 

Filed 2/26/15 P. v. Varrella CA5



                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT
 
 

 
THE PEOPLE,
                                                                                           F065418

         Plaintiff and Respondent,                                            (Super. Ct. No. F11903496)
                v.

JOSEPH ANTHONY VARRELLA,                                                                 OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt,
Judge.
         Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for
Plaintiff and Respondent.


                                                        -ooOoo-




 
 


              Following a jury trial in which he represented himself, appellant Joseph Anthony
Varrella was convicted of 19 counts of insurance fraud under Penal Code, section 550,
subdivision. (a)(1).1 Varrella raises numerous contentions on appeal. For reasons
discussed below, we find merit in his contention that the modified version of CALCRIM
No. 2000 given by the trial court in this case presented the jury with a legally defective
theory of conviction. Because it is impossible to determine from the record whether the
jury’s verdicts were based on a legally valid theory of insurance fraud under section 550,
subdivision (a)(1), we conclude the judgment must be reversed.
                                       FACTUAL AND PROCEDURAL BACKGROUND
              The insurance fraud charges in this case stemmed from the apparent burglary of
the residence of Carlene Kostiw, a woman in her seventies, while she was out dining with
friends on Thanksgiving in 2008. On her way home, Kostiw picked up Varrella, who had
befriended Kostiw a few years earlier.
              Although Kostiw returned to find her home in disarray, nothing appeared to be
missing or damaged. Later that night, sheriff’s deputies came to investigate and take
photographs. At the time, Kostiw believed she had been the victim of a real burglary,
which she and Varrella had interrupted when they pulled into the driveway. An
insurance fraud investigator later opined that Varrella had likely staged the burglary
himself.
              Kostiw had a homeowner’s contract of insurance through American Automobile
Association (AAA). For a period of two and a half years following the 2008 burglary,
Varrella submitted claims to AAA, making Kostiw “sign for things that were not
missing.” Kostiw explained Varrella would photocopy blank claims forms and make her
sign them through the use of verbal threats and physical force, which included grabbing
her hair and spitting in her face.
                                                            
1             Further statutory references are to the Penal Code unless otherwise specified.
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       Varrella would then fill out the claims forms and submit them to AAA. Varrella
would also stay at Kostiw’s house to intercept phone calls from AAA employees and
others involved in the eventual fraud investigation and represent he was acting on
Kostiw’s behalf as her assistant.
       Whenever a check from AAA would arrive, Varrella would make Kostiw go to the
bank to cash the check and take the cash from her. AAA ultimately made a total of
$188,919.81 in payments to Kostiw. Investigators recovered the majority of this amount
from Varrella through the seizure of cash he gave to his mother and a female
acquaintance to hold for him and other property he possessed at several different
locations, including “truckloads” of new, heavy-duty construction equipment he had
apparently purchased with the insurance proceeds.
       On February 1, 2012, the Fresno County District Attorney filed an information
charging Varrella with elder or dependent abuse (§ 368, subd. (b); count 1), corporal
injury to a spouse or cohabitant (§ 273.5, subd. (a); count 2), assault by means likely to
produce great bodily injury (§ 245, subd. (a)(1); count 3), and 19 counts of insurance
fraud (§ 550, subd. (a)(1); counts 4-22).
       Each insurance fraud count alleged that Varrella presented a false or fraudulent
insurance claim for a specific loss based on numerous items Varrella, at various times
following the 2008 robbery, falsely alleged were damaged or stolen as a result of the
burglary. For example, count 4 alleged:

       “On or about November 1, 2008 through May 1, 2011, … the crime of
       INSURANCE FRAUD, in violation of PENAL CODE SECTION 550,
       [subdivision] (a)(1), a felony, was committed by Joseph Anthony Varrella,
       who … did knowingly present and cause to be presented a false and
       fraudulent claim for the payment of a loss and injury, including payment of
       a loss under a contract of insurance, to wit, jewelry stolen in a burglary.”
       (Italics added.)



