Filed 7/15/16 P. v. Gholipour CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                        D067177, D068234

         Plaintiff and Respondent,
                                                                   (Super. Ct. No. SCD246831)
         v.
                                                                   ORDER MODIFYING OPINION
GOLNAZ GHOLIPOUR,                                                  AND DENYING REHEARING

         Defendant and Appellant.
                                                                   CHANGE IN JUDGMENT

         THE COURT:

         It is ordered that the opinion filed herein on June 29, 2016, be modified as follows:

         1. On page 2, first sentence of the first full paragraph, the word "three" is changed
         to "four" and the word "seven" is changed to "eight" so the sentence reads:

              A jury convicted Golnaz Gholipour of four counts of making false or
              fraudulent statements regarding her physical and emotional
              condition in a deposition and to an evaluating physician for the
              purpose of obtaining workers' compensation benefits (Ins. Code,
              § 1871.4, subd. (a)(1); counts 1-3, 13) and eight counts of perjury in
              a deposition (Pen. Code,[1] § 118, subd. (a), counts 4-10, 12).[2]

         Footnotes 1 and 2 in the sentence above remain unchanged.

         2. On page 38, first sentence of the second full paragraph, the words "also in July"
         are changed to "on May 7," so the sentence reads:
          Gholipour was convicted of three counts (counts 1-3) of making
          false and fraudulent statements misrepresenting her condition at her
          deposition in July 2012 and one count of making a false and
          fraudulent statement, on May 7, 2012, to misrepresent her condition
          to a physician (count 13) for purposes of obtaining workers'
          compensation in violation of Insurance Code section 1871.4,
          subdivision (a).

      3. On page 39, first full sentence, the word "July" is changed to "May 7," so the
      sentence reads:

          The portion of the restitution award attributable to conduct prior to
          May 7, 2012 must be stricken.

      4. On page 39, first sentence of the disposition, the word "July" is changed to
      "May 7," so the sentence reads:

          We reverse the portion of the restitution order awarding restitution
          for conduct prior to May 7, 2012.

      This modification changes the judgment.

      Respondent's petition for rehearing is denied.




                                                                       McCONNELL, P. J.

Copies to: All parties




                                             2
Filed 6/29/16 P. v. Gholipour CA4/1 (unmodified version)
                      NOT TO BE PUBLISHED IN 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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067177, D068234

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD246831)

GOLNAZ GHOLIPOUR,

         Defendant and Appellant.


         CONSOLIDATED APPEALS from a judgment and an order of the Superior

Court of San Diego County, Charles G. Rogers, Judge. Affirmed in part, reversed in part

and remanded with directions.

         John L. Staley, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Kristen K.

Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION

       A jury convicted Golnaz Gholipour of three counts of making false or fraudulent

statements regarding her physical and emotional condition in a deposition and to an

evaluating physician for the purpose of obtaining workers' compensation benefits (Ins.

Code, § 1871.4, subd. (a)(1); counts 1-3, 13) and seven counts of perjury in a deposition

(Pen. Code,1 § 118, subd. (a), counts 4-10, 12).2 The court sentenced Gholipour to a

total of six years based upon a term of five years for count 1 and a consecutive one-year

term for count 13. The court split the sentence with three years to be served in local

custody and three years to be served under mandatory supervision. The court imposed but

stayed punishment pursuant to section 654 for counts 2 and 3 (five years each) and for

counts 4 through 10 and 12 (four years each). In a separate restitution proceeding, the

court made a finding of fact Gholipour's initial claim for workers' compensation in 2007

was false and awarded restitution in the amount of $309,101.05 for all temporary

disability benefits, medical costs, attorney fees and investigative costs paid and incurred

on behalf of her employer since 2007.

       On appeal, Gholipour contends (1) counts 5 through 10 should be consolidated

because the statements involved the same "material matter" for purposes of section 118;

(2) there was insufficient evidence to support the conviction for count 4, involving

perjury regarding her dating or relationship status; (3) two witnesses gave improper lay


1      Further statutory references are to the Penal Code unless otherwise stated.

2     The jury could not reach a verdict as to count 11 for perjury. The court
subsequently granted the People's motion to dismiss this count.
                                             2
opinion testimony; and (4) the restitution order should be vacated or modified because (a)

the trial court improperly made a finding of fact in violation of Gholipour's constitutional

rights to a jury determination, (b) Gholipour received ineffective assistance of counsel

when her attorney failed to make federal objections on this basis, and (c) section 1202.4

does not permit a mandatory restitution award for economic losses based upon conduct

for which she was not convicted. We agree section 1202.4 limits a restitution award to

losses caused by the criminal conduct for which the defendant was convicted and does

not permit an award based upon uncharged criminal conduct. As a result, we reverse the

restitution award and remand for further proceedings to strike the portion of the award

attributable to uncharged criminal conduct prior to July 2012. In all other respects, we

affirm the judgment.

                                     BACKGROUND

                                             A

       Gholipour worked as an internal medicine nurse at a Sharp Rees-Stealy (Sharp)

clinic in Rancho Bernardo, California from August 21, 2006, until January 8, 2007.

Gholipour saw a physician in the clinic on January 8, 2007, complaining of pain and

muscle spasms on the left side of her lower back for two days. She stated she awoke in

pain after a nightmare two days earlier. She reported a history of scoliosis (curvature of

the spine) and episodes of back pain since she was 15 years old. The doctor signed a

form for disability insurance benefits stating Gholipour's disability was not the result of

her occupation.



                                              3
        Gholipour saw a physical therapist at the same clinic on January 11, 2007, and

reported she felt a pop on the left side of her lumbar spine when she awoke on January 8.

She said she had experienced spasms in her lower back for about a month. She also

stated she had a cold with a lot of coughing. She again reported a history of low back

pain.

        Gholipour applied for state disability benefits on January 16, 2007.3 She stated

she stopped working due to spinal injury and muscle spasm. She was unable to walk or

sit comfortably and had severe pain. She signed a statement under penalty of perjury

indicating the disability was not caused by her job. Her weekly benefit allowance was

determined to be $192 with a maximum benefit allowance of $4,515. Her first payment

was issued on January 24, 2007. She received payments for state disability totaling

$3,236.57.

        On February 2, 2007, several days after her first disability payment issued,

Gholipour went to see a physical medicine and rehabilitation physician. On an intake

form Gholipour stated she noticed back pain on January 6 as she was getting out of bed

and the injury was not work related. However, during the visit Gholipour reported a box

fell on her while she was cleaning the medication room. The physician advised her to



3      State disability benefits are available to individuals who do not have a workplace
injury. Benefits are determined based on how long an individual has worked and how
much they made in the 18 months prior to the claim. It pays up to 55 percent of the
individual's normal income for 52 weeks, if that much is available in his or her account.
An individual who has not worked very long in the State of California will have fewer
benefits available than someone who has worked in the state longer.

