Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. H36945
Swager, J.
Defendant was convicted following a jury trial of one count of practicing medicine without a license (Bus. & Prof. Code, § 2052), and was sentenced to a term of two years in state prison. In this appeal she claims that she received inadequate assistance of counsel, evidence of uncharged misconduct was erroneously admitted, and the CALCRIM No. 220 instruction on the burden of proof was defective. Defendant also complains of two sentencing errors: the denial of probation, and the imposition of a court security fee in the abstract of judgment. We find that defendant has not established incompetence of counsel in this appeal, the uncharged misconduct evidence was properly admitted, and the CALCRIM No. 220 instruction is not flawed. We further find no abuse of discretion in the denial of probation, and no error in the inclusion of a court security fee in the abstract of judgment. We therefore affirm the judgment.
The prosecution dismissed a charge of grand theft (count 4), and the jury was unable to reach a verdict on two additional charges of practicing medicine without a license (counts 2 and 3), which resulted in the declaration of a mistrial on those counts.
STATEMENT OF FACTS
The Conviction for Practicing Medicine Without a License (Count 1).
In June of 2003, Heena Balakrishnan lived in San Jose, and attended a Hindu Temple in Fremont. Defendant attended the same temple, and offered a “free medical consultation” there. Balakrishnan took her ailing mother, Sitaben Patel, to defendant for an examination. Balakrishnan asked defendant to examine her mother “to see if she can be exempt from the citizen test.” She advised defendant of Patel’s health problems: memory loss, depression, and “sensitive skin that is burning.” Defendant represented to Balakrishnan that “she’s a medical doctor with a Ph.D,” and invited Balakrishnan to bring Patel to “her office in Fremont” the next day for an examination to “see if she qualifies to be exempt from the citizen test.” Defendant also offered to sell Balakrishnan health insurance. Based on defendant’s representations, Balakrishnan believed she was “a medical doctor with a Ph.D.”
Balakrishnan took Patel to defendant’s office in Fremont on June 23, 2003. Balakrishnan brought with her an “immigration form” (INS form) she obtained from the INS website to exempt Patel from the language proficiency citizenship test for health reasons. Before she arrived at defendant’s office, Balakrishnan completed the “top part” of the INS form which provided personal information on Patel: her name, address, social security number, alien registration number, phone number, date of birth, and so forth.
Inside defendant’s office Balakrishnan noticed a desk and a computer, along with a “name plate” that read “Dr. Reena Chopra.” Balakrishnan gave defendant the INS form, and defendant proceeded with an examination of Patel, which consisted of a check of Patel’s ears, eyes and blood pressure. Balakrishnan also gave defendant Patel’s medical history and current “health issues.” Defendant stated to Balakrishnan that no further examination of Patel was needed, as the INS would accept the form. Balakrishnan then gave defendant the INS form, which she agreed to complete by 9:00 that night. Before she left defendant’s office, Patel also signed and dated the form to authorize “Dr. Reena Chopra” to conduct an examination. The remainder of the INS form, which asked for information on Patel’s health status in a series of boxes, was still blank. Balakrishnan wrote defendant a check for $70 for services which included completion of the INS form.
Balakrishnan returned to defendant’s office about 9:00 p.m. to pick up the INS form. The office was closed, but the form was in defendant’s mailbox. Balakrishnan examined the form. The boxes on the form had been checked and “filled out” with information on Patel’s clinical diagnosis and physical limitations. Also included on the form was defendant’s name, address, telephone number, the letters “C-a” for licensing state, and a reference to “family” and “general practice.” The form was signed at the bottom of the page.
Balakrishnan subsequently added the date.
Balakrishnan noticed that much of defendant’s handwriting was illegible. She called defendant with a request for her to type the information; defendant agreed. Balakrishnan returned to defendant’s office the following day, where defendant typed a document on her computer to be attached to the INS form. The document recited Patel’s medical impairments: reduced cognitive skills, memory deficit, confusion, dementia, and inability to learn or demonstrate knowledge. Defendant also placed a stamp on the document that read, “Life Improvement and Wellness Center.” She did not sign the document, however, and still refused to do so when asked by Balakrishnan. When Balakrishnan continued to demand a signature, defendant finally signed and dated the document on top of the Life Improvement and Wellness Center stamp.
Balakrishnan realized that defendant’s “medical license number” was still missing from the box at the bottom of page three of the form. Defendant became “angry” when Balakrishnan asked her “for her medical number,” and refused to provide it. After a few telephone calls from Balakrishnan in which she demanded the medical license number, defendant finally provided one, “C12843.” Balakrishnan wrote down the number given by defendant and transferred it in the appropriate box on the immigration form.
Defendant’s behavior made Balakrishnan “suspicious,” so she contacted an investigator with the “Medical Board” and discovered that defendant is “not a medical doctor.” Balakrishnan demanded a return of her check from defendant. When defendant refused, Balakrishnan called her bank to “put a stop payment” on the check.
The medical license number given to Balakrishnan by defendant was actually issued to Dr. Hershell Copelan, now deceased, in June of 1950, and had expired on October 31, 2001. The licensing section manager of the California Medical Board testified that a search of the records of the licensing division revealed that no application for a medical license had ever been received from defendant, nor had any license been issued to her.
