P. v. Ben Hamo

Filed 5/3/06 P. v. Ben Hamo CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Gale E. Kaneshiro, Judge. Affirmed as modified.

Defendant Shalom Ben Hamo set fire to his business on what was supposed to be its opening day, to collect insurance proceeds from Farmers Insurance Exchange (Farmers). On January 24, 2005, a jury convicted him of: count 1, arson of a structure (Pen. Code^[1] § 451, subd. (c)); count 2, arson of personal property with intent to defraud (§ 451, subd. (d)); count 3, presenting a false or fraudulent claim for payment of insurance benefits (§ 550, subd. (a)(1)); count 4, preparing a writing to support a fraudulent insurance claim (§ 550, subd. (a)(5)); counts 5 and 6, presenting a false or misleading written or oral statement in support of a claim for insurance benefits (§ 550, subd. (b)(1)); count 7, preparing or making a false or misleading written or oral statement in support of a claim for insurance benefits (§ 550, subd. (b)(2)); and count 8, criminal conspiracy pertaining to counts 3, 5 and 6 (§ 182, subd. (a)(1)).

The court sentenced Ben Hamo to five years in state prison, consisting of the midterm of four years on count 1 and a consecutive one year (one-third the midterm of three years) on count 5. The court also imposed the midterm of two years on count 2, to run concurrently with the sentence on count 1, and one year sentences (one-third the midterm of three years) on counts 3 through 7, to run concurrently with the sentence on count 5. The court imposed and stayed a midterm sentence of three years on count 8. Further, the court ordered Ben Hamo to pay Farmers $157,618.14 in restitution.

On appeal, Ben Hamo challenges the sufficiency of the evidence to support his conviction on count 3. He also contends the court violated section 654 by imposing multiple punishments on counts 2 through 7 as "the arson and the false insurance claim . . . were all part of a single plan to obtain insurance benefits." The People concede the sentence on count 2 must be stayed, and we conclude the sentences on counts 6 and 7 must also be stayed. In other respects, we affirm the judgment.

FACTS

Farmers insured Ben Hamo's Hilltop 99-Cent Store (the Hilltop store) in Chula Vista. It was scheduled to open on August 21, 1999,^[2] and around 6:00 that morning a passerby telephoned 911 because it was on fire. At about the same time, the store's silent alarm was activated, perhaps because its wires were burned.

Firefighters responded and extinguished the fire after it burned a portion of the store and inventory. A firefighter discovered a door ajar at the back of the store and there were no signs of forced entry. Ben Hamo arrived at the store, and he told a police officer that the previous evening he left the store locked and the alarm activated. The alarm was connected to each door in the store and a roof hatch, and it was equipped with a motion sensor.

Investigators determined the fire was arson, based on the odor of gas, the presence of a matchbook, a lighter, a partially burned paint roller cover, and two or three gas cans. They believed the arsonist gained access through an unlocked rear door or an unlocked roof hatch.

Ralph Piper, an adjuster for Farmers, conducted a taped interview with Ben Hamo on August 27. Ben Hamo claimed the Hilltop store had approximately 40,400 items of merchandise at a cost of more than $100,000. He also said his business records were destroyed in the fire. The evidence showed, however, that the Hilltop store contained substantially less inventory than he claimed. Farmers conducted an inventory and determined the store contained approximately 24,393 items. Farmers estimated the value of the inventory, furniture, shelving and a cash register at $23,714.51. Further, in contrast to what Ben Hamo told Piper, there was minimal damage to the store's office and the business records had only minor smoke damage and were readable.

DISCUSSION

I

Count 3

"[I]n reviewing a challenge to the sufficiency of the evidence, the relevant inquiry is whether, on review of the entire record in the light most favorable to the judgment, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt." (People v. Young (2005) 34 Cal.4th 1149, 1180.) " 'In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court "must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (Id. at p. 1175.)

Under section 550, subdivision (a)(1) it is unlawful 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." Count 3 is based on Ben Hamo's giving a false statement to Piper, Farmers adjuster, on August 27. Ben Hamo contends his conviction on count 3 lacks evidentiary support because his statement to Piper that his inventory was worth more than $100,000 did not constitute the presentation of a claim for payment. Rather, he was merely engaged in a "preliminary discussion" with Farmers.