                                              4
report the work injury to her supervisor. The physician testified she could have had a

delayed symptom onset after the injury. In the case of a disc herniation, it can take time

for inflammation to build up and it is not unusual for people to first feel symptoms in the

morning. However, the physician admitted if a patient received an injury one day and

woke up the next morning in pain, one might think there was a connection.

       Gholipour submitted a workers' compensation claim on February 12, 2007. She

stated she was injured on January 5, 2007, when she tripped and a box fell on her,

injuring her back. In June 2008, Gholipour submitted an application for an amended

workers' compensation claim indicating she had injuries to her hips and psyche in

addition to her back. Several months later she submitted another amended claim stating

she had injuries to her hips, psyche, low back, left thigh, leg, left toe, and muscle atrophy.

In March 2009, she submitted another amended claim indicating her trip and fall caused

injury to her back, hip, psyche, upper gastrointestinal area, constipation, lower

gastrointestinal area, vaginal pain, and loss of memory.

       Sharp initially accepted her claim based upon the recommendation of its workers'

compensation attorney, Craig Plummer. Plummer took Gholipour's deposition twice in

connection with the workers' compensation claim, once in 2007 and again in 2012. At

the time of the first deposition Plummer did not have Gholipour's prior records or her

claim for state disability benefits.

                                              B

       Sharp's workers' compensation administrator hired an investigator in April 2012 to

conduct surveillance of Gholipour's activity levels. The investigator went first to an

                                              5
address provided to him for Gholipour, which was a single-story apartment complex. He

did not find Gholipour at this location. After running an address history search, he tried

another address located in Mission Viejo, a multi-story apartment complex, where he

located Gholipour's vehicle in the parking lot.

       On April 26, 2012, the investigator observed and filmed Gholipour emerge from

the stairway of the apartment building and walk down the driveway with a male

companion to the passenger door of her vehicle. They went to a shopping center where

they went to a restaurant, a Walmart, a fabric store, and a consignment store before going

back to the residence. She did not use an assistive device. She and her male companion

held hands during the day. When they returned to the apartment complex, Gholipour

ascended the steps without holding the handrail.

                                             C

       On May 7, 2012, the investigator observed Gholipour arrive at a medical office in

La Jolla, California driving her vehicle. She emerged from the parked vehicle, put on a

jacket, walked to the rear of the vehicle and removed a rolling walker from the trunk.

She unfolded the walker, closed the trunk and then walked slowly to the entrance of the

building.

       Gholipour's appointment was with a physician assistant for a routine follow-up

regarding her chronic pain management. Gholipour reported her low back pain and left

leg pain with weakness was unchanged. She said she was able to ambulate with her new

walker. She reported her pain on average was nine out of 10 on a pain scale.

Objectively, she appeared to be in severe discomfort. She exhibited pain behavior such

                                             6
as moving slowly and wincing or grimacing. She walked slowly and with a limp. She

used her walker during the visit. She reported pain when her leg was lifted, suggesting

nerve irritation. The physician assistant refilled Gholipour's medications and requested

authorization for acupuncture visits. When Gholipour left the building, she walked

slowly across the parking lot to her vehicle, folded the walker and used both hands to lift

it into the trunk of the vehicle. She then walked slowly to the driver's side, entered the

vehicle and drove away.

                                             D

       Several days later, around noon on May 12, 2012, the investigator observed

Gholipour walk down a stairway with her male companion and into the parking lot of the

apartment complex while looking at her purse. She wore jeans and high-heeled boots.

They went to a restaurant and bar known as a biker hangout. They parked in a dirt

parking lot and walked to the restaurant. She did not have her walker and did not appear

to have difficulty walking. She held her companion's hand with one hand and swung her

other arm alongside her body as they walked.

       Gholipour hugged a male at the front of the restaurant. He wrapped his arms

around her and swung her slightly back and forth. She showed no indication of pain.

Later she and her companion greeted and hugged other individuals. She smiled at all

times. During the two hours they were there, she sat on a bench at a picnic table, stood,

walked around, and smiled while interacting with various people. When Gholipour and

her companion left, he put his arm around her waist briefly and then they held hands.

They walked across the parking area to the dirt area where they parked. She was carrying

                                              7
a beverage as they walked. She did not appear to have any problems walking on the dirt

ground with her high-heeled boots. She entered the vehicle without assistance.

       After returning to the apartment for a period of time, Gholipour and her male

companion left again around 4:00 p.m. with Gholipour wearing a dress and different

high-heeled shoes. They went to a church, apparently for a wedding. When they

emerged from the church, Gholipour was smiling and engaged in animated conversation

with her companion as they walked to the parking lot. The male companion appeared to

check Gholipour's makeup and touched her cheek or lips. They stopped at a Starbucks.

Gholipour conversed and held hands with her companion as they walked. They then

drove to a recreational center for a reception. They left the reception around 7:30 p.m.

and drove back to the apartment. Gholipour walked up the stairway, slightly touching the

handrail.

                                             E

       On the day of Gholipour's second deposition, July 13, 2012, the investigator

observed Gholipour and her male companion walk to her vehicle. Gholipour carried a

purse and a sweater. She appeared to be eating as they walked toward the vehicle. She

did not use a walker or use any other assistive device.

       When she arrived at the Civic Center Law Library in Santa Ana, California, she

walked into the building from the car using the rolling walker. She walked slowly and

guardedly with small steps and had both elbows locked as she leaned on the handles of

the walker.



                                             8
       During the deposition, Plummer asked questions about Gholipour's physical

abilities and restrictions. Restrictions, such as the ability to bend at the waist and the

ability to sit and stand, are factored into an impairment number used to calculate the

permanent disability rating. The purpose of the deposition was to elicit information to

evaluate the case. The signed deposition could be used by both sides in the workers'

compensation case.

       Gholipour denied she had relationships with men after her divorce. She denied

going out on any dates. She later changed her answer about dating to "just with friends

and family."

       Gholipour said she was not able to climb stairs. She later changed her deposition

response to, "Not without assistance usually." She said she had climbed stairs with lots

of pain. She said she needed help by holding on to someone or holding on to a railing or

walls and avoided stairs.

       When asked if she used the walker all the time, she stated, "All the time I need it."

She changed her testimony to state, "Most of the time I need to use my walker or some

kind of assistance, but on really good days I try to walk on my own." Since her surgery

in May 2010, she said she needed "someone helping me or a walker or a cane."

Gholipour testified she could only walk 15 minutes with a walker. She later changed her

testimony from stating she could not walk any distance without the walker or assistance

to saying, "Most of the time. I walked without a cane or walker a few times, but I either

lost my balance or ended up having more pain. I was told by my doctor to keep using

assistive devices until I was 100 percent better."