Expert testimony was adduced on the signature placed on the typed document defendant completed for attachment to the INS form. An inspector for the Alameda County District Attorney’s Office obtained a series of handwriting exemplars from defendant. Defendant was asked to provide in “natural handwriting” her name, words, dates and numbers that appeared on the “INS form” and attached document she prepared for Balakrishnan. When defendant completed the exemplars she wrote very slowly, methodically and deliberately. On many different occasions, after completing the exemplar defendant “would go back” and add or alter letters or numbers.
An expert offered his opinion that defendant intentionally attempted to alter her normal “writing habits when providing the request[ed] exemplars.” Still, the expert testified that defendant “wasn’t able to alter everything,” so he was able to get “a good idea of how she really writes.” The expert examined the document attachment to the INS form which bore the stamp, “Life Improvement and Wellness Center,” particularly the signature and date. He testified that the signature “began with a legible upper case R,” but the remainder was a “series of illegible loops.” According to the expert, the “R” was “very similar” to defendant’s writing in the exemplars, and defendant “did write the date 6/23/03” on the document. The expert also offered his opinion that the signature of Patel on a document entitled “Life Improvement and Wellness Center Disclaimer” was a “tracing” from another “model signature.”
At trial, the prosecution also offered in evidence portions of defendant’s testimony at the preliminary hearing. Defendant testified that she completed only that portion of the INS form in her handwriting, including her name, address and telephone number. She denied that she wrote a medical license number on the INS form or prepared the document attachment for the form. Defendant also testified that she observed Patel sign the Life Improvement and Wellness Center Disclaimer form, which included an admonition that defendant was not a medical doctor.
The Charged Offenses for Practicing Medicine Without a License (Counts 2 and 3)
As defendant was not convicted of these charges, we will recite the evidence pertinent to them concisely, as necessary to resolution of the issues raised on appeal.
Rajinder and Gurpal Khangura noticed an advertisement in a local newspaper for health insurance coverage with the “Reena Chopra Medical Group.” The advertised cost of the medical insurance was “very cheap,” $100 per year per person, so in December of 2002 they made arrangements with defendant to meet her in her office near Washington Hospital in Fremont. At the office, defendant was wearing a stethoscope and told them, “I’m the doctor.” In response to Gurpal’s questions, defendant said that the insurance covered treatment in hospitals. Gurpal testified that he “trusted” defendant, and gave her a check for $400 for medical insurance for himself, his wife, and their two sons.
For the sake of clarity and convenience, we will refer to Rajinder and Gurpal Khangura, and their sons Sarwinder and Jatinder, by their first names.
Thereafter, the Khangura family received medical treatment from defendant. Sarwinder visited defendant’s office in January of 2003, with a complaint of knee pain. Defendant took him to Washington Hospital for a “bone density test.” Washington Hospital offers the general public free, unlimited access to a machine in the hospital community health resources library that tested bone density. While at the hospital defendant identified herself to the staff as a “doctor.” After the test, defendant was given a “printout” with the results; Sarwinder did not get a copy of the document. Back at the office, defendant told Sarwinder that he had “low bone density,” and advised him to curtail physical activities such as weightlifting. She also gave him two forms of pill medication to strengthen his bones, one in a bottle and the other in a foil pack. After the visit to defendant’s office, Sarwinder did not trust defendant and told his father, “I don’t believe that she’s a doctor.” He did not take the medication given to him by defendant.
Expert testimony adduced by the prosecution established that a bone density test is done only to check for osteoporosis, not to assess a knee injury or knee pain.
The same day, Rajinder asked defendant to check her cholesterol level. Rajinder had a history of high cholesterol for which she took medication. Defendant asked Rajinder to provide a “urine sample” in the bathroom of the office. When Rajinder asked defendant why she was not giving a blood sample to check her cholesterol level as she had always done in the past, defendant replied that a urine sample “is an easy method and it is the best method.”
The prosecution presented evidence that a fasting blood test is the only reliable method of testing cholesterol.
Defendant advised Rajinder that her cholesterol level was “very good.” Rajinder subsequently visited defendant’s office to get a “report” of the cholesterol test results, but defendant merely pointed at a note pad and repeated that the results were “fine.” Rajinder also provided a second urine sample at defendant’s office. Defendant gave Rajinder medication identified on the bottle as “Liv. 52” to treat her “cholesterol.” Rajinder did not take the medication. Defendant charged a total of $100 for the examination and testing of Sarwinder’s knee and the cholesterol check of Rajinder.
In late January or early February of 2003, Gurpal took his son Jatinder to defendant’s office for treatment of stomach pain. Defendant asked Jatinder to provide a urine sample, and referred him to a chiropractor for X-rays. Defendant told the chiropractor that she was Jatinder’s “primary care doctor,” and asked for the X-rays to be sent to her for review. The chiropractor told Gurpal that the X-rays showed “nothing wrong” with Jatinder. Defendant then examined the X-rays at her office and proclaimed that Jatinder’s backbone was “not good.” She gave them medication and stated that the stomach pain may have been caused by the backbone “problem,” but “will go away.” Gurpal paid defendant $70 for the office visit.
