 33 Cal.4th 1250, 1260-1263.)23 The episode recounted by Juror 8 fa lls within the second of the Nesler categories because it involves “information [that] is not ‘inherently’ prejudicial.” ( Boyette, supra, 56 Cal.4th at p. 890; Nesler, supra, 16 Cal.App.4th at p. 578.) According to Juror 8, he had been walking along the street when Darryl , driving a tow truck, pulled up next to him and stopped abruptly. When Juror 8 seemed reticen t to approach Darryl, Darryl explained he was no longer a defe ndant and was back in busine ss. It was at that point that Juror 8 congratulated Da rryl and shook his hand. Noth ing else was said; the two men did not discuss anything related to the ca se. At the next court session Juror 8 asked
Juror 9 whether he should disc lose the incident to the court, which he did. Juror 9
confirmed that Juror 8 had desc ribed the conversation with Da rryl to him and that he in turn had mentioned the incident only to Juro r 6. Juror 6 told th e court he understood Juror 8 had seen Darryl, who had greeted him, but nothing el se had happened. Juror 6
had not mentioned the incident to anyone else. The court directed each juror not to discuss the matter further, and each man told the court the incident would have no impact on his ability to be fair and impartial. Pr iscilla raises no challenge to these facts. In a discussion following the court’s ques tioning of the jurors, the prosecutor argued Juror 8 should be replaced because he had been less than forthcoming about the episode. Curtis’s counsel responded that none of the three should be dismissed and acknowledged the potential for prejudice was slight because there had been almost no evidence against Darryl during the two-and-a-half-month trial. Further, because of the lengthy trial, there was danger of running out of alternates and precipitating a mistrial. Delilah’s counsel agreed with Curtis’s counsel . Both stated, however, that if one was discharged, all three should be discharged. Priscilla’s counsel criticized the prosecutor for characterizing Juror 8 as dishonest and ar gued he had acted respon sibly. After this discussion, the court concluded it would discharge Juror 8 but retain the other two jurors and noted the objections of defense counsel for the record. After the court had discharged Juror 8, Curtis’s counsel made a motion to discharge Juror 9 as well. Two of the three remaining defense lawyers, including Priscilla’s counsel, joined in the motion,24 which the court denied. The co urt subsequently instructed th e jury not to “speculate or guess as to why the other person is not being prosecuted in this trial.” As these proceedings demonstrate, defens e counsel generally agreed there was little inherent prejudice associated with the accident al contact between Darryl and Juror 8. The second-hand receipt of information about the contact by two other jurors had even less potential for prejudice. Under these circumstan ces, we see no “substantial likelihood” that either of the two jurors was actually biased against the re maining defendants because of Juror 8’s contact with Darryl.
6. Substantial Evidence Support s Priscilla’s Convictions To assess a claim of insufficient evidence in a criminal case, “we review the whole
record to determine whether any rational trier of fact coul d have found the essential elements of the crime or special circumstan ces beyond a reasonable doubt. [Citation.]
The record must disclose subs tantial evidence to support the verdict—i. e., evidence that is reasonable, credible, and of solid value—su ch that a reasonable trier of fact could find the defendant guilty bey ond a reasonable doubt. [Citation. ] In applying this test, we review the evidence in the light most favorable to the prosec ution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] ‘Conf licts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judg ment, for it is the excl usive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determina tion depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for s ubstantial evidence. [Citation.]’ [Citation.]
A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is ther e sufficient substantial eviden ce to support”’ the jury’s verdict.” ( People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Priscilla contends the evid ence was insufficient to support the convictions because
it failed to establish she did an ything more than treat patients she believed presented real25 injuries. 20 In other words, she challenges the necessary finding she intended to defraud
the insurers when she billed them for her services. However, “‘“[i]t is well esta blished that criminal inte nt may be inferred from the general circumstances surroundin g the transactions, and that other similar transactions carried on by a defendant are sufficient to prove guilty knowledge and cr iminal intent.”’” ( People v. Singh
, supra , 37 Cal.App.4th at p. 1371.) The People presented evidence Priscilla treated patients referred to her by other persons invo lved in the scheme (including relatives), rendered identical diagnose s (often containing unusual neurological findings) for patients in the same and differe nt collisions, reported extensive treatment for those injuries, yet never billed for, or ordered, X-rays of th e patients or referred them to other medical professionals. Three of the pa tients for whom she billed insurers large amounts testified at trial they were not in jured or received far less treatment than reported. In one instance, she reported treati ng a particular patient beginning five days
before the accident. In another her records purport to show she treated a patient a day before the reported date of the accident and a dditionally failed to disc lose as required she had previously treated the patie nt for a similar injury. In addition, the People’s expert witness on chiropractic treatment testified that all of Priscilla’s reports contained
fabricated narratives. Under these circumstances we have no difficulty concluding the evidence amply supported the jury’s conclusion Pr iscilla acted with the requisite intent to
defraud.