                                               9
       Gholipour initially testified the most she could stand at one time was 30 seconds to

one minute with a walker. She changed her deposition testimony to state she loses her

balance easily and needs some kind of assistance most of the time. She also testified she

could only sit 10 to 15 minutes at a time and she had to lay down in the car on the 30-

minute drive to the deposition.

       She testified these restrictions on her walking, sitting and standing were the same

since her surgery in May 2010. She stated her pain was constant. "I am a lot more

limited now with the hardware that they placed in my back. It made my spine so rigid

that … the pain comes up to my neck into my shoulders. It literally ruined my entire

spine movement." She changed her testimony to add, "But depending on my pain level,

my abilities vary day to day." Gholipour testified she could only bend forward at the

waist 35 to 40 degrees, not 90 degrees.

       Gholipour testified she had gastrointestinal problems since the surgery in 2010

such as burping, acid reflux and pain. She stated she had constipation, abdominal pain,

bloating, and irritable bowel symptoms daily. She also said she had left groin burning

and numbness.

       Additionally, Gholipour stated she had depression, panic disorder, and constant

anxiety since she was injured at work in January 2007. She stated she had headaches,

irritability, bursts of anger, and insomnia. She changed her deposition to add, "[a]lso

forgetfulness. My memory is really bad now." When asked when she felt happy in the

prior six to 12 months, she responded, "When I'm in church." She stated she was not

really happy outside of church.

                                            10
       She stated her social life was limited and she usually went shopping, to doctor

appointments, or outside for fresh air with help from her mother or friends from church.

She stated she had thoughts of killing herself after surgery.

       She stated she spent a lot of time in bed during the day because she did not sleep

well and was drowsy and groggy from medications. She stated her mother helped her

shower and dress in the afternoon. She would then eat something and go out for some

fresh air. Then she would need to lay down and rest again.

       Gholipour testified she had good and bad days. She stated, "Sometimes it gets

worse for no reason. Sometimes it gets worse because I sat too long. Like today, I know

I'm going to have more pain down the road because I'm sitting too long today. I'm

moving too much today, so I know later I'm going to be in more pain."

                                             F

       After the deposition, Gholipour's male companion picked her up at the building

entrance. He took her walker and put it in the trunk while Gholipour leaned against the

rear of the vehicle and took small paces up to the passenger door where she opened it and

slowly entered the vehicle. She entered the passenger door more hesitantly than she did

on previous days at other locations.

       When they arrived in the parking lot of a sporting goods store a few minutes later,

however, Gholipour alighted from the passenger door and stood up without hesitation. In

the store, she stood with her male companion and talked to an employee. She walked

through the aisles browsing various items in the store. She did not have her walker and



                                             11
did not have anything to assist her with standing. She did not appear to have difficulty

with her balance over the 40 minutes she was in the store.

       Gholipour stood in the doorway of the sporting goods store, holding the door open

and primping her hair as she waited. She stood by the vehicle while her male companion

placed something in the trunk. Then she entered the passenger door of the vehicle. They

drove to another area in the same mall where they went into a patio store and then a

barbeque outlet.

       They then drove to another mall where they went to a restaurant. As they entered

the mall, Gholipour and her companion walked arm in arm and Gholipour jiggled her

body. They dined for about an hour. Her male companion stroked her hair before sitting

down. Gholipour smiled, laughed, and appeared in a joyful mood. She consumed pizza

and a beverage. She also kissed her companion. After lunch, they visited a shoe store, a

department store, a bridal shop, and a book store.

       Gholipour held hands with her companion as they shopped. In the department

store, she tried on a purse. She also knelt down to look at men's suits and rose without

difficulty. In the bookstore, Gholipour sat on the floor cross-legged while she looked at

books. She then sat at a table immersed in conversation with her companion and

gesturing with her hands for nearly an hour. Gholipour and her companion walked arm

in arm. During an escalator ride, she pivoted toward him and rode the escalator

backward for a period of time before turning around again.

       After leaving the mall around 7:40 p.m., they went to another restaurant in a strip

mall. They paused at some of the storefronts between the restaurant and the vehicle and

                                            12
did some window shopping. Around 9:00 p.m., Gholipour embraced and hugged her

male companion as she entered the passenger door of the vehicle. They then drove back

to the apartment complex and she ascended the steps to the apartment with her arms

crossed. She did not use the walker after she left the deposition.

                                             G

       The following morning, on July 14, 2012, Gholipour was seen bending over as she

handled a potted plant on the stairway leading to the apartment. Her legs were straight

and she bent over at a 90-degree angle. Thereafter, she carried a ceramic vase up and

down the stairs without holding on to the railing.

       Later that afternoon, her companion carried her walker from the car into the

residence and several individuals were seen arriving with gifts. Thereafter, Gholipour

and her companion drove with their guests to a nearby market. After exiting the market,

Gholipour bent at the waist to place some items into a cooler.

       The group went to a nearby park. Gholipour walked unassisted through the park

with her companions. After exploring the park, the group returned to the vehicle and

Gholipour retrieved the cooler, which she carried on her left shoulder. Gholipour sat on a

carpet on the grass in a cross-legged position. She appeared to be in a playful or joyful

mood. She walked around the park to a horse corral. She kneeled in the picnic area

while handling an item. She consumed a beverage. She took and posed for photos.

       After leaving the park, Gholipour drove the vehicle to a Starbucks before driving

to another mall with a movie theater. Gholipour and her companions remained at the

mall for approximately three hours. Gholipour and her companion returned to the

                                            13
apartment around 12:45 a.m. Gholipour did not use the rolling walker at any time during

the surveillance on July 14 or 15.

                                             H

       Plummer stated Gholipour's testimony about her limited social life was not

accurate. The sub rosa video showed a very active social life. She laughed and smiled

with her male companion throughout the day after the deposition. At the biker restaurant,

she knew a lot of people. She hugged them and laughed and smiled with them. She

appeared to go to a wedding and reception.

       The videos showed Gholipour holding hands, hugging and appearing affectionate

with her male companion. Although she testified she lived with her parents and sister, it

appeared she actually lived with the male seen in the video. They would go out together

and return to the apartment late in the evening together.

       Similarly, her testimony about her various physical limitations was not accurate.

Gholipour walked up the stairs of the two-story apartment building on more than one

occasion without difficulty and without assistance. Although Gholipour left the

deposition using a walker, she was not seen using the walker for the rest of the day.

Indeed, she was quite active after she left the deposition. She sat and ate a long lunch,

walked without difficulty as she shopped, and entered and exited the vehicle without

difficulty. She smiled throughout the day while interacting with her male companion and

appeared to have no physical difficulties. The following day she was seen bending 90

degrees or more when she worked with a potted plant and when she placed items into a

cooler before going on a picnic with friends.