Gurpal discovered after a subsequent examination that the medicines given to him by defendant to treat Jatinder were labeled expired, not to be sold outside India, and not be taken by anyone “under 16 years old.” He then became dubious that defendant was “really a doctor.” When Jatinder’s stomach pain persisted, Gurpal took him to an internist, who diagnosed Jatinder with a urinary tract infection and successfully treated him with antibiotics.
Jatinder was then 15 years old.
Gurpal called defendant and asked her to “cancel” their insurance coverage and refund their money. Defendant became “upset,” and told Gurpal not to call her. Rajinder attempted to obtain a refund by visiting defendant’s office, but defendant began shouting and pounding on the table. She yelled at Rajinder that she was “not going to refund the money.” Gurpal then contacted the Medical Board to report that defendant was “not a doctor.”
The prosecution also presented evidence of defendant’s preliminary hearing testimony that she was in New Orleans “on a holiday” around February 1, 2003, when she allegedly treated Jatinder for stomach pain. She produced a purported receipt from the LaSalle Hotel on Canal Street in New Orleans which indicated that she checked into the hotel on January 30th and left on February 7th. At trial, a former manager of the LaSalle Hotel examined the receipt offered by defendant and testified that it was not genuine.
The Uncharged Misconduct Evidence
Other evidence that defendant represented herself as a doctor was offered at trial. Meera Jani, a state licensed chiropractor with offices in Fremont and South San Francisco, testified that she met defendant in August of 2002 at an Indian cultural health fair. Defendant approached Jani’s booth at the health fair and identified herself as “Dr. Reena Chopra” of “Chopra’s Medical Group.” Defendant also gave Jani a business card with the name Dr. Reena Chopra and her address on it. Thereafter, they had lunch together several times and discussed “networking together.” Defendant represented that she was with “Chopra’s Medical Group” and “was on staff at Washington Hospital.” Jani believed that defendant was a medical doctor as she represented.
Defendant stated that she wanted to refer her patients who needed chiropractic care to Jani. She also asked Jani if she wanted to become part of Chopra’s Medical Group. Defendant referred Jatinder to Jani for lower back X-rays in early February 2003. She represented that the patient did not have insurance, and asked Jani to “give some kind of cash discount.” Jani agreed to charge Gurpal for just the cost of the X-rays.
Anand Goundar, a naturopath, testified that defendant “identified herself as a medical doctor and also identified herself as a homeopath” during a conversation at a “fund raising dinner” in August or September of 2002. Defendant added that she had an office in “Fremont,” and was associated with a “large company by the name of Chopra’s Medical Group.” She gave Goundar a business card that identified her as “Dr. Chopra” and referred to “Chopra’s Medical Group.” Defendant also invited Goundar to her office, and expressed to him that “it would be safe” for him to work as a naturopath “under her license.” Based on defendant’s representations to him, Goundar “believed she was a medical doctor.” While visiting defendant’s office, Goundar was advised by her to complete a course in homeopathy using “her medical license.” During a second visit to defendant’s office, Goundar noticed that she did not display any diplomas, California medical license, charts, or reference books. He “asked her are you really a medical doctor.” Defendant became angry, accused Goundar of “asking too many questions,” and said, “I am a medical doctor, . . . and if you want to find it, go find it from the Board.” Goundar contacted the California Medical Board, then filed a complaint against defendant.
Defendant represented herself as a doctor to local business people. David Lowman, an insurance investment broker, testified that at a Fremont Chamber of Commerce “networking event” in March or April of 2003, defendant wore a badge that stated, “Dr. Reena Chopra” and “Chopra Medical Group.” Defendant told Lowman that “she was an internal medicine doctor,” and worked with a “group of five or six” other physicians. She also showed him a “flier” that displayed her e-mail address as “Dr. Chopra,” and had references to lab tests, X-rays, prescriptions and health insurance coverage. At a subsequent meeting in defendant’s office, she asserted that “she went to UCLA Medical School.” Defendant further mentioned that she offered a health plan affiliated with Washington Hospital, where she did rounds.
At other Fremont Chamber of Commerce functions, Barbara Jenkins, a fashion consultant, met defendant, who wore a badge that “said Dr. Reena Chopra.” Defendant gave Jenkins a business card with the title Chopra Medical Group. At a “Women in Business Connection Club” meeting which Jenkins attended, defendant introduced herself as “Dr. Reena Chopra,” and described herself as a “practitioner of holistic medicine,” specializing in “sexual problems.” A flier distributed by defendant mentioned that her office was located in the Washington Medical Center across from the hospital, and she offered health insurance. Based on defendant’s representations, Jenkins thought defendant was a “medical doctor” with her own office and medical group affiliated with Washington Hospital, an “acupuncturist,” and a practitioner of “holistic medicine.”
Testimony was given by Richard Oriakhi, an attorney who represented defendant in a personal injury case she filed. Oriakhi testified that on the form complaint he wrote “Medical doctor” on the line that requested “occupation.” Defendant then reviewed and signed the form.
