Opinion
E068099 E071306
09-11-2019
THE PEOPLE, Plaintiff and Respondent, v. HOSSAIN SAHLOLBEI, Defendant and Appellant.
Marks & Brooklier and Donald B. Marks, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Nora S. Weyl, Lynne G. McGinnis, and Natasha A. Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1302523) OPINION APPEAL from the Superior Court of Riverside County. Jeffrey J. Prevost, Judge. Affirmed. Marks & Brooklier and Donald B. Marks, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Nora S. Weyl, Lynne G. McGinnis, and Natasha A. Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
In 2009, defendant and appellant, Hossain Sahlolbei, M.D., a surgeon, served as codirector of surgical services at Palo Verde Hospital (Hospital) and as a member of the Hospital's medical executive committee. He solicited and hired Dr. B., an anesthesiologist, to provide contract anesthesia services at the Hospital. When defendant hired Dr. B., the two physicians secretly agreed Dr. B. would pay defendant a portion of Dr. B.'s hospital pay. Defendant was charged and convicted of taking over $500,000 from the Hospital by false pretenses, by receiving secret kickbacks from Dr. B.
Defendant appeals from the judgment entered following a jury conviction for grand theft by false pretenses. (Pen. Code, § 487, subd. (a); count 2.) The jury also found true the allegation that defendant took property exceeding the theft enhancement threshold amount of $200,000. (§ 12022.6, subd. (a)(2).) Rather than sentencing defendant to a jail or prison term, the trial court granted defendant three years of probation. After the People challenged the probation order by filing a petition for writ of mandate, this court reversed the trial court order and remanded the matter to the trial court for resentencing. (People v. Superior Court (Sahlolbei) Feb. 8, 2018, E068102 [nonpub. opn.] [at p. 1] (Sahlolbei (2/8/2018).) Upon remand, the trial court vacated its probation order and sentenced defendant to 16 months in jail.
Unless otherwise noted, all statutory references are to the Penal Code.
This court has before it two separate appeals, both filed by defendant. Defendant's first appeal challenges defendant's judgment of conviction for theft, E068099 (first appeal). Defendant's second appeal challenges defendant's jail sentence, E071306 (second appeal). This court ordered both appeals consolidated for oral argument and decision on appeal.
In defendant's first appeal, he contends the trial court erred in allowing the People to amend the information. Defendant further argues his trial attorney provided ineffective assistance of counsel (IAC), and the trial court erred in failing to protect defendant from his attorney's ineffectiveness. Defendant also asserts that his due process rights to a fair trial were violated by his attorney's ineffectiveness. In addition, defendant argues there was insufficient evidence to support his conviction for grand theft by false pretenses. We reject defendant's contentions and affirm the judgment of conviction.
In defendant's second appeal, defendant argues the trial court erred in concluding it did not have discretion to grant probation under California Rules of Court, rule 4.413. We conclude the trial court did not err in denying probation and sentencing defendant to a jail term. The judgment therefore is affirmed as to both defendant's conviction and sentence.
Undesignated rule references are to the California Rules of Court. --------
II.
FACTS
In 2006, defendant was a surgeon at the Hospital, which is a small, nonprofit hospital. The Hospital, located in Blythe, is governed by a five-member board of directors (Board). The Hospital also has a Medical Executive Committee (MEC), which is comprised of five staff physicians. The MEC physicians advise the Board and exercise significant power and control over the Hospital. The MEC advises the Board on whether to grant a doctor staff privileges and is responsible for disciplining the Hospital's physicians. Defendant was a member of the MEC. As medical director, defendant also was in charge of the physician staff. While affiliated with the Hospital, defendant owned a company, Pars Surgery, Inc. (Pars Surgery), which was under contract with the Hospital to perform on-call services at the Hospital.
A. 2006 Contracts
In April 2006, Hospital and defendant, through his company, Pars Surgery, contracted to provide on-call, 24-hour-a-day, anesthesia coverage for the Hospital in 2006 and 2007. In 2006, defendant, on behalf of his companies, Pars Surgery and Palo Verde Medical Group, LLC (PVMG), recruited and retained anesthesiologist, Dr. B., to provide anesthesia services at the Hospital. The three-year contract between Dr. B. and PVMG stated that PVMG, not the Hospital, would pay Dr. B. directly for his anesthesia services at the Hospital.
In 2007, the Board rejected defendant's request for an exclusive contract to manage the operating room, because the arrangement would be unethical and invite conflicts of interest problems. The Board also rejected defendant's request for an exclusive on-call contract in 2007. As a consequence, defendant orchestrated shutting down the operating room and obstetrics by refusing to perform surgeries. He was the only surgeon at that time. This resulted in the Hospital closing the operating room, which caused a decline in Hospital revenue. The Hospital came close to closing. Dr. B. and defendant mutually agreed to cancel their contract, and Dr. B. left the Hospital for a more stable position.
After leaving the Hospital, Dr. B. read in the newspaper that the Hospital had been paying defendant $45,000 a month for anesthesia services at the Hospital, which was over $10,000 a month more than what Dr. B. had received from defendant. Dr. B. realized that defendant had been profiting from his anesthesia services.
B. 2009 Contracts
In 2009, the Hospital hired Dr. K. as its new chief executive officer (CEO). At the time, the Hospital was using certified registered nurse anesthetists for anesthesia services. Defendant urged the Hospital to use an anesthesiologist instead of using nurse anesthetists. Dr. K. rejected defendant's request for a contract to provide the Hospital with anesthesia services, because defendant was not an anesthesiologist and none worked for his company. Dr. K. was also concerned that giving the contract to defendant would create potential legal issues regarding prohibited self-beneficial arrangements with the Hospital.
Even though Dr. K. emphatically denied defendant's proposed anesthesia services contract, defendant solicited Dr. B. to return to the Hospital. Defendant told Dr. B., who was working in Missouri, that defendant had an anesthesia services contract with the Hospital. Dr. B. was surprised defendant was recruiting him because Hospital management had objected to defendant's involvement in the previous anesthesia services contract with Dr. B. Nevertheless, Dr. B. executed a written contract between Dr. B. and defendant, agreeing that Dr. B. would provide the Hospital with anesthesia services. The contract included a confidentiality provision and had a five-year term. Under the contract, defendant's company was to pay Dr. B. $1,200 a day and $10,000 for his relocation expenses. Defendant signed the contract on behalf of Pars Surgery on August 20, 2009. Dr. B. testified he understood defendant would be profiting from the contract.
Defendant then told the Hospital Board and Dr. K. that he had recruited Dr. B. to be the Hospital's anesthesiologist. Defendant, Dr. K., and Board members, James C. and Sandy H., then negotiated the terms of Dr. B.'s contract with the Hospital during a series of at least eight meetings. Dr. K. testified defendant emphatically told him and the Hospital Board members not to contact Dr. B. Defendant insisted that only he could communicate with Dr. B. during the negotiations because Dr. B. was socially deficient and did not want to deal with anyone from the Hospital administration. Defendant further threatened that if they tried to talk to Dr. B., they would scare him away and there would be no contract with Dr. B. Defendant did not mention that defendant was going to receive a portion of Dr. B.'s negotiated pay.
