Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD193819, Kerry Wells, Judge.
BENKE, Acting P. J.
Defendant Tommie L. Williams, Jr., appeals from his conviction for conspiracy to commit grant theft, grand theft, conspiracy to make a false insurance claim and making a false insurance claim. Williams claims that there was insufficient evidence to support his conviction for two conspiracies, that the evidence shows only one conspiracy existed or, alternatively, that the jury should have been instructed to determine whether there was one or more conspiracies. He further claims he received ineffective assistance of counsel because his attorney failed to challenge the lack of substantial evidence to support the court's order requiring him to pay direct victim restitution.
Although Williams argues he is appealing all four guilty verdicts, his briefs focus exclusively on conspiracy, and never mention or address his conviction for grand theft and making a false insurance claim – the criminal conduct underlying the alleged conspiracies. Therefore, this opinion is likewise limited to a review of his conviction for two conspiracies. (See Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119-1120 [the "failure of an appellant in a civil action to articulate any pertinent or intelligible legal argument in [his or her briefs] may, in the discretion of the court, be deemed an abandonment of the appeal justifying dismissal"].)
We agree with Williams that the evidence in the record shows there was a single conspiracy to defraud Medicare, and not two separate conspiracies. In all other respects, we affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Lemon Grove Medical Clinic
Rafik Manukyan (Rafik) and his wife Anush Manukyan (Anush) opened a medical clinic in 2003 in Lemon Grove, California. The couple also operated a medical clinic in North Hollywood, California.
In connection with the lease of the Lemon Grove clinic, Rafik listed Williams as a reference on the credit application and Artis Woodworth, M.D., who at the time was working in the North Hollywood clinic, as the new clinic's associated doctor. Dr. Woodworth also signed the lease for the Lemon Grove clinic.
In March 2004 Arthur Vallejo, M.D., interviewed with Anush at the North Hollywood clinic, where Williams worked as a physician's assistant under the supervision of Dr. Woodworth. The Manukyans hired Dr. Vallejo to take over the supervision of Williams in the North Hollywood office. Dr. Vallejo would be on-call every time Williams saw a patient, would consult with Williams and review patient charts.
After Dr. Vallejo accepted the position at the North Hollywood clinic, he testified Williams confided that Dr. Woodworth had left the clinic because Medicare refused to pay him between $700,000 and $1,000,000 after Medicare determined he had been overpaid.
About two weeks after being hired, the Manukyans approached Dr. Vallejo and asked him to supervise a physician's assistant in the newly opening Lemon Grove clinic. Dr. Vallejo agreed, and together they attended the opening of the clinic. At the end of the first day of operation, the Manukyans told the newly-hired physician's assistant not to return. Dr. Vallejo agreed to begin seeing patients at the Lemon Grove clinic three times a week, and the Manukyans in turn agreed to pay him about $7,000 per month to supervise both clinics.
Dr. Vallejo testified that between April and July 2004, everything ran smoothly at the Lemon Grove clinic. However, in late July 2004 a relative of a patient seen at the Lemon Grove clinic told Dr. Vallejo that the patient had been paid to go to the clinic. Two other patients also complained to the clinic's receptionist that their Medicare statements, referred to as an "explanation of benefits," did not match the services they had received at the Lemon Grove clinic.
Dr. Vallejo called Anush and confronted her with the allegations, which she denied. Dr. Vallejo sent the remaining patients home, drove to the Bank of America where the checks from the clinic were deposited and closed the account. Because English is the Manukyans' second language, Dr. Vallejo also sent them a letter about his concerns with the clinic's operations, and asked for a face-to-face meeting.
The meeting between the Manukyans and Dr. Vallejo took place at the North Hollywood clinic. Williams was also present for the meeting. Dr. Vallejo testified the meeting lasted about 15 minutes, and was "emotionally charged." Dr. Vallejo told the Manukyans he wanted to close the Lemon Grove clinic and cancel the Medicare provider number associated with that clinic.
Dr. Vallejo testified the Manukyans were very apologetic but denied any wrongdoing. They asked Dr. Vallejo to reconsider his decision because they had invested a lot of time and money into opening the clinic. They then suggested that Williams could work at the clinic and make it into a successful medical practice, inasmuch as Williams already had volunteered to move to San Diego to run the clinic because Dr. Vallejo was growing tired of the long commute between the clinic and his home in Bellflower, California.
