APPEAL from a judgment of the Superior Court of El Dorado County, Suzanne N. Kingsbury, Judge. Reversed. (Super. Ct. No. S06CRF0132).
The opinion of the court was delivered by: Hull, J.
CERTIFIED FOR PUBLICATION
Defendant was convicted by a jury of one count of grand theft (Pen. Code, § 487, subd. (a); unspecified section references that follow are to this code), based on an incident in which he and two others staged an accident at the ski resort where they worked in order to obtain medical treatment for a prior injury to defendant's knee and to collect a cash settlement. The jury also found that, in connection with the offense, defendant took property valued at more than $65,000 (§ 12022.6, subd. (a)(1)). Defendant was granted formal probation for a period of five years, ordered to serve one year in the county jail, and assessed victim restitution in the amount of $83,427.35, consisting of medical and legal fees paid by the ski resort in connection with the matter.
Defendant appeals. He contends the jury was not properly instructed on the elements of the offense or the enhancement, and there is insufficient evidence to support either finding by the jury. He also contends the trial court improperly included in victim restitution amounts paid by the ski resort in legal fees to resolve an insurance coverage issue.
We conclude the jury was not properly instructed on either the substantive offense or the enhancement, and reverse the conviction. We reject defendant's remaining contentions.
During the ski season of 2003-2004, defendant worked for Sierra at Tahoe (SAT) ski resort. During the prior summer, SAT dug a percolation test hole at the resort approximately four to five feet deep and 72 feet from the "lower shop" where some of the SAT employees worked. The hole was in an area where SAT employees parked snowmobiles but was not normally open to the public.
In December 2003, Brian P., an SAT employee, accidentally drove a snowmobile into the hole. Soon thereafter, the hole was filled in with snow and groomed over.
Ryan Minkler, Kevin Ritter, and Rebecca R. also worked for SAT during the 2003-2004 ski season. Minkler and defendant lived together in a house on Blitzen in South Lake Tahoe, and Ritter and Rebecca R. were at the house often.
Sometime in March, defendant, Minkler, and Rebecca R. were at the Blitzen residence discussing their frustration at being overworked and underpaid by SAT when the discussion turned to the percolation test hole. Minkler knew about the hole from the earlier snowmobile accident and was the first to mention the subject. They discussed the case of the woman who had been burned by hot coffee and recovered a settlement from McDonalds. Defendant mentioned that he had previously torn an ACL in his knee, and it was suggested that defendant fall into the hole and then collect from SAT for his ACL tear.
The topic came up again during later discussions at the Blitzen residence, and defendant also discussed the scheme with Ritter. It was eventually agreed that defendant would fall into the hole, Ritter would be present to witness the fall and pull defendant out, and Minkler would be nearby to call the accident in to the ski patrol. Defendant promised to share any money he received from SAT with Minkler and Ritter.
Around the end of March or the first of April, Paul B., the lift operations manager of SAT and defendant's boss, told defendant he was not going to be invited back to work at SAT the next season. Sometime thereafter, at a social gathering, Paul overheard defendant say something like, "I'm going to get mine from SAT before I go."
April 9 was close to the end of the ski season at SAT. Near the end of the day, defendant told Minkler over the phone that he was going to go through with the plan. After defendant clocked out for the day, he, Minkler and Ritter met outside the lower shop where Minkler was working. Defendant and Ritter then began walking in the direction of a pub on the premises, which was also the direction of the hole. At some point, Ritter saw defendant tapping and stomping his foot on the snow. Ritter kept walking and, when he turned around, defendant was no longer in sight.
According to one SAT employee, when a hole is filled with snow and the snow begins to melt in the Spring, the melting occurs from the bottom up. This creates a "snow bridge," which is a sheet of hardened snow over an open cavity.
After Ritter lost sight of defendant, he backtracked and found defendant lying in a pool of water at the bottom of a hole. There was a snow bridge over the hole two feet thick. Ritter called over to Minkler to get help. Minkler called the ski patrol and then came running over.
Defendant was pulled out of the hole and taken to a first aid station. He complained of pain in his knee and lower back and said he had been walking through the snow when he slipped into a hole. He was taken to a nearby hospital and later released.
Later that day, Minkler saw Rebecca R. and told her defendant had done it, had thrown himself into the hole.
Three days after the incident, defendant was examined by Dr. Terrence Orr, who concluded defendant had both a torn ACL and a torn and displaced medial meniscus in his left knee. Dr. Orr opined the torn ACL predated the April 9 incident. He performed surgery on defendant's knee on April 30.
At the time of the incident, SAT had general liability insurance with a deductible of $60,000 and workers' compensation insurance with a deductible of $250,000. SAT initially paid for all of defendant's medical expenses. SAT conducted an investigation of the matter to determine if it was covered by workers' compensation or general liability, eventually settling on the latter because defendant had been clocked out at the time of his fall. SAT incurred nearly $40,000 in legal bills, and over $44,000 in medical bills.