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The remaining 18 counts contained similar language, charging Varrella with presenting
false insurance claims for the payment of specific items of loss; i.e., “driveway asphalt”
(count 5), “stucco damage to garage” (count 6), “carpenter tools” (count 7), “outside
fence/wood panels” (count 8), “replacement safe” (count 9), “damage to storage sheds”
(count 10), “loss of various glass, artwork, and collectibles” (count 11), “damage to
granite slabs” (count 12), “damage to furniture” (count 13), “damage to mattress” (count
14), “damage to wood flooring” (count 15), “invoice for house repainting” (count 16),
“damage to carpet” (count 17), “damage to rugs” (count 18), “damage to faucets” (count
19), “loss of various CDs and DVDs” (count 20), “[M]ont [B]lanc pens” (count 21), and
“damage to windows and frames” (count 22).
       On May 31, 2012, the jury acquitted Varrella of counts 1 through 3, pertaining to
his alleged abuse of Kostiw, but convicted him of all 19 counts of insurance fraud, and
found true a special allegation that the total amount of claims presented on the insurance
fraud counts exceeded $950. On July 13, 2012, the trial court denied probation and
sentenced Varrella to a total term of 21 years as follows: the middle term of three years
for count 4, plus 18 consecutive one-year terms (one-third the middle term) for counts 5
through 22. The court ordered Varrella to serve 18 years of his sentence in county jail
followed by three years of mandatory supervised release pursuant to section 1170,
subdivision (h)(5).
                                      DISCUSSION
       Varrella contends that the modified version of CALCRIM No. 2000 given in this
case allowed the jury to convict him of violating section 550, subdivision (a)(1) based on
conduct constituting a violation of section 550, subdivision (a)(5), which defines a
separate uncharged crime. We find merit in this contention and conclude reversal is
required under People v. Guiton (1993) 4 Cal.4th 1116 (Guiton).



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       Guiton teaches that if a jury is presented with multiple theories supporting
conviction on a single charge and on review one theory is found unsupported by
sufficient evidence, reversal is not required if sufficient evidence supports the alternate
theory and there is no affirmative basis for concluding the jury relied on the factually
unsupported theory because it is presumed jurors would not rely on a factually deficient
theory. (Guiton, supra, 4 Cal.4th at pp. 1128-1129.)
       However, if a jury is presented with multiple theories supporting conviction on a
single charge and on review one theory is found legally defective—that is, the theory
does not present a legally sufficient basis for conviction—reversal is required unless
substantial reasons exist to find that the verdict was based on a legally valid theory.
(Guiton, supra, 4 Cal.4th at p. 1129.) The rationale is that “‘[j]urors are not generally
equipped to determine whether a particular theory of conviction submitted to them is
contrary to the law .… When, therefore, jurors have been left the option of relying upon
a legally inadequate theory, there is no reason to think that their own intelligence and
expertise will save them from that error.…’ [Citation.]” (Id. at p. 1125, citing Griffin v.
United States (1991)502 U.S. 46, 59.)
       Counts 4 through 22 charged Varrella with presenting a false claim in violation of
section 550, subdivision (a)(1), which makes it a crime to “[k]nowingly 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 under a contract of insurance.” Case law has established that,
when the statute refers to the presentation of an insurance “claim,” it uses the term
“claim” in its “common meaning” and “intend[s] to proscribe the presentment of any
false demand under a policy of insurance irrespective of the form of that demand.”
(People v. Teitelbaum (1958) 163 Cal.App.2d 184, 212.)
       It is undisputed that the modified version of CALCRIM No. 2000 given to
Varrella’s jury erroneously blended elements of the charged offense of presenting a false

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claim defined in section 550, subdivision (a)(1), with elements of the uncharged offense
of preparing a writing in support of a false claim defined in section 550, subdivision
(a)(5). Specifically, the instruction stated:

              “The defendant is charged in Counts Four through Twenty-Two with
       insurance fraud committed by fraudulent claim [in violation of Penal Code
       section 550(a)].