Dr. Vallejo testified that Williams was upset by his initial decision to close the Lemon Grove clinic. Williams wanted the clinic to remain open, and, according to Dr. Vallejo, was "emphatic" in insisting he could run the "Lemon Grove office and build a successful practice and an honest, law-abiding practice and was confident that no patients would be capped...."
"Capping" in this case refers to an individual, the "capper," that recruited and paid Medicare patients to go to Lemon Grove clinic in return for services rendered. Cappers typically receive either a flat fee or a percentage of the total receipts from any false claims billed.
Dr. Vallejo agreed to supervise Williams in the Lemon Grove clinic while working out of the North Hollywood clinic. Williams began working as the physician's assistant at the Lemon Grove clinic in August 2004, and continued to work there until it was shut down by the authorities in late July 2005. As the physician's assistant, Williams had the authority to order tests on patients.
Dr. Vallejo testified Williams was in charge of the Lemon Grove clinic, and was the only person seeing patients there. Dr. Vallejo reviewed the charts of patients seen by Williams at the clinic. After his review, the charts were returned to the Lemon Grove office. Dr. Vallejo rarely went to the Lemon Grove clinic. Instead, Williams would call Dr. Vallejo when there were "medical management issues."
While the Lemon Grove clinic was operational, a record of a patient's visit was kept in "progress notes" in the patient's chart. Dr. Vallejo testified progress notes are prepared by the treating physician or the physician's assistant. Dr. Vallejo reviewed and signed each progress note Williams prepared.
B. Investigation of the Lemon Grove Clinic
Meanwhile, Federal Bureau of Investigation (FBI) Special Agent Charles Chabalko began investigating a Medicare fraud complaint made by the son of a patient who was paid to go to the Lemon Grove clinic and later received a statement of benefits from Medicare that showed the clinic billed her for tests/procedures she did not receive.
Agent Chabalko testified he interviewed Williams in early August 2005, after the clinic had closed. Williams told Agent Chabalko he had been the physician's assistant at the Lemon Grove clinic, and was responsible for seeing all the patients that came into the clinic. Williams also identified other individuals who worked at the clinic, including, among others, Yervand "Eric" Titizyan (Eric), who performed allergy tests and did blood work. Williams told Agent Chabalko that Anush was responsible for billing and that Rafik was the office manager of the clinic.
Williams informed Agent Chabalko that on a typical day, patients came to the clinic without an appointment or referral by a primary care physician, which Williams noted was "odd." The receptionist of the clinic often transported the patients to the clinic. According to Williams, most of the patients came to the clinic because they were seeking a second opinion or were unhappy with their primary care physician. However, all the patients were Medicare patients. Williams on average saw about four or five patients each day, and estimated 85 percent of them were "repeat patients."
Agent Chabalko testified Williams told him that at the end of each day, Eric and another employee of the Lemon Grove clinic would take the blood and urine samples collected from patients and drive them to the North Hollywood clinic for testing. Williams told Agent Chabalko he thought Rafik and Eric were "adding on extra tests" to receive "kickbacks" from the lab, and that the lab results from these tests were inaccurate.
Agent Chabalko next reviewed patient charts with Williams, to determine, among other things, what tests Williams had or had not ordered. Agent Chabalko testified that in one file, a patient was billed for 176 allergy tests, allegedly performed at the clinic in a single day. Williams told Agent Chabalko the Lemon Grove clinic had only 32 antigens it could test for, and thus it was impossible to test a patient for 176 antigens. Williams also said he was the one who filled out test forms for patients, including allergy tests, but that someone else had added "other stuff" on the form. Williams said he ordered the tests and then typically gave the patients' charts to Eric.
Agent Chabalko showed Williams a chart where the patient was billed for six office visits. Williams said the patient actually came to the clinic only once or twice. Williams also said he had signed the testing form for this particular patient, and that someone else had written on the form and added unauthorized tests.
Williams described for Agent Chabalko the medical equipment/devices that were used at the Lemon Grove clinic, which included an ultrasound, a pulmonary function test (PFT), a videonystagmography (VNG), which tested for balance and dizziness, a centrifuge for blood, an electrocardiogram (EKG) and an electromyography (EMG). Williams told Agent Chabalko he signed blank allergy and EMG test forms. Williams also signed "super bills" but did not date them. Williams admitted he was "negligent" in not dating the super bills. He also said Rafik had instructed him to order blood, urine, and EKG tests on every patient that came into the clinic, regardless of whether the patient needed those tests.
A "super bill" is a form used by medical practitioners that can be completed quickly and submitted to an insurance company for reimbursement.