During the negotiations between the Hospital and Dr. B., defendant told Dr. K. and the Board that Dr. B. would agree to work for no less than $1,600 a day, and wanted a $40,000 relocation fee. Dr. K. and the Board thought this compensation was too high, and wanted a contract term that was not indefinite and shorter than five years. J.C., the president of the Board, called Dr. B. and asked if he would accept a three-year contract instead of a five-year contract. Dr. B. was confused because he was already working at the Hospital. He started working there in September 2009, under his contract with defendant's company, Pars Surgery. Dr. B. did not know who J.C. was and did not understand why J.C. was asking him about a contract with the Hospital. Dr. B. did not reveal that he had contracted with defendant, because their contract had a confidentiality clause.
When defendant learned a day or two later that J.C. had spoken with Dr. B., defendant became visibly upset. Dr. K. responded by telling defendant the contract was between the Hospital and Dr. B., not between defendant and Dr. B. Defendant called Dr. B. and indicated he was upset J.C. and Dr. B. had conversed, and reminded Dr. B. of the confidentiality clause in their contract.
Concerned about the high cost of retaining Dr. B., Dr. K. hired a valuation expert to confirm that the proposed Hospital contract with Dr. B. was in compliance with the law requiring hospitals to hire doctors at fair market value. The evaluator concluded Dr. B.'s proposed compensation was high, but not out of compliance with the law. Defendant threatened Dr. K. and the Board that if they did not approve the contract, "'you will see what happens,'" alluding to a Hospital shutdown. On October 8, 2009, the Board approved the proposed contract, agreeing to pay Dr. B. $1,600 a day ($24,000 every two weeks), with a three-year term. No mention was made during the Hospital contract negotiations that defendant would profit from Dr. B.'s contract with the Hospital.
Dr. B. testified that on October 29, 2009, defendant told him the Hospital wanted Dr. B.'s name on the anesthesia services contract. The contract between defendant and Dr. B. was then changed to provide for Dr. B. to be paid directly by the Hospital, with Dr. B. depositing his paychecks into Pars Surgery's bank account. Pars Surgery would then pay Dr. B. the amount agreed to in defendant and Dr. B.'s contract (side-contract).
In December 2009, Dr. B. signed the contract between the Hospital and Dr. B. No mention was made of Dr. B. and defendant's side-contract. Thereafter, the Board contracted with Dr. B. to serve as the Hospital's director of anesthesia for an additional $3,000 a month.
While Dr. B. worked at the Hospital, the Hospital paid him a $40,000 moving allowance, $1,600 a day for anesthesia services, and $3,000 a month as director of anesthesia services. Dr. B. deposited the checks in the Pars Surgery bank account or gave them to defendant. Eventually, Dr. B. began depositing the checks in his own bank account because the bank would not deposit the checks in Pars Surgery's bank account because they were made out to Dr. B. Dr. B. then issued checks to defendant for the entire amount of the Hospital checks. In return, defendant paid Dr. B. the lesser amount of $1,200 a day and $10,000 for moving expenses. Defendant kept the rest of the money the Hospital paid Dr. B. Over three years, defendant made over $500,000 from the Hospital paying Dr. B. for his anesthesia services.
In 2012, when Dr. B.'s three-year contract with the Hospital expired and it was being considered for renewal, he told Dr. K. that the Hospital had been paying defendant for Dr. B.'s anesthesia services. Dr. B. offered to work for less if he did not have to pay defendant a portion of what the Hospital paid for Dr. B.'s services. Dr. K. was upset to learn that defendant had "siphoned off" a portion of the Hospital money paid to Dr. B. Dr. K. reported what Dr. B. told him to the Hospital Board.
Dr. K. testified that before discovering the kickback arrangement, he had no reason to believe defendant was receiving part of Dr. B.'s pay. Neither defendant nor Dr. B. told Dr. K. that they had a secret side-contract, and Dr. K. had relied on defendant's representation that Dr. B. was only willing to work for the Hospital if he was paid $1,600 a day. J.C., and Board member Dr. R.C., also testified they did not know until 2012 about defendant's side-contract with Dr. B., and they were unaware defendant was receiving money from Dr. B.'s Hospital pay. The chief nursing officer and Board member, C.M., testified there was never at any Board meeting discussion regarding defendant's side-contract with Dr. B. Dr. K. initiated an investigation into defendant's secret side-contract with Dr. B. and reported the matter to the district attorney's office. When defendant discovered that Dr. B. had told Dr. K. about their agreement, defendant's attorney demanded Dr. B. pay a penalty for violating the confidentiality provision in their agreement. In addition, the MEC, of which defendant was a member, suspended Dr. B.'s Hospital privileges.
During the defense, former Board member, Dr. T., testified that around October 2009, the Board discussed several options, including the Hospital giving defendant a contract for surgery, with defendant hiring Dr. B. The Board also considered the Hospital contracting with Dr. B. for anesthesia services, with Dr. B. also having a separate contract with defendant because of the Hospital's political instability. Dr. C.B. and Dr. M.B. testified that they had conversations with the CEO, which led them to believe Dr. K. knew in 2009 or 2010 that defendant was receiving part of Dr. B.'s salary. During cross-examination, Dr. C.B. acknowledged that defendant had paid for equipment for Dr. C.B. and loaned Dr. C.B.'s son $10,000. During rebuttal, the prosecution's investigator testified that during a pretrial interview, Dr. C.B. said he was not sure when Dr. K. had mentioned that defendant was paying Dr. B. During rebuttal, the prosecution's investigator testified that during a pretrial interview, Dr. C.B. said he was not sure when Dr. K. had mentioned that defendant was paying Dr. B. During Dr. M.B.'s cross-examination, he stated he was currently working daily with defendant. During rebuttal, the prosecution's investigator testified that during a pretrial interview, Dr. C.B. said he was not sure when Dr. K. had mentioned that defendant was paying Dr. B.
Dr. A. also testified for the defense. He was a member of the MEC and chief of staff at the Hospital. He stated that he and defendant occasionally covered each other's surgical time. Between 2009 and 2012, Dr. A. spoke to Dr. B. daily. Dr. A. had a conversation at the Hospital with Dr. B. about how Dr. B was paid. Dr. B. said he knew he would get paid if defendant paid him, and he did not trust the Hospital to pay him. Dr. A. further testified that, during a meeting in 2009, Dr. K., defendant, Dr. A., and two other doctors discussed hiring Dr. B. They did not discuss whether Dr. B. would be under contract with defendant for his pay. Dr. A. was asked if he recalled testifying at his deposition that it was clear to him during the meeting that defendant would be paying Dr. B.'s salary. Dr. A. responded, "I guess I do." Dr. A. could not recall whether Dr. B. told him before or after Dr. B. told Dr. K. about the side-contract.
Dr. L., who was the Hospital chief of staff in 2009, testified that defendant had influence over the three doctors who testified for the defense, Dr. C.B., Dr. M.B., and Dr. A. Dr. L. further testified that during negotiations of the Hospital's contract with Dr. B. in 2009, defendant told the Board members not to talk to Dr. B. Defendant told the Board members that Dr. B. was shy and would only negotiate his Hospital contract through defendant. Dr. L. testified that during the 2009 Hospital contract negotiations, the Hospital administration was aware of defendant's previous 2007 contract with Dr. B., but no one knew about defendant's 2009 side-contract with Dr. B.
III.
AMENDING THE INFORMATION
Defendant contends the trial court erred in allowing the People to amend the information after the statute of limitations had run. We disagree.
