Opinion
C084769
07-23-2018
THE PEOPLE, Plaintiff and Respondent, v. NATALIE LYNN BRINDOS-WATTERS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F01327)
A jury found defendant Natalie Lynn Brindos-Watters guilty of grand theft, two counts of healthcare insurance fraud, and two counts of submitting fraudulent Medi-Cal claims. The trial court imposed a split jail term on one of the convictions for insurance fraud and stayed the remaining counts.
In sentencing, the trial court referenced the wrong statute in imposing a probation revocation fine, which error is also reflected in the summary minute order (though not the formal minutes) and the abstract of judgment. At the People's request, we will direct the trial court to correct its records.
On appeal, defendant contends the trial court violated her right to due process in abandoning its neutral role through facilitating the admission of prosecution documentary evidence, the prosecutor committed misconduct in closing argument, an instruction on consciousness of guilt was not warranted, and the trial court identified an unwarranted aggravating factor. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Little of the evidence underlying defendant's convictions is pertinent to her arguments on appeal. We provide a brief overview for context.
Defendant had been a licensed dental hygienist authorized to work independently of dental supervision. She ran a business in which she and other independent hygienists (as independent contractors) provided Denti-Cal services at about 17 skilled nursing facilities.
A random audit of defendant's accounts indicated she was the 12th largest biller in the Denti-Cal program. There were a number of days on which it appeared that she was seeing an extremely large number of patients for any one person to manage, and was claiming to treat patients in a single day at facilities 250 miles apart. The auditor thus referred the matter to a criminal investigator.
Pursuant to a warrant, the investigator placed a GPS tracker on defendant's car. The investigator kept track of defendant's whereabouts in October and November 2014. The investigator then compared defendant's billings for that period and determined that neither defendant nor any of her associates had appeared or performed services at the billed facilities. The investigator also identified instances of defendant billing for a higher level of service than was actually provided. The investigator identified roughly $38,000 in overbilling.
After a search of her home in December 2014, defendant submitted corrections of dates and amounts of her claims to Denti-Cal, admitting that about $21,000 needed to be reversed. She also contacted her associates and said she had "pre-billed" various facilities and asked if any of them were available to provide services to them. After her license was suspended, defendant sought to sell her contracts with facilities to one of her associates and receive a portion of the proceeds earned, which was not lawful. When the associate balked, defendant suggested the associate could launder the money through a third party's account to conceal the source of payments.
DISCUSSION
1.0 Defendant has Forfeited her Claim of Judicial Misconduct
Apparently with respect to 18 of the prosecution exhibits, the prosecutor did not lay an adequate foundation for admission, leading to the defense's objection, at which point the trial court would then ask a question of the custodial witness to facilitate the process. As the parties do not dispute the instances or their nature, we accept their mutually agreed statements of facts (Meddock v. County of Yolo (2013) 220 Cal.App.4th 170, 175, fn. 3) without particularizing them.
Defendant admits that the trial court did not demonstrate bias "in the traditional sense." However, she claims its actions conferred a benefit on the prosecution, which is outside the proper judicial role. She asserts the trial court should have been confined to sustaining objections to exhibits with inadequate foundations.
"A trial court has both the discretion and the duty to ask questions of witnesses, provided this is done in an effort to elicit material facts or to clarify confusing or unclear testimony." (People v. Cook (2006) 39 Cal.4th 566, 597, italics added.) However, the failure to object to a trial court's participation in the questioning process forfeits the issue on appeal. (Id. at p. 598.) Moreover, no prejudice can be demonstrated where the questions of a witness are few and neutrally phrased, and the jury receives the pattern admonition (as they did here) that it is not to allow anything about the court's conduct of the trial to have an impact on its verdicts. (Id. at pp. 598-599.)
Defendant has thus forfeited this claim. Had she objected to the court's assistance at the outset, the court could have left the prosecutor to his own devices, sustaining the foundation objections until the prosecutor adequately established it. Nothing in the record indicates that the prosecutor would have been unable to respond to foundation objections without the assistance of the trial court such that the court's intercession made a difference in the outcome of the trial. We thus need to observe only that were the issue properly before us, defendant does not establish any resulting prejudice.
2.0 Defendant has Forfeited her Claim of Prosecutorial Misconduct
At the conclusion of his argument, the prosecutor alluded to the associate's testimony about defendant suggesting that the associate could launder Denti-Cal proceeds through a third party in order to pay defendant a share, ending with, "Motive, cavalier attitude, steal with impunity, then try to cover your tracks. [¶] That's what she's all about." Defense counsel did not object.
On appeal, defendant labels this argument "highly prejudicial," because it invited the jury to convict her based on her bad character, and thus we should address her claim of prosecutorial misconduct even absent objection in the trial court because a limiting instruction on the use of evidence of uncharged crimes was not included in the charge to the jury. Defendant also asserts in off-hand fashion that defense counsel could not possibly have had any tactical reason for failing to object, and thus provided ineffective assistance of counsel.