Ben Hamo relies on his statement to Piper during the interview, made shortly after his assertion he lost more than $100,000 in inventory, that he lost approximately 40,400 items and " 'I have to work with my accountant and convert that to dollars.' " He also cites Piper's testimony that sometime after the August 27 interview, Ben Hamo presented a written claim against Farmers for $100,000 in lost merchandise.

"It is to be assumed that the Legislature in using the word 'claim' [as now used in section 550, subdivision (a)(1)] intended to have its common meaning and intended to proscribe the presentment of any false demand under a policy of insurance irrespective of the form of that demand. Certainly it was not the intent of the Legislature to only proscribe the filing of a false written proof of loss for proofs of loss are made, not as a claim, but in support of a claim, and it is the making of the false proofs of loss which is in part the subject matter of paragraph (b) of section 556" (now section 550, subd. (a)(5)). (People v. Teitelbaum (1958) 163 Cal.App.2d 184, 212, italics added.)^[3]

Ben Hamo relies on People v. Teitelbaum, in which the defendant falsely claimed his store was robbed of furs, and under his direction two lists detailing the losses were made and provided to the insurers' adjuster. The defendant contended he was wrongly convicted of presenting a false insurance claim because the lists were not signed proofs of loss. The court rejected the argument, explaining "[i]t is evident that the jury might well find . . . that by presenting this itemized list, containing the value of each item of the property described, appellant intended it to be a claim for the payment of a loss under the policies, irrespective of that fact that in order to fix the liability of the insurers under the policies, it would be necessary for him to file a formal and sworn proof of loss in support of the claim." (People v. Teitelbaum, supra, 163 Cal.App.2d at p. 213.)

Although count 3 was not based on Ben Hamo's submission of a written list of losses, the jury's finding was supported by substantial evidence. The purpose of Piper's interview with Ben Hamo was to determine what type of insurable losses the Hilltop store sustained, and he claimed losses in inventory exceeding $100,000. He later stated the final figure would come from his accountant, but he did not withdraw his claim for substantial losses in inventory. Even if Ben Hamo indicated the accuracy of the $100,000 required confirmation, any demand for payment was fraudulent because Ben Hamo set fire to his own business, thus abrogating any right of recovery under the insurance policy. A "claim" is commonly defined as "a demand for compensation, benefits, or payment" (Webster's 3d New Internat. Dict. (1986) p. 414), and during the August 27 interview with Piper, Ben Hamo knowingly claimed insurance benefits to which he was not entitled. Further, at the end of the recorded interview Piper asked Ben Hamo if his statement would be the same under oath, and he applied in the affirmative.

II

Multiple Punishments

Ben Hamo also contends the court violated section 654 by imposing concurrent sentences on counts 2 through 7, because the "arson and the false insurance claim with supporting statements and documents . . . were all part of a single plan to obtain insurance benefits."

Section 654, subdivision (a) provides, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 bars the imposition of multiple punishments when one act or a single course of conduct violates more than one statute. (People v. Perez (1979) 23 Cal.3d 545, 551.) "The purpose of section 654 is to ensure that a defendant's punishment will be commensurate with his culpability." (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)

Whether a course of conduct is indivisible for purposes of section 654 depends on the defendant's intent and objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) However, when crimes are divisible in time, separate punishments are proper even if the defendant had a single intent or objective and even if one crime is committed to facilitate the other crime. (People v. Beamon (1973) 8 Cal.3d 625, 639 & fn. 11 ["It seems clear that a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment"], overruled on another ground in People v. Mendoza (2000) 23 Cal.4th 896, 924, fn. 14; People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.) A significant factor in determining section 654's applicability is whether the defendant had the opportunity to reflect on his criminal conduct between the offenses. (People v. Kwok, supra, at p. 1255.)

"Because of the many differing circumstances wherein criminal conduct involving multiple violations may be deemed to arise out of an 'act or omission,' there can be no universal construction which directs the proper application of section 654 in every instance." (People v. Beamon, supra, 8 Cal.3d at p. 636.) The court's ruling under 654 is a factual matter that will not be reversed on appeal if it is supported by substantial evidence. (People v. Saffle, supra, 4 Cal.App.4th at p. 438.)

The People concede "the two arson counts arose out of the exact same act," and thus the trial court should have stayed the sentence on count 2 (arson of personal property) instead of imposing it concurrently with the sentence on count 1 (arson of structure). We agree that section 654 precludes punishments for both types of arson. (People v. Fry (1993) 19 Cal.App.4th 1334, 1340.)