A. Procedural Background Regarding Amending the Information
In September 2013, the People filed a felony complaint against defendant, alleging that in January 2006 and in October 2009, defendant violated Government Code section 1090 and Penal Code section 487, subdivision (a) by unlawfully contracting with Dr. B. for anesthesia services and by unlawfully stealing, taking, and defrauding "money, labor, real and personal property" of Dr. B., "of a value exceeding $950."
1. Preliminary Hearing Evidence
In August 2014, the trial court conducted a preliminary hearing, during which evidence of the following facts was presented. In 2009, the Hospital wanted to hire an anesthetist to provide anesthesia services at the Hospital, instead of using certified registered nurse anesthetists. Defendant asked the Hospital to award him a contract for operating the surgical unit, which would enable defendant to contract with doctors for services. Dr. K. refused to give defendant the contract. Nevertheless, in June 2009, defendant solicited Dr. B. to provide anesthesia services at the Hospital as an independent subcontractor, under a contract with defendant. Defendant told Dr. B. defendant had the contract to provide anesthesia services at the Hospital. Dr. B. and defendant executed a contract, in which it was agreed Dr. B. would provide anesthesia services at the Hospital in exchange for $36,000 a month ($1,200 a day), plus a $10,000 relocation fee.
After defendant and Dr. B. executed the contract, defendant negotiated a contract between the Hospital and Dr. B., in which it was agreed the Hospital would pay Dr. B. $48,000 a month, a $40,000 relocation fee, and a $3,000 a month directorship fee. Without informing the Hospital Board members or CEO, defendant kept all Hospital compensation paid to Dr. B. exceeding the compensation defendant agreed to pay Dr. B. in their secret side-contract. In an attempt to prevent anyone from discovering defendant's contract with Dr. B., defendant told the Hospital Board members that they must not speak to Dr. B., and reminded Dr. B. of the confidentiality provision in their side-contract.
When the Board expressed concerns about the proposed length of the Hospital contract with Dr. B., defendant threatened to have the medical staff stop admitting patients to the Hospital, which would result in a huge loss of Hospital revenue. Board members and Dr. K., testified they would not have authorized the contract between the Hospital and Dr. B. had they known defendant was being paid for Dr. B.'s anesthesia services from the compensation the Hospital paid Dr. B.
2. Information Amendments
After the preliminary hearing, on August 4, 2014, the People filed an information, which included the following allegations: (1) defendant violated Government Code section 1090 in October 2009, by willfully and unlawfully contracting in his official capacity, with Dr. B., for anesthesia services, when defendant had a financial interest in the contract (count 1); and (2) defendant violated Penal Code section 487, subdivision (a) in October 2009, by unlawfully stealing, taking, and defrauding "money, labor, real and personal property" of Dr. B., "of a value exceeding $950" (count 2).
The People further alleged in the information that defendant committed two or more related felonies, a material element of which was fraud or embezzlement, which involved a pattern of related felony conduct, and the pattern of related felony conduct involved the taking of more than $500,000. (§ 186.11, subd. (a)(2).) In addition, in the commission of the above alleged offenses, defendant intentionally took property exceeding the theft enhancement threshold amount of $200,000 in value. (§ 12022.6, subd. (a)(2).) The People also alleged that the statute of limitations did not run under section 803, subdivision (c)(1) and (4), until discovery of the offenses, and the offenses were not discovered until November 19, 2012, when the Hospital's CEO, Dr. K., met with the district attorney and reported that defendant had committed possible violations of the Government and Penal Codes.
In June 2016, the People orally moved to file a second amended information, substituting the Hospital in as the grand theft victim, in place of Dr. B. Defendant objected under section 1009, on the grounds the proposed second amended information changed the victim, altered the theory of the case, and was not supported by the evidence at the preliminary hearing. Defendant also argued that the grand theft count was barred by the four-year statute of limitations because it was, in effect, a new charge that did not relate back to the original charge. On June 30, 2016, the trial court heard and granted the People's motion to file their proposed second amended information. The court noted that the leave to amend was granted based on the trial court's review of the preliminary hearing transcript and conclusion that it supported the amended allegations. The court also found that the new charge was not barred by the statute of limitations.
B. Applicable Law
Under section 1009, the court may permit an amendment of an information "for any defect or insufficiency, at any stage of the proceedings . . . . The defendant shall be required to plead to such amendment . . . and the trial or other proceeding shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted." Section 1009 further states that an information cannot be amended "so as to charge an offense not shown by the evidence taken at the preliminary examination."
Generally, "'the prosecution may amend the information after the preliminary hearing to charge any offense shown by the evidence adduced at the preliminary hearing provided the new crime is transactionally related to the crimes for which the defendant has previously been held to answer.' [Citations.]" (People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 764.) Under section 1009, "'the test applied is whether or not the amendment changes the offense charged to one not shown by the evidence taken at the preliminary examination. [Citation.]'" (People v. Superior Court (Mendella), supra, at p. 764.) As long as these standards are met, there is no bar to adding to or amending the information. In the present case, these requirements were fulfilled.
This court reviews the trial court's ruling granting the People's motion to amend the information for an abuse of discretion. (People v. Hamernik (2016) 1 Cal.App.5th 412, 424.) The trial court's discretion "to permit amendments of the accusatory pleading 'for any defect or insufficiency' (Pen. Code, § 1009) is broad, and absent a clear abuse of discretion, is almost invariably upheld." (In re Man J. (1983) 149 Cal.App.3d 475, 481.) We conclude there was no abuse of discretion and affirm the judgment.
C. Analysis
Defendant contends the trial court abused its discretion by allowing the People to amend the grand theft count by substituting in the Hospital as the victim, in place of Dr. B. Defendant argues that the amendment changed the offense, thereby significantly altering the prosecution's theory of the case. We disagree.
1. Amending the Grand Theft Charge by Changing the Victim
The second amended information was supported by evidence presented during the preliminary hearing. Such evidence supported the amendment allegations that the Hospital was a victim of defendant committing grand theft by false pretenses, by defendant entering into a secret side-contract with Dr. B., requiring Dr. B. to pay defendant a portion of his Hospital compensation. Defendant convinced the Hospital that the amount of compensation paid to Dr. B. was required in order to retain him. Defendant knew this was not true, and defendant concealed from the Hospital that he was taking a portion of Dr. B.'s compensation. This evidence supported the new allegation that the Hospital was a victim of defendant's fraudulent acts. Therefore, the amendment did not improperly result in the second amended information charging "an offense not shown by the evidence taken at the preliminary examination." (§ 1009.)
Furthermore, there is also no showing that defendant was prejudiced by the amendment, because evidence presented at the preliminary hearing put defendant on notice of evidence supporting a charge of grand theft by false pretenses of the Hospital. In addition, the trial was six months after the trial court granted the amendment to the second amended information, such that defendant had sufficient time to prepare a defense, and defendant did not request a trial continuance when the trial court asked if defendant wanted to maintain the current trial date.
2. Statute of Limitations
Defendant further argues that, because the second amended information added a new charge of grand theft by false pretenses by changing the victim, the new charge is barred by the statute of limitations. We disagree. The amended grand theft count is not barred.
The statute of limitations for grand theft by false pretenses is four years, accruing upon "discovery of the commission of the offense, or within four years after the completion of the offense, whichever is later." (§ 801.5; see also § 803, subd. (c)(1); People v. Price (2007) 155 Cal.App.4th 987, 996.) Defendant's alleged acts of grand theft by false pretenses, committed against Dr. B. and the Hospital, occurred in October 2009, when the Hospital Board approved the contract between the Hospital and Dr. B. The Hospital did not discover defendant's kickback scheme until November 2012. In September 2013, the People timely filed their felony complaint within four years from the date of discovery of the kickback offense involving Dr. B. and the Hospital. (§§ 801.5, 803, subd. (c).)