SAT later received information that the incident had been staged by defendant and refused to pay any more medical expenses. Defendant brought a civil action against SAT. Defendant demanded general damages of $400,000 plus lost earnings and future medical expenses.
Meanwhile, the police and the district attorney obtained information suggesting the April 9 incident had been staged to obtain money from SAT. Charges were brought against defendant for theft by embezzlement (§ 487, subd. (a)) and two counts of theft by fraud (§ 550, subds. (a)(1) & (a)(6)). Defendant was also charged with an enhancement for having taken property over a certain value. (§ 12022.6, subd. (a).) The trial court later granted defendant's section 995 motion to dismiss the two theft by fraud charges.
Minkler and Ritter were also charged in the matter but received use immunity in exchange for their testimony in this matter. Both thereafter testified that the incident had been staged as part of a plan to obtain money from SAT. Rebecca R. also testified about the discussions she overheard regarding the plan to stage a fall at SAT.
Defendant testified in his behalf and denied there was ever a plan to stage an accident. Defendant testified that on April 9, he met with Minkler and Ritter but they did not discuss him falling into the hole. Defendant claimed he did not even know about the hole.
Defendant was convicted of grand theft and found to have taken property valued in excess of $65,000. Defendant was thereafter granted formal probation for five years on the condition he spend one year in county jail. He was also ordered to pay victim restitution for medical expenses incurred by SAT in the amount of $44,356.36. After a follow-up hearing, defendant was ordered to pay further victim restitution for legal expenses incurred by SAT in the amount of $39,070.99.
I. Sufficiency of the Evidence
Defendant contends there was insufficient evidence to support his conviction for grand theft. In particular, he argues there was insufficient corroboration of the testimony of his two accomplices, whose testimony was critical to the prosecution. Defendant acknowledges there is evidence placing him at the scene of the fall and showing his association with the accomplices, but he argues corroborating evidence must connect him to the actual commission of the offense and relate to some act or fact that is an element of the crime. Defendant points out there were no witnesses on the critical issue of intent. Although Rebecca R. gave corroborating testimony, defendant argues her testimony did no more than create suspicion against him.
We are not persuaded. In reviewing the sufficiency of the evidence supporting a conviction, we view the evidence in the light most favorable to the prosecution and determine if a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. (People v. Davis (1995) 10 Cal.4th 463, 509.) We review the entire record, not isolated bits. (People v. Valdez (2004) 32 Cal.4th 73, 104.) "'The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.'" (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting from People v. Reilly (1970) 3 Cal.3d 421, 425.)
Section 1111 requires corroboration of accomplice testimony. It reads in relevant part: "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. . . ." The purpose of this corroboration requirement is "to ensure that a defendant will not be convicted solely upon the testimony of an accomplice because an accomplice is likely to have self-serving motives." (People v. Davis (2005) 36 Cal.4th 510, 547.)
"To corroborate the testimony of an accomplice, the prosecution must present 'independent evidence,' that is, evidence that 'tends to connect the defendant with the crime charged' without aid or assistance from the accomplice's testimony." (People v. Avila (2006) 38 Cal.4th 491, 562-563.) "'The requisite corroboration may be established entirely by circumstantial evidence. [Citations.] Such evidence "may be slight and entitled to little consideration when standing alone."'" (People v. Zapien (1993) 4 Cal.4th 929, 982, quoting People v. Miranda (1987) 44 Cal.3d 57, 100.) It is sufficient that the corroborating evidence establish "'"enough of the accomplice's testimony to establish his credibility."'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1128, quoting People v. Bunyard (1988) 45 Cal.3d 1189, 1206-1207.) However, while corroborating evidence need only be slight, "it is not sufficient to merely connect a defendant with the accomplice or other persons participating in the crime. The evidence must connect the defendant with the crime, not simply with its perpetrators." (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543.)
In the present matter, there is more than enough corroborating evidence. Rebecca R. (who was not an accomplice) testified about the first conversation she overheard regarding the proposed scheme. Although she may have been mistaken about who was present at the time, her testimony closely matched that of Minkler as to what was said. Regarding the issue of intent, this is nearly always a matter of circumstantial evidence. Here, we have the fact the incident occurred near the end of the ski season, which was to be defendant's last season at SAT. We also have the fact the hole was located in an area where people do not normally walk. And despite the consensus that the presence and location of the hole was generally known to SAT employees, defendant denied knowing about it, thereby demonstrating a consciousness of guilt. Finally, there is the fact the accomplices and Rebecca R. testified defendant suggested he should be the one to fall into the hole because he had a pre-existing knee injury, which is corroborated by the medical testimony that defendant had a pre-existing ACL tear.
There is sufficient corroborating evidence to support the testimony of defendant's two accomplices. And the accomplice testimony is ...