                                             14
                                             I

       The videos had a significant impact on Gholipour's case. Three evaluating

physicians changed their opinions about her level of permanent disability after reviewing

the deposition and the videos. An orthopedic surgeon changed his whole person

impairment (WPI) rating4 from 28 percent impairment to 20 percent impairment. An

internal medicine physician changed his WPI rating from 9 percent impairment to no

injury. A psychiatrist changed his WPI rating from 15 percent impairment to no

industrial psychological injury.

                                             1

       Richard Greenfield, M.D., an orthopedic surgeon, evaluated Gholipour in

March 2008. She reported she was injured on January 5, 2007. She complained of lower

back pain radiating into her left leg. Greenfield initially gave her a 13 percent WPI rating

based upon her complaints of radiating pain. In 2010 she underwent spine surgery, in

which a disc was removed and the fourth and fifth lumbar vertebral bodies (L4/5) were

fused to resolve her pain.

       When Greenfield evaluated Gholipour in October 2011, she reported using a

walker to avoid falling. She stated her left leg balance was bad and she had fallen a few

times at home. She reported her back and leg pain were worse. Greenfield did not see an

objective cause for her leg pain on the MRI or on physical examination. He would have

expected someone who complained of radiating pain, intermittent weakness and


4       A WPI rating reflects the degree to which the evaluator feels the individual's
injury interferes with his or her activities of daily living.
                                             15
instability of the leg for nearly five years to have some muscle atrophy. Gholipour, had

no atrophy whatsoever and muscle testing of the muscles innervated by the nerve root at

L4/5 was normal. However, after taking into consideration her subjective and objective

complaints, her medical records, and the fact she had undergone a spinal fusion, he gave

her a WPI rating of 28 percent impairment, the maximum rating based on loss of motion

at L4/5 and reports of radiating pain.

       Greenfield changed his opinion about her WPI in 2012 after he reviewed

Gholipour's second deposition and the sub rosa videos. Based on the deposition

testimony, Greenfield would assume her surgery was a massive failure because she said

she could not stand for 30 to 60 seconds without a walker, she could not walk 15 minutes

without a walker, she could not climb stairs or ride in a car, and she spent most of her

time in bed needing the help of her mother and church members. However, the sub rosa

videos showed someone far more functional. She moved about freely without a walker,

socialized, shopped, sat on the ground, and went up and down stairs. What he saw on the

videos indicated the spine surgery was successful. He lowered her WPI rating to 20

percent because she did have some loss of motion in her spine as a result of the surgery.

                                             2

       Daniel Bressler, M.D. evaluated Gholipour from an internal medicine perspective

regarding her claims regarding gastrointestinal problems and vaginal pain. Based on his

January 2010 evaluation, he initially gave Gholipour a WPI rating of 15 percent

impairment for her complaints of chronic constipation and 9 percent for complaints of

nonulcer dyspepsia.

                                             16
       Bressler reevaluated his opinion a year later after reviewing the American Medical

Association guidelines for impairment. He lowered the rating for constipation from 15 to

0 percent because there were no objective anatomic findings of lower gastrointestinal

problems. However, he retained the 9 percent impairment rating for nonulcer dyspepsia

because the guidelines did not require objective findings for complaints related to the

upper gastrointestinal tract. Bressler explained nonulcer dyspepsia does not have

objective findings and the diagnosis depends upon the patient's credibility in describing

symptoms.

       Bressler lowered the WPI rating as to nonulcer dyspepsia after reviewing

Gholipour's July 2012 deposition and the sub rosa videos. He found "a rather large gap

between what had been reported to me" by Gholipour "and what she had reported in the

deposition about her capacity and her lifestyle" as seen on the videos. Bressler's opinion

about her credibility changed. He noted the discrepancy between her reports of constant

gastrointestinal symptoms such as burping, constipation, abdominal pain and bloating,

and what was shown in the videos of her going to Starbucks, eating at restaurants, and

eating and drinking while socializing with no apparent signs of distress. Because the

diagnosis of nonulcer dyspepsia is completely dependent on credibility, Bressler

determined he could no longer support the diagnosis. He reassigned her WPI rating to 0

percent impairment.

                                             3

       Psychiatrist Dominick Addario, M.D., initially determined in 2009 Gholipour had

no work-related psychological injury because, prior to the alleged injury she had been

                                            17
treated for depression, had marital stressors and other stressors such as fire damage to her

home. When Addario performed a second evaluation in December 2011, she appeared

different. She was using a walker, which she said she needed all of the time. She was

tearful and despondent. Her pain level appeared much higher than when he first saw her

and it appeared her back surgery failed. She said her life had radically changed. She said

she could not do anything because she could not get around, her marriage failed as a

result of the injury, and she was having consequential financial problems. At this point,

Addario felt the majority of her depression was now from the injury. Addario thought

her statements about her physical limitations and her emotional and financial concerns

were credible. He gave her a provisional rating of disability based on her psychological

condition equating to 15 percent WPI. He apportioned 65 percent of her psychological

problems to her work-related injury.

       Addario's opinion about Gholipour's psychological disability changed after he

reviewed her July 2012 deposition, the sub rosa videos, and supplemental reports from

other physicians who had viewed the videos. Gholipour's deposition was consistent with

her appearance in his examination when she told him she needed a walker all the time,

she could not drive a car, and had severe unremitting pain, which caused her difficulties.

However, on the sub rosa video, she appeared to be free from pain for hours at a time.

She walked normally without a walker, wore high heeled shoes, and entered and exited

vehicles without hesitation. She was social and responded to friends in a happy and

affable way. "She was not the tearful, depressed person that I saw in my office."

Addario opined she no longer had a psychiatric disability. She had a full and active life

                                             18
with good social relationships. As a result, she had a 0 percent WPI psychiatric

impairment. Addario diagnosed her with a malingering disorder based on an apparent

conscious misrepresentation of her disabilities for secondary gain.

                                              4

       Plummer explained WPI ratings are based on American Medical Association

guidelines for disabilities related to different body parts. The rating is used to determine

the permanent disability awards for workers' compensation. The greater the impairment,

the greater the award. The 9 percent rating provided by Bressler, the 15 percent rating

provided by Addario, and the 28 percent rating provided by Greenfield, adjusted for

occupation and age, combined for a 51 percent disability rating, totaling a little more than

$64,000. When the physicians changed their ratings, the total 20 percent WPI rating

would result in payments totaling approximately $23,000. Plummer stated he did not

believe Gholipour's injury was work related and Sharp should not have paid her workers'

compensation benefits.

                                              J

       Scynthia Syfrett, a senior workers' compensation specialist who has worked in the

field for 25 years, is employed by Sharp's third-party administrator for workers'

compensation insurance. She explained an injured worker may obtain temporary

disability benefits paid at two-thirds of the employee's average weekly earnings up to a

maximum amount of $1,074.64 per week. The injured worker is also entitled to medical

coverage for injuries resulting from the original injury, including the cost of investigating



                                             19
the need for such care. Finally, the injured worker may obtain permanent disability

benefits.