Furthermore, the same conduct supporting the original charge of grand theft by false pretenses, committed against Dr. B., also supported the amended charge adding the Hospital as a victim. (See People v. Bell (1996) 45 Cal.App.4th 1030, 1064 [statute of limitations is tolled as to new charges arising out of the same conduct alleged in the original complaint].) Both the original grand theft charge, in which Dr. B. was the alleged victim, and the amended charge, in which the Hospital was the alleged victim, are part of the same kickback scheme and involve the same underlying factual circumstances. (Ibid.) Therefore, the limitation period was tolled once the felony complaint was filed in September 2013. It is undisputed the original grand theft charge was timely filed within the four-year limitation period. Therefore, because the limitation period stopped running during the prosecution of the original grand theft charge, the amended grand theft charge, changing the victim from Dr. B. to the Hospital, was timely as well under section 803, subdivision (b).
IV.
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends his trial attorney committed IAC on two occasions: (1) during cross-examination of Dr. K. regarding Desert Air Ambulance (Desert Air); and (2) during cross-examination of Dr. K. regarding an endoscopy procedure.
"An ineffective assistance claim has two components: A [defendant] must show that counsel's performance was deficient, and that the deficiency prejudiced the defense." (Wiggins v. Smith (2003) 539 U.S. 510, 521, citing Strickland v. Washington (1984) 466 U.S. 668, 687; accord, In re Welch (2015) 61 Cal.4th 489, 514.) "But we need not definitively resolve whether counsel's performance was adequate because the high court has said '[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.'" (Welch, supra, at p. 516, quoting Strickland, supra, at p. 697.) In order to establish prejudice, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, at p. 694.)
A. Desert Air Evidence
Defendant contends defense counsel committed IAC by opening the door to the admissibility of prejudicial testimony by Dr. K. regarding Desert Air; by not objecting to the prosecutor's leading questions eliciting highly inflammatory and prejudicial responses; by not objecting to Dr. K.'s testimony exceeding the scope of the trial court's ruling limiting the scope of Desert Air testimony; by not moving to strike Dr. K.'s highly inflammatory and prejudicial responses; and by not requesting a limiting instruction or moving for a mistrial.
1. Background Regarding Desert Air Testimony
Defendant filed a pretrial motion in limine requesting exclusion of various evidence, including "[a]ny evidence or argument concerning an investigation of potential conflict of interest involving Desert Air patient transport." Defendant argued in his motion that, although there was an investigation into a potential conflict of interest, nothing in the investigation was relevant to the charges against defendant, and the Desert Air matter was collateral and unfairly prejudicial.
During the hearing on the in limine motion, the prosecutor requested she be permitted to rehabilitate Dr. K., if necessary, by introducing evidence regarding Desert Air and its owner, who was also a Hospital Board member. The prosecutor explained that defendant and Dr. K. had a dispute over defendant insisting the Hospital use Desert Air airplane transport for emergency patients. Dr. K. believed that at times it was in the best interest of the patient to use a helicopter rather than Desert Air airplane transportation. Dr. K. believed defendant's directive was inappropriate and violated state hospital regulations. The prosecutor told the court she anticipated that during defense counsel's cross-examination of Dr. K., defense counsel would attempt to show that Dr. K. disliked defendant. If this occurred, the prosecutor wanted to rehabilitate Dr. K. by introducing evidence of the Desert Air dispute. Defense counsel acknowledged he intended to elicit testimony that Dr. K. did not like defendant but argued this would not open the door to evidence of the Desert Air dispute. The court deferred ruling on the extent to which the prosecutor could introduce evidence of the Desert Air dispute.
During the trial, defense counsel suggested, when cross-examining Dr. K., that in August 2012, Dr. K. was building a file on defendant, containing negative information to support removing defendant from the Hospital. Dr. K. denied this, explaining that his issues with defendant began in 2009 and continued through 2012. Dr. K. testified that when he became aware of defendant's side-contract with Dr. B. in 2012, he viewed the matter as an opportunity to correct the situation and hold accountable those who were responsible.
On redirect, the prosecutor requested to introduce evidence of defendant's relationship with Desert Air and its owner on the ground defendant opened the door by accusing Dr. K. of building a file on defendant. The prosecutor requested that she be permitted to show that Dr. K. had legitimate concerns about defendant based on the Desert Air dispute. The trial court ruled that the prosecutor could ask Dr. K. on redirect if he had issues with the use of Desert Air and why; whether Dr. K. knew who owned Desert Air; and whether the owner of Desert Air was on the Board when defendant was fired.
During Dr. K.'s redirect testimony, he testified that his conflicts with defendant primarily concerned their Desert Air dispute, which arose before Dr. K. discovered defendant had a secret side-contract with Dr. B. Dr. K. explained that defendant directed the Hospital staff to use Desert Air exclusively when transporting patients, even when a physician believed that helicopter transportation by a different company would be more appropriate because of the seriousness of the patient's condition. Dr. K. testified that when he implemented a new policy overriding defendant's directive to use Desert Air, defendant was "madder than a hornet's nest" and refused to follow the new policy.
a. Analysis
Defendant contends his attorney committed IAC by asking Dr. K. questions during cross-examination which defense counsel should have known would open the door to prejudicial, inflammatory Desert Air evidence. Defendant argues there was no reasonable explanation or rational tactical purpose for opening the door to such evidence. We disagree.
This court may not reverse a conviction based on IAC unless "the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission. In all other cases the conviction will be affirmed and the defendant relegated to habeas corpus proceedings at which evidence dehors [outside] the record may be taken to determine the basis, if any, for counsel's conduct or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581-582.) "We have repeatedly stressed 'that "[if] the record on appeal 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," the claim on appeal must be rejected.' [Citations.]" (People v. Tello (1997) 15 Cal.4th 264, 266-267.)
Here, the record supports a rational tactical purpose for defense counsel's acts or omissions leading to the Desert Air evidence. Defense counsel could have reasonably pursued this line of questioning during cross-examination to show Dr. K.'s partiality, bias, and animosity towards defendant and malicious, vindictive intent to oust defendant from the Hospital without good cause. The Desert Air dispute was one of several disputes between Dr. K. and defendant, which supported the defense that Dr. K. was merely out to get defendant because Dr. K. did not like him.
As to defense counsel not challenging the Desert Air redirect testimony, it is unlikely defense counsel would have prevailed on any objections to the testimony. The evidence was admissible to rehabilitate Dr. K. It was also relevant to Dr. K.'s credibility as a witness and as to whether Dr. K. acted maliciously in assisting with defendant's prosecution. In addition, the evidence was not unduly inflammatory or prejudicial and did not exceed the scope authorized by the trial court. Therefore, defense counsel did not commit IAC by not requesting an admonition or motion for mistrial based on the Desert Air evidence. Defense counsel is under no obligation to make fruitless, time-consuming, nonproductive arguments, objections or motions that are of little or no merit. (People v. Anderson (2001) 25 Cal.4th 543, 587.) "Obviously, trial counsel cannot be deemed incompetent for failing to advance a meritless contention. [Citation.]" (People v. Adams (1990) 216 Cal.App.3d 1431, 1437.)
