Opinion
E068102
02-08-2018
THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; HOSSAIN SAHLOLBEI, Real Party in Interest.
Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District Attorney, for Petitioner. No appearance for Respondent. Brown White & Osborn and Kenneth P. White for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ORIGINAL PROCEEDINGS; petition for writ of mandate/prohibition. Jeffrey Prevost, Judge. Petition is granted. Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District Attorney, for Petitioner. No appearance for Respondent. Brown White & Osborn and Kenneth P. White for Real Party in Interest.
In this matter, the People challenge the trial court's decision to place defendant and real party in interest Hossain Sahlolbei (Dr. Sahlolbei) on probation, despite his presumptive ineligibility for probation as a result of his conviction. We have determined that the matter must be remanded for resentencing.
I
FACTS OF THE CASE
Palo Verde Hospital (PVH) is a public entity hospital in Blythe, California. At all relevant times, Dr. Sahlolbei served as its codirector of surgical services and as a member of its medical executive committee, including as chief of staff or vice chief of staff, with considerable influence over hiring and credentialing physicians. He solicited an outside physician, Dr. Brad Barth, to provide contract services to PVH, in a hidden scheme masked by a confidentiality clause to charge the hospital a certain amount for salary, but to only actually pay Dr. Barth a considerably lesser amount (and the same for Dr. Barth's relocating fees), retaining the excess himself. Overall, he retained over $500,000 of PVH's money in this scheme.
Dr. Sahlolbei was charged in an amended information on September 27, 2016, with one count of grand theft (count 1; Pen. Code, § 487 ) and allegations of violation of section 186.11, subdivision (a)(2), and former section 12022.6, subdivision (a)(2); and one count of making a contract in his official capacity in which he had a financial interest (count 2; Gov. Code, § 1090 ). Trial proceeded on the grand theft charge. On October 6, 2016, a jury found Dr. Sahlolbei guilty of grand theft and found true the allegation that the amount of the taking exceeded $200,000 pursuant to former section 12022.6, subdivision (a)(2).
All statutory references are to the Penal Code unless otherwise indicated.
(Stats. 2010, ch. 711, § 5, repealed Jan. 1, 2018.)
Count 2 was dismissed on sufficiency of the evidence and is not at issue in this opinion; it is the subject of a separate opinion by this court in case No. E062380 (People v. Superior Court (Sahlolbei) (Oct. 25, 2017, E062380) [nonpub. opn.]), following review by the California Supreme Court.
Leading up to sentencing, the probation department filed an original probation report, which recommended probation, followed by a corrected report that acknowledged Dr. Sahlolbei was presumptively ineligible for probation and recommended a specific term. Dr. Sahlolbei filed two separate sentencing briefs, requesting probation. The People also filed a sentencing brief, opposing probation. On February 24, 2017, the trial court sentenced Dr. Sahlolbei to probation. Among other things, the court also imposed victim restitution to PVH in the amount of $508,150.
The People assert that the trial court improperly granted probation in violation of California Rules of Court rules 4.413 and 4.414.
All rule references are to the California Rules of Court unless otherwise indicated.
II
DISCUSSION
Section 1238, subdivision (d), states in pertinent part, "the people may seek appellate review of any grant of probation, whether or not the court imposes sentence, by means of a petition for a writ of mandate or prohibition which is filed within 60 days after probation is granted." In reviewing a grant of probation, we generally apply the " 'abuse of discretion' " standard. (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1225 (Dorsey) [citing People v. Cazares (1987) 190 Cal.App.3d 833, 837 & People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831 (Du)].) A grant of probation that ignores statutory requirements constitutes an abuse of discretion. (Dorsey, at p. 1225.)
"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)." (§ 1203.045, subd. (a).) Finding a case "unusual" follows a two-step process. (Dorsey, 50 Cal.App.4th at p. 1229.) "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.) Thus, a court 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, at p. 1227.) Then, the court must consider whether the defendant is suitable for probation under rule 4.414.
The rule 4.413(c) factors are split into two areas (bold & italics added):
"(1) Factors relating to basis for limitation on probation A factor or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including:
"(A) The factor or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and
"(B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense.