Karen Halverson, community health librarian at Washington Hospital, testified that defendant regularly visited the hospital with people she referred to as “her patients” to use the bone density test machine. She identified herself as “Dr. Reena Chopra.” Defendant was not listed on the medical staff of Washington Hospital.
DISCUSSION
I. The Claim of Inadequate Assistance of Counsel .
Defendant claims that she received ineffective representation. At the preliminary hearing, defendant’s attorney presented her testimony as part of a defense to the charges. Defendant testified that “most” of the INS form had been “filled out” when she received it from Heena Balakrishnan, but she personally completed the second page of the form in her “writing,” which included her name, address, telephone number and signature. At trial, defendant’s preliminary hearing testimony was then admitted in evidence, and based upon it the prosecution argued that defendant admitted she completed a portion of the INS form that was required to be “filled out by a licensed . . . medical doctor.” Defendant now argues that by presenting her testimony at the preliminary hearing in which she acknowledged “that she had completed by hand the second page of the INS form,” defense counsel essentially offered the prosecution proof of statements that “amounted to a medical diagnosis,” and thereby “guaranteed” a conviction of a violation of Business and Professions Code section 2052. Defendant maintains that trial counsel demonstrated “ignorance of the law” by calling “his client to the witness stand” to “have her confess to practicing medicine without a certificate.”
Defendant did not admit that she filled in the boxes with information on the diagnosis of Sitaben Patel’s infirmities.
“To establish a claim of inadequate assistance, a defendant must show counsel’s representation was ‘deficient’ in that it ‘fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citations.] In addition, a defendant is required to show he or she was prejudiced by counsel’s deficient representation. [Citations.] In determining prejudice, we inquire whether there is a reasonable probability that, but for counsel’s deficiencies, the result would have been more favorable to the defendant.” (People v. Frye (1998) 18 Cal.4th 894, 979.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (People v. Williams (1997) 16 Cal.4th 153, 215; see also In re Jones (1996) 13 Cal.4th 552, 561.) Further, “ ‘When . . . the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel’s reasons. . . . Because the appellate record ordinarily does not show the reasons for defense counsel’s actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, not on appeal.’ [Citation.]” (People v. Lucero (2000) 23 Cal.4th 692, 728–729.)
Without finding that the representation of defendant was deficient, we conclude that the present appeal is one of many that does not exclude a tactical reason for counsel’s actions. A judgment will be reversed “on the ground of inadequate counsel ‘only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’ [Citations.]” (People v. Frye, supra, 18 Cal.4th 894, 980.) “To prevail, defendant must overcome the strong presumption that counsel’s actions were sound trial strategy under the circumstances prevailing at trial.” (People v. Freeman (1994) 8 Cal.4th 450, 498.) The “ ‘courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.’ [Citation.]” (People v. Brodit (1998) 61 Cal.App.4th 1312, 1335–1336.) On appeal, “ ‘[i]f the record sheds no light on why counsel acted or failed to act in the manner challenged, “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” [citation], the contention [that counsel provided ineffective assistance] must be rejected.’ [Citations.]” (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; see also People v. Rios (1992) 9 Cal.App.4th 692, 704.)
Defense counsel reasonably may have concluded it was in defendant’s interest to present her testimony at the preliminary hearing, the vast majority was entirely exculpatory, in an effort to avoid trial of the charges or promote a settled disposition. The decision may have been based on demands by defendant or information provided by her which the record does not disclose to us. “ ‘The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.’ [Citation.]” (People v. Burnett (2003) 110 Cal.App.4th 868, 884.) The decision to present or object to admission of evidence is inherently tactical and will seldom establish incompetence. (People v. Scott (1997) 15 Cal.4th 1188, 1223; People v. Freeman, supra, 8 Cal.4th 450, 490–491; People v. Frierson (1991) 53 Cal.3d 730, 747.)
We recognize that “[a]n attorney’s exercise of discretion in making tactical decisions regarding trial strategy must be both reasonable and informed. An informed decision is one made on the basis of reasonable investigation. [Citation.] Although counsel has ‘wide latitude and discretion . . . that discretion must be a reasonable and informed one in the light of the facts and options reasonably apparent to counsel at the time of trial, and founded upon reasonable investigation and preparation.’ [Citations.]” (In re Visciotti (1996) 14 Cal.4th 325, 348, italics omitted.) But here, we have no way of discerning from the record if counsel’s actions were the result of ignorance or based on an informed tactical decision. We cannot speculate, and without a definitive indication in the record before us of inexcusable ignorance or oversight by defendant’s attorney rather than strategic considerations as the basis for the decision to offer defendant’s testimony, we cannot find inadequate assistance of counsel on appeal. (People v. Hart (1999) 20 Cal.4th 546, 630; People v. Williams, supra, 16 Cal.4th 153, 262; People v. Montiel (1993) 5 Cal.4th 877, 921; People v. Aubrey (1999) 70 Cal.App.4th 1088, 1105.)