B. Endoscopy Evidence
Defendant contends defense counsel committed IAC by opening the door to highly inflammatory and prejudicial evidence regarding defendant performing an endoscopy procedure.
1. Background Regarding Endoscopy Evidence
During direct examination, Dr. B. testified that his Hospital staff privileges were suspended because defendant retaliated against him. During cross-examination by defense counsel, Dr. B. testified that his suspension was because he removed an endoscopy tube from a patient's throat without defendant's permission.
During redirect by the prosecutor, Dr. B. testified that the endoscopy was performed on a patient who had significant heart and lung disease, making the endoscopy a risky procedure that could lead to cardiac arrest. During the procedure the patient developed laryngospasm, in which his vocal cords locked up and prevented air from going in and out of his lungs. Dr. B. told defendant they should abort the procedure because the patient's blood oxygen level was dropping. Defendant ignored Dr. B. Dr. B. again requested defendant to remove the scope from the patient's airway and abort the endoscopy. Defendant refused. Dr. B. removed the scope and restored the patient's airway so he could breathe. Defendant stormed out of the room yelling at Dr. B., accusing Dr. B. of being prejudiced because defendant was a foreigner. Minutes later, Dr. B. received a letter of suspension written and signed by defendant.
On recross-examination, defense counsel attempted to rehabilitate defendant's professional reputation by eliciting testimony from Dr. B. stating that normally the surgeon inserts and removes the endoscopy tube. When removing the tube, there is the risk that removing it incorrectly will tear the esophagus. When asked if Dr. B. and defendant differed in their opinions as to whether the patient's condition required removal of the tube when he did, Dr. B. stated that defendant's differing opinion did not carry equal weight because Dr. B.'s specialty, as an anesthetist, involved a patient's airway, breathing, and vital signs, and Dr. B. observed an impending cardiac arrest. Dr. B. conceded his specialty was not in performing endoscopies.
a. Analysis
Defendant argues the record does not show any satisfactory explanation or rational tactical purpose for defense counsel's expansion of Dr. B.'s testimony regarding his suspension of Hospital staff privileges, which opened the door to the prosecutor eliciting during redirect inflammatory, prejudicial facts about the endoscopy. Defendant also argues Dr. B.'s redirect testimony portrayed defendant as being so unhinged as to endanger his patients.
However, the testimony defense counsel elicited from Dr. B. during cross-examination and recross-examination served the reasonable tactical purpose of refuting that defendant retaliated against Dr. B. by suspending his privileges. During cross-examination, Dr. B. explained that his privileges were suspended because he violated protocol by ignoring defendant's authority as the surgeon performing the endoscopy and removing the endoscopy tube without defendant's permission. This testimony could have been reasonably elicited for the purpose of showing that defendant had good reason to suspend Dr. B.'s privileges based on insubordination.
Defense counsel's recross-examination also served the reasonable tactical purpose of rehabilitating defendant after Dr. B. testified on redirect that defendant's refusal to remove the endoscopy tube compelled Dr. B. to do so in order to save the patient from cardiac arrest. Defense counsel attempted to rehabilitate defendant by eliciting testimony from Dr. B. that it was risky removing the endoscopy tube and, if done incorrectly, could have seriously harmed the patient. Dr. B. further conceded he did not have expertise in performing endoscopies, whereas defendant did. Defense counsel's cross and recross-examination thus served the tactical purpose of attempting to rehabilitate defendant and impugn Dr. B.'s credibility.
Furthermore, because the endoscopy evidence was admissible and there were rational tactical reasons for defense counsel eliciting the evidence, defense counsel was under no obligation to make fruitless, time-consuming, nonproductive arguments, objections or motions that were of little or no merit. (People v. Anderson, supra, 25 Cal.4th at p. 587.) Defense counsel cannot be deemed incompetent for failing to advance meritless arguments, objections or motions. (People v. Adams, supra, 216 Cal.App.3d at p. 1437.)
Even if defense counsel's representation regarding the Desert Air and endoscopy evidence fell below an objective standard of reasonableness, defendant has failed to establish prejudice. There was overwhelming evidence of defendant's guilt in the absence of the Desert Air and endoscopy evidence. Defendant has thus not shown that, but for the alleged deficient representation, there is a reasonable probability that the outcome would have been different. (Strickland v. Washington, supra, 466 U.S. at p. 694; see also In re Welch, supra, 61 Cal.4th at pp. 517, 521.) We therefore reject defendant's IAC contentions.
V.
SUA SPONTE EXCLUSION OF INADMISSIBLE EVIDENCE
Defendant contends that, because defense counsel did not object to the Desert Air and endoscopy evidence, the trial court should have sua sponte stricken the highly inflammatory evidence. Defendant argues the trial court was required to intervene because defendant needed protection from his attorney's highly questionable, extremely problematic and ultimately prejudicial decisions made regarding the Desert Air and endoscopy evidence. Defendant asserts that under such circumstances, the trial court was required to uphold its constitutional duty to ensure defendant was given a fair trial, and thus the court should have sua sponte ruled the Desert Air and endoscopy evidence was more prejudicial than probative and should have stricken the evidence.
We disagree. As discussed above, defendant has not established IAC regarding the Desert Air and endoscopy evidence or that the prosecutor's redirect regarding Desert Air was beyond the scope of the trial court's in limine ruling. Defense counsel reasonably and properly elicited the Desert Air and endoscopy evidence to rehabilitate defendant and impugn adverse witnesses, Dr. K. and Dr. B. The evidence was also relevant to show that there had been disputes between defendant, Dr. K., and Dr. B., which may have created witness bias. The trial court therefore did not abuse its discretion in allowing the evidence. (People v. Cowan (2010) 50 Cal.4th 401, 462 ["We review the trial court's rulings on the admission of evidence for abuse of discretion."].)
Because the Desert Air and endoscopy evidence was admissible and defense counsel did not commit IAC, this case was not "an extraordinary case" such that sua sponte instruction was required to protect defendant from his attorney's "inadvertence." (People v. Collie (1981) 30 Cal.3d 43, 64.)
VI.
WHETHER EVIDENTIARY ERRORS CONSTITUTE
DUE PROCESS VIOLATIONS
Defendant contends his state and federal constitutional due process rights to a fair trial were violated by the trial court allowing the Desert Air and endoscopy evidence, which seriously and irreversibly impugned defendant's character. We disagree because the evidence was admissible under Evidence Code section 352.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." We review a challenge to admission of evidence under Evidence Code section 352 for abuse of discretion. (People v. Branch (2001) 91 Cal.App.4th 274, 282 (Branch).) We will reverse only if the trial court's ruling was "arbitrary, whimsical, or capricious as a matter of law. [Citation.]" (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1614; accord, Branch, supra, at p. 282.)
Here, the trial court could reasonably find that the relevance of the evidence outweighed any "substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352, subd. (b).) As discussed above, the Desert Air and endoscopy evidence was admissible as highly relevant to the issue of whether defendant's acts and the testimony and acts of Dr. K. and Dr. B. were motivated by hostility and bias towards each other or were the consequence of legitimate concern for the well-being of the Hospital and its patients. The evidence also was of substantial probative value in rehabilitating and impugning key witnesses, including defendant's, Dr. K.'s, and Dr. B.'s credibility or lack of credibility.