"(2) Factors limiting defendant's culpability A factor or circumstance not amounting to a defense, but reducing the defendant's culpability for the offense, including:
"(A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence;
"(B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and
"(C) The defendant is youthful or aged, and has no significant record of prior criminal offenses."
Rule 4.414 contains "[c]riteria affecting the decision to grant or deny probation includ[ing] facts relating to the crime and facts relating to the defendant." Rule 4.414(a) involves facts relating to the crime, such as the nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; the degree of monetary loss to the victim; and whether defendant took advantage of a position of trust or confidence to commit the crime, among other criteria. Rule 4.414(b) involves facts relating to the defendant, such as prior record of criminal conduct; willingness and ability to comply with the terms of probation; and, the likely effect of imprisonment on defendant and his or her dependents, among other criteria.
Here, the jury found true the allegation under former section 12022.6, subdivision (a)(2), that Dr. Sahlolbei had taken in excess of $200,000 as part of its guilty finding under count 1. Given this finding, section 1203.045, subdivision (a), bars a grant of probation except in unusual cases serving the interests of justice.
At sentencing, the trial judge stated:
"I—in thinking about the appropriate sentence in this case, I thought back to certain matters that I have handled in the past as appropriate, I think. I don't believe that I have a reputation for being a hardnose in white collar crime cases, but I have given 81 years in state prison to one gentleman who misappropriated approximately six and a half million dollars in a ponzi scheme. I gave another couple gentlemen 31 years and 33 years, respectively, in a pyramid scheme, so I believe that I can be hardnosed where it's appropriate to do so.
"On the other hand, each case, of course, needs to be looked at individually and the appropriate remedy rendered with respect to the circumstances of that case without consideration—without great consideration to the other circumstances of other similar cases.
"In this particular case, there is no doubt that the—in my view, the loss was great. Whatever else goes down with respect to the sentencing today, I am going to fix restitution at the $508,000 that the People have established subject to a hearing, of course. So that is the—that's the touchstone that we lead off with in consideration of whether or not this case is an unusual one which probation might be granted.
"I have turned this over a lot in the passing months since the jury rendered its verdict and been tossed about as to the appropriate sanction to be imposed upon Dr. Sahlolbei. He did take advantage of a position of trust, there is no doubt about that.
"I agree with the probation department that Defendant's not shown remorse, at least to the extent reflected in the probation department report.
"And under Rule 4.414 considering factors leading to a grant or denial of probation, there is no doubt that the degree of loss was great regardless of what the actual amount may eventually be shown to be that would be subject to restitution.
"Considering those factors in—with respect to a denial of probation, I also considered other factors under 4.414 with respect to a grant of probation which I think are also to be considered under 4.413 with respect to a grant or denial of probation and the factors thereof.
"I think it's appropriate—and I tend to agree fairly closely with defense's interpretation of Dorsey with respect to the power of the Court to grant probation in a case in which its—there would be otherwise a statutory prohibition of a grant of probation, I think the fact that in this case Defendant has no record of prior conduct, no prior record of criminal conduct as an adult or juvenile, and does not indicate a pattern of regular or increasingly criminal conduct is one factor to take into account in determining whether a case is unusual or not.
"Factors relating to a—supporting a grant of probation under 414, the probation department has recited in their original report and I confer—I concur with also, are that Dr. Sahlolbei is willing to comply with conditions of probation, has the ability to comply with the conditions of probation, and I also agree with the probation department's determination that the likely effects of imprisonment on Defendant would be very serious.
"Whether or not Doctor loses his license to practice medicine is a factor I think the Court can take into account. I'll accept Mr. White's representation that an imprisonment sentence would automatically result in the loss of his license. Otherwise, a grant of probation would give the doctor a fighting chance to retain it, I think that's going to be up to the medical board.