       Syfrett worked on Gholipour's claim since it was filed in 2007. Gholipour was

paid $88,670.01 in temporary disability benefits. She received medical treatment,

medications, and a walker totaling $148,965.74. Permanent disability was paid in the

amount of $4,100.

       During the course of the claim, Syfrett reviewed Gholipour's records from her

medical doctors, both before and after the alleged injury. She reviewed Gholipour's

application for disability benefits. Syfrett retained a private investigator in 2012 because

there was an increase in Gholipour's symptoms and a lack of recovery. Syfrett reviewed

the supplemental reports from the medical examiners after they reviewed the sub rosa

videos. Based on all of this information, Syfrett did not believe Gholipour's injury was

work related and did not believe Gholipour should have received workers' compensation

benefits.

                                              K

       Gholipour testified in her own defense. She testified she was working with a

patient on Friday January 5, 2007, when she went into a utility room to retrieve an

intravenous tray. She stated she tripped over some boxes on the floor of the utility room.

When she reached for a shelf to steady herself, the shelf shook and a 30-pound box of

paper rolls fell on her. She stated she grabbed the tray and ran out to treat the patient.

After treating the patient, she returned to the utility room, straightened it up and went



                                             20
about her day. She stated her back did not hurt until the next morning. There were no

witnesses to the incident and she did not tell anyone about it.

       The following morning, she said she awoke with severe pain in her lower back and

left leg. She said she self-treated over the weekend and returned to work on January 8,

2007. However, she said she did not connect the incident in the supply closet and her

pain. She claims she collapsed behind her desk and other nurses took her to see a

physician in the clinic who gave her lidocaine injections along the spine and prescribed

pain medications. Gholipour stated she did not mention the incident with the boxes

because she was asked about the onset of pain. Another Sharp physician noticed a disc

problem on the MRI and started questioning her about what occurred before she felt the

onset of pain. When Gholipour mentioned the box incident to the second doctor, the

doctor stopped her and said she could not treat Gholipour if it was a workers'

compensation injury. The second physician told Gholipour to report the incident to her

supervisor.

       Gholipour received pain management treatment with epidural injections and

prescription medications until she had surgery in May 2010. She stated she took

medications every day after she underwent surgery, which allowed her to move around

and be more comfortable.

       She stated she lived with her parents in 2012 and occasionally spent the night at

the apartment complex in Mission Viejo, but she would sleep on the couch. She stated

when she was asked whether she had relationships with other men after her divorce, she

understood the question to inquire about whether she was having sexual relations. She

                                             21
indicated her response, "[n]o, just with friends and family" meant she was in a friendship,

not a sexual relationship. She stated she began a sexual relationship with the man seen in

the videos after they were married.

       Gholipour testified she thought she was being asked in her deposition testimony

about her physical abilities without the use of medications. She stated she was on

medications when she was seen on the sub rosa videos walking up and down stairs

without assistance. She said she took medication in the car and throughout the day after

her deposition while they shopped. She similarly stated she took medication on the days

she was seen at the picnic and at the restaurant.

       She also stated she underwent abdominal surgery to remove five large tumors

weighing 10 pounds. The People presented rebuttal evidence from her

obstetrician/gynecologist stating he removed some fluid filled cysts and a golf-ball sized

uterine fibroid, which weighed 10 to 40 grams.

                                       DISCUSSION

                                              I

                             Multiple Convictions Appropriate

       Gholipour contends six of her perjury convictions (counts 5-10) should be

consolidated into one conviction because they are based upon the same "material matter"

since the statements were about interrelated aspects of her physical condition and were

made in one deposition regarding her workers' compensation claim. Alternatively, she

contends counts 5 and 6 and counts 7 and 10 are functionally equivalent because they

required proof of the same fact. We disagree.

                                             22
       Section 118, subdivision (a) provides: "Every person who, having taken an oath

that he or she will testify, declare, depose, or certify truly before any competent tribunal,

officer, or person, in any of the cases in which the oath may by law of the State of

California be administered, willfully and contrary to the oath, states as true any material

matter which he or she knows to be false, and every person who testifies, declares,

deposes, or certifies under penalty of perjury in any of the cases in which the testimony,

declarations, depositions, or certification is permitted by law of the State of California

under penalty of perjury and willfully states as true any material matter which he or she

knows to be false, is guilty of perjury."

       "[A] charge of multiple counts of violating a statute is appropriate only where the

actus reus prohibited by the statutethe gravamen of the offensehas been committed

more than once." (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349.) Multiple

counts of perjury under section 118, subdivision (a), may be based upon separate false

statements made under oath. (People v. Jiminez (1992) 11 Cal.App.4th 1611, 1623-1624

(Jiminez), disapproved on another ground in People v. Kobrin (1995) 11 Cal.4th 416

(Kobrin).)

       The jury determines the elements of the charge of perjury, "including materiality,

i.e., whether the statement or testimony 'might have been used to affect [the proceeding in

or for which it was made].' " (Kobrin, supra, 11 Cal.4th at p. 420.) For a matter to be

material, it need not actually influence the proceedings (§ 123), rather the test is "whether

the statement could probably have influenced the outcome of the proceedings." (People

v. Pierce (1967) 66 Cal.2d 53, 61.)
                                             23
       The jury considered separate passages from Gholipour's second deposition about

different aspects of her physical condition and convicted her of perjury as charged in

counts 5 through 10. Count 5 related to her testimony about her ability to walk and the

need to use a walker or a cane when she walked. Count 6 related to her testimony about

her ability to stand, in which she stated she could not stand for more than one minute with

a walker and could not stand at all without a walker most of the time. Count 7 related to

her testimony about her ability to sit, in which she stated she could only sit for 10 to 15

minutes at a time. Count 8 related to her testimony about her lower and mid-back pain,

which she described as constant. Count 9 related to her testimony about her limited

ability to bend at the waist, in which she stated she could only bend forward 35 to 40

degrees. Count 10 related to her testimony about triggers or causes for changes in her

condition. She stated her pain gets worse if she sits too long and she knew she would

have more pain because she was sitting and moving too much on the day of her second

deposition.5

       The fact the statements for counts 5 through 10 were made during one deposition

and involved Gholipour's physical condition does not preclude multiple convictions for

perjury. Each count related to separate statements about separate physical symptoms.

The evaluating physicians considered these various physical conditions for purposes of

assigning her WPI rating. The testimony about each symptom was material to the



5      The jury considered, but could not reach a verdict regarding count 11, which
involved testimony about limitations on her social life and her ability to go out without
help.
                                             24
potential outcome in the workers' compensation case because the higher the level of

impairment, the higher the compensation benefits available to a claimant. Multiple

convictions for the multiple false statements regarding separate material matters are

appropriate. (Jiminez, supra, 11 Cal.App.4th at p. 1624.)