20 Priscilla also suggests she could not be guilty based on counts for incidents in which she received no payment. This is simply wrong; the crime of presenting a fraudulent claim is ordinarily complete the moment the claim is ma de to the insurance company, whether or not payment is ultimately received. (See, e.g., People v. Zanoletti (2009) 173 Cal.App.4th 547, 5 60 [“Insurance fraud under sec tion 550 is . . . concerned with the means, rather than the end. As defined in s ubdivision (a)(5), the crime is complete when an individual ‘[k]nowingly prepare[s], make [s], or subscribe[s] any writing, with the intent to present or use it, or to allow it to be presented, in support of any false or fraudulent claim.’ Under subdiv ision (a)(1), the crime is complete when a fraudulent claim is ‘presented.’”].)26 7. Delilah’s Convictions Were Supported by Substantial Evidence; the People Were Not Required To Prove the Existe nce of Overt Acts for Counts 25, 40 and 44 Delilah contends her convictions on counts 25, 40 and 44 were not supported by
substantial evidence becau se the People failed to estab lish overt acts in support of the conspiracy allegations containe d in the charging information. 21 Delilah has misconceived the effect of the allegations of conspiracy and the lack of jury findin gs of overt acts with respect to those counts. Delilah was charged with four counts of insurance fraud. 22 Each count alleged
that between certain dates Delilah and others “d id aid, abet, solicit, conspire with another and did knowingly present and ca use to be presented a false and fraudulent claim . . . .” None of the defendants was charged with the crime of conspiracy; instead, the jury was given an uncharged conspiracy inst ruction based on CALJIC No. 6.10.5. 23

21 As the prosecutor explained to the cour t, the three-year statute of limitations precluded findings of guilt for ma ny of the counts under a cons piracy theory. (See § 801; People v. Prevost (1998) 60 Cal.App.4th 1382, 1401 [“ [c]riminal conspiracy is governed by a three-year statute of lim itations”].) Accordi ngly, verdict forms required findings on overt acts only for those counts (30, 49, 51, 60 and 61) falling within the statutory period.

22 A person is guilty of insurance fraud in violation of secti on 550, subdivision (a)(1), if he, “with the specific intent to defra ud, either directly and actively or aids and abets, solicits, or conspires with any person to . . . [k]nowingly present or cause to be presented any false or fraudulent claim for th e payment of a loss or injury . . . under a contract of insurance.” (CALJIC No. 15.40.)

23 CALJIC No. 6.10.5 provides: “A conspira cy is an agreement between two or more persons with the specific intent to agree to commit the crime of [insurance fraud], and with the further specific intent to commit that crime
, followed by an overt act committed in this state by one or more of the parties for th e purpose of accomplishing the object of the agreement. Conspiracy is a cr ime, but is not charged as su ch in this case. . . .” Elsewhere, the jury was inst ructed, “Before you may return a guilty verdict as to any defendant of the crime of insu rance fraud as part of a conspiracy, you must unanimously agree and find beyond a reasonabl e doubt, that (1) there was a conspiracy to commit the crime of insurance fraud and (2) the defend ant willfully, intentio nally and knowingly joined with any other or othe rs in the alleged conspiracy. You must also unanimously agree and find beyond a reasonable doubt, that an overt act was committed by one of the conspirators. You are not required to unanim ously agree as to who committed an overt act,27 The combination of these in structions was entirely proper: “When a statute . . .
lists several acts in the di sjunctive, any one of which constitutes an offense, the complaint, in alleging more th an one of such acts, should do so in the conjunctive to avoid uncertainty.” ( In re Bushman (1970) 1 Cal.3d 767, 775, disapp roved on another ground in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1.) As Justice Corrigan explained in a recent concurring opinion, “the use of the c onjunctive ‘and’ is not a ‘fact’ alleged in the accusatory pleadin g. Nor does it effectively in corporate one theory of an offense into another for the purpose of defini ng the elements of the charged crime. When multiple theories of committing an offense are involved, the pr osecution, by pleading the statute in the conjunctive, puts the defendant on notice that he may face conviction under either theory. The prosecution does not, ho wever, assume the burden of proving each theory.” ( People v. Smith (2013) 57 Cal.4th 232, 247-248 (conc. opn. of Corrigan, J.);
see also Bushman, at p. 775 [“[m]erely because the complaint is phrased in the conjunctive . . . does not prevent a trier of fact from convicting a defendant if the evidence proves on ly one of the alleged acts”]; People v. Lopez (2005) 129 Cal.App.4th 1508, 1532-1533 [“Wh en a crime can be committed in mo re than one way, it is standard practice to allege in the conjunctive that it was committed every way. Such allegations do not require the prosecutor to prove that the defendant committed the crime in more than one way.”].)