             “To prove that the defendant is guilty of this crime, the People must
       prove beyond a reasonable doubt that:

              “1.    The defendant presented or caused to be presented a false or
       fraudulent claim for payment for a loss of injury;

              “2.    The defendant prepared or made a document with the intent
       to present or use it or allow it to be presented to support a false or
       fraudulent claim;

              “3.     The defendant knew that the claim was false or fraudulent;

              “AND

              “[4.] When the defendant did that act, he intended to defraud.

               “Someone intends to defraud if he intends to deceive another person
       either to cause a loss of money, goods, services, or something else of value,
       or to cause damage to a legal, financial, or property right.

              “It is not necessary that anyone actually be defrauded or actually
       suffer a financial, legal, or property loss as a result of the defendant’s acts.

              “A person claims, makes, or presents a claim for payment by
       requesting payment under a contract of insurance for a loss.”
       The parties on appeal acknowledge that section 550 defines not one but several
distinct offenses related to insurance fraud. In People v. Zanoletti (2009) 173
Cal.App.4th 547, 556-559 (Zanoletti), the court of appeal thus rejected the argument that
“the different subdivisions [of section 550] merely describe different means of
committing the single offense of insurance fraud” and concluded the appellant there was
properly convicted of multiple violations of both section 550, subdivision (a)(1) and
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section 550, subdivision (a)(5), based on her role in the preparation of fraudulent
paperwork for a chiropractic clinic and the paperwork’s submission to insurance
companies for payment.
              The court of appeal also rejected the appellant’s argument that “her convictions
under section 550, subdivision (a)(1) should be reversed because the crimes were
committed as part of the same single intent and plan as the corresponding section 550,
subdivision (a)(5) crimes.” (Zanoletti, supra, 173 Cal.App.4th at p. 559.) The court
explained:

              “Insurance fraud under section 550 is … concerned with the means, rather
              than the end. As defined in subdivision (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 subdivision (a)(1), the crime is
              complete when a fraudulent claim is ‘presented.’ While it can be argued
              that appellants had a general scheme to present fraudulent insurance claims,
              nevertheless, the preparation of any writing with the intent to use it to
              support a false claim constitutes one violation and the knowing
              presentation of a false claim constitutes another, separate violation.”
              (Zanoletti, at p. 560, italics added.)2
              Here, the prosecution presented evidence showing that Varrella—in the course of
an ongoing scheme to obtain benefits under Kostiw’s AAA homeowner’s policy for
losses falsely attributed to the 2008 burglary—engaged in a number of different acts
which arguably could constitute violations of both section 550, subdivision (a)(1) and

                                                            

2       The court of appeal recently cited Zanoletti, along with other decisions, in support
of its observation that, in the context of insurance fraud and similar “crimes that do not
monetize and aggregate harm or damage” (as opposed to “crimes that treat harm or
damage as one of their elements”), California courts have applied the rule that “a
defendant may be convicted of multiple crimes—even if the crimes are part of the same
impulse, intention or plan—as long as each conviction reflects a completed criminal act.”
(People v. Kirvin (2014) 231 Cal.App.4th 1507, 1518.)