Defendant contends, however, that any probative value of the evidence was minimal and outweighed by the undue prejudice caused by the evidence. Defendant argues Dr. K.'s Desert Air testimony was highly prejudicial and inflammatory because it portrayed defendant as willing to endanger the lives of critically ill patients for his own financial benefit by forcing them to use less efficient transport. Defendant further argues the endoscopy evidence portrayed defendant "as a monster who would abandon his patient in the middle of surgery simply because his judgment was challenged by a colleague." Defendant asserts that it was highly likely the combined effect of this highly inflammatory evidence provoked jury bias against defendant, causing the jury improperly to prejudge the charges against him.
But, as the court in Branch, supra, 91 Cal.App.4th 274, explains "[i]t is important to keep in mind what the concept of 'undue prejudice' means in the context of [Evidence Code] section 352. '"Prejudice" as contemplated by [Evidence Code] section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a[n] [Evidence Code] section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. . . . "'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging."' [Citation.]" [Citation.]'" (Id. at p. 286, quoting Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008-1009.)
Even if the Desert Air and endoscopy evidence may have evoked emotional bias against defendant, defendant had the opportunity to refute it by cross-examining Dr. K. and Dr. B. Although the evidence may have been damaging, it did not constitute "undue prejudice" within the meaning of Evidence Code section 352, because the evidence was substantially relevant to proving the charges, to the witnesses' credibility, and to rehabilitating witnesses.
Here, defendant did not demonstrate that he would be "'unduly prejudiced,'" within the meaning of Evidence Code section 352, by the introduction of Desert Air and endoscopy evidence. (Branch, supra, 91 Cal.App.4th at p. 286, quoting Vorse v. Sarasy, supra, 53 Cal.App.4th at pp. 1008-1009.) The jury may have found defendant's Desert Air and endoscopy acts were reprehensible, but evidence of such acts was highly relevant, and the trial court could have reasonably found the evidence was not so inflammatory that jurors would use it for an illegitimate purpose. Nor did defendant demonstrate that any potential prejudice would "'substantially'" outweigh the probative value of the evidence. (Branch, supra, at p. 286.) We thus conclude the trial court did not commit prejudicial error or violate defendant's due process rights to a fair trial by allowing the Desert Air and endoscopy evidence.
VII.
SUFFICIENCY OF THE EVIDENCE
Defendant contends the evidence was insufficient to support his conviction for grand theft by false pretenses.
A. Standard of Review
When reviewing a challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment below. (People v. Snow (2003) 30 Cal.4th 43, 66.) In doing so, "we must examine the record independently for '"substantial evidence—that is, evidence which is reasonable, credible, and of solid value"' that would support a finding beyond a reasonable doubt. [Citation.]" (People v. Banks (2015) 61 Cal.4th 788, 804.) We do not resolve credibility issues or evidentiary conflicts. "'"[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder."' [Citation.] 'The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.]'" (People v. Snow, supra, at p. 66.)
B. Evidence of Grand Theft by False Pretenses
In order to prove grand theft by false pretenses under section 487, subdivision (a), the prosecution must prove that "(1) the defendant made a false pretense or representation to the owner of property; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant in reliance on the representation. [Citations.]" (People v. Miller (2000) 81 Cal.App.4th 1427, 1440.) "The false pretense may consist in any act, word, symbol, or token calculated and intended to deceive. It may be either express or implied from words or conduct. [Citations.]" (People v. Randono (1973) 32 Cal.App.3d 164, 174; accord, People v. Miller, supra, at p. 1441.)
In the instant case, the evidence was more than sufficient to support defendant's conviction for theft of money from the Hospital by false pretenses. The prosecution's case was founded on the theory that defendant committed the offense when negotiating Dr. B.'s 2009 contract with the Hospital Board. Defendant disputes the sufficiency of evidence only as to the third element, that the Hospital transferred money (Dr. B.'s salary) to defendant in reliance on false pretenses or representations.
"Reliance" within the meaning of section 487, "means that the false representation 'materially influenced' the owner's decision to part with his property; it need not be the sole factor motivating the transfer. [Citation.] A victim does not rely on a false representation if 'there is no causal connection shown between the [representations] alleged to be false' and the transfer of property. [Citations.] Thus, if the defendant makes both true and false statements to the owner, but the false statements are irrelevant to the owner's decision to transfer the property, theft on the theory of false pretense has not been committed. [Citation.] Reliance may be inferred from all the circumstances. [Citation.]" (People v. Wooten (1996) 44 Cal.App.4th 1834, 1841-1842; accord, People v. Miller, supra, 81 Cal.App.4th at pp. 1440-1441.)
Defendant argues there was unrefuted evidence the Hospital did not rely on defendant's representation that Dr. B. would not work for less than $1,600 a day. Defendant also argues defendant's concealment of the secret side-contract with Dr. B. did not materially influence the Hospital's decision to contract with Dr. B. for anesthesia services. Defendant cites Dr. K.'s testimony in which he stated that he retained an independent consultant to determine whether paying Dr. B. $1,600 a day was unacceptably high. The consultant concluded the salary was on the high end of acceptable. Dr. K. testified this was part of the basis for Dr. K. accepting the Hospital contract with Dr. B. But it was not the sole motivating factor.
Dr. K.'s testimony regarding retaining an independent consultant does not negate other material evidence and reasonable inferences that the Hospital relied on defendant's false representations that Dr. B. wanted to be paid $1,600 a day. Dr. K. stated the independent consultant's determination was only "part" of the basis for accepting the contract. The evidence as a whole demonstrated that defendant's misleading representations were a material consideration or reason for the Hospital entering into the 2009 contract. Dr. K. clarified that the independent consultant's opinion on the reasonableness of a proposed salary amount was entirely different from, and unrelated to, a determination that the salary was illegal or the product of fraud. The consultant's analysis only concerned whether the specified salary amount was reasonable. Dr. K. added that there was always a presumption by the consultant that all of the money the Hospital paid for a physician's services went entirely to the physician who provided the services. There was very little resistance by the Board to the contract terms because defendant intimidated and misled the Board members and CEO into believing they should not contact Dr. B. during the Hospital contract negotiations.
Defendant argues there was additional evidence of the Hospital not relying on his representation Dr. B. would not work for less than $1,600 a day. Dr. B. testified that, before signing the 2009 contract with the Hospital, he told the Hospital Board president, J.C., that he "'probably would'" work for $1,000 a day. Dr. B. testified he was equivocal when he told J.C. this. Dr. B. also testified he informed investigators that he told J.C. he "'might be willing'" to accept $1,000 a day. Dr. B. added that he "was not going to make any commitments. I was trying to dodge the questions best I could." Dr. B. testified that he was avoiding giving definitive responses regarding what he would agree to because he had previously entered into the secret side-contract with defendant, which included a confidentiality clause. Dr. B. feared breaching the clause.
Under these circumstances, in which Dr. B. was equivocal as to whether he would agree to a lesser salary and defendant had insisted no one negotiate with Dr. B. other than defendant, it would not have been unreasonable for the Hospital to rely on defendant's representation that Dr. B. would not work for less than $1,600 a day and wanted payment of the $40,000 relocation fee. In addition, it is unrefuted that defendant's representation that Dr. B. wanted a $40,000 relocation fee was false and the Board relied on defendant's false representation by agreeing to pay the $40,000 fee.