       We also do not agree counts 5 (ability to walk) and 6 (ability to stand) or counts 7

(ability to sit) and 10 (exacerbation of symptoms from prolonged sitting and moving) are

functionally the same. These are not false statements about the same matters as

Gholipour contends. They are distinct false statements about distinct material matters.

Double jeopardy does not apply to separate offenses. (People v. Bright (1996) 12 Cal.4th

652, 660, overruled on other grounds in People v. Seel (2004) 34 Cal.4th 535.)

                                             II

                  Sufficient Evidence Supported Conviction for Count 4

       Count 4 charged Gholipour with perjury for her testimony she had not gone on

dates or had relationships with men after her divorce. She was seen on sub rosa videos

going out with a male companion, engaging in public displays of affection, and

apparently living with this man. The jury disbelieved her trial testimony, in which she

claimed she understood the questions to refer to sexual relations, and convicted her as

charged in count 4.

       Gholipour does not contend there was insufficient evidence to establish her

deposition testimony was false. Instead, she contends there was insufficient evidence her

statement about her relationship status was a material matter that could have influenced



                                            25
the outcome of her workers' compensation proceeding because Addario did not base his

psychiatric rating on her statement about her dating status. We cannot agree.

       When we review a challenge to the sufficiency of the evidence, " 'we review the

whole record to determine whether any rational trier of fact could have found the

essential elements of the crime … beyond a reasonable doubt. [Citation.] The record

must disclose substantial evidence to support the verdict—i.e., evidence that is

reasonable, credible, and of solid value—such that a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review

the evidence in the light most favorable to the prosecution and presume in support of the

judgment the existence of every fact the jury could reasonably have deduced from the

evidence. [Citation.] … A reversal for insufficient evidence "is unwarranted unless it

appears 'that upon no hypothesis whatever is there sufficient substantial evidence to

support' " the jury's verdict.' " (People v. Manibusan (2013) 58 Cal.4th 40, 87.)

       "The elements of perjury are: 'a "willful statement, under oath, of any material

matter which the witness knows to be false." ' " (People v. Garcia (2006) 39 Cal.4th

1070, 1091.) "False testimony that affects the credibility of a witness is material and will

support a perjury conviction." (People v. Rubio (2004) 121 Cal.App.4th 927, 935;

People v. Macken (1939) 32 Cal.App.2d 31, 39 ["[T]estimony which merely affects the

credibility of a witness is material, for the reason that such evidence usually tends to

strengthen the case of a party to an action or to weaken the defense of his adversary."].)

       Addario based his psychiatric rating in 2011 on Gholipour's appearance as

depressed and tearful after her surgery. She told Addario she could not do anything

                                             26
because she could not get around and this devastated her marriage. Addario diagnosed

her with a major depressive disorder, in which patients are typically very low energy, lose

interest in doing things socially, and are at the low end of functioning emotionally.

       The problems she described in her 2012 deposition testimony, which included her

statement about her lack of dating relationships, were consistent with what she told him

during his 2011 evaluation. However, the sub rosa videos were inconsistent with these

descriptions. She was seen walking normally in high heels and apparently free from pain

for reasonably long periods of time. She was social. "She responded and related to

friends in a happy, affable way," including a male companion. She responded to this man

in an affectionate way. He concluded, "it didn't look like a person who was depressed."

Rather, "her behavior as I observed it and the difference in her deposition, in my

evaluation … would be consistent with a malingering disorder, which is a conscious

misrepresentation of her difficulties" for secondary gain.

       Addario noted both Greenfield and Bressler prepared reports after reviewing the

sub rosa videos and stated they found her physical complaints not credible. As a result of

all of this information, Addario changed his opinion and concluded Gholipour had no

psychiatric disability. "[S]he had a full and active life" and "good social relationships."

       Addario testified a patient's credibility is very important to his assessment because

30 percent of his impression is based on subjective complaints. Her lack of credibility

was significant not only to Addario, but to the other physicians as well. As a result, we

conclude there was sufficient evidence to support the jury's determination Gholipour's



                                             27
false testimony about her relationship status was material and supported her conviction

for count 4.

                                              III

               Lay Witness Opinion Testimony Appropriate and Not Prejudicial

       Gholipour next contends the trial court erred in allowing Plummer and Syfrett to

testify regarding their opinions about whether Gholipour had a work-related injury and

whether Sharp should have paid her workers' compensation benefits. She contends the

admission of this lay opinion testimony was a prejudicial violation of her constitutional

due process rights. Again, we disagree.

       Under Evidence Code section 800, " '[a] lay witness may testify to an opinion if it

is rationally based on the witness's perception and if it is helpful to a clear understanding

of his testimony.' " (People v. Virgil (2011) 51 Cal.4th 1210, 1254.) " ' "The true rule [as

to the admissibility of lay witness opinion testimony] is simple and, so far as this state is

concerned, well established: to permit, or to refuse to permit, such questions is a matter

resting largely in the discretion of the trial court, which discretion will not here be

reviewed unless it is made plain that the court's ruling in admitting the evidence has

worked an injury. Generally speaking, the admission of the answer to such a question

cannot work an injury where a fair latitude upon cross-examination is allowed, for under

such cross-examination the facts are certain to be adduced. It will be found frequently

that an appellate tribunal upholds the rulings of the trial court in sustaining an objection

to such questions, but the cases are far less numerous where it has felt compelled to



                                              28
reverse the inferior tribunal for permitting them." ' " (Osborn v. Mission Ready Mix

(1990) 224 Cal.App.3d 104, 112.)

       "We review claims regarding a trial court's ruling on admissibility of evidence for

abuse of discretion. [Citations.] Specifically, we will not disturb the trial court's ruling

'except on a showing the trial court exercised its discretion in an arbitrary, capricious, or

patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v.

Goldsmith (2014) 59 Cal.4th 258, 266.)

       In this case, Plummer and Syfrett testified regarding the workers' compensation

claim process based upon their years of experience in handling such claims. They

discussed their actions in processing and defending the claim brought by Gholipour as

well as the documents and materials they reviewed related to their work on her claim. At

the end of their testimony, they each responded to two questions stating they did not

believe Gholipour's injury was work related and, in hindsight, Sharp should not have paid

her workers' compensation claim.

       The totality of their testimony was relevant to the issue of whether Gholipour

made fraudulent material statements for purposes of obtaining workers' compensation

benefits. Their concluding opinions based upon their perception of the evidence

reviewed in the course of their work was helpful to understanding their testimony and

was not unduly prejudicial. Gholipour's attorney cross-examined Syfrett about her lack

of investigation into the circumstances surrounding the incident in the supply room. A

jury is not compelled to accept a witness's opinion as to an ultimate fact. Even an expert

witness " 'remains only a witness, to whose opinion the trier of fact need give no more

                                              29
acceptance than is compelled by the reasons upon which it is based.' " (People v. Wilcox

(1986) 177 Cal.App.3d 715, 717, quoting People v. Davaney (1970) 7 Cal.App.3d 736,

749.) We conclude the court did not abuse its discretion in allowing this testimony.