"Given the factors that I have just recited and lack of prior criminal conduct, the fact that Dr. Sahlolbei is an immigrant who has come from a repressive country to take advantage of the freedoms provided by this country and that he's rendered good works to the community for several decades, that he has the support of the community, I think even among those who are aware of his conviction for criminal offense, which to me is an indication that—of a character reference, knowing a character reference, the finding under the compass evaluation of probation that the risk of recidivism is low, the fact that this was not a case in which—in my experience, the perpetrator was attempting to run a scam that would impact a large number of people, such as in the pyramid scheme I mentioned earlier where the defendants got more than 30 years in state prison, they were—they defrauded more than 400 folks in their scheme and ruined lives across Southern and Northern California.
"I don't see Dr. Sahlolbei's offense—although quite serious in my view—as being nearly that serious. And for those reasons, I do find that Defendant is eligible for a grant of probation and I will so find. All right."
The People contend that none of the factors the trial judge considered were contained in, or could be narrowly construed as arising from, rule 4.413, to first determine eligibility for probation. (See Dorsey, supra, 50 Cal.App.4th, at p. 1227.) Dr. Sahlolbei counters that the trial judge did first consider rule 4.413(c)(1)(A) ("The factor or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence[.]"), finding him eligible for probation before considering the various rule 4.414 criteria to find him suitable for probation.
The trial judge's analysis, quoted above, did not mention rule 4.413, except for a brief comment, "I also considered other factors under 4.414 with respect to a grant of probation which I think are also to be considered under 4.413 . . . ." However, he did not state what "other factors" that he considered in common between the two rules. Dr. Sahlolbei contends that the trial judge must have considered rule 4.413(c)(1)(A), because Dr. Sahlolbei specifically briefed that point—which is the only basis he argued below (and also raises here) for a finding of eligibility for probation—both in his written sentencing briefs and orally during the sentencing hearing. Dr. Sahlolbei further contends that after the trial judge found "that Defendant is eligible for a grant of probation . . . ," defense counsel interjected, "Your Honor, for the record, my understanding is that the Court first found the unusual factor under 4.413 and then went through the factors relating to the Court's discretion of whether or not to impose probation once it got there." The trial judge responded, "Correct. That was my intent. Given that finding, Dr. Sahlolbei, in this matter, criminal proceedings are suspended to place you on formal probation to the Court for a period of three years on the following terms and conditions: You are to obey all laws, ordinances, and court orders. Pay victim restitution . . . ," which was determined to be $508,150. But, notwithstanding defense counsel's attempt to conform the findings to the required two-step process, the trial judge did not articulate any finding of an "unusual case" under any of the rule 4.413(c) factors, either before or after defense counsel's prompting.
Instead, on its face, his analysis went straight to Dr. Sahlolbei's suitability for granting probation under rule 4.414. (See Dorsey, supra, 50 Cal.App.4th, at p. 1229.) He twice observed that the loss involved was great (rule 4.414(a)(5)); that Dr. Sahlolbei took advantage of a position of trust (rule 4.414(a)(9)); he did not show remorse (rule 4.414(b)(7)); he had no record of prior criminal conduct, adult or juvenile, and does not indicate a pattern of regular or increasingly criminal conduct (rule 4.414(b)(1)); he is willing to comply and has the ability to comply with conditions of probation (rule 4.414(b)(3) & (b)(4)); the likely effect of imprisonment on him "would be very serious" (rule 4.414(b)(5)); and, the possibility that Dr. Sahlolbei might lose his medical license if probation were not awarded is not enumerated (but might arise under rule 4.414(b)(5) or (b)(6)). However, Dr. Sahlolbei's immigrant status, good works to the community, his support by the community, and his low risk of recidivism are not enumerated in either rule 4.413 or 4.414 (but, standing in the community was explicitly identified as not " 'reasonably related' " to the decision whether an offense constitutes an " 'unusual case where the interest of justice would be best served' " by granting probation in Dorsey, at p. 1229). Ultimately, the trial judge stated, "this was not a case in which—in my experience, the perpetrator was attempting to run a scam that would impact a large number of people, such as in the pyramid scheme I mentioned earlier where the defendants got more than 30 years in state prison . . . . [¶] I don't see Dr. Sahlolbei's offense—although quite serious in my view—as being nearly that serious." Our analysis does not find support for that conclusion.