Williams also told Agent Chabalko that in May and June 2005 he began to notice tests being performed on patients that he did not order or authorize. Williams began to "black out" all tests other than the ones he had ordered, to prevent anybody else from ordering unauthorized tests. Williams said he did this for two days, until Anush telephoned him, criticized him for blacking out all other tests and told him the clinic would close unless other tests could be ordered.
Agent Chabalko testified that Williams became suspicious of the clinic's operations because of the number of checks from Medicare received by the Lemon Grove clinic. Williams called Dr. Vallejo, but said Dr. Vallejo was not overly concerned. Williams also called Medicare, but told Agent Chabalko that Medicare refused to give him any information because the claims were submitted under Dr. Vallejo's provider number.
Agent Chabalko testified that Williams confronted Rafik about the number of checks from Medicare and about the "kickbacks" he believed Rafik was receiving from the lab work. Williams told Agent Chabalko that Rafik was not paying for Williams's continuing education and malpractice insurance, even though Williams knew he was making a great deal of money for the clinic, and thus he asked Rafik for a raise. Rafik responded he could not pay Williams more than Dr. Vallejo. Williams believed it was odd that he was being paid about the same as Dr. Vallejo.
C. Expert Testimony Regarding the Lemon Grove Clinic
Michael Albo, M.D., a urologist, testified an EMG incontinence test involves placing electrodes (or needles) in the anal and vaginal or scrotum area (or muscle), and is a "memorable" test requiring substantial patient participation. Dr. Albo testified an anal manometry test measures the pressure of the sphincter muscle and involves the use of a balloon catheter. Dr. Albo said such tests are rarely offered in a general practice setting, such as the Lemon Grove clinic.
Jina Janavs, M.D., a neurologist, testified the nerve conduction tests that were ordered on patients of the Lemon Grove clinic are painful, cause twitching or jumping of the muscle, and thus a patient undergoing such testing would certainly remember it. Dr. Janavs also testified some of the nerve conduction tests ordered on the clinic's patients were "extremely rare" and even if they were medically necessary, they would need to be referred out and performed by a specialist.
Dr. Janavs reviewed 13 charts of patients from the Lemon Grove clinic. She testified she found a large number of nerve conduction tests were performed on each patient, and several of them were (allegedly) performed the same day, which she testified would not be possible. Dr. Janavs said the charts also showed the same set of tests were performed on each patient, which was unusual because the nerve conduction tests are highly individualized for each patient.
Dr. Janavs also found the results of the nerve conduction tests highly suspicious. Among other things, the interpretations of the tests were not accurate relative to the data from the tests. Dr. Janavs described the test results in the patient charts as "entirely unreliable" and "useless." She further noted some of the charts were missing test results, and some of the test results did not include the data that would be necessary to read and interpret the tests.
Dr. Janavs testified the patient charts also showed the history and physicals contained identical language from patient to patient, which she found unusual. She also found a lack of detail in the histories to explain the extensive testing ordered on patients.
Diana Marquardt, M.D., also testified for the prosecution. Dr. Marquardt is an internist and allergist. She reviewed 19 patient charts from the Lemon Grove clinic and found an "inordinate" number of allergy tests had been ordered on each patient. Typically, a patient might receive between 40 to 60 allergy tests; Dr. Marquardt noted the patients tested at the Lemon Grove clinic had at least 150 allergy tests, and in some cases, over 200 such tests. In addition, according to the charts the patients received these tests on their forearms, which Dr. Marquardt described as "impossible."
Dr. Marquardt also observed that of the thousands of tests ordered, "at the most" there were only maybe eight to ten positive results. Dr. Marquardt noted there was a lack of any information in the patient charts showing how the test results were used (e.g., a change in the patient's care) in the extremely few cases where there were positive results, or that the patients were told of the test results. In the end, she concluded the allergy testing done at the clinic was "meaningless."
Michael Hoffer, M.D., testified on behalf of the People. He is an ear surgeon and neurologist in the United States Navy. Dr. Hoffer talked about the type of specialized testing he performs to diagnose and treat patients complaining of problems related to vestibular functioning or balance. After reviewing photographs taken at the Lemon Grove clinic, Dr. Hoffer identified a set of goggles capable of measuring eye motion for use in such testing, but he did not see the type of rotational chair that was also needed to complete such tests. He further testified a rotational chair costs about $180,000. In his review of about eight charts from the Lemon Grove clinic, Dr. Hoffer opined that individuals being seen and treated at the clinic for balance and dizziness problems received unnecessary tests.