or which overt act was committed, so long as each of you finds beyond a reasonable doubt, that one of the conspirators co mmitted one of the acts alleged in the information to be overt acts. [¶] The overt acts alleged are listed in the verdict forms as to Counts 30, 49, 51, 60 and 61.” (See CALJIC No. 6.22.) “It is long and firmly established that an uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator. [Citations.] ‘Failure to charge conspiracy as a separate offense does not preclude the People from proving that those substantive offenses which are charged were committed in furtherance of a criminal conspiracy [citation]; nor, it follows, does it precl ude the giving of jury instructions based on a conspiracy theory.’” ( People v. Belmontes (1988) 45 Cal.3d 744, 788-789, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.)28 Ultimately, “[t]he test for determining whether instructi ons on a particular theory of guilt are appropriate is whether there is substantial evidence which would support conviction on that theory. [Cita tion.] To determine whether there is substantial evidence to support a conviction we must view the record in a light most favorable to conviction, resolving all conflicts in the evidence and drawing all reasona ble inferences in support of conviction. We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant guilty on the theory pr esented.” ( People v. Nguyen (1993) 21 Cal.App.4th 518, 528-529.) The evidence presented at trial was more than sufficient to co nvict Delilah of the charged offenses on any of the theories incor porated in the court’s instructions. Section 550, subdivision (a), allowed the jury to conv ict any of the defendants of insurance fraud based on actions that “either directly and ac tively” or by “aid[ing] and abet[ting]” or by “solicit[ing]” or by “conspir[ing] with” anothe r person to present a fraudulent insurance claim. As instructed, the ju ry was authorized to convict Delilah on count 60 based on a conspiracy theory and on counts 25, 40 an d 44 under a direct or aiding and abetting theory. That the jury attended to these instructions and consid ered each coun t carefully is patent: One defendant was en tirely acquitted, and Priscilla was acquitted of four of the 14 counts against her. The evidence against Delilah was ample, and the verdicts against her demonstrate the jury did not accept Delila h’s defense the claims were made without her knowledge.
8. Delilah Was Not Entitled to a Jury Trial on the Award of Direct Victim Restitution Delilah contends the trial court’s aw ard of direct victim restitution 24 violated her Sixth Amendment right to a jury trial, reasoning the restitution order constituted

24 Section 1202.4, subdivision (a)(1), provides that “a victim of crime who incurs an economic loss as a result of th e commission of a crime shall receive restitution directly from any defendant convicted of that crime.” Section 1202.4, subdi vision (f), states that, subject to certain exceptions not applicable he re, “[I]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that29 additional punishment that could not be imposed withou t jury findings beyond a
reasonable doubt under the rationale of Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] ( Apprendi ) and its progeny.
In Apprendi, supra, 530 U.S. 466, the United Stat es Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” ( Id. at p. 490; see also Blakely v. Washington (2004) 542 U.S. 296, 304 [ 124 S.Ct. 2531, 159 L.Ed .2d 403] [“[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a j udge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defe ndant.” (Italics omitted.) It follows that a judgment may not “inflict[] puni shment that the jury ’s verdict alone does not allow.”].)
In Southern Union Co. v. United States (2012) 567 U.S. ___ [132 S.Ct. 2344, 183 L.Ed.2d 318] ( Southern Union ) the Court extended the rule of Apprendi to the imposition of criminal fines. ( Southern Union, 132 S.Ct. at p. 2357.) The statutory fine imposed in
Southern Union was $50,000 for each day of violatio n; the trial court, rather than the jury, determined the number of days of viol ation. Because the amount of the fine was directly tied to the number of days of viola tion, the Court held the trial court’s factual finding violated Apprendi. ( Southern Union, 132 S.Ct. at pp. 2354, 2357.)