First, the trial judge purported to compare the seriousness of Dr. Sahlolbei's conviction for grand theft (§ 487) to an earlier case he had heard involving a pyramid scheme (and also mentioned another case involving a Ponzi scheme). As Dr. Sahlolbei argues, rule 4.413(c)(1)(A) permits consideration of the relative seriousness between the fact or circumstance giving rise to the limitation on probation in the instant case and "the circumstances typically present in other cases involving the same probation limitation . . . ." However, the judge explicitly stated that he had to look individually at the appropriate remedy with respect to Dr. Sahlolbei's case, "without great consideration to the circumstances of other similar cases." Yet, such consideration of the "circumstances typically present in other cases involving the same probation limitation" is the precise crux of rule 4.413(c)(1)(A).
The judge's language equally hewed to considering "[t]he nature, seriousness, and circumstances of the crime as compared to other instances of the same crime," the criteria under rule 4.414(a)(1), which could not support a finding of eligibility for probation. However, under either rule 4.413(c)(1)(A), or 4.414(a)(1), the comparison between a conviction for grand theft and the convictions and sentences in the case of Ponzi and pyramid schemes, which the trial judge collectively referred to as "white collar crime" cases, is inapt. Ponzi and pyramid schemes are variations of investment fraud, where promises of high return go unrealized (at least after time) despite investment deposits. The trial judge here did not provide any details of the Ponzi and pyramid scheme cases over which he had presided, including the circumstances of the schemes, the specific charges and counts on which those defendants were convicted, leading to respective prison terms of 81- and 30-plus years. While defendants in Ponzi- or pyramid-type schemes may be charged with grand theft (§ 487), they typically are charged with numerous other fraud, embezzlement and investment scam violations as well. (See, e.g., People v. Sweeney (2014) 228 Cal.App.4th 142, 145 [in which this court affirmed the conviction of two defendants on 65 counts in a pyramid scheme including sale of unqualified securities (Corp. Code, § 25110); fraud in the offer of a security (Corp. Code, §§ 25401, 25540, subd. (b)); grand theft (Pen. Code, § 487); a fraudulent securities scheme (Corp. Code, §§ 25540, subd. (a), 25541) and an endless chain scheme (Pen. Code, § 327; Corp. Code, §§ 25110, 25401, 25540, subds. (a) & (b), and 25441), with special allegations for excessive takings and multiple felonies involving fraud or embezzlement (Pen. Code, § 186.11, subd. (a)(2)), remanding only for corrections to fines and restitution]; People v. Smith (2009) 179 Cal.App.4th 986, 988-990, 1000 [defendant convicted in a Ponzi scheme on eight counts each of grand theft (Pen. Code, § 487, subd. (a)), selling unqualified securities (Corp. Code, §§ 25110 & 25540, subd. (a)), using false statements to sell securities (Corp. Code, §§ 25401 & 25540, subd. (a)); and, one count of using a scheme to defraud in connection with the sale of securities (Corp. Code, § 25541)].) We cannot see how a valid comparison of "seriousness" can be made between Dr. Sahlolbei's conviction for grand theft and either a pyramid or Ponzi scheme, especially where the trial judge has provided no details of those to inform an analysis of relative "seriousness." The respective crimes may all be in the general category of "white collar," but the comparison is apples to oranges. Absolutely, a single charge of grand theft is easily seen as "less serious" compared to the investment scams. The question is, whether this grand theft conviction is less serious than another "typical" grand theft conviction that did not avoid the presumptive bar of probation.