Steven Green, M.D., a board-certified family practice physician, also testified for the People. He talked about the patient examinations he typically conducts in his medical practice, including taking a patient's vital signs, history, learning the reason for the patient's visit, and discussing the plan for the patient and the need for follow up.
Dr. Green discussed several of the tests that were routinely ordered on patients at the Lemon Grove clinic. He opined that many of those tests (e.g., ultrasounds and rectal scans) needed to be completed by a specialist because a general practitioner would not perform enough of them to maintain the expertise required to do them properly. In addition, Dr. Green noted that a specialist would ordinarily decide in the first instance whether a patient needed to have one or more such specialized tests.
He noted it would "never happen" statistically that 561 out of a total population of 608 patients would need ultrasound testing, as was done at the Lemon Grove clinic. He reached the same conclusion in connection with the EKG testing, where 600 out of 800 patients received this (or a related test) at the clinic. Dr. Green said he could not conceive how it would be proper to order VNG dizziness testing on 211 out of 608 patients. He found it equally unrealistic that patients would need incontinence testing, EMG anal/rectal manometry testing, and nerve conduction studies at the rate those tests/studies were run on patients at the Lemon Grove clinic.
In his review of patient charts from the Lemon Grove clinic, Dr. Green found that many patients underwent certain tests that would be unusual, almost unheard of, in a single patient, much less in several patients; that many of the patients that received such tests had them done several times; that the progress notes were focused on such tests; and that standard tests one would expect to be ordered in a general practice setting, such as a chest X-ray or a CAT scan, were not ordered and not included on the pre-printed test forms.
Thus, from his review of the charts, Dr. Green determined a patient seen at the Lemon Grove clinic complaining of shortness of breath would receive a PFT but not a standard chest X-ray. Likewise, a patient that may have suffered a stroke would be given an ultrasound to check blood flow in the patient's carotid arteries, but would not get a CAT scan, which Dr. Green described as a basic test to diagnose stroke.
Dr. Green also found several instances when patients were given unnecessary tests, including, by way of example only, a patient who received a prostrate screening test three times when the chart noted the patient's prostrate had been removed 10 years earlier, or patients who were tested for H. pylori bacteria, which is responsible for the majority of peptic ulcers, when they had no symptoms that would warrant that test. In addition, Dr. Green noted that several of the patients received antibiotics to treat H. pylori even when their tests for the bacteria were negative.
Dr. Green testified it was medically and ethically inappropriate for Williams to order an EKG, blood and urine tests on patients (per Rafik) when those tests were not warranted. He further noted that when tests are run on a patient, it is common practice to call the patient and discuss the results. However, in reviewing the patient charts from the Lemon Grove clinic, Dr. Green discerned no change in the care or treatment of a patient based on any of the tests, he saw no evidence that patients were told of their test results, or that the results were discussed with them and they were advised and treated accordingly. He also saw no follow-up notes in the charts he reviewed, even when a patient had visited the clinic on multiple occasions.
Regarding Dr. Vallejo's supervision of Williams, Dr. Green explained it would be unusual for a physician in Los Angeles to supervise a physician's assistant seeing patients in San Diego. Dr. Green said a supervising physician should be available to offer "hands on" help to a physician's assistant, and in the beginning of their relationship, a physician and a physician's assistant should work side-by-side to develop the rapport and trust necessary to make that relationship work.
Dr. Green testified he was amazed that a clinic the size of the Lemon Grove office, which typically saw less than 10 patients a day, billed Medicare over $2,000,000 between April 2004 and July 2005. He opined an office seeing and treating that number of patients could not generate that level of billing.
Dr. Green opined it was "very unusual" that the appointment book for the Lemon Grove clinic was blank on the day the clinic was shut down, despite the fact there were eight patients at the clinic that day. He testified it was common to schedule patients for follow-up visits so the patients know when to return for care and to ensure the smooth operation of an office.
D. Lay Testimony Regarding the Lemon Grove Clinic
Several former patients of the Lemon Grove clinic also testified at Williams's trial. Briefly summarizing their testimony, many stated they were paid to go to the clinic, where Williams examined them. Some of the patients learned about the clinic through friends they met at a casino.
Most of the patients testified they were given blood and urine tests, an EKG and/or an ultrasound, but not the more elaborate tests the Lemon Grove clinic billed to Medicare. In addition, most if not all of the patients that testified said they were never contacted by anyone at the clinic regarding any of their test results.