A reasonable inference could also be made that defendant's representations were material because the Hospital accepted the $1,600 contract term without attempting to negotiate a lower salary amount, even after J.C. spoke with Dr. B. J.C. testified that when defendant learned a day or two after speaking to Dr. B. that J.C. had spoken with Dr. B., defendant became visibly upset. Dr. B. also testified that defendant called Dr. B. and told him he was upset J.C. and Dr. B. had talked, and reminded Dr. B. of the confidentiality clause in their contract. In addition, Dr. K. testified defendant threatened him and the Board that if they did not approve the contract, "you will see what happens," alluding to a Hospital shutdown.
We thus conclude there was substantial evidence supporting a reasonable inference that defendant intended that his false representations induce the Hospital to enter into the 2009 contract; the representations were material to inducing the Hospital to agree to the terms of the contract; the Hospital relied on defendant's false representations; the Hospital, as a result, executed the contract and paid money to Dr. B. for relocating and providing anesthesia services; and the Hospital reasonably presumed its funds would be paid entirely to Dr. B. and not be funneled in whole or in part through Dr. B. as secret kickback payments to defendant. There is also substantial evidence that, had the Hospital been aware of defendant's side-contract with Dr. B., the Hospital would not have agreed to the terms of the Hospital's 2009 contract with Dr. B.
Defendant argues the prosecution failed to prove defendant committed the crime of theft by false pretenses because there was no theft of the Hospital's money by false pretenses. The Hospital paid Dr. B. his salary, as agreed in the contract between the Hospital and Dr. B. Defendant further argues he was under no obligation to disclose to the Hospital his side-contract with Dr. B. These arguments lack merit because they do not refute the fact that defendant's false and misleading representations induced the Hospital to enter into a contract with Dr. B., which included terms the Hospital would not have agreed to, had defendant not made false and misleading statements. The Hospital would not have paid Dr. B. the excess money defendant skimmed off of Dr. B.'s Hospital salary and relocation fee paid by the Hospital to Dr. B. We therefore conclude there was substantial evidence to support defendant's conviction for theft by false pretenses.
VIII.
PROBATION
Defendant contends the trial court erred in sentencing him to 16 months in county jail without considering probation under rule 4.413. We conclude there was no sentencing error in imposing defendant's jail sentence.
A. Procedural Background
Leading up to defendant's initial sentencing hearing, the probation department recommended probation in its original probation report. The probation department thereafter filed a corrected report acknowledging that defendant was presumptively ineligible for probation and recommended imposing a specific term instead of probation. On February 24, 2017, the trial court nevertheless sentenced defendant to three years of probation and imposed $508,150 in victim restitution payable to the Hospital. (Sahlolbei (2/8/2018), supra, E068102 [at p. 1].)
The People filed a petition for writ of mandate, challenging the probation order. (Sahlolbei (2/8/2018).) This court granted the People's writ petition. We concluded in Sahlolbei (2/8/2018), that defendant was presumptively ineligible for probation and had not established an exception to the presumption. We therefore reversed the probation order and remanded the matter to the trial court for resentencing. (Sahlolbei (2/8/2018), supra, E068102 [at p. 2].)
We stated in our decision in Sahlolbei (2/8/2018) that we rejected the trial court's reasons for finding defendant's case was an "'unusual case'" under rule 4.413 and concluded the trial court erred in granting defendant probation. (Sahlolbei (2/8/2018), supra, E068102 [at p. 4].) We explained that (1) "even if the trial court did consider rule 4.413(c)(1)(A), which is not apparent, the analysis finding an unusual case is unconvincing" (id. [at p. 15]); (2) "[t]he gap here of over $400,000 above the threshold for presumptive ineligibility for probation is even more compelling, and alone negates the determination that [defendant] was eligible for probation" (id. [at p. 16]); and (3) "the loss by theft of over $500,000 from the sole hospital in Blythe, California, cannot be seen as doing anything other than affecting a large number of people who rely on that facility" (ibid.).
We further stated in Sahlolbei (2/8/2018) that "a finding of an unusual case, and hence, eligibility for probation, is not supported. Therefore, the trial court abused its discretion in sentencing [defendant] to probation, and [defendant's] contrary argument is without merit. Inasmuch as there is no other basis in the trial court's decision or in [defendant's] argument to permit probation, we need not consider any other criteria in rule 4.413 and, therefore, a sentence to a non-probation term is necessary." (Sahlolbei (2/8/2018), supra, E068102 [at pp. 16-17].) We therefore directed the trial court to vacate its order granting defendant probation and sentence him consistent with our opinion in Sahlolbei (2/8/2018). (Id. [at p. 17].)
During the resentencing hearing, the trial court stated in its tentative ruling that the court could not grant defendant probation under the law of the case provided in Sahlolbei (2/8/2018). The trial court explained that in this court's prior decision, we found defendant was ineligible for probation because his offense was not less serious than other grand theft offenses. Defense counsel disagreed, arguing that, to the contrary, defendant's case was less serious and that this court had not decided as a matter of law that defendant was ineligible for probation. Defense counsel argued that, therefore, the trial court was not foreclosed from considering probation on remand. Defense counsel also argued that, in our previous opinion, we reversed the probation order merely because the trial court had failed to articulate its reasons for finding defendant eligible for probation.
The People argued this court held that defendant's offense was not a substantially less serious offense, and defendant had not provided any other new basis for eligibility. The People further asserted that defendant's argument was meritless that this court's change of its tentative disposition in Sahlolbei (2/8/2018) indicated that the trial court was not foreclosed from granting probation on remand. In Sahlolbei (2/8/2018), this court deleted from the disposition of its tentative decision a statement that sentencing must be imposed under section 1170. In our final decision in (Sahlolbei (2/8/2018), supra, E068102 [at p. 17]), we instead directed the trial court "to sentence him consistent with the views expressed in this opinion."
After the trial court considered the parties' supplemental sentencing briefs and heard lengthy oral argument by both parties, the court noted that, if it had the discretion to do so, it would grant probation. The court added that it was, however, denying probation based on Sahlolbei (2/8/2018), which provided the law of the case. The trial court explained that in Sahlolbei (2/8/2018), this court held that probation was inappropriate based alone on the $400,000 gap between the $100,000 threshold for probation and defendant's theft of over $500,000. The trial court therefore sentenced defendant to 16 months in county jail and ordered him to pay the Hospital $588,669 in restitution. Defendant filed a notice of appeal of the July 27, 2018, sentencing order.
B. Applicable Law
Rule 4.413 addresses sentencing when a defendant is found presumptively ineligible for probation. Probation in such cases is precluded "'except in unusual cases where the interests of justice would be best served.'" (Rule 4.413(b), (c); § 1203.045, subd. (e).) Rule 4.413(b) states that "[i]f the defendant comes under a statutory provision prohibiting probation 'except in unusual cases where the interests of justice would best be served,' . . . the court should apply the criteria in (c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation." (Rule 4.413(b).)
Finding a case "unusual" thus follows a two-step process. (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229 (Dorsey).) "If a court determines the presumption against probation is overcome, it evaluates whether or not to grant probation pursuant to California Rules of Court, rule 4.414. However, 'mere suitability for probation does not overcome the presumptive bar . . . . [I]f the statutory limitations on probation are to have any substantial scope and effect, "unusual cases" and "interests of justice" must be narrowly construed,' and rule 4.413 'limited to those matters in which the crime is either atypical or the offender's moral blameworthiness is reduced.' [Citation.] [¶] Under rule 4.413, the existence of any of the listed facts does not necessarily establish an unusual case; rather, those facts merely 'may indicate the existence of an unusual case.' (Rule 4.413(c), italics added.) This language indicates the provision 'is permissive, not mandatory.' [Citation.] . . . '[T]he trial court may but is not required to find the case unusual if the relevant criterion is met under each of the subdivisions.'" (People v. Stuart (2007) 156 Cal.App.4th 165, 178.)