Our determination in that regard is bolstered by the facts and analysis in Du, on which Dr. Sahlolbei relies. There, the defendant, a shopkeeper, struggled with a suspected shoplifter, who hit defendant in the head. (Du, supra, 5 Cal.App.4th, at pp. 826-828.) Defendant pulled a firearm from under the counter and shot the suspected shoplifter in the head, killing her, before passing out herself. (Id. at p. 827.) She was convicted of voluntary manslaughter; the jury found true special allegations that she personally used a firearm under sections 1203.06, subdivision (a)(1) and 12022.5. (Du., at p. 828.) The use of a firearm made defendant presumptively ineligible for probation under section 1203, subdivision (e)(2). (Du., at pp. 829-830.) In determining that it was an "unusual case," the court considered whether " '[t]he fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence.' " (Id. at p. 832, fn. 12 [quoting former rule 413(c)(1)(i)].) The court went on to compare the circumstances of the defendant's conviction to the circumstances for the typical case of voluntary manslaughter involving personal use of a firearm. (Id. at p. 832.) The typical firearm use limitation involved " 'criminals who arm themselves and go out and commit crimes.' " (Ibid.) However, the defendant in Du lawfully possessed a firearm for protection from ongoing crime involving gang members and there was no evidence that the defendant (or her family) kept the gun in the store because of any intention to act unlawfully. (Id. at pp. 832-833.) The court found that to be a sufficient distinction from the circumstances " 'typically present' " in other gun use cases to make Du an " 'unusual case.' " (Id. at p. 833.) The point here is the Du court compared that defendant's conviction for voluntary manslaughter with personal use of a firearm to the typical case of voluntary manslaughter with personal use of a firearm, charges of like kind. Here, the trial judge compared Dr. Sahlolbei's grand theft conviction to a Ponzi scheme and a pyramid scheme, facially too disparate for reasonable comparison. Further, the trial court did not discuss the facts and circumstances surrounding the Ponzi and pyramid schemes, relative to the seriousness of Dr. Sahlolbei's conviction, other than one brief reference to the amount involved in the Ponzi scheme and the number of individuals affected in the pyramid scheme, which points are addressed next below. Therefore, 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.
The Du court also found that " 'the defendant participated in the crime under circumstances of great provocation, coercion, and duress,' " a reference to former rule 413(c)(2) (now rule (c)(2)(A)), allowing consideration of facts or circumstances not amounting to a defense, but reducing the defendant's culpability. (Du, supra, 5 Cal.App.4th at p. 833.) There is no such consideration in Dr. Sahlolbei's case, nor does he contend otherwise.
Second, the trial judge made a brief comment that the Ponzi scheme he had tried involved "approximately six and a half million dollars," although he did not directly compare that to Dr. Sahlolbei's case. Notwithstanding, the instant conviction was for a taking of over a half-million dollars. The tripwire for the presumptive bar to probation in section 1203.045, subdivision (a), is $100,000. Here, the jury found true the allegation that Dr. Sahlolbei had stolen over $200,000 from PVH (under former § 12022.6, subd. (a)(2))—in fact, the trial judge imposed a restitution amount on Dr. Sahlolbei of $508,150, the amount of the taking, over five times the threshold amount established by section 1203.045. In Dorsey, we held that a gap of over $200,000 between the funds illegally obtained in that case and the $100,000 trigger in section 1203.045, subdivision (a), supported a finding that the defendant's "crimes cannot, by any stretch of the imagination, be termed less serious than similar offenses." (Dorsey, supra, 50 Cal.App.4th, at p. 1226.) The gap here of over $400,000 above the threshold for presumptive ineligibility for probation is even more compelling, and alone negates the determination that Dr. Sahlolbei was eligible for probation.
Third, as the People point out, 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, further undermining the comparison between Dr. Sahlolbei's conviction and that for a pyramid scheme that affected "more than 400 folks."
In sum, it does not appear that the trial court followed the two-step process, applying first rule 4.413 to find an unusual case, and then applying rule 4.414 to determine suitability for probation. To the extent that rule 4.413 might have been included in the court's analysis, a finding of an unusual case, and hence, eligibility for probation, is not supported. Therefore, the trial court abused its discretion in sentencing Dr. Sahlolbei to probation, and Dr. Sahlolbei's contrary argument is without merit. Inasmuch as there is no other basis in the trial court's decision or in Dr. Sahlolbei'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.
III
DISPOSITION
The petition for writ of mandate is GRANTED. Let the writ of mandate issue directing the respondent court to vacate its order granting Dr. Sahlolbei probation and proceed to sentence him consistent with the views expressed in this opinion.
Petitioner is directed to prepare and have the writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MCKINSTER
Acting P. J. SLOUGH
J.