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People v. Korn10/6/2005
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
A jury convicted defendant Jeffrey Lloyd Korn of insurance fraud (Ins. Code, § 1871.4, subds. (a)(1) [count 1], (a)(2) [count 2]) and perjury (Pen. Code, § 118 [count 3].) The trial court suspended the imposition of sentence and placed defendant on 60 months' probation, including 30 days in the county jail and the payment of $60,218.50 in restitution.
Defendant contends: (1) The prosecution's failure to provide sufficient notice as to the perjury charge deprived defendant of due process. (2) Insufficient evidence supports the perjury conviction. (3) Insufficient evidence supports the insurance fraud convictions. (4) The trial court's failure to give a unanimity instruction as to insurance fraud compels reversal on those counts. (5) The court's failure to instruct the jury on the definitions of "make" and "present" in the applicable Insurance Code statutes compels reversal of the insurance fraud convictions. (6) The trial court deprived defendant of his constitutional right to put on a defense by limiting his right to examine defense witnesses about his prior consistent statements. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Viewed most favorably to the judgment, the evidence showed the following:
Defendant, a licensed electrician, was hired on a trial basis in early December 1999 by John Upchurch, the owner of Upchurch Electrical Company. After receiving complaints about defendant's work, Upchurch told defendant around December 15 or 16, 1999, that his services would not be needed any longer; however, because it was Christmas season, he could work through the end of the month. (Upchurch suggested defendant look for work at the local casino, but did not recommend him for any job there.)
On December 20, 1999, defendant and fellow employee William Wyckoff were installing underground electrical wire at a residence. To do so, they pulled the wire through a 250- to 300-foot underground conduit using a "tugger" or "puller," which was set up on two-by-four boards over a hole at one end of the conduit. Defendant told Wyckoff he had operated a tugger before.
A tugger is a device, consisting of an electric motor with a drum or capstan on its revolving shaft, that uses a rope to pull electrical wire through a conduit. When a two-man team installs wire using this method, one worker (in this case defendant) is stationed at the pull end of the conduit, where the tugger is located, and the other (in this case Wyckoff) at the feed end. The rope, to which the electrical cables are attached, is first threaded through the conduit at the feed end, then wraps around the tugger's capstan at the pull end. When the operator at the pull end puts tension on the rope, the tugger will pull the wire through the conduit. If the operator lets go of the rope, the feed stops instantly. The operator needs to stay within two or three feet of the tugger to be able to operate it properly. As the rope goes through the conduit, it winds up on the ground at the operator's end.
Defendant and Wyckoff worked about 300 feet apart; being out of visual range, they communicated through hand-held radios. Defendant radioed to Wyckoff that he was starting to pull. As the rope pulled the wires through the conduit, Wyckoff added lubricant and guided the wires in. So far as Wyckoff could remember, the tugger never stopped until the wir
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