A court therefore must first consider the factors under rule 4.413 and determine within its discretion whether the existence of any of the listed factors support finding an unusual case. These factors are not exclusive, but "the language of the rule is not to be read expansively." (Dorsey, supra, 50 Cal.App.4th at p. 1227.) Then, the court must consider whether the defendant is suitable for probation under rule 4.414.
Defendant's case comes under section 1203.045, which prohibits probation except in unusual cases. Section 1203.045, subdivision (a) provides: "Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person convicted of a crime of theft of an amount exceeding one hundred thousand dollars ($100,000)." Section 1203.045, subdivision (c) provides: "When probation is granted, the court shall specify on the record and shall enter on the minutes the circumstances indicating that the interests of justice would best be served by such a disposition."
Here, the jury found true the theft enhancement allegation that under former section 12022.6, subdivision (a)(2), defendant had taken in excess of the statutory threshold amount of $200,000, required for a section 12022.6, subdivision (a)(2) theft enhancement. Given this finding, section 1203.045, subdivision (a), bars a grant of probation except in unusual cases serving the interests of justice.
"The standard for reviewing a trial court's finding that a case may or may not be unusual is abuse of discretion. The reviewing court must find that the trial court acted arbitrarily or capriciously in exercising its discretion. [Citations.] The burden rests on the defendant to clearly show that the sentencing decision was irrational or arbitrary." (People v. Cazares (1987) 190 Cal.App.3d 833, 837; see also Dorsey, supra, 50 Cal.App.4th at p. 1225.)
C. Analysis
Citing Dorsey, supra, 50 Cal.App.4th 1216, defendant argues that this court's previous decision in Sahlolbei (2/8/2018), did not bind the trial court to imposing a custodial sentence instead of probation. Defendant asserts that, when the trial court has incorrectly applied rule 4.413(c)(1), the Court of Appeal should remand the matter for resentencing, to allow correct application of rule 4.413(c)(1). Defendant argues the trial court therefore incorrectly assumed that, upon remand, the trial court could not re-apply rule 4.413(c)(1) and grant defendant probation.
In Dorsey, the People challenged the trial court order granting the defendant probation, even though he was presumptively ineligible. Before his conviction, the defendant had served as the Inyo County Sheriff for many years. (Dorsey, supra, 50 Cal.App.4th at p. 1221.) As a result of his conviction for embezzling public funds, the defendant was presumptively ineligible for probation under section 1203, subdivision (e)(7), which provides that, except in unusual cases, probation shall not be granted to public officials or peace officers who, in the discharge of their duties, embezzled public money. The trial court also found the defendant presumptively ineligible because "the evidence indicated a gap of over $200,000 between the funds he obtained and the funds for which he was able to account, far more than the $100,000 necessary to trigger the probation limitation." (Dorsey, supra, at p. 1226.)
This court reversed the trial court order in Dorsey granting probation and remanded the matter for reconsideration of probation. (Dorsey, supra, 50 Cal.App.4th at pp. 1220, 1222.) We concluded that none of the criteria listed in rule 4.413(c) applied in the defendant's favor. The defendant therefore failed to establish that his case was unusual. (Dorsey, supra, at p. 1229.) Unlike in the instant case, we declined in Dorsey to reach the issue of whether probation would be justified if the presumption of ineligibility were overcome. (Ibid.) Unlike in Dorsey, in the instant case, we remanded the matter for resentencing, noting that "a sentence to a non-probation term is necessary." (Sahlolbei (2/8/2018), supra, E068102 [at p. 17].)
The facts establishing probation ineligibility in the instant case are even stronger than those in Dorsey, since the amount of embezzled funds in Dorsey was about $200,000, whereas defendant stole over $500,000 from a public, nonprofit hospital. Furthermore, the only eligibility factor under rule 4.413 defendant relied upon during the sentencing hearing on remand, was that his offense was substantially less serious than other grand theft offenses. Because this court had previously held in Sahlolbei (2/8/2018) that this factor did not apply, the trial court correctly concluded, based on the law of the case, that it was precluded from granting probation based on that same factor. This court in Sahlolbei (2/8/2018), rejected the factor, stating, "[t]he gap here of over $400,000 above the threshold for presumptive ineligibility for probation is even more compelling [than in Dorsey], and alone negates the determination that [defendant] was eligible for probation." (Sahlolbei (2/8/2018), supra, E068102 [at p. 16].)
We held in Sahlolbei (2/8/2018), that, "a finding of an unusual case [under rule 4.413], and hence, eligibility for probation, is not supported. Therefore, the trial court abused its discretion in sentencing [defendant] to probation, and [defendant's] contrary argument is without merit. Inasmuch as there is no other basis in the trial court's decision or in [defendant's] argument to permit probation, we need not consider any other criteria in rule 4.413 and, therefore, a sentence to a non-probation term is necessary." (Sahlolbei (2/8/2018), supra, E068102 [at pp. 16-17].)
Under the doctrine of the law of the case, when a reviewing court states a principle or rule in an opinion, it must be applied throughout all later trial court and appellate proceedings in the case. (People v. Jurado (2006) 38 Cal.4th 72, 94.) "Moreover, '[a] decision on a matter properly presented on a prior appeal becomes the law of the case even though it may not have been absolutely necessary to the determination of the question whether the judgment appealed from should be reversed. [Citations].' [Citation.] Thus, application of the law-of-the-case doctrine is appropriate where an issue presented and decided in the prior appeal, even if not essential to the appellate disposition, 'was proper as a guide to the court below on a new trial.' [Citation.]" (People v. Boyer (2006) 38 Cal.4th 412, 442.)
Here, upon remand for resentencing, the trial court ruled under the law of the case provided in Sahlolbei (2/8/2018), that defendant was ineligible for probation. In Sahlolbei (2/8/2018), we explicitly stated defendant had not established his case was unusual. We further stated that defendant was not eligible for probation and therefore remanded the case for sentencing. Defendant stole over $500,000 from the Hospital, a small, financially challenged public hospital, which served the Blythe community. Defendant abused a position of trust within the Hospital as chief of staff, as advisor to the board of directors of the Hospital district, and as a member of its MEC. Defendant's crime was committed in a sophisticated, surreptitious manner. The crime was concealed from everyone except himself and Dr. B., who was the vessel through which defendant stole funds from the Hospital. Furthermore, the grand theft likely would not have been discovered but for Dr. B. ultimately disclosing the egregious scheme.
Relying on the law of the case, the trial court thus appropriately found defendant did not establish, nor could he establish, that his case was an "unusual case" qualifying him for probation. In finding defendant ineligible for probation, the trial court was not required to enumerate the factors upon which it reached such a conclusion. Section 1203.045, subdivision (c) only requires the trial court to specify on the record, and enter on the minutes, the circumstances indicating that the interests of justice would best be served when probation is granted, and not when it is denied.
The trial court's order on remand denying probation is consistent with our previous decision, Sahlolbei (2/8/2018), in which we ordered probation vacated and the case remanded for resentencing. We therefore conclude the trial court did not err in denying probation and sentencing defendant to county jail.
IX.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.