E. Charges, Trial and Sentencing
Williams and eight other defendants were charged with multiple offenses, including conspiracy, grand theft, and making false insurance claims. (Pen. Code, §§ 182, subd. (a)(1), 487, subd. (a), 550, subd. (a)(6).) Specifically, Williams was charged with five counts: conspiracy to commit grand theft (§§ 182, subd. (a)(1), 487, subd. (a) [count 1]); grand theft exceeding $400 (§ 487, subd. (a) [count 2]); conspiracy to make a false insurance claim (§§ 182, subd. (a)(1), 550, subd. (a)(6) [count 3]); making a false insurance claim (§ 550, subd. (a)(6) [count 4]); and use of terms and letters falsely indicating the right to practice medicine. (Bus. & Prof. Code, § 2054 [count 5].)
The eight other co-defendants named in the original grand jury indictment were: Dr. Arthur Vallejo, Marites Ramano Dioso, Fernando C. Lantano, Anush Manukyan, Rafik Manukyan, Alicia Musa Leonardo, Erlinda Solon Cabungcal and Cynthia Vallejo. All pleaded guilty before Williams's trial commenced.
All further statutory references are to the Penal Code unless otherwise specified.
The court dismissed count 5 for lack of evidence.
Trial commenced in late September 2007, and was completed on October 2, 2007. The following day, the jury returned its verdict finding Williams guilty of counts one through four.
At sentencing on November 2, 2007, Williams's attorney asked the court to exercise its discretion and reduce the offenses to misdemeanors, arguing Williams was at the "bottom end" of the Medicare fraud scheme. The court denied the motion, but suspended the imposition of sentence and placed Williams on formal probation for five years after determining Williams's case was unusual (Cal. Rules of Court, rule 4.413). The court ordered Williams to pay $21,757.57 in direct victim restitution to the Medicare Trust Fund.
DISCUSSION
Williams argues his convictions for conspiracy to commit grand theft and conspiracy to make false insurance claims must be reversed because there is a lack of evidence in the record to show he entered into one or more agreements with the other members of the conspiracy to defraud Medicare. Williams instead argues he lacked knowledge of the conspiracies, he merely acted as the physician's assistant at the Lemon Grove clinic and the other defendants used him and purposely kept him in the dark regarding their scheme to defraud Medicare.
A. Standard of Review
To determine the sufficiency of the evidence to support a conviction, we review the record in the light most favorable to the judgment and determine whether it contains evidence that is "reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Wader (1993) 5 Cal.4th 610, 640.) The reviewing court must "draw all reasonable inferences in support of the judgment" (ibid.), and reversal on the ground of insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
" ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Bean (1988) 46 Cal.3d 919, 933.) A reviewing court "must begin with the presumption that the evidence... was sufficient, and the defendant bears the burden of convincing [the court] otherwise." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
Moreover, the "uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296; see also People v. Elwood (1988) 199 Cal.App.3d 1365, 1372.) The reviewing court must afford due deference to the fact finder and cannot substitute its evaluation of a witness's credibility for that of the fact finder. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Nor may a reviewing court reweigh or reinterpret the evidence on appeal. (People v. Pace (1994) 27 Cal.App.4th 795, 798.)
B. Conspiracy
Under section 182, subdivision (a)(1), the crime of conspiracy consists of two or more persons conspiring to commit any crime. "A conviction of conspiracy requires proof that [1] the defendant and another person had the specific intent to agree or conspire to commit an offense, [2] as well as the specific intent to commit the elements of that offense, [3] together with proof of the commission of an overt act 'by one or more of the parties to such agreement' in furtherance of the conspiracy." (People v. Morante (1999) 20 Cal.4th 403, 416; see also § 184; People v. Russo (2001) 25 Cal.4th 1124, 1131; People v. Swain (1996) 12 Cal.4th 593, 600.)
As specified in subdivision (a) of section 182, the object of a conspiracy may be: (1) to commit "any crime"; (2) "[f]alsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime"; (3) falsely to move or maintain an action; (4) to defraud a person of property by criminal means, or to obtain property by false pretenses; (5) to commit any act injurious to public health or morals, or to obstruct justice or the due administration of laws; or (6) to commit any crime against a person holding one of certain enumerated positions of high office.
