Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County, No. BA255203 Curtis B. Rappe, Judge.
Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant Howard R. Bass.
Thomas J. Gray for Defendant and Appellant Emmanuel Andrew Udeobong.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Nancy G. James, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
Defendants Howard R. Bass and Emmanuel Andrew Udeobong appeal from their respective judgments of conviction following a joint jury trial. The jury convicted both defendants of one count of grand theft (Pen. Code, § 487, subd. (a)), convicted Bass of 12 counts of making a false health care claim (Pen. Code, § 550, subd. (a)(6)), and convicted Udeobong of two counts of filing a false tax return (Rev. & Tax. Code, § 19705, subd. (a)(1)). The court sentenced Bass to five years in state prison, and Udeobong to four years.
The jury also found true the following enhancement allegations: as to the grand theft count, that the taking involved more than $150,000, more than $100,000, and more than $50,000 (Pen. Code, §§ 12022.6, subds. (a)(2) and (a)(1), and 1203.045, respectively); as to the false claim counts, that the amounts taken exceeded $400 (Pen. Code, § 550, subd. (c)(2)(A)); and as to Bass, that his crimes involved related fraudulent conduct resulting in the taking of more than $500,000 (Pen. Code, § 186.11, subds. (a)(1) & (a)(2)).
On appeal, Bass contends that the trial court erred in not referring him for an evaluation under Welfare and Institutions Code section 3051 for possible commitment for narcotics treatment and rehabilitation. Udeobong contends that: (1) his trial counsel was ineffective for failing to object to an instruction on vicarious liability based on an uncharged conspiracy; (2) the trial court erred in failing to grant a new trial based on the conspiracy instruction; and (3) the convictions of filing a false tax return must be reversed because insufficient evidence on these counts was presented at the preliminary hearing. We affirm the judgment as to both defendants.
BACKGROUND
Because the contentions on appeal do not require a detailed review of the evidence, we briefly outline the evidence in accord with the proper standard on appeal. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Prosecution
From January 1999 until July 2003, Bass, a medical doctor, worked as a physician at New World Medical Group (New World), a clinic in Los Angeles. Udeobong was part owner of New World when Bass was hired and participated in billing Medicare for procedures performed at the clinic. The clinic had several “recruiters,” persons who brought in groups of patients, usually Asian, in exchange for a fee. When patients arrived, Bass would be called.
Bass would order a standard batch of diagnostic tests for his patients. Medical assistants at the clinic would perform the tests, record the results in the patients’ charts, and leave the charts for Bass to review. Bass would then sign off on the charts. Udeobong would assemble the bills for pick-up by New World’s billing company, to be transmitted to Medicare.
Reviewing documents from the charts of 12 of Bass’s patients (corresponding to the 12 counts of false claims), Dr. Donald Adams, a medical advisor for Medicare, testified that none of the charts contained adequate information indicating that the listed procedures (including cardiac event monitoring and a full abdominal ultrasound) were medically necessary or resulted in any information that might aid a physician in diagnosis. For durable medical equipment attributable to procedures ordered by Bass, New World billed Medicare $1,651,219.
Udeobong was paid $234,203.69 by New World in 1999, but failed to report income of $144,703.69 in his 1999 state income tax return. New World paid Udeobong $141,977.95 in 2000, but he failed to report income of $110,477.95.
Defendant Bass
In his own defense, Bass testified that he began working for New World in December 1997. His job was to see patients and order treatment. He was paid $2,500 twice a month, and had nothing to do with billing. He testified that he saw all his patients and never simply signed off on their charts.
Bass had a long history of substance abuse, and at the time he began working at New World he was addicted to alcohol and cocaine. Although he saw all his patients, he was “spiral[ing] downward with . . . addiction,” and “would sign just about anything that they put in front of [him].” He did not sign forms intending to defraud Medicare, but did not dispute that New World committed Medicare fraud: “Looking through the eyes of a sober doctor right now I do believe these procedures – that Med-ical [sic] paid for procedures that weren’t performed.”
By the time of trial, Bass had been sober for “six years, four months and twenty-eight days,” and felt “as close to normal as I could possibly imagine what normal is being as I was under the influence longer than I was sober in my entire life.” He became sober in September 2000, and continued to work at New World until it was closed in July 2003.
Defendant Udeobong
Udeobong presented no defense evidence.
DISCUSSION
I. Failure to Refer Bass for CRC Evaluation
Bass contends that the trial court erred in failing to refer him for evaluation under Welfare and Institutions Code section 3051 for commitment to the California Rehabilitation Center (CRC). We disagree.
Welfare and Institutions Code section 3051 provides in relevant part: “Upon conviction of a defendant for a felony . . . and upon imposition of sentence, if it appears to the judge that the defendant may be addicted or by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics the judge shall suspend the execution of the sentence and order the district attorney to file a petition for commitment of the defendant to the Director of Corrections for confinement in the narcotic detention, treatment, and rehabilitation facility unless, in the opinion of the judge, the defendant’s record and probation report indicate such a pattern of criminality that he or she does not constitute a fit subject for commitment under this section.”