the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victim s or any other showing to the court. . . . The court shall order full restitution unless it finds compelling and extraordinary reasons for not do ing so, and states them on the record.” Restitution “shall be of a dollar amount that is sufficient to fu lly reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct . . . .” (§ 1202.4, su bd. (f)(3).) Although a defendant is entitled to a restitution hearing to “dispute the determination of the amount of restitution” (§ 1202.4, subd. (f)(1)), Delilah waived her right to such a hearing in this case. The People argue she has thus forfeited her right to appellate review. (See People v. Williams
, supra , 16 Cal.4th at p. 250 [constitutional objections not properly raised are forfeited].) We choose to address her claim on the merits but recognize forfeiture as an alternate ground for affirmance.30 Contrary to Delilah’s claim, however, Southern Union does not mandate a jury
trial for direct victim restitution awar ds. Unlike the criminal fine in Southern Union the
restitution awarded here is direct victim compensation, not a fine. 25 The California Constitution provides in releva nt part that “[r]estitution shall be ordered from the convicted wrongdoer in every case, regardless of the senten ce or disposition imposed, in which a crime victim suffers a loss.” (Cal . Const., art. I, § 28, subd. (b)(13)(B).) Subdivision (f) of section 1 202.4 simply implements th e constitutional directive to require restitution for crime victims. A cour t must order “full restitution unless it finds compelling and extraordinary re asons for not doing so, and states them on the record.” (§ 1202.4, subd. (f).) “ If, as a result of the defendant’s conduct, the Restitution Fund has provided assistance to or on behalf of a vic tim . . . , the amount of assistance provided shall be presumed to be a direct result of the defendant’s criminal conduct and shall be
included in the amount of the restitution ordered.” (§ 1202.4, subd. (f)(2), (4)(A).) At this juncture, virtually every court that has considered this question has
concluded that Southern Union and other Apprendi progeny do not apply to direct victim
restitution because victim restitution is not a criminal penalty. (See, e.g., People v. Pangan (2013) 213 Cal.App.4th 5 74, 585-586 [discussing Calif ornia and federal cases]; People v. Millard (2009) 175 Cal.App.4t h 7, 35 [“the primary purpose of a victim restitution hearing is to allow the People to prosecute an e xpedited hearing before a trial court to provide a victim w ith a civil remedy for economic losses suffered, and not to