Failure to lodge a contemporaneous objection and a request for an admonition forfeits any claim of prosecutorial misconduct, except where a defendant affirmatively establishes on appeal that it was irremediable or it was futile to object, with more than a "ritual[ized] incantation" to this effect. (People v. Panah (2005) 35 Cal.4th 395, 462.) Defendant has not established futility on the present record, nor does she particularize the reasons why these statements could not have been the subject of an effective admonition.
Defendant in effect admits the misconduct was not irremediable because in an alternative argument for reaching the issue, she asserts the trial court had a duty to admonish the jury sua sponte regarding limitation on the use of evidence of uncharged crimes, citing the oft-invoked dictum in People v. Collie (1981) 30 Cal.3d 43, 64. This is not the occasional extraordinary case to which that dictum would apply because it was not a highly prejudicial dominant part of the evidence against defendant in light of the massive amount of fraudulent claims she filed.
Defendant's attempt to reach the issue under the guise of ineffective assistance of trial counsel fails in two regards. In the first place, direct appeal is almost inevitably the inappropriate forum for establishing that the inherently tactical choice of failing to raise an objection to misconduct fell below reasonable professional standards. (People v. Lopez (2008) 42 Cal.4th 960, 966, 972.) In the second place, defendant does not provide anything more than a perfunctory analysis of how the failure to object did not meet objective professional standards; "[t]his will not suffice." (People v. Mitchell (2008) 164 Cal.App.4th 442, 466-467 [rejecting claim of ineffective assistance on this basis].) As a result, we will not countenance this exercise in second-guessing. If, in fact, trial counsel did not have any strategic basis for failing to object, defendant has a remedy in habeas corpus (if she can establish resulting prejudice).
3.0 Instructing on Consciousness of Guilt was not Prejudicial
One associate testified that she could not remember if she ever saw the documents from Denti-Cal that detailed the services for which it was paying. Another associate testified that she never saw them when she worked for defendant, who told her that the statements of benefits listed multiple associates and she did not want them to see each other's records or patient information.
Based on this testimony, the prosecution sought the instruction on consciousness of guilt from hiding evidence of her fraud. Defense counsel thought this was too tenuous to support the instruction. The trial court agreed to give the instruction, pointing out to defense counsel that he was free to make his objection in the form of argument to the jury. The court accordingly instructed the jury, "If the defendant tried to hide evidence, that conduct may show that she was aware of her guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself." (CALCRIM No. 371, as given.)
At great length, defendant argues the evidence was insufficient to support the instruction, and in abbreviated fashion asserts that the "inference it created" of a plan to hide evidence was "inflammatory," in the absence of which she would have obtained a more favorable result at trial.
The instruction does not "create" an inference, and does not act to a defendant's detriment; it merely states the obvious proposition that if the jury believed there was evidence of concealment it could draw such an inference if the circumstances warranted it. (People v. Holloway (2004) 33 Cal.4th 96, 142.) Thus, even if defendant were correct that the evidence in the present case was insufficient to support the instruction, at worst it was superfluous and immaterial in the face of strong evidence of guilt, and thus not a basis for reversing the judgment. (People v. Jackson (1996) 13 Cal.4th 1164, 1225 [pattern instruction regarding fabrication of evidence as consciousness of guilt].) We therefore reject this argument.
4.0 No Cumulative Effect
Defendant argues the errors cumulatively result in denying due process, on which basis we should reverse the judgment. As we have found any prejudice to be minor at worst (the foreclosed claim of prosecutorial misconduct), or nonexistent (the other two claims) in the face of substantial evidence of fraud, there cannot be any synergistic effect resulting in a deprivation of due process. We thus reject the argument.
5.0 Any Error in Imposing the Upper Term was Harmless
In preparing to sentence defendant, the trial court recited three additional factors in aggravation not appearing in the probation report. Among these was its express finding that defendant induced others to participate in wrongdoing, premised on the testimony regarding her efforts to persuade her former associate to launder money. It then immediately began to pronounce judgment (which, defendant contends, did not provide her meaningful opportunity to object to this factor).
Assuming the issue is cognizable on appeal, defendant has failed to demonstrate that this aggravating factor is material. She completely ignores the other two factors that the court identified at the hearing (vulnerability and abuse of a position of trust), as well as the two in the probation report (sophistication and taking a large sum of money). Only a single aggravating factor is necessary to support imposing the upper term, and therefore a more favorable sentence is not reasonably probable in the absence of the allegedly improper factor. (People v. Osband (1996) 13 Cal.4th 622, 728.) We accordingly reject her argument.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the clerical errors in its records that we identified in footnote one, ante.
BUTZ, Acting P. J. We concur: MAURO, J. RENNER, J