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section 550, subdivision (a)(5). However, the only statutory provision he was charged
with violating was section 550, subdivision (a)(1), which, as discussed above, specifically
proscribes the act of presenting a false claim for the payment of a loss under an insurance
contract. Therefore, the modified version of CALCRIM No. 2000 given in the case,
which included elements of both the charged and uncharged offenses, presented the jury
with a legally insufficient theory of conviction insofar as it incorrectly suggested the jury
could rely on fraudulent conduct constituting a violation of section 550, subdivision
(a)(5) to convict Varrella of violating section 550, subdivision (a)(1), as charged in the 19
insurance fraud counts.
              The prosecutor further advanced this legally invalid theory in closing argument by
specifically referencing the section 550, subdivision (a)(5) elements erroneously included
in CALCRIM No. 2000 and asserting Varrella was guilty of fraud under those elements.3
The prosecutor also broadly asserted: “I know we think 19 [counts] is a lot, but really it
could have been 100 or 200 … because every action that he did, every document that he
submitted is an actionable fraud.” (Italics added.) Clearly, not every deceitful act
Varrella committed in furtherance of his scheme to defraud the insurance company was
actionable under the charges against him, but only those acts which were found to
constitute the presentation of a false claim for the payment of a loss under a contract of
insurance within the meaning of section 550, subdivision (a)(1).
              In short, because the court’s jury instructions and the prosecutor’s arguments
presented the state’s case to the jury on both valid and invalid legal theories, and we are
unable to determine from the record which theory the jury relied on in rendering its

                                                            
3       In this regard, the prosecutor argued: “The defendant prepared or made a document with
the intent that it be used in support of a false claim. So anything he prepared, all the
handwriting of PLI’s, all the other things that he submitted back, even the Exhibit I that he says
he didn’t do that he did do, but even by him writing something on the document and sending it
back to the insurance company, that by itself was a fraud as well.” (Italics added.)
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verdicts, or to conclude substantial reasons exist to find the jury relied on a legally valid
theory, the judgment must be reversed. (Guiton, supra, 4 Cal.4th at p. 1129.)
         In so concluding, we are not persuaded by the People’s argument that the
concededly erroneous version of CALCRIM No. 2000 given here did not prejudice
Varrella because it added elements the prosecution was required to prove and thereby
heightened its burden of proof on the insurance fraud counts. According to this
argument, the jury would have understood the instruction as requiring it to find that
Varrella not only presented the particular false claim alleged in each count but also
prepared or made a document with the intent to use it in support of that claim. Assuming
the jury adopted this understanding of the instruction, since the prosecution did not argue
or attempt to show that Varrella prepared or made a writing to support each and every
false claim he allegedly presented in violation of section 550, subdivision (a)(1), one
would reasonably have expected the jury to acquit Varrella on some of the charges.4 But
that is not what happened. Instead, the jury convicted him of all 19 counts of insurance
fraud, indicating the erroneous inclusion of the section 550, subdivision (a)(5) elements
did not inure to Varrella’s benefit by subjecting the prosecution to a heightened burden of
proof.
         In view of our conclusion that reversal is required due to Guiton error, we need not
and do not reach Varrella’s other claims on appeal. To do so would be immature and
                                                            
4              As just an example, count 16 alleged that Varrella knowingly presented a false claim for
the payment of a loss under an insurance contract, “to wit, [an] invoice for house repainting.”
The document the prosecution identified as embodying this false claim was a contractor’s
invoice Varrella submitted to AAA. However, the prosecution’s evidence also established the
document was a genuine invoice prepared by Kostiw’s contractor for work he actually did on
her house unrelated to the 2008 burglary. In other words, the prosecution did not, in connection
with the section 550, subdivision (a)(1) charged based on Varrella’s submission of the
contractor’s invoice to the insurance company, establish a corresponding violation of section
550, subdivision (a)(5), such as by presenting evidence Varrella procured or aided and abetted
the contractor in the preparation or making of the invoice, with the requisite fraudulent intent.
(See, e.g., People v. Singh (1995) 37 Cal.App.4th 1343, 1376.)
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constitute an advisory opinion, the rendering of which “‘falls within neither the functions
nor the jurisdiction of this court.’ [Citation.]” (Salazar v. Eastin (1995) 9 Cal.4th 836,
860.)
                                      DISPOSITION
        The judgment is reversed.




                                                          ___________________________
                                                                            HILL, P. J.

WE CONCUR:


_______________________________
                      CORNELL, J.


_______________________________
                        GOMES, J.




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