25 Direct victim restitution and res titution fines are distinct. (See People v. Villalobos (2012) 54 Cal.4th 177, 181.) “[S]ec tion 1202.4, subdiv isions (a) and (f) require every person convicted of a crime to pay restitution directly to the victim in an amount equal to the economic loss suffered by th e victim as a result of the defendant’s conduct. . . . Separate and apart from restitu tion, section 1202.4, s ubdivision (b) requires every person convicted of a crime to pay a re stitution fine: ‘In every case where a person is convicted of a crime, the court shall im pose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so , and states those reasons on the record.’ A res titution fine is not paid by th e defendant directly to the victim. Instead, it ‘shall be deposited in the Restitution Fund in the State Treasury’ (§ 1202.4, subd. (e)), from which crime victims may obtain compensation through an application process (see Gov. Code, §§ 13950-13960).” ( Id . at pp. 181-182.)31 punish the defendant for his or her crime”]; People v. Chappelone (2010) 183 Cal.App.4th 1159, 1184 [same]; cf. People v. Harvest (2000) 84 Cal.App.4th 641, 645, 650 [victim restitution does not co nstitute punishment for double jeopardy purposes].) As these courts have uniformly recognized, “[t]o the extent a victim restitution order has the secondary purposes of rehabilitation of a defendant and/or
deterrence of the defendant and others from committing future crimes, those purposes do not constitute increased punishm ent of the defendant.” ( Millard , at pp. 35, 36; accord, Pangan , at p. 585; Chappelone, at p. 1184; but see Acker, The Mandatory Victims
Restitution Act Is Unconstitutional: Will th e Courts Say So After Southern Union v.
United States? (2013) 64 Ala. L.Rev. 803.) Until e ither of the Supreme Courts directs otherwise, we follow this substantial authority.
9. The Omission of CALJIC No . 15.26 on Specific Inte nt To Defraud Was Not Error The trial court must instruct the jury on all general prin ciples of law necessary to properly perform its function: “‘It is settled th at in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly co nnected with the facts before the court, and which are necessary for the jury’s understanding of the case.’” ( People v. Breverman (1998) 19 Cal.4th 142, 154.) “In reviewing any claim of instructiona l error, we must consider the jury instructions as a whole, and not judge a single jury instruction in artificial isolation out of the context of the charge and th e entire trial record. [Citations.] When a claim is made that instructions are deficient, we must determ ine whether their meaning was objectionable as communicated to the jury. If th e meaning of instructions as communicated to the jury was unobjectionable, the instructions cannot be deemed erroneous. [Citations.] The meaning of instructions is no longer determined unde r a strict test of whether a ‘reasonable juror’
could have understood the charge as the defendant asserts, but rather under the more
tolerant test of whether there is a ‘reasona ble likelihood’ that th e jury misconstrued or32 misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel.” ( People v. Dieguez (2001) 89 Cal.App.4th 266, 276 ( Dieguez ); see People v. Clair (19912) 2 Cal.4th 629, 663; see generally Estelle v. McGuire (1991) 502 U.S. 62, 72 [112 S.Ct. 475, 116 L.Ed.2d 385].) “No judgme nt shall be set aside, or new trial granted, in any cause , on the ground of misdirection of the jury . . . unless, after
an examination of the entire cau se, including the evidence, the c ourt shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) “A miscarriage of justice occurs only when it is reasonably pr obable that the jury
would have reached a result mo re favorable to the appella nt absent the error.” ( Dieguez, at pp. 277-278.)
Delilah contends the trial court erred by omitting CALJIC No. 15.26, which defines “specific intent to defraud.” 26 In the context of work ers’ compensation fraud (see Ins. Code, § 1871.4), 27 the Dieguez court rejected a similar argument that the trial court’s failure to instruct on specific intent to de fraud required reversal of the appellant’s conviction: “Because the language of sec tion 1871.4, subdivision (a)(1) is clear and unambiguous, there is no need to insert a superfluous additional specific intent requirement.” ( Dieguez, supra, 89 Cal.App.4th at p. 279.) “[I]ntent to defraud is actually ‘built into’ the language of the instruction given by the trial court” because “a jury necessarily finds an intent to defraud” when it determines a defendant “specifically intended to obtain workers’ compensation by means of knowingly making false or fraudulent material statements.” ( Id. at p. 279; see People v. Blick (2007) 153 Cal.App.4th 759, 773-774.) “In other words, there was no error for failure to instruct

26 CALJIC No. 15.26 provides: “An intent to defraud is an intent to deceive another person for the purpose of gaining some materi al advantage over that person or to induce that person to part with property or to alter that person’s position to his injury or risk, and to accomplish that purpose by some false statement, false repr esentation of fact, wrongful concealment or suppression of tr uth, or by any other artifice or act designed to deceive.”