" ' " 'In contemplation of law the act of one [conspirator] is the act of all. Each is responsible for everything done by his [or her] confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences....' " ' " (People v. Morante, supra, 20 Cal.4th at p. 417.) Thus, " '[i]t is not necessary that a party to a conspiracy shall be present and personally participate with his [or her] co-conspirators in all or in any of the overt acts.' " (Ibid., quoting People v. Benenato (1946) 77 Cal.App.2d 350, 356, which was disapproved on another ground in In re Wright (1967) 65 Cal.2d 650, 654.)
"[O]ne who joins a conspiracy after its formation and actively participates in it, thereby adopts the previous acts and declarations of his fellow conspirators" in the sense that evidence thereof is original evidence against him or her in a prosecution for the conspiracy or "for a crime committed as an object of or in furtherance of or as a natural outgrowth of the conspiracy after he [or she] joined it."(People v. Weiss (1958) 50 Cal.2d 535, 566, disapproved on another ground in Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 782, fn. 16.)
"It is settled that a conspiracy may be established by direct evidence or circumstantial evidence, or a combination of both." (People v. Calhoun (1958) 50 Cal.2d 137, 144.) "It need not be shown that the parties entered into a definite agreement, but it is sufficient if they positively or tacitly come to a mutual understanding to accomplish the act and unlawful design." (Ibid.) Thus, evidence of an unlawful agreement may be proven by circumstantial evidence relating to the "conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citation.]" (People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.)
C. Analysis
There is ample evidence in the record to support the jury's finding that at a minimum, Williams tacitly agreed to be a member of the conspiracy to defraud Medicare. The evidence shows Williams had a relationship with Rafik before the Lemon Grove clinic opened, inasmuch as Rafik had listed Williams as a reference on the credit application for the lease of the facility, and Williams already was working for Rafik and Anush in their North Hollywood clinic.
In addition, after Dr. Vallejo agreed to supervise Williams at the North Hollywood clinic, Williams told Dr. Vallejo that his previous supervisor, Dr. Woodworth, had left that clinic because Medicare refused to pay Dr. Woodworth for services rendered after Medicare claimed it had overpaid him and the North Hollywood clinic between $700,000 and $1,000,000.
Williams was also present at the meeting between Dr. Vallejo, Rafik and Anush in the North Hollywood clinic, when Dr. Vallejo said he wanted to close the Lemon Grove clinic and cancel the Medicare provider number associated with him and the clinic. Dr. Vallejo called that meeting in response to complaints from patients that they had been paid to go to the Lemon Grove clinic, and that their Medicare statements did not match the services they had received (or, more appropriately, not received) from the clinic. Dr. Vallejo testified Williams was "emphatic" in insisting during the meeting that he could run the Lemon Grove clinic and "build a successful practice and an honest, law-abiding practice and was confident that no patients would be capped."
Thus, when Williams moved in August 2004 to San Diego to become the physician's assistant of the Lemon Grove clinic, he was aware that patients had been paid to go to the clinic and that the clinic had billed Medicare for tests that were never run.
The record also shows that patients just "showed up" at the Lemon Grove clinic without an appointment or a referral from a primary physician, which Williams admitted to Agent Chabalko was odd; that on the day the search warrant was served in late July 2005, there were eight patients at the Lemon Grove clinic, none of whom had an appointment, despite the fact 85 percent of the patients seen at the clinic were "repeat patients"; that the receptionist at the clinic often would transport the patients to the clinic; that all the clinic's patients were Medicare patients; that despite the fact Williams was in charge of the clinic and saw all of its patients, there is no evidence any patient ever told him that they were being paid to come to the clinic, or that their Medicare benefit statements did not match the tests actually performed on them; that Rafik told Williams to run blood, urine and EKG tests on every patient that came through the door, regardless of whether the patient needed those tests; that Williams at some point during the conspiracy suspected something was amiss, which caused him to begin to "black out" the test order forms, contact Medicare and speak to Anush about the matter; that Anush told Williams if he continued to black out the test forms the clinic would have to close; that Williams did as he was told and stopped blacking out the test forms; that nobody from the clinic, including Williams, called patients about their test results, which Williams admitted were unreliable; that the forms used at the clinic listed several elaborate and unusual tests that were not run in a general practice setting, and required, in any event, expertise to conduct; that many standard tests that one would expect on a test form, such as a simple chest X-ray, were not listed on that form; that Williams signed the "super bills" without dating the forms, despite knowledge that patients previously had complained about Medicare being charged for tests that were never run on them; and that Williams believed Rafik and Anush were receiving "kickbacks" from the lab for the tests Williams ordered, and in response he confronted Rafik and demanded a raise.
