APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Blanchard, Judge. (L.A. Super. Ct. No. MA045858)
The opinion of the court was delivered by: Rothschild, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Affirmed in part; modified in part.
In this case of first impression we hold that Penal Code section 550, subdivision (a)(2), making it a felony to fraudulently "present multiple claims for the same loss or injury, including presentation of multiple claims to more than one insurer," is not limited to the presentation of multiple claims to more than one insurer but also applies to the fraudulent presentation of multiple claims for the same loss or injury to one or more individuals whether or not they are insured for the loss or injury. Therefore, we affirm defendant's conviction under Penal Code section 550, subdivision (a)(2) for presenting multiple fraudulent claims for personal injury to the manufacturers of electric shavers. We also affirm defendant's convictions of theft and perjury and the imposition of a restitution fine. We modify the judgment by staying the sentence on the theft conviction under Penal Code section 654.
FACTS AND PROCEEDINGS BELOW
Between November 2007 and August 2008, defendant Larry Wade Butler filed four small claims actions against the manufacturers of electric razors. In each case he falsely claimed that the manufacturer's razor caused injuries to his face.
In the first case, filed in November 2007, Butler claimed his face was injured when he shaved with a Gillette electric razor. Butler sent Gillette photographs of his face and a statement from a dermatologist regarding the cost of treating Butler's skin. Rather than contest Butler's action, Gillette settled the case for the sum of $4,700. It sent Butler a check in that amount which he cashed.
Butler next filed a small claims action against Phillips Electronics in January 2008. In his complaint he alleged he purchased a Phillips electric razor that caused scars to his face. Butler sent a letter to Phillips containing the same allegations and documents from the same dermatologist showing that the cost of Butler's proposed medical treatment would exceed $5,000, the jurisdictional limit of the small claims court at the time. Timothy Windham, the attorney who represented Phillips in the matter, explained that claims the size of Butler's were not turned over to Phillips' insurance carrier but handled by Phillips in-house or through a third party administrator. In this case, the third party administrator retained Windham's firm to handle Butler's claim. Based on the complaint and other documents Phillips instructed Windham to negotiate a settlement with Butler. The matter was settled for the sum of $4,800. Butler was handed a check in that amount at Windham's office.
In April 2008, Butler filed a small claims action alleging he sustained injuries after he purchased and used an electric razor manufactured by Schick. Again Butler sent the company photographs of his alleged injuries and copies of the documents from the dermatologist. Butler subsequently withdrew this action.
Finally, in May 2008, Butler filed a small claims action against Panasonic. His complaint alleged the same facial injuries as in the previous suits and claimed these injuries resulted from his use of a Panasonic electric razor. Panasonic did not settle this lawsuit because its attorney discovered, from talking to insurance adjusters for other companies, that Butler had made the same claims against their insureds. When Panasonic's attorney confronted Butler with this information, Butler stated that he had made the previous claims because he was unsure who had manufactured the razor that caused him injury but once he discovered that the razor was manufactured by Panasonic he dismissed the other complaints. Panasonic's attorney testified that he was prepared to show documents in the small claims action establishing that Butler dismissed the prior lawsuits only after he received monetary settlements from the manufacturers. Butler, however, failed to appear for trial of the Panasonic suit and the court dismissed it.
A jury convicted Butler of one count of fraudulently presenting multiple claims for the same loss in violation of Penal Code section 550, subdivision (a)(2), one count of theft of personal property and three counts of perjury.*fn2 The jury also found Butler had been convicted of a prior "strike" offense under the Three Strikes Law and suffered three prior prison terms. The court sentenced Butler to a total prison term of 14 years 4 months. Butler filed a timely appeal.
I. FRAUDULENTLY PRESENTING MULTIPLE CLAIMS FOR THE SAME LOSS OR INJURY
The jury convicted Butler of violating Penal Code section 550, subdivision (a) which states: "It is unlawful to do any of the following, or to aid, abet, solicit or conspire with any person to do any of the following: [ ¶] . . . [ ¶] (2) Knowingly present multiple claims for the same loss or injury, including ...