II. The Admission of Evidence of Uncharged Misconduct .
Next, defendant argues that the trial court erred by admitting “uncharged misconduct” evidence from witnesses other than the victims of the charged crimes. Specifically, defendant objects to the testimony of David Lowman, Anand Goundar and Barbara Jenkins that she “identified herself as a medical doctor” to them. Defendant claims that admission of “this evidence was improper” under Evidence Code sections 1101, 350 and 352 as “irrelevant to any material issue in dispute, not sufficiently similar to the charged crimes, or unduly prejudicial.”
The rules governing the admissibility of evidence of uncharged misconduct “are familiar and well settled. Evidence Code section 1101, subdivision (b) provides in pertinent part that evidence of other crimes is admissible ‘when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.’ ” (People v. Gray (2005) 37 Cal.4th 168, 202; see also People v. Jablonski (2006) 37 Cal.4th 774, 822–823; People v. Catlin (2001) 26 Cal.4th 81, 111; People v. Diaz (1992) 3 Cal.4th 495, 561; People v. Branch (2001) 91 Cal.App.4th 274, 280; People v. Van Winkle (1999) 75 Cal.App.4th 133, 140.) “ ‘The admissibility of other-crimes evidence depends on three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence, e.g., Evidence Code section 352. [Citations.]’ [Citations.]” (People v. Brown (1993) 17 Cal.App.4th 1389, 1395; see also People v. Carpenter (1997) 15 Cal.4th 312, 378–379.) “Because this type of evidence can be so damaging, ‘[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded.’ [Citation.]” (People v. Daniels (1991) 52 Cal.3d 815, 856; see also People v. Gray, supra, at p. 202; People v. Hawkins (1995) 10 Cal.4th 920, 951; People v. Johnson (1991) 233 Cal.App.3d 425, 443–444.)
“We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352.” (People v. Cole (2004) 33 Cal.4th 1158, 1195) “ ‘A court abuses its discretion when its ruling “falls outside the bounds of reason.” ’ [Citation.]” (People v. Catlin, supra, 26 Cal.4th 81, 122.)
A. The Materiality of the Evidence
We first look at the probative value of the evidence that defendant represented to other people in the community that she was a medical doctor. As with other forms of circumstantial evidence, “the admissibility of other-crimes evidence depends upon the materiality of the fact sought to be proved or disproved, the tendency of the uncharged crime to prove or disprove the material fact, and the existence of any policy requiring exclusion of the evidence. [Citation.] In order to be material, the fact in dispute ‘may be either an ultimate fact in the proceeding or an intermediate fact “from which such ultimate fact[] may be . . . inferred.” ’ [Citation.]” (People v. Catlin, supra, 26 Cal.4th 81, 146; see also People v. Robbins (1988) 45 Cal.3d 867, 879; People v. Thompson (1980) 27 Cal.3d 303, 315.) To be admissible, evidence of an uncharged offense must tend logically, naturally and by reasonable inference to establish any fact material to the People’s case, or to overcome any matter sought to be proved by the defense. (People v. Robbins, supra, at p. 879; see also People v. Catlin, supra, at p. 146; People v. Carter (1993) 19 Cal.App.4th 1236, 1246 .)
We agree with the trial court that the testimony of Lowman, Goundar and Jenkins, along with attorney Richard Oriakhi, was admitted for proper purposes under Evidence Code section 1101, subdivision (b): to prove a common scheme or intent, and negate mistake. To establish a violation of Business and Professions Code section 2052, the prosecution was required to prove that defendant intended to commit the prohibited acts of holding herself out “ ‘as practicing . . . any system or mode of treating the sick or afflicted in this state,’ or practicing such a system or mode of treatment by ‘diagnos[ing], treat[ing], operat[ing] for, or prescrib[ing] for any . . . physical or mental condition of any person,’ without having at the time of doing so a valid license.” (Hageseth v. Superior Court (2007) 150 Cal.App.4th 1399, 1416–1417.) A critical and disputed issue at trial was whether defendant held herself out as a medical doctor to Balakrishnan and the Khangura family. The defense asserted that defendant neither intended to nor did identify herself as a doctor, and the victims erred in perceiving that she had. Evidence that in professional situations defendant also represented to others that she was a practicing medical doctor was highly probative to establish that she was operating pursuant to a common scheme to practice medicine without a license, and the victims were not mistaken in their testimony that she identified herself as a doctor and acted with them accordingly.
B. The Similarity of the Prior Convictions.
We further conclude that the uncharged misconduct evidence was sufficiently similar to the charged offenses to justify admission of the evidence. “A court considering this question ‘ “must look behind the label describing the kind of similarity or relation between the [uncharged] offense and the charged offense; it must examine the precise elements of similarity between the offenses with respect to the issue for which the evidence is proffered and satisfy itself that each link of the chain of inference between the former and the latter is reasonably strong.” ’ [Citations.]” (People v. Carter, supra, 19 Cal.App.4th 1236, 1246.) “ ‘ “In cases in which [a party] seeks to prove the defendant’s identity as the perpetrator of the charged offense by evidence he had committed uncharged offenses, admissibility ‘depends upon proof that the charged and uncharged offenses share distinctive common marks sufficient to raise an inference of identity.’ ” [Citation.] “A somewhat lesser degree of similarity is required to show a common plan or scheme and still less similarity is required to show intent. . . .” ’ [Citation.]” (People v. Abilez (2007) 41 Cal.4th 472, 500.)