The fact that Williams claims he was just the "pasty" in the conspiracy and had no knowledge of its illegal activities does not change our conclusion. The jury was not required to accept Williams's version of events or his explanation that he did not know about the illegal billing activities until the very end. (See People v. Ochoa, supra, 6 Cal.4th at p. 1206 [" 'it is the exclusive province of the... jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends' "]; see also People v. Llamas (1997) 51 Cal.App.4th 1729, 1743 [rejecting defendant's argument the jury was required to accept wife's testimony that a gun found under the hood of a car belonged to her, and not defendant].) Rather, viewing the whole record in the light most favorable to the judgment, as we must do, there is substantial evidence to support the jury's conspiracy verdict.
In light of our conclusion there was sufficient evidence in the record to support Williams's conspiracy conviction, we do not address his alternative contention that there was insufficient evidence to support his conviction on the basis he "aided and abetted" the conspiracy.
D. Number of Conspiracies
Williams next contends his conviction of two conspiracies violates the double jeopardy clause (U.S. Const., Fifth Amend.) and requires reversal. However, we reject that claim because no plea of double jeopardy can properly be made where, as here, the defendant is tried but once. (People v. Tideman (1962) 57 Cal.2d 574, 578; People v. Polowicz (1992) 5 Cal.App.4th 1082, 1088.)
Alternatively, Williams contends there is insufficient evidence in the record to support a conviction for two conspiracies because the charged conspiracies – grand theft and making a false insurance claim – were based on a single continuing agreement to defraud Medicare, and thus constituted only a single conspiracy. Williams's contention has merit.
Generally, " '[w]here two or more persons agree to commit a number of criminal acts, the test of whether a single conspiracy has been formed is whether the acts "were tied together as stages in the formation of a larger all-inclusive combination, all directed to achieving a single unlawful end or result." [Citations.]' " (People v. McLead (1990) 225 Cal.App.3d 906, 920; accord, People v. Morocco (1987) 191 Cal.App.3d 1449, 1453.) Stated otherwise, " '[t]he test is whether there was one overall agreement among the various parties to perform various functions in order to carry out the objectives of the conspiracy. If so, there is but a single conspiracy.' " (People v. Lopez (1994) 21 Cal.App.4th 1551, 1558; see also Braverman v. United States (1942) 317 U.S. 49, 53 [63 S.Ct. 99] ["[O]ne agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one"].)
The People argue that because grand theft has at least one element that is different from the crime of making a false insurance claim, Williams was properly convicted of two separate conspiracies. We disagree.
"Conspiracy is a single offense, regardless of the number of criminal objects. Hence, where there is only one agreement there is only one conspiracy, even though it contemplates the violation of several statutes, or the commission of any or all of the illegal acts mentioned in the conspiracy statute (P.C. 182), and regardless of the fact that some of the contemplated crimes are felonies and others misdemeanors. [Citations.]" (3 Witkin, Cal. Crim. Law 3d (2000) Punishment, § 173, p. 244.) "Relevant factors to consider in determining this issue include whether the crimes involved the same motives, were to occur in the same time and place and by the same means. [Citation.]" (People v. McLead, supra, 225 Cal.App.3d at p. 920.)
In People v. Lopez, supra, 21 Cal.App.4th at page 1558, the court reversed convictions for multiple conspiracies because the evidence showed that a group of conspirators agreed to commit a number of different crimes incidental to a single objective – the sale of methamphetamine for financial gain. The court noted that "[a]ll of the acts in each of the three target crimes were incidental to this objective, and many acts were a direct part of more than one of the crimes." (Id. at pp. 1558-1559.)
Similarly, in People v. Patrick (1981) 126 Cal.App.3d 952 the defendant was convicted of two counts of conspiracy concerning the same victim—conspiracy to kidnap and conspiracy to falsely imprison. Noting the defendant was charged with the same conduct involving the same overt acts for each conspiracy, the appellate court struck one of the conspiracy convictions. (Id. at p. 965.) In so doing, the court concluded that even though defendant's acts may have constituted more than one substantive crime, there was but a single agreement and thus a single conspiracy. (Ibid.)
Here, the record supports a finding Williams and the other defendants agreed to commit a number of different crimes incidental to a single agreement with one objective: to defraud Medicare. The information charging Williams (and the other defendants) with separate conspiracy counts relied on the same overt acts. The conspiracy counts also relied on the same agreement between the conspirators, which the People described as follows:
"The object of this conspiracy was to defraud the government of money by establishing a medical clinic, recruiting and/or paying patients to have unnecessary medical tests and billing Medicare for these and other expensive medical tests which were not done."
