People v. Adan

Opinion

COFFEE, J.

Everado Obispo Adan appeals from the judgment entered after a jury convicted him of workers’ compensation fraud. (Ins. Code, § 1871.4, subd. (a)(1).) We affirm and hold, among other things, that the medical experts’ testimony to establish that Adan falsified his symptoms

[392]

does not violate Penal Code section 29,

1

which prohibits an expert from testifying whether a defendant has the required mental state to commit the crime charged.

Facts

In August 1995, Adan’s employer terminated his employment. Three days later, Adan claimed that he had injured his back at work. In August Adan began receiving workers’ compensation benefits.

In September 1995 Adan told Jorge Reyes, a former coworker, that Adan had claimed to have been hurt at work, but in fact “there was nothing wrong with him.” Adan said he was waiting “for a big check to go to Mexico and to live very well there.” Adan tried to persuade Reyes to see Adan’s lawyer and file a workers’ compensation claim, but Reyes refused.

Based on the report of a physician who had examined Adan, the State Compensation Insurance Fund (SCIF) determined that he was permanently disabled and entitled to weekly benefits of $207.42.

Dr. Koegler and Dr. Strait subsequently examined Adan. Dr. Koegler believed that Adan was exaggerating his symptoms. He advised SCIF to investigate whether Adan was malingering. Dr. Strait concluded that Adan was malingering.

Private investigators monitored Adan’s activities. They observed that he moved and walked in a “free and easy manner,” did not wear a back support, appeared to be in no pain, and walked up and down steps without any assistance. The investigators videotaped their surveillance, and the videotapes were shown to the jury.

I

Adan contends that the trial court violated Penal Code section 29 by allowing Dr. Koegler and Dr. Strait to testify that Adan was malingering. “[Sjection 29 prohibits an expert witness from giving an opinion about the ultimate fact whether a defendant had the required mental state for conviction of a crime.”