People v. Toplitzky

Opinion

TURNER, P. J.

I. Introduction

This case involves a conspiracy among two lawyers and numerous non-attorneys to defraud insurance companies by staging automobile accidents. Myron Jay Toplitzky, defendant, appeals from a judgment of conviction, after a jury trial, of conspiracy (Pen. Code,

1

§ 182, subd. 1, now § 182, subd. (a)(1), Stats. 1989, ch. 897, § 15, p. 3062) to commit: insurance fraud and grand theft (count 1) (§ 487, subd. 1 (now § 487, subd. (a), Stats. 1993, ch. 1125; former Ins. Code §§ 556, 1871.1, see now § 550, added by Stats. 1992, ch. 675 and attorney capping (count 2). (Bus. & Prof. Code, § 6152,

[493]

subd. (a).)

2

Defendant, an attorney, was sentenced to state prison to serve concurrent terms of five years (count 1) and three years (count 2).

3

He was also ordered to pay a $25,000 fine. We affirm the judgment.

II. Discussion

A.

Defendant’s Sentence for Conspiring to Commit Insurance Fraud and Grand Theft Did Not Violate the State and Federal Constitutional Prohibitions of Ex Post Facto Law

Defendant argues his sentence for conspiring to commit insurance fraud and grand theft violated the state and federal constitutional prohibitions of ex post facto laws. (Cal. Const., art. I, § 9; U.S. Const., art. I, § 10, cl. 1.) He argues an unconstitutional increased sentence was imposed under a statutory amendment which took effect after the conspiracy began but before it ended. This contention is without merit. The grand jury indictment charged and the testimony indicated defendant was a participant in the conspiracy between November 1, 1988, and July 19, 1991. The increased penalty imposed upon defendant took effect on January 1, 1989. (Former Ins. Code, § 556, Stats. 1988, ch. 1609, § 1, pp. 5864-5865; see now § 550.) The jury found defendant guilty as charged of participation in a conspiracy lasting from November 1, 1988, to July 19, 1991. The evidence supported that finding. Defendant’s defense was that he had no knowledge of the conspiracy. There was no evidence he withdrew from the conspiracy. Under these circumstances, defendant’s participation in the conspiracy was properly subject to the increased penalty which took effect while the criminal