       Even were we to conclude there was error, reversal is not required because any

error was harmless under both the federal and state standard. (Chapman v. California

(1967) 386 U.S. 18, 24 & People v. Watson (1956) 46 Cal.2d 818, 836-837.) There was

more than ample evidence to support Gholipour's convictions for perjury and for making

false and fraudulent statements in 2012 for purposes of obtaining workers' compensation.

There is no reasonable chance a jury would have reached a different verdict if these lay

opinions about whether she ever had a work-related injury were disallowed.

                                             IV

                                     Restitution Appeal

                                             A

       The trial court considered the issue of restitution in a separate proceeding after

trial. On behalf of Sharp, the People sought restitution for all medical costs Sharp

incurred from the time Gholipour's health coverage expired after her initial claim through

the conclusion of the case. It also sought all costs related to reviewing the reasonableness

and necessity of the care provided, temporary disability paid to Gholipour, and the

investigative and attorney fees incurred for Sharp to defend the claim. The People

acknowledged Gholipour was not charged with making a fraudulent workers'

compensation claim from the inception of her claim based on a statute of limitations



                                             30
problem, but argued the trial evidence supported full restitution because the entirety of

her claim was fraudulent.

       Gholipour contended she should only be responsible for restitution for the crimes

for which she was convicted by a jury based upon misrepresentations in 2012. She

contended she should not be responsible for medical costs prior to that time because she

was not convicted of misrepresenting the cause of her injury.

       After considering the arguments of counsel, the court made a factual finding

Gholipour's entire workers' compensation claim was predicated on the false statement she

was injured at work. Based upon the evidence presented at trial, the court concluded the

initial claim was "invalid and false and fraudulent and void from the beginning." As a

result, the court ordered restitution in the amount of $309,101.05 for temporary disability

benefits, medical costs, attorney fees and investigator fees. We consolidated Gholipour's

appeal from the restitution order (D068234) with the appeal from the judgment

(D067177).

                                               B

       "The California Constitution gives crime victims a right to restitution and,

consequently, requires a court to order a convicted wrongdoer to pay restitution in every

case in which a crime victim suffers a loss. (Cal. Const., art. I, § 28, subd. (b)(13)(B).)"

(People v. Sy (2014) 223 Cal.App.4th 44, 62 (Sy).) To implement this constitutional right

to restitution, section 1202.4, subdivision (a)(1), provides, "[i]t is the intent of the

Legislature that a victim of crime who incurs an economic loss as a result of the

commission of a crime shall receive restitution directly from a defendant convicted of that

                                               31
crime." (Italics added.) Generally, "in every case in which a victim has suffered

economic loss as a result of the defendant's conduct, the court shall require that the

defendant make restitution to the victim … in an amount established by court order,

based on the amount of loss claimed by the victim or victims or any other showing to the

court." (§ 1202.4, subd. (f), italics added.)

       "The restitution amount 'shall be of a dollar amount that is sufficient to fully

reimburse the victim or victims for every determined economic loss incurred as the result

of the defendant's criminal conduct.' (§ 1202.4, subd. (f)(3).) 'The defendant has the

right to a hearing before a judge to dispute the determination of the amount of restitution.'

(§ 1202.4, subd. (f)(1).) [¶] . . . [¶]

       " ' "The standard of review of a restitution order is abuse of discretion. 'A victim's

restitution right is to be broadly and liberally construed.' [Citation.] ' "Where there is a

factual and rational basis for the amount of restitution ordered by the trial court, no abuse

of discretion will be found by the reviewing court." ' [Citations.]" [Citation.] However,

a restitution order "resting upon a ' "demonstrable error of law" ' constitutes an abuse of

the court's discretion. [Citation.]" [Citation.] … [¶] ' "[T]he court's discretion in setting

the amount of restitution is broad, and it may use any rational method of fixing the

amount of restitution as long as it is reasonably calculated to make the victim

whole." ' " ' " (Sy, supra, 223 Cal.App.4th at p. 63.)

                                                C

       Gholipour first contends the court violated her federal constitutional rights as

described in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) because she was

                                                32
entitled to a jury trial on the issue of whether her entire workers' compensation claim was

fraudulent. A court is not precluded from making factual findings as part of a restitution

hearing.

       In Apprendi, the United States Supreme Court held: "Other 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."

(Apprendi, supra, 530 U.S. at p. 490.) "[T]he 'statutory maximum' for Apprendi purposes

is the maximum sentence a judge may impose solely on the basis of the facts reflected in

the jury verdict or admitted by the defendant." (Blakely v. Washington (2004) 542 U.S.

296, 303 (Blakely), italics omitted.) "[T]he rule of Apprendi applies to the imposition of

criminal fines." (Southern Union Co. v. United States (2012) 567 U.S. ___, ___ [132

S.Ct. 2344, 2357, 183 L.Ed.2d 318] (Southern Union).) However, "nothing in [the

common law and constitutional history] suggests that it is impermissible for judges to

exercise discretion—taking into consideration various factors relating both to offense and

offender—in imposing a judgment within the range prescribed by statute." (Apprendi,

supra, at p. 481.)

       There is no statutory maximum for restitution to a direct victim under section

1202.4. California courts have held " 'neither Southern Union, Apprendi nor Blakely

have any application to direct victim restitution, because direct victim restitution is not a

criminal penalty. … [D]irect victim restitution is a substitute for a civil remedy so that

victims of crime do not need to file separate civil suits. It is not increased

"punishment." ' " (People v. Wasbotten (2014) 225 Cal.App.4th 306, 309 (Wasbotten),

                                              33
quoting People v. Pangan (2013) 213 Cal.App.4th 574, 585-586.) The restitution

ordered in this case was direct compensation to the victim, not a criminal fine as in

Southern Union. (Wasbotten, supra, at p. 309.) Restitution paid directly to victims is

separate and apart from restitution fines. (People v. Villalobos (2012) 54 Cal.4th 177,

180-181.)

       We also find no merit to Gholipour's contention the California Constitution

required a jury trial on the issue of victim restitution because it is a substitute for a civil

remedy. Although "the restitution order and the civil jury award produce the same result

(an enforceable judgment against the defendant [citation], they are a different means to

that end, one based in the civil law, with its protections and requirements, and the other in

criminal law, with its own protections and requirements. The restitution hearing … is a

criminal sentencing hearing, not a civil trial." (People v. Smith (2011) 198 Cal.App.4th

415, 434.) "As a sentencing order, a restitution order for … damages does not give rise

to a jury trial right. [¶] 'In determining the propriety and amount of restitution, the

preponderance of the evidence standard satisfies due process. [Citation.] The defendant

is not entitled to a jury trial [citation] and "the requisite hearing [need not] approximate

the formality of a civil trial." ' " (Id. at p. 433.)6

                                                 D

       Gholipour's next contention raises the more difficult question of whether the

factual finding made by the court permitted the court to award restitution under section


6     Given our conclusion, we need not reach Gholipour's ineffective assistance of
counsel claim.
                                                34
1202.4 for economic damages incurred before Gholipour made the fraudulent statements

in 2012 for which she was convicted. We conclude it did not permit such an award.

