Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for Los Angeles County No. BA255203, Curtis B. Rappe, Judge. Affirmed with directions.
Flier and Flier, Theodore S. Flier and Andrew Reed Flier for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Roberta L. Davis and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
Defendant Justice Edem appeals from a judgment sentencing him to 13 years in state prison, after he was convicted by a jury of one count of grand theft involving more than $150,000 (Pen. Code, §§ 487, subd. (a), 12022.6, subd. (a)(2)), seven counts of making false health care claims (§ 550, subd. (a)(6)), and two counts of filing false state income tax returns (Rev. & Tax. Code, § 19705, subd. (a)(1)). The jury also found to be true an aggravated white collar crime allegation; the crimes were found to be part of a pattern of felony conduct involving fraud or embezzlement and the taking of more than $500,000. (§ 186.11, subd. (a)(1), (a)(2).)
Further undesignated statutory references are to the Penal Code.
Defendant argues on appeal that there was insufficient evidence to support the convictions and that he received ineffective assistance of counsel at trial, but we conclude he has forfeited those arguments by providing only perfunctory arguments and failing to cite to the record and/or legal authority in support of those arguments. He also argues that the trial court erred by sentencing him in a manner inconsistent with uniformity because other participants in the fraudulent scheme received lesser sentences. We affirm the judgment.
BACKGROUND
Because defendant’s only non-forfeited argument involves his sentencing, a detailed review of the evidence is not necessary. We will briefly outline the evidence in accord with the proper standard on appeal. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
This case involved a long term scheme to commit Medicare fraud, in which Medicare patients would be brought by van to a clinic run by New World Medical Group (New World), where they would be given unnecessary medical tests and supplies, and New World would bill Medicare for those tests and supplies (and others not performed or provided). The patients were recruited by the drivers of the vans, who promised them cases of Ensure, a nutritional supplement, if they agreed to come to the clinic. Early on in the scheme, the patients generally were homeless Black individuals; later, the patients generally were Asian and did not speak English. The patients would be dropped off at the clinic, where a staff member would administer the same battery of tests to each patient without the patient having been seen by a physician; the physician would later sign paperwork authorizing the tests. The patients would then be driven back to their homes and were given the promised cases of Ensure. New World ordered its supplies primarily from three medical supply companies -- Patient’s Care, Nation’s Care, and Modern Medical -- and billed those supplies to Medicare.
Defendant was listed as the owner of Patient’s Care, and his wife was listed as the owner of Nation’s Care, although defendant was often seen at Nation’s Care when a driver went to pick up supplies there. Defendant also interviewed, hired, and/or supervised several members of the staff at New World and drivers who recruited patients for the clinic. He told at least one of the drivers that the driver would be paid $100 for every Medicare patient he brought to the clinic, and he was heard discussing with a physician at the clinic, Dr. Bass, how much he (Dr. Bass) would be paid for each patient. In addition to his participation in the Medicare fraud scheme, defendant failed to declare income he received from New World in 2000 and 2001 on his income tax returns for those years.
In March 2005, defendant, Dr. Bass, and Emmanuel Andrew Udeobong (who was a part owner of New World) were charged by information with one count of grand theft (§ 487, subd. (a)), with special allegations that the theft involved more than $50,000 (§ 12022.6, subd. (a)(1)), more than $100,000 (§ 1203.045), and more than $150,000 (§ 12022.6, subd. (a)(2)), and 12 felony counts of making false health care claims (§ 550, subd. (a)(6)). Udeobong was also charged with three counts of filing false state income tax returns, and defendant was charged with two counts of filing false state income tax returns. The information also included an aggravated white collar crime special allegation (§ 186.11, subds. (a)(1), (a)(2)) as to all counts and all defendants.
When a false health care claim involves an amount exceeding $400, it is a felony; otherwise it is a public offense. (§ 550, subd. (c)(2).)
Bass and Udeobong were tried separately from defendant. Bass was convicted of grand theft and 12 counts of making a false health care claim, and Udeobong was convicted of grand theft and two counts of filing a false tax return. Bass was sentenced to five years in state prison, and Udeobong to four years. We affirmed those judgments in an unpublished opinion. (People v. Bass (Sept. 17, 2008, B198268).)
Several of the staff from New World and van drivers testified at defendant’s trial, describing how patients were recruited and treated at the clinic, and defendant’s participation in the clinic’s operation. Some of those witnesses had been charged with crimes related to this matter and had entered into plea agreements, and other received immunity from prosecution for their testimony. Other witnesses included: Medicare or Medi-Cal fraud investigators, who described their investigation into the scheme involving New World and its medical suppliers; three of the patients who had been recruited to go to the clinic, who explained that they were recruited to go to the New World clinic by offers of free milk-like nutritional products; a physician who reviewed patient files (seized from the clinic by law enforcement) and concluded there was no evidence of medical necessity for the tests or supplies that were billed to Medicare; and a special agent from the Franchise Tax Board, who reviewed documentation of payments New World made to defendant that were not reported on defendant’s 2000 and 2001 tax returns.