“ ‘To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.’ [Citation.] ‘[A] common scheme or plan focuses on the manner in which the prior misconduct and the current crimes were committed, i.e., whether the defendant committed similar distinctive acts of misconduct against similar victims under similar circumstances.’ [Citation.]” (People v. Walker (2006) 139 Cal.App.4th 782, 803.) “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] [T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . . [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant probably harbor[ed] the same intent in each instance.” (People v. Ewoldt (1994) 7 Cal.4th 380, 402, internal quotation marks omitted.) “[I]n order to be admissible to negate a defense of accident or mistake, the uncharged misconduct must be similar to the charged conduct to negate a claim of accident or mistake.” (People v. Burnett, supra, 110 Cal.App.4th 868, 881; see also People v. Singh (1995) 37 Cal.App.4th 1343, 1381.) “Only substantial similarity is required.” (People v. Tapia (1994) 25 Cal.App.4th 984, 1021.) “ ‘ “[T]he difference between requiring similarity, for acts negativing innocent intent, and requiring common features indicating common design, for acts showing design, is a difference of degree rather than of kind; for to be similar involves having common features, and to have common features is merely to have a high degree of similarity.” [Citations.]’ [Citation.]” (People v. Earley (2004) 122 Cal.App.4th 542, 548.)
We find that the uncharged acts described in the testimony of Lowman, Goundar Jenkins, and Oriakhi were sufficiently similar to the charged offenses to prove a common scheme, intent, and lack of accident or mistake. The witnesses testified that defendant identified herself as a physician in a business context, as she had when dealing with prospective patients. All of the acts of misidentification occurred in circumstances where defendant was seeking to solicit patients or otherwise further her business interests. On fliers, cards, badges, and by her statements, defendant represented that she was a doctor with the Chopra Medical Group, as she did to the victims of the charged crimes. The uncharged acts evidence bore the requisite degree of similarity to defendant’s representations to the victims to raise a strong inference that she had an intent and common scheme in place to fraudulently portray herself as a practicing physician. (See People v. Prince (2007) 40 Cal.4th 1179, 1271–1272.)
C. The Admissibility of the Evidence Under Evidence Code Section 352
Our inquiry turns to defendant’s claim that evidence of the prior convictions, even if material and sufficiently similar enough to the charged offense, was nevertheless subject to exclusion under Evidence Code section 352. “In addition to its relevance to an issue other than predisposition or propensity, to be admissible under [Evidence Code] section 1101, subdivision (b), the probative value of the evidence of uncharged crimes ‘must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury.’ [Citations.]” (People v. Walker, supra, 139 Cal.App.4th 782, 796.) “Once a court determines that a prior bad act is admissible under Evidence Code section 1101, subdivision (b), it must conduct a further inquiry. ‘Evidence of uncharged offenses “is so prejudicial that its admission requires extremely careful analysis. . . .” . . . [¶] . . . [T]o be admissible such evidence “must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. . . .” ’ [Citation.] A court must therefore also examine whether the probative value of prior bad act evidence is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1210–1211.) “ ‘ “Since ‘substantial prejudicial effect [is] inherent in [such] evidence,’ uncharged offenses are admissible only if they have substantial probative value.” [Citation.]’ [Citation.]” (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1445, italics omitted.)
“The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense. Other factors affecting the probative value include the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense. The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses.” (People v. Zepeda, supra, 87 Cal.App.4th 1183, 1211.) “The weighing process under [Evidence Code] section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
“The court’s exercise of discretion under Evidence Code section 352 will not be disturbed on appeal unless the court clearly abused its discretion, e.g., when the prejudicial effect of the evidence clearly outweighed its probative value.” (People v. Brown, supra, 17 Cal.App.4th 1389, 1396.) “We will reverse only if the court’s ruling was ‘arbitrary, whimsical, or capricious as a matter of law. [Citation.]’ [Citation.]” (People v. Branch, supra, 91 Cal.App.4th 274, 282.)
As we have observed, the similar uncharged misconduct evidence had appreciable relevance on the issues of intent, common scheme and absence of mistake. Defendant’s repetition of the act of identifying herself as a physician demonstrated persuasively that her commission of the same acts with prospective and existing patients was not inadvertent, mistaken or innocent. We are persuaded that the probative value of the evidence was substantial.
We look finally at the prejudice associated with the evidence. The evidence was damaging to the defense, but not prejudicial in the sense contemplated by Evidence Code section 352. “ ‘ “The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against . . . [one party] as an individual and which has very little effect on the issues.” ’ [Citations.]” (People v. Garceau (1993) 6 Cal.4th 140, 178; see also People v. Killebrew (2002) 103 Cal.App.4th 644, 650.) “ ‘In applying section 352, “prejudicial” is not synonymous with “damaging.” ’ [Citations.]” (People v. Callahan (1999) 74 Cal.App.4th 356, 371.) The jury was given an effective limiting instruction by the trial court to consider the evidence only for proper limited purposes and not as proof that defendant “has a bad character or is disposed to commit crime.” The jury is presumed to have adhered to the admonitions. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1023.) The source of the evidence was unrelated to the charged offense, and the uncharged acts were neither remote in time nor more inflammatory than the charged offenses. Upon consideration of both the probative value of the evidence and its prejudicial effect we find that the trial court did not abuse its discretion by admitting the uncharged acts evidence. (People v. Roldan (2005) 35 Cal.4th 646, 707.)