The evidence as to counts 3 through 7 is as follows. Count 3, the presentation of a false claim (§ 550, subd. (a)(1)), occurred on August 27, several days after the arson, when Piper interviewed Ben Hamo and he claimed he suffered more than $100,000 in losses compensable by insurance.

Count 4, the preparation of a writing to support the fraudulent claim (§ 550, subd. (a)(5)), occurred on October 22 when Ben Hamo presented to Farmers a proof of loss and supporting attachments. Piper testified the attachments included invoices for merchandise Ben Hamo had submitted to Farmers in an earlier claim arising from a burglary at his previous store. Piper further testified that Ben Hamo sought coverage for business interruption, and submitted a financial statement for June 1999 for the Hilltop store. The store, however, was not open in June 1999. The grand opening for the Hilltop store was scheduled for August 21, the day of the fire.

Count 5, the presentation of a false or misleading statement (§ 550, subd. (b)(1)), occurred on October 27 during Ben Hamo's examination under oath by an attorney for Farmers, Melody Mosley. He told Mosley he had a 99-cent store in San Diego, which was not doing well so he closed it in June or July and relocated to Chula Vista. Ben Hamo explained he was allowed into the store about 3:00 p.m. on the day of the fire, and he then noticed missing displays he assumed were burned or stolen. He also said a "big square" was missing on which he "put like cookie[] displays," and a "big table" with accessories was also missing. Ben Hamo characterized Farmers inventory as "absolutely wrong," and claimed it did not include many lost items. He stated "the wall carries about 80,000 items or 50, 60,000 items."

Count 6, also based on the presentation of a false or misleading statement (§ 550, subd. (b)(1)), arose from Ben Hamo's submittal of a fraudulent invoice at the October 27 examination under oath. The evidence shows that after the fire, Ben Hamo and Yosi Parpara went to a wholesaler, from whom Parpara had previously purchased $12,120.93 in merchandise for his own store. While Ben Hamo waited outside, Parpara obtained blank invoices and a copy of the invoice from his previous purchase. A new invoice dated August 3 was then generated to show that $12,120.93 in merchandise purchased from the wholesaler was transferred to Ben Hamo's Hilltop store for the same price.

Count 7, for making a false or misleading statement (§ 550, subd. (b)(2)), also arises from Ben Hamo's examination under oath on October 27. He testified that he left the Hilltop store about 7:00 p.m., the evening before the fire, and he locked all the doors and activated the alarm.

The arson crimes (counts 1 and 2) and the making of and presentation of fraudulent documents and statements to Farmers (counts 3, 4, and 5) were divisible in time, and Ben Hamo had the opportunity to reflect and to discontinue his criminal conduct between the crimes. Again, under People v. Beamon, supra, 8 Cal.3d 625, separate sentencing is permitted for offenses that are divisible in time. (See also People v. Kwok, supra, 63 Cal.App.4th at p. 1254.) We thus conclude the court properly imposed sentences on counts 3, 4, and 5.

We agree, though, that the court should have stayed the sentences on counts 6 and 7, as they and count 5 all occurred during the examination under oath, and each of the three crimes was aimed at obtaining insurance benefits. In People v. Jiminez (1992) 11 Cal.App.4th 1611, 1623-1624, disapproved on other grounds in People v. Kobrin (1995) 11 Cal.4th 416, 419-420, the court held that a defendant convicted of two counts of perjury during trial testimony was not subject to double punishment as his sole objective was to exonerate himself of the charges. Similarly, in People v. Dieguez (2001) 89 Cal.App.4th 266, 275, the court held the continuous course of conduct exception to section 654 applied when the defendant made several false statements to a physician during the course of a single examination with the objective of obtaining workers' compensation benefits. The People do not address these cases, and we find them analogous and persuasive. We disagree with the People's assessment that counts 5, 6, and 7 are separately punishable because they occurred at different moments during the examination under oath.

DISPOSITION

The judgment is modified to stay the sentences on counts 2, 6, and 7 under section 654. The superior court is directed to amend the abstract of judgment accordingly and to forward an amended abstract to the Department of Corrections. In all other respects the judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

HALLER, J.

IRION, J.

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^[1] Statutory references are to the Penal Code unless otherwise specified.

^[2] All dates refer to the 1999 calendar year unless otherwise indicated.

^[3] Section 550, subdivision (a)(5) makes it illegal to "knowingly prepare, make, or subscribe 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."