(Super. Ct. No. 08F00715)
The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Nusrat Javed of one count of general insurance fraud (Pen. Code, § 550, subd. (a)(1)--count one) and three counts of workers' compensation fraud (Ins. Code, § 1871.4, subd. (a)(1)--counts three, four and seven). Defendant contends: (1) the trial court erred in failing to give a unanimity instruction as to count one, and (2) the court erred regarding the amount of restitution owed by defendant. We agree the court erred in failing to give the unanimity instruction, but find the error harmless and shall affirm on count one. We reverse the restitution order and remand the matter for the trial court to reconsider the amount of the restitution fine.
FACTUAL AND PROCEDURAL BACKGROUND
On September 21, 2006, defendant tripped over a cord and fell during her shift at work. Defendant struck her forehead on a tile floor and was taken to a hospital emergency room. She had a hematoma above her left eye, but reacted normally to the light, had full range of motion in her extremities, and her CT scan was normal. The diagnosis was a closed head injury. The doctor prescribed pain medication and recommended defendant take four days off of work.
Defendant had various follow-up appointments from September 25, 2006, to February 5, 2007. Defendant claimed her condition was not improving, and she complained of blurred vision, dizziness, and back pain--all symptoms she did not mention on the day she was injured. Among her chief complaints, defendant claimed the dizziness prevented her from driving to work. Additionally, on September 25, 2006, defendant represented on her medical history form that she did not have a history of dizziness. During various appointments, she tested positive for malingering.
The workers' compensation insurance company hired an investigator to videotape defendant. The video showed defendant driving her car and doing yard work.
It was later discovered that defendant took a trip to Pakistan from November 16 through December 24, 2006. At her medical appointments following this trip, defendant claimed she continued to experience dizziness especially when she drove, but that she did not experience any dizziness when she flew.
Defendant was charged with one count of insurance fraud and six counts of workers' compensation fraud. Defendant's charges encompassed: submitting a false or fraudulent claim for the payment of workers' compensation insurance benefits (count one); falsely denying her prior history of dizziness to her doctor on September 25, 2006 (count two); falsely representing her ability to drive on October 16, 2006 (count three); misrepresenting her ability to drive and work on October 23, 2006 (count four); falsely representing on October 27, 2006, that she was too dizzy to drive to her medical appointment (count five); falsely representing that she did not have a prior history of dizziness to her doctor on October 30, 2006 (count six); and falsely representing on January 11, 2007, that she could not drive during the previous four months (count seven).
The jury found defendant guilty of counts one, three, four, and seven, and not guilty of counts two, five, and six. The trial court suspended imposition of sentence and placed defendant on four years of felony probation, including, as a probation condition, five months in county jail. Additionally, defendant was ordered to pay restitution of $2,631.01 in temporary total disability ...