III. The CALCRIM No. 220 Instruction .
We proceed to defendant’s challenge to the CALCRIM No. 220 instruction on the presumption of innocence and proof beyond a reasonable doubt. She claims that the instruction “undermined the presumption of innocence and supplanted it with a far lesser standard of impartiality” by directing the jury to “compare and consider all the evidence” presented at trial to determine guilt or innocence. She specifically directs her objection to the “impartially compare” language of the instruction, which she claims improperly invites the jury to balance the competing “two sets of evidence” presented at trial. Defendant asserts that use of the “word ‘compare,’ ” “imparted to the jury the incorrect idea” that the prosecution met its burden of proof merely if “its evidence obviously outweighed” that presented by the defense – particularly where, as here “no defense case is presented.” Defendant argues that the defect in the “ ‘impartial comparison’ language” of CALCRIM No. 220 instruction “was amplified” by the “abiding conviction” definition of reasonable doubt, which “conveyed” the concept of a “lasting” determination, but failed to impart to the jury “the gravity or weight” of the evidence which is essential to the standard of “proof beyond a reasonable doubt.” The result, defendant concludes, was a “lessening of the meaning of ‘beyond a reasonable doubt,’ ” in violation of his due process rights.
The CALCRIM No. 220 instruction given to the jury reads as follows: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because she has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt . . . . [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, she is entitled to an acquittal and you must find her not guilty.” (Italics added.)
“The due process clause of the Fourteenth Amendment protects the accused against conviction except on proof beyond a reasonable doubt. [Citations.] The United States Constitution does not require jury instructions to contain any specific language, but they must convey both that the accused is presumed innocent until proved guilty and that the accused may be convicted only upon proof beyond a reasonable doubt.” (People v. Flores (2007) 153 Cal.App.4th 1088, 1092–1093.) In our review of the CALCRIM No. 220 instruction, the governing test “is ‘ “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” ’ [Citations.]” (People v. Anderson (2007) 152 Cal.App.4th 919, 938.) We must determine whether its “meaning was objectionable as communicated to the jury.” (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) “ ‘Here the question is, how would a reasonable juror understand the instruction. [Citation.] In addressing this question, we consider the specific language under challenge and, if necessary, the charge in its entirety. [Citation.] Finally, we determine whether the instruction, so understood, states the applicable law correctly.’ [Citation.]” (People v. Woodward (2004) 116 Cal.App.4th 821, 834; see also People v. Jensen (2003) 114 Cal.App.4th 224, 239.) “The meaning of instructions is no longer determined under a strict test of whether a ‘reasonable juror’ could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a ‘reasonable likelihood’ that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel.” (People v. Dieguez, supra, at p. 276; see also Estelle v. McGuire (1991) 502 U.S. 62, 70–75; People v. Young (2005) 34 Cal.4th 1149, 1202; People v. Clair (1992) 2 Cal.4th 629, 663; People v. Kelly (1992) 1 Cal.4th 495, 525; People v. Wade (1995) 39 Cal.App.4th 1487, 1490–1491.)
Defendant’s argument is in some aspects rather convoluted and sophistical. She has focused on the isolated phrase in CALCRIM No. 220 which advised the jury to “impartially compare and consider” the evidence, whereas the language of jury instructions must be considered and interpreted in totality. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248; People v. Castillo (1997) 16 Cal.4th 1009, 1016.) When read in its entirety, the CALCRIM No. 220 instruction neither compromised the presumption of innocence nor diminished the standard of reasonable doubt. (People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268.) The instruction clarified that defendant “is presumed to be innocent,” and to overcome the presumption the People must “prove each element of a crime beyond a reasonable doubt.” After advising the jury to “impartially compare and consider” all of the evidence presented at trial, the instruction reinforced for the jury that, “Unless the evidence proves the defendant guilty beyond a reasonable doubt, she is entitled to an acquittal and you must find her not guilty.” The only reasonable understanding of this language is that reasonable doubt may arise solely from inadequate evidence offered by the prosecution, even without any relative lack of defense evidence. (People v. Flores, supra, 153 Cal.App.4th 1088, 1093.) “Contrary to defendant’s suggestion, CALCRIM No. 220 instructs the jury to acquit in the absence of evidence.” (People v. Guerrero, supra, at p. 1268.)