Bass forfeited any issues relating to a possible CRC commitment by failing to request a CRC commitment in the trial court. (People v. Lizarraga (2003) 110 Cal.App.4th 689, 692 (Lizarraga); People v. Planavsky (1995) 40 Cal.App.4th 1300, 1315.) At the combined sentencing hearing for both defendants, Bass’s trial counsel argued that Bass was a long time substance abuser, and that his drug and alcohol history was instrumental in leading to his involvement with the fraud at New World. The court pointed out that Bass testified he had been sober since 2000 and the fraud continued until 2003. Bass’s attorney responded that Bass was in withdrawal and not thinking of the consequences of his actions. Counsel requested that the court place Bass on probation or sentence him to a restitution center. In the alternative, counsel requested that Bass “be sent out on a ninety-day diagnostic for an evaluation.”
Bass asserts that he requested a CRC referral, apparently relying on his attorney’s reference to a “ninety-day diagnostic . . . evaluation.” That comment, however, was a short-hand reference to the procedure of Penal Code section 1203.03, under which a court may order a defendant placed in a diagnostic facility of the Department of Corrections and Rehabilitation not to exceed 90 days. It was not a reference to the procedure of Welfare and Institutions Code section 3051, under which the court orders “the district attorney to file a petition for commitment of the defendant to the Director of Corrections for confinement in the narcotic detention, treatment, and rehabilitation facility.”
Penal Code section 1203.03, subdivision (a) provides: “In any case in which a defendant is convicted of an offense punishable by imprisonment in the state prison, the court, if it concludes that a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the Department of Corrections, may order that defendant be placed temporarily in such facility for a period not to exceed 90 days, with the further provision in such order that the Director of the Department of Corrections report to the court his diagnosis and recommendations concerning the defendant within the 90-day period.”
Having failed to request a CRC commitment in the trial court, Bass forfeited his claim that the trial court erred in failing to consider a CRC referral. (Lizarraga, supra, 110 Cal.App.4th at p. 692.)
In any event, we conclude that the record did not support a CRC referral. By the time of sentencing in March 2007, Bass (who became sober in September 2000) had been drug-free for approximately six and a half years. As he testified at trial, he was “as close to normal as I could possibly imagine what normal is being as I was under the influence longer than I was sober in my entire life.” Thus, when Bass was sentenced, it did not appear that he was “addicted” to narcotics or “by reason of repeated use of narcotics . . . in imminent danger of becoming addicted to narcotics.” (Welf. & Inst. Code, § 3051.) Indeed, no evidence was presented that Bass was currently in need of treatment for narcotics addiction should he be confined as a result of his sentencing. We conclude that even if Bass did not forfeit the issue, the record did not support a CRC referral.
II. Ineffective Assistance to Udeobong’s Trial Attorney
The trial court instructed the jury on evaluating evidence of an uncharged conspiracy to commit grand theft pursuant to CALCRIM No. 416, including the principle that “[a] member of a conspiracy is criminally responsible for the acts or statements of any other member of the conspiracy done to help accomplish the goal of the conspiracy.” Udeobong contends that his trial counsel was ineffective for failing to object to this instruction because the crime of conspiracy was not charged. However, “[i]t is long and firmly established that an uncharged conspiracy may properly be used to prove criminal liability for acts of a coconspirator. [Citations.] ‘Failure to charge conspiracy as a separate offense does not preclude the People from proving that those substantive offenses which are charged were committed in furtherance of a criminal conspiracy [citation]; nor, it follows, does it preclude the giving of jury instructions based on a conspiracy theory [citations].’ [Citation.]” (People v. Belmontes (1988) 45 Cal.3d 744, 788-789.)
Here, the evidence supported the inference that Bass and Udeobong were involved in a conspiracy to commit grand theft from Medicare. Bass ordered unnecessary medical procedures, and Udeobong provided the bills for those procedures to New World’s billing company for transmittal to Medicare. Thus, the prosecution was entitled to prove Udeobong’s guilt of grand theft on a conspiracy theory. Trial counsel was not ineffective for failing to object to the uncharged conspiracy instruction.
III. Udeobong’s Motion for a New Trial
Udeobong contends because the uncharged conspiracy instruction was improper, the trial court erred in denying his motion for a new trial, which cited that instruction as a ground for new trial. As we have explained, however, the trial court did not err in giving the conspiracy instruction.
IV. Udeobong’s Illegal Commitment for Filing False Tax Returns
Udeobong contends that insufficient evidence was presented at his preliminary hearing to prove that he filed a false tax return (Rev. & Tax. Code, § 19705, subd. (a)(1)) in 1999 and 2000 as charged in counts 14 and 15, respectively, and that therefore his conviction of those crimes at trial must be set aside. According to Udeobong, the evidence at the preliminary hearing (and at trial) failed to show that the money he received from New World was income.
Irregularities at the preliminary hearing, such as the alleged insufficiency of the evidence, require reversal on appeal only if the defendant was deprived of due process or otherwise prejudiced. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990 (Lewis and Oliver).) Here, Udeobong makes no showing that he was deprived of due process. He contends that he was prejudiced, because the evidence at trial failed to show that the money he received from New World was income. But the trial evidence was undisputed that Udeobong worked for New World, and when Bass was hired Udeobong was partial owner. New World paid Udeobong $234,203.69 in 1999 and $141,977.95 in 2000. The jury could reasonably infer that these payments were compensation for his services. He underreported this income by $144,703.69 in his 1999 and by $110,477.95 in 2000. This evidence was sufficient to prove he filed false state income tax returns for those years. Thus, any error at the preliminary hearing does not require reversal of his convictions. (Lewis and Oliver, supra, 39 Cal.4th at p. 991.)
DISPOSITION
The judgments are affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.