Defendant introduced evidence that, after the charges were filed in this case, he filed amended tax returns that declared the omitted income he received, and he paid the taxes owed.
The jury found defendant guilty of grand theft (count 1), eight counts of making false health care claims (counts 2, 3, 4, 5, 7, 8, 9, 10), and two counts of filing false tax returns (counts 17 and 18), and found all special allegations to be true. The jury acquitted defendant of four of the false health care claim counts (counts 6, 11, 12, 13). It appears that defendant was convicted only of those false health care claims that involved supplies provided by Patient’s Care or Nation’s Care (the medical supply companies owned by defendant and his wife); he was acquitted of claims that did not involve medical supplies or involved supplies provided by Modern Medical.
The court sentenced defendant to 13 years in state prison, computed as follows. The court selected count 2 as the base count, and imposed the midterm of three years, plus an additional three years under section 186.11. On counts 3, 4, 5, 7, 8, 9, and 10, the court imposed consecutive one year terms (one-third the midterm) for each count. On counts 17 and 18, the court imposed the midterm of two years for each count, to be served concurrently to all other counts. Finally, the court imposed a concurrent sentence of two years on count 1, plus two years under section 12022.6, but stayed that sentence under section 654.
We note the minute order from the sentencing hearing indicates that, on count 1, only the two-year enhancement under section 12022.6, subdivision (a)(2) was stayed under section 654. Clearly that is incorrect, and the reporter’s transcript indicates that the entire sentence under count 1 was stayed. We also note that the abstract of judgment fails to indicate that the sentence on count 1 was stayed. Therefore, we will direct the clerk of the superior court to file an amended abstract of judgment correcting that error.
Defendant timely filed a notice of appeal from the judgment.
DISCUSSION
A. Defendant’s Insufficiency of the Evidence Argument is Forfeited
Defendant argues there was insufficient evidence to support his conviction on any of the counts. In making this argument, however, defendant fails to identify the elements of any of the crimes or any factual findings for which he contends there was insufficient evidence. He fails to set forth a complete summary of the evidence material to any of the issues he contends are not supported by the evidence. To the extent he discusses the evidence at all in his argument, he focuses only upon evidence favorable to his position, and provides no citations whatsoever to the record.
By failing to support his insufficiency of the evidence argument by proper citation to the record or legal authority, defendant has forfeited the issue. “‘“The rule is well established that a reviewing court must presume that the record contains evidence to support every finding of fact, and an appellant who contends that some particular finding is not supported is required to set forth in his brief a summary of the material evidence upon that issue. Unless this is done, the error assigned is deemed to be waived. [Citation.] It is incumbent upon appellants to state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings.” [Citations.]’ [¶]... ‘“The reviewing court is not called upon to make an independent search of the record where this rule is ignored. [Citation.]” [Citation.]’” (People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283.)
The only legal authority defendant provides relates to the substantial evidence standard of review. And although defendant provides (with record citations) in his statement of facts a summary of all of the evidence presented at trial, he does not point to any specific evidence in his discussion of the purported insufficiency of the evidence.
In any event, defendant concedes in effect that there was substantial evidence to support his convictions, when he states: “The governments [sic] only arguable evidence connecting [defendant] with what was allegedly transpiring at ‘New World’ was derived from the aforementioned unreliable witnesses.” In other words, his insufficiency of the evidence argument is based upon the credibility of the witnesses who connected defendant to the illegal acts associated with New World. But on review of the sufficiency of the evidence to support a conviction, we have no power to consider the credibility of the witnesses. (People v. Snow (2003) 30 Cal.4th 43, 66.) Therefore, even if he had not forfeited his sufficiency of the evidence argument, that argument necessarily would fail.
B. Defendant’s Ineffective Assistance of Counsel Argument is Forfeited
Defendant argues he received ineffective assistance of counsel at trial, but his argument on this issue is so deficient we deem it forfeited. A criminal defendant asserting ineffective assistance of counsel bears a heavy burden on appeal. “To show ineffective assistance of counsel, defendant has the burden of proving that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.” (People v. Frierson (1991) 53 Cal.3d 730, 747.) Moreover, when an attack on “trial counsel’s adequacy [is] mounted on direct appeal, competency is presumed unless the record affirmatively excludes a rational basis for the trial attorney’s choice.” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.)
In his appellant’s opening brief, defendant lists various alleged deficiencies of trial counsel’s performance in a perfunctory manner. He makes no attempt to show that the record excludes a rational basis for the trial attorney’s tactical choices, nor does he attempt to show that the result would have been different had these alleged errors not been made. Moreover, some of the claimed deficiencies are contradicted by the record.
For example, defendant contends that trial counsel failed to file a section 995 motion, basing his contention upon the purported absence of any notation of such a motion in the chronological index for the clerk’s transcript. But a minute order from June 2, 2005 indicates that defendant made a section 995 motion, which was heard and denied on that date. Similarly, defendant contends that trial counsel did not file any evidentiary motions, again relying upon the index in the clerk’s transcript. But the reporter’s transcript shows that there was a lengthy discussion of evidentiary issues, including several issues that were briefed by the parties, before defendant’s first trial (which ended in a hung jury), and the parties stipulated before the second trial (at issue in this appeal) that those motions were deemed to have been renewed and the court was deemed to have made the same rulings for purposes of the second trial.