Other instructions further prevented the jury from finding guilt based upon a mere comparison of the weight of the evidence presented by the parties. The jury was directed to “decide whether a fact in issue has been proved based on all the evidence,” direct and circumstantial, none of which “is entitled to any greater weight than the other.” (CALCRIM No. 223.) The instructions added: any inferences or conclusions drawn from circumstantial evidence must be established beyond a reasonable doubt; reasonable conclusions that point to innocence must be accepted over those that point to guilt; the jury is to consider the credibility of the witnesses without bias or prejudice based upon consideration of “anything that reasonably tends to prove or disprove the truth or accuracy of that testimony;” neither side is required to call witnesses who may have relevant information on the case; in the evaluation of evidence, do “not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses;” the defendant “has an absolute constitutional right not to testify” and may “rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt” to obtain an acquittal. (CALCRIM Nos. 223, 224, 226, 300, 302, 355, italics added.) We must presume the jurors understood, correlated and followed the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852; People v. Holmes (2007) 153 Cal.App.4th 539, 546.)
Upon our consideration of the instruction as a whole – and particularly in light of the other instructions given – we are persuaded to follow existing authority that has uniformly found no violation of due process principles in CALCRIM No. 220. (People v. Guerrero, supra, 155 Cal.App.4th 1264, 1268–1269; People v. Flores, supra, 153 Cal.App.4th 1088, 1093; People v. Anderson, supra, 152 Cal.App.4th 919, 943–944; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509–1510; People v. Hernández Ríos (2007) 151 Cal.App.4th 1154, 1156–1157.)
IV. The Denial of Probation .
Defendant also presents the argument that the trial court erred by denying her request for probation and imposing a two-year state prison term. She maintains that the “constellation of mitigating factors,” particularly her lack of a criminal record and the “non-serious nature of the offense demonstrates that imposition of a two-year prison term was an abuse of discretion.”
Defendant is cognizant of the stringent limits placed on our review. “The grant or denial of probation is within the trial court’s discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion.” (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) “ ‘In reviewing [a trial court’s determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court’s order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.’ [Citation.]” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.) “We will not interfere with the trial court’s exercise of discretion ‘when it has considered all facts bearing on the offense and the defendant to be sentenced.’ [Citation.]” (People v. Downey (2000) 82 Cal.App.4th 899, 910.) “The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
Here, the trial court properly considered and articulated the numerous criteria that support the denial of probation (Cal. Rules of Court, rule 4.414): the “particular sophistication” of the defendant; the victims were “particularly vulnerable persons” from “the Indian immigrant community” who were not familiar with American medical practices; defendant took “advantage of the position of trust and confidence” she had with the victims; the potentially “serious consequences” to the community of posing as a doctor; defendant’s “pattern of deceitful conduct” with people; her failure to cooperate with probation; her perjury at the preliminary hearing and deceit with the probation department; she has “taken advantage of the legal system” and attained status as a vexatious litigant; and her apparent inability to abide by the terms and conditions of probation. The court also noted two mitigating circumstances that were not specified in the probation report – no prior convictions, and the victims were not physically injured – but found them outweighed by the aggravating factors. We do not find any indication in the record of bias on the part of the trial court or improper consideration of information. (People v. Tang (1997) 54 Cal.App.4th 669, 680.) The decision to deny probation and impose the two-year middle term was not an abuse of discretion. (People v. Downey, supra, 82 Cal.App.4th 899, 910; People v. Superior Court (Du), supra, 5 Cal.App.4th 822, 831–832.)
V. The Imposition of a Court Security Fee in the Abstract of Judgment .
Defendant’s final contention is that the imposition of a $20 court security fee must be deleted from the abstract of judgment. Her claim is that the trial court failed to include the court security fee in the oral pronouncement of sentence – perhaps, she submits, because the charged offenses “occurred prior to the operative date of Penal Code section 1465.8” – so it was improperly added in the abstract of judgment.
Section 1465.8 became effective on August 17, 2003. (Stats. 2003, ch. 159, § 25.)
We agree with the essential premise relied upon by defendant that, “Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) But in the present case, the imposition of a court security fee was mandatory under Penal Code section 1465.8 (section 1465.8), which provides, in subdivision (a)(1): “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code.” (Italics added.) Use of language “shall” in section 1465.8 means the trial court was obligated to impose the court security fee. (See People v. Talibdeen (2002) 27 Cal.4th 1151, 1153; People v. Wallace (2004) 120 Cal.App.4th 867, 875–876 (Wallace); People v. Turner (2002) 96 Cal.App.4th 1409, 1413.) The omission of the court security fee was thus a jurisdictional error that was subject to correction in the abstract of judgment, or even on appeal. (People v. Talibdeen, supra, at p. 1153; People v. Smith (2001) 24 Cal.4th 849, 853; People v. Stone (1999) 75 Cal.App.4th 707, 717–718; People v. Terrell (1999) 69 Cal.App.4th 1246, 1256–1257; People v. Martinez (1998) 65 Cal.App.4th 1511, 1521–1522; People v. Heisler (1987) 192 Cal.App.3d 504, 507.)
We further conclude that the imposition of a court security fee upon defendant for crimes committed before the effective date of section 1465.8 did not violate the constitutional prohibition against ex post facto laws or Penal Code section 3. (People v. Alford (Dec. 3, 2007, S142508) ___ Cal.4th ___ [2007 D.A.R. 17,718].) The imposition of the court security fee upon defendant in the abstract of judgment was not error.
DISPOSITION
Accordingly, the judgment is affirmed.
We concur: Stein, Acting P. J., Margulies, J.