The jury instructions also referenced the same overt acts and the same agreement in support of the separate conspiracy counts.
In addition, the record shows the two conspiracies (grand theft and making a false insurance claim) involved the same motives (money), occurred in the same place (the Lemon Grove clinic) among the same group of people (the conspirators), and by the same unlawful means (billing Medicare patients for unnecessary tests and/or tests that were never performed). (See People v. McLead, supra, 225 Cal.App.3d at p. 920.) We thus conclude there was but one conspiracy.
In light of our holding there was a single conspiracy, we need not address Williams's alternative argument that the trial court erred when it failed to instruct the jury to determine whether a single conspiracy or multiple conspiracies existed among its members.
Under section 182, subdivision (a), when the "felony is conspiracy to commit two or more felonies which have different punishments and the commission of those felonies constitute but one offense of conspiracy, the penalty [for the conspiracy] shall be that prescribed for the felony which has the greater maximum term." Because we are unable to determine on this record which felony has the greater maximum term, we remand the case for further proceedings consistent with this opinion.
E. Victim Restitution and Ineffective Assistance of Counsel
Finally, Williams argues he received ineffective assistance of counsel because his trial counsel failed to object to the (alleged) lack of evidence to support the award of victim restitution to the Medicare Trust Fund. The thrust of Williams's argument is that because he did not learn of the conspiracy to defraud Medicare until May 2005, there is a lack of evidence to support the restitution award of $21,757.57 because most, if not all, of that award was based on improper billing of patients seen at the clinic before May 2005, including in a few instances, patients seen before Williams began working at the Lemon Grove clinic.
To succeed on a claim of ineffective assistance of counsel, a defendant first must establish that his " 'counsel's representation fell below an objective standard of reasonableness... under prevailing professional norms.' [Citation.]" (People v. Ledesma (1987) 43 Cal.3d 171, 216, quoting Strickland v. Washington (1984) 466 U.S. 668, 688 [104 S.Ct. 2052].) However, "[a] reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
Second, a defendant must show prejudice. Specifically, he or she must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434, 450-451.)
Also relevant here, a trial court's determination regarding the amount of a restitution award is reversible only if the defendant demonstrates the court abused its discretion. (People v. Thygesen (1999) 69 Cal.App.4th 988, 992.) "In determining the amount of restitution, all that is required is that the trial court 'use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.' " (People v. Akins (2005) 128 Cal.App.4th 1376, 1382, quoting People v. Thygesen, supra, 69 Cal.App.4th at p. 992.) "The order must be affirmed if there is a factual and rational basis for the amount." (People v. Akins, supra, 128 Cal.App.4th at p. 1382, citing People v. Dalvito (1997) 56 Cal.App.4th 557, 562.)
The basis for the calculation of the restitution award is set forth in Williams's probation report. The probation officer first identified the nine patients who testified at Williams's trial. Second, the probation officer added up the amounts Medicare paid to the clinic on behalf of these patients for tests/procedures they never received. The probation report lists these amounts by patient, and the total of such charges is the restitution award.
The record shows the probation officer and the court used a rational method to calculate the amount of restitution Williams must pay as a member of the conspiracy to defraud Medicare. The record shows Medicare was billed in excess of $2 million for claims submitted by the Lemon Grove clinic between April 2004, when the clinic opened, through July 2005, when the clinic was shut down; that during the majority of this time Williams was the physician's assistant at the clinic; that Medicare paid the clinic over $912,000; that the nine witnesses who testified at Williams's trial were all billed for services they did not receive; that the total of those billings was the amount of the restitution award; that Williams could have been liable for a much larger portion of the victim's award in light of the rule requiring the victim to be made whole (People v. Akins, supra, 128 Cal.App.4th at p. 1382); and that Williams's salary depended on the scheme to defraud Medicare. In light of such evidence, we conclude the trial court properly exercised its discretion in determining the restitution award owed by Williams.
Having concluded the restitution order was proper, we reject Williams's claim he was denied effective assistance of counsel, as it would have been futile of his counsel to object to a proper award. (See People v. Zikorus (1983) 150 Cal.App.3d 324, 335.)
DISPOSITION
Williams's conviction for multiple conspiracies is reversed, and the case remanded for further proceedings in accordance with this opinion. In all other respects, the judgment of conviction is affirmed.
WE CONCUR: NARES, J., O'ROURKE, J.