With respect to other claimed deficiencies, such as counsel’s alleged failure to file a motion for new trial or to investigate or present new evidence, or trial counsel’s purported advice that defendant not testify despite defendant’s purported desire to do so, defendant fails to cite any portion of the record that shows what that motion would have asserted or what evidence could have been presented, or what he would have testified to. Finally, although defendant argues that trial counsel should have objected to hearsay testimony, he fails to specify where in the record trial counsel should have raised hearsay objections, why that evidence would have been excluded, and how exclusion of that evidence would have resulted in a different result for defendant.
In short, defendant’s ineffective assistance of counsel argument is so lacking in detail and analysis that it is forfeited.
C. There Was No Error in Defendant’s Sentence
Defendant argues that the trial court erred by sentencing him to 13 years in prison because (1) his sentence was disproportionate to the sentences imposed upon the other people charged in connection with the Medicare fraud scheme; (2) he qualified for, and should have been given, probation; and (3) he qualified for, and should have been given, concurrent sentences. We find no error.
Defendant’s first argument ignores the controlling case law regarding disproportionate sentences. The Supreme Court has repeatedly instructed that the focus of a proportionality review is whether the defendant’s sentence “‘is proportionate to his individual culpability, irrespective of the punishment imposed on others.’” (People v. Hill (1992) 3 Cal.4th 959, 1014, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; accord, People v. Padilla (1995) 11 Cal.4th 891, 961, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Maury (2003) 30 Cal.4th 342, 441.) In this case, defendant was a leading participant in a multi-year scheme to defraud Medicare, which resulted in more than $4 million in payments by Medicare for procedures and supplies that were not medically necessary. We cannot say that a 13-year sentence is disproportionate to his culpability.
Nor can we say that the trial court abused its discretion by denying defendant probation. “‘The trial court enjoys broad discretion in determining whether a defendant is suitable for probation.’ [Citation.] ‘To establish abuse, the defendant must show that, under the circumstances, the denial of probation was arbitrary or capricious. [Citations.] A decision denying probation will be reversed only on a showing of abuse of discretion. [Citation.]’ [Citation.]” (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1530.) In this case, the trial court’s decision to deny probation clearly was not arbitrary or capricious.
Because the jury found to be true a special allegation under section 1203.045 that defendant’s theft involved an amount exceeding $100,000, the trial court was required by statute to deny probation unless this was an “unusual case[] where the interests of justice would best be served” if defendant were granted probation. (§ 1203.045, subd. (a).) Rule 4.413(c) of the California Rules of Court sets forth the facts that might indicate the existence of an “unusual case” in which probation may be granted. Defendant makes no attempt to show that any of those facts is present in this case. Based on our review, we conclude there were no such facts present here. Thus, the trial court did not abuse its discretion by denying probation.
Nor did the trial court abuse its discretion by imposing consecutive sentences on the false health care claim counts. “It is well established that a trial court has discretion to determine whether several sentences are to run concurrently or consecutively. [Citations.] In the absence of a clear showing of abuse, the trial court’s discretion in this respect is not to be disturbed on appeal. [Citation.] Discretion is abused when the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]” (People v. Bradford (1976) 17 Cal.3d 8, 20.)
Rule 4.425 of the California Rules of Court sets forth some of the criteria the trial court may consider in imposing consecutive sentences, including whether “[t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.” (Cal. Rules of Court, rule 4.425(a)(3).) The court may also consider any circumstance in aggravation when deciding whether to impose consecutive sentences. (Cal. Rules of Court, rule 4.425(b).) Those aggravating factors are set forth in California Rules of Court, rule 4.421(a), and include circumstances in which the defendant induced others to participate in the commission of the crime (Cal. Rules of Court, rule 4.421(a)(4)), or when the manner in which the crime was carried out indicates planning, sophistication, or professionalism (Cal. Rules of Court, rule 4.421(a)(8)). In addition, the presence of separate victims named in separate counts is sufficient to justify a consecutive sentence. (People v. Caesar (2008) 167 Cal.App.4th 1050, 1061, disapproved on another ground in People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 18.)
In the present case, the eight false health care claim counts for which defendant received consecutive sentences involved different people and/or different dates of commission. The evidence at trial also showed that defendant recruited and/or hired clinic employees and van drivers to participate in the fraud scheme, and that the crimes were sophisticated and involved a significant amount of planning. Any one of these factors was sufficient to justify consecutive sentences. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) Therefore, we conclude the trial court did not abuse its discretion in sentencing defendant to consecutive terms for each count.
DISPOSITION
The judgment is affirmed. However, because the abstract of judgment does not note that both the sentence and enhancement imposed on count 1 were stayed under section 654, we direct the clerk of the superior court to file an amended abstract of judgment noting the stay of the sentence on count 1.
We concur: EPSTEIN, P. J. MANELLA, J.