       "Courts have interpreted section 1202.4 as limiting restitution awards to those

losses arising out of the criminal activity that formed the basis of the conviction."

(People v. Woods (2008) 161 Cal.App.4th 1045, 1049 (Woods), citing People v. Lai

(2006) 138 Cal.App.4th 1227, 1247 (Lai).) In other words, "when a court imposes a

prison sentence following trial, section 1202.4 limits the scope of victim restitution to

losses caused by the criminal conduct for which the defendant sustained the conviction."

(Woods, supra, at p. 1050.)

       This limitation does not apply to discretionary restitution orders in the context of

grants of probation under section 1203.1. (Woods, supra, 161 Cal.App.4th. at p. 1050.)

" 'California courts have long interpreted the trial court's discretion to encompass the

ordering of restitution as a condition of probation even when the loss was not necessarily

caused by the criminal conduct underlying the conviction. Under certain circumstances,

restitution has been found proper where the loss was caused by related conduct not

resulting in a conviction [citation], by conduct underlying dismissed and uncharged

counts [citation], and by conduct resulting in an acquittal.' " (Ibid., quoting People v.

Carbajal (1995) 10 Cal.4th 1114, 1121.)

       A split sentence to time in county jail followed by mandatory supervision pursuant

to section 1170, subdivision (h), is equivalent to a prison sentence subject to the

mandatory restitution requirements of section 1202.4 rather than discretionary restitution

ordered as a condition of probation under section 1203.1. (People v. Rahbari (2014) 232

                                             35
Cal.App.4th 185, 190, 196.) Therefore, the limitation of section 1202.4 applies to this

case.

        In People v. Rubics (2006) 136 Cal.App.4th 452 (Rubics) we interpreted section

1202.4 as requiring a restitution award to be made for "a loss incurred 'as a result of the

commission of a crime' for which [the defendant] was convicted." (Rubics, supra, at

p. 457.) In that case, however, where the defendant pleaded guilty to one count of felony

hit-and-run under Vehicle Code section 20001 resulting in a death, we looked to the

elements of the crime and concluded funeral expenses for the deceased victim were

recoverable as restitution. We noted death or injury was a necessary element of the crime

even though the focus of the crime was on leaving the accident. "[A]lthough a primary

focus of [Vehicle Code] section 20001 may be the act of leaving the scene [of an

accident], a conviction also acknowledges the fleeing driver's responsibility for the

damages he or she has caused by being involved in the accident itself." (Rubics, at p.

459.) Therefore, we concluded it was proper for the court to order the defendant to pay

the victim's funeral expenses "because the 'victim … suffered economic loss as a result of

the defendant's conduct.' " (Id. at p. 461.)7

        In Lai, supra, 138 Cal.App.4th 1227, the defendants were convicted of conspiracy

to commit welfare fraud, welfare fraud and perjury by false application for aid from 1985


7      The Supreme Court granted review in a case that distinguished Rubics and held to
the contrary because there was no determination of the defendant's culpability for the
accident. (People v. Martinez (2014) 226 Cal.App.4th 1156, review granted Sept. 10,
2014, S219970.) The case pending before the Supreme Court presents the issue of
whether a defendant convicted of hit-and-run and sentenced to prison should be required
to pay restitution for injuries suffered by the victims in a collision.
                                                36
to 2000. (Id. at pp. 1234, 1246.) The trial court ordered restitution not only for the

fraudulently obtained aid during the charged period, but also for aid the defendants

fraudulently obtained over several years "before the crimes of which [the defendants]

were convicted." (Id. at p. 1246.) The appellate court held "section 1202.4 contains no

provision that permits an award of restitution for losses caused by uncharged crimes

when the defendant is sentenced to state prison." (Id. at p. 1248.) Instead, the court

concluded "section 1202.4 limits restitution to losses caused by the criminal conduct for

which the defendant was convicted." (Id. at p. 1249.) On remand, the trial court was

directed to delete the portion of the restitution award attributable to crimes before the

charged period. (Id. at p. 1259.)

       Applying the Lai analysis, the court in Woods, supra,161 Cal.App.4th 1045

concluded a defendant who was convicted as an accessory after the fact could not be held

responsible for restitution arising from the loss resulting from a murder because "his

criminal conduct did not cause the loss for which compensation was sought." (Woods, at

p. 1052.)

       The People contend Lai, supra, 138 Cal.App.4th 1227 and Woods, supra, 161

Cal.App.4th 1045 are distinguishable and inapposite because the trial court here made a

finding of fact Gholipour's initial claim for workers' compensation was false and

proximately caused Sharp to incur significant financial losses prior to 2012. We agree

there was substantial evidence to support the court's finding. However, we are not

persuaded this finding is helpful.



                                             37
       Gholipour was convicted of three counts (counts 1-3) of making false and

fraudulent statements misrepresenting her condition at her deposition in July 2012 and

one count of making a false and fraudulent statement, also in July 2012, to misrepresent

her condition to a physician (count 13) for purposes of obtaining workers' compensation

in violation of Insurance Code section 1871.4, subdivision (a). The trial court's finding of

fact that she made fraudulent statements in 2007 did not result in a conviction. Thus,

there is no basis for a restitution award under section 1202.4 for fraudulent conduct for

which she was not convicted.

       Insurance Code section 1871.5 also provides, "[a]ny person convicted of workers'

compensation fraud pursuant to Section 1871.4 … [citation] shall be ineligible to receive

or retain any compensation … [citation], where that compensation was owed or received

as a result of a violation of Section 1871.4 … [citation] for which the recipient of the

compensation was convicted." (Italics added.) Since Gholipour was not convicted for

making false or fraudulent representations in violation of Insurance Code section 1871.4

prior to July 2012, Insurance Code section 1871.5 does not support a restitution award for

compensation owed or received prior to that date. The portion of the restitution award

attributable to conduct prior to July 2012 must be stricken.

                                      DISPOSITION

       We reverse the portion of the restitution order awarding restitution for conduct

prior to July 2012. On remand, the trial court is directed to conduct further restitution

proceedings consistent with this opinion to revise the restitution award to include only



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those damages attributable to the crimes for which Gholipour was convicted. We affirm

the judgment in all other respects.




                                                                  MCCONNELL, P. J.

WE CONCUR:



NARES, J.



O'ROURKE, J.




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