27 Insurance Code section 1871.4, subdiv ision (a)(1), makes it unlawful to “[m]ake or cause to be made a knowingly false or fraudulent material statement or material representation for the purpose of obtaining or denying any compensa tion, as defined in Section 3207 of the Labor Code.”33 on specific intent to defraud when the specific intent required for the offense was actually spelled out in the statute and instruction.” ( Blick, at p. 774 [discussing Dieguez ].) In this case, the jury was instructed under CALJIC No. 3.31, which, as given, provides: “In the crimes of perjury and insu rance fraud, there must exist a union or joint operation of act or conduct and a certain specif ic intent in the mind of the perpetrator. Unless this specific intent exists the crime to which it relates is not committed. [¶] The specific intent required is included in the defi nitions of the crimes set forth elsewhere in these instructions.” The jury was also instructed under CA LJIC No. 15.40, as follows: “Every person who, with specific intent to de fraud, either directly and actively, or aids and abets, solicits, or conspires with any person to knowingly present or cause to be presented any false or fraudulent claim for the payment of a loss or injury, including payment of a loss or injury unde r a contract of insurance, is guilty of a violation of Penal Code section 550, subdivision (a)(1), a crime. [¶ ] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person either directly and actively or aided and abetted, solicited, or conspired with another pe rson to knowingly present or cause to be presented any false or fraudulen t claim for the payment of a loss or injury, including payment of a loss or injury under a contract of insurance; and [¶] 2. That person acted with the specifi c intent to defraud.”
We find Dieguez persuasive under the circumstances presented here. The phrase
intent to defraud is not a tec hnical legal term; to the contra ry, it is a term of common use and knowledge. (See People v. Hardy (1992) 2 Cal.4th 86, 153 [trial court’s failure to include legal definition and elements of “fra ud” and “specific intent to defraud” did not
amount to error because the terms are in common use and of common knowledge].) To
conclude the defendants in this case were guilty of insuranc e fraud, the jury was required to find they acted with the sp ecific intent to defraud insure rs by knowingly presenting or causing to be presented false or fraudulent claims for the payment of a loss or injury under an insurance contract. Reading CALJ IC No. 15.26 would ha ve added little to the jury’s understanding of its task, and it nece ssarily found an inte nt to defraud when it34 convicted defendants of the crim e of insurance fraud. (See Dieguez, supra, 89 Cal.App.4th at pp. 279-280.) 28

10. Priscilla’s Sentence Must Be Modifie d To Impose a One-year Enhancement Under Section 186.11, Subdivision (a)(1) 29 As the People concede, the trial court erred in imposing a two-year sentence enhancement based on the jury ’s findings Curtis and Prisc illa had engaged in felony conduct involving “the taking of more than $100,000” within th e meaning of section 186.11, subdivision (a)(1), which directs im position of a sentence enhancement “as specified in paragraph (2) or (3).” 30 Section 186.11, subdivision (a)(3), provides that a “pattern of felony conduct involv[ing] the taking of . . . more than [$100,000], but no t more than [$500,000], the additional term of punishment shall be the term specified in [section 12022.6].” Section 12022.6, subdivision (a)(1) and (a)(2), provide fo r an additional term of one year if the loss exceeds $65,000 and two years if the loss exceeds $200,000.

28 The comments to CALJ IC No. 15.40 do not mandate the use of CALJIC No. 15.26, although the companion instru ction for medical insurance fraud (CALJIC No. 15.41.3) does. Even if the trial court e rred in failing to give CALJIC No. 15.26, any such error was harmless beyond a reasonable doub t under the circumstances of this case. (See Chapman v. California, supra, 386 U.S. at p. 24.)

29 This argument was raised by Curtis a nd joined by Priscilla pursuant to California Rules of Court, rule 8.200(a)(5). As prov ided in that rule, both Priscilla and Delilah joined the arguments of their codefendants to the extent those arguments favored them. We have reviewed each of the claims discusse d above in light of their joinder but have found no other instance in which our resolution of the cl aim favors another defendant.

30 Section 186.11, subdivi sion (a)(1), provides: “Any person who commits two or more related felonies, a material element of which is fraud or embezzlement, which involve a pattern of related felony conduct, and the pattern of related felony conduct involves the taking of, or results in the loss by another person or entity of, more than one hundred thousand dollars ($100, 000), shall be punished, upon conviction of two or more felonies in a single criminal proceeding, in addition and consecutive to the punishment prescribed for the felony offens es of which he or she has been convicted, by an additional term of imprisonment in the st ate prison as specified in pa ragraph (2) or (3). This enhancement shall be known as the aggravat ed white collar crime enhancement. The aggravated white collar crim e enhancement shall only be imposed once in a single criminal proceeding. . . .”35 The only jury finding here is that Priscilla’s taki ngs exceeded $100,000. Accordingly, the sentence enhancement im posed under section 186.11, subdivision (a)(1), should have been limited to one year, not two years. DISPOSITION The judgment as to Delilah Lafawn Johnso n is affirmed. The judgment as to
Priscilla Conner is modified to reflect a one -year white collar crime enhancement, rather than a two-year enhancement, a nd is affirmed in all other respects. The appeal of Curtis Conner is dismissed. The superior court is directed to prepare a corrected abstract of judgment as to Priscilla Conner and forwar d it to the Department of Corrections and
Rehabilitation.

PERLUSS, P. J.

We concur:

WOODS, J.

ZELON, J.