People v. Oliver CA2/3 ( 2023 )

Filed 5/12/23 P. v. Oliver CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B317368
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA106883)
v.
HOWARD OLIVER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Judith Levey Meyer, Judge. Affirmed in
part, reversed in part, and remanded with directions.
Carlos Ramirez, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Heidi Salerno, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Howard Oliver appeals from the judgment entered after a
jury convicted him of conspiracy to cheat and defraud Medi-Cal
(count 1; Pen. Code,1 § 182, subd. (a)(4)), Medi-Cal fraud (count 2;
§ 14107, subd. (b)(4)); grand theft (count 3; § 487, subd. (a)), false
and fraudulent claims (count 4; § 549), insurance fraud (count 6;
§ 550, subd. (b)(3)), and four counts of tax evasion for 2012
through 2015 (counts 7 through 10; Rev. & Tax Code, § 19706).
As to counts 1 through 4 and 6, the jury found true several
enhancements based upon the loss of property in excess of
various monetary amounts. (§§ 186.11, subd. (a)(2) & (3),
12022.6, subd. (a)(1)–(3).) Oliver was sentenced to an aggregate
sentence of seven years eight months in prison, and ordered to
pay over $2.85 million in restitution.
On appeal, Oliver claims the trial court erred when it
declined to grant a mistrial after a prosecution witness
commented on his guilt, and further erred when it refused to
allow the defense to probe that same witness’s bias and motive.
We reject those contentions. However, Oliver is entitled to the
benefit of recently enacted sentencing legislation broadening a
trial court’s authority to stay certain sentences. We therefore
remand for further sentencing proceedings.
1 All further undesignated statutory references are to the
Penal Code.
2
BACKGROUND2
A. The prosecution’s case
1. West Coast Counseling Center
In 1997, Oliver hired accountant Lou Cannon to assist with
taxes and bookkeeping for his business, Central Desert Industrial
Medical Group (Central Desert), an Apple Valley medical clinic
which provided medical care to injured workers. Cannon
eventually learned that Oliver was also the director of lucrative
alcohol and drug counseling centers, and became interested in
operating one. Oliver counseled her on starting a facility,
providing her information and documentation to submit with the
relevant applications, and loaned her funds to start the facility.
In 2008, Cannon opened West Coast Counseling Center
(West Coast) in Long Beach, designating herself as the executive
director and Oliver the medical director. Oliver provided his
medical license and advised Cannon as to which office to rent,
informing her an examination room was not necessary. Oliver
signed the medical director’s job description, including his
responsibility to make and approve treatment plans, and also
signed West Coast’s business license. The first person Cannon
hired was Leroy Love—a referral from Oliver who acted as
2 At the outset, the factual background in Oliver’s opening
brief is deficient because it frequently omits record citations or
uses lengthy string citations at the end of each paragraph. And,
when citations are provided, those citations often fail to support
the alleged facts. These infirmities violate rule 8.204(a)(1)(C) of
the California Rules of Court, constraining our review and
permitting us to disregard the offending portions of the brief.
(See Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735,
745; Regents of University of California v. Sheily (2004) 122
Cal.App.4th 824, 826, fn. 1.)
3
program director and director of operation, and who in turn
referred Cannon to the rest of the staff. Cannon’s brother, Perry
Bailey, worked with Cannon to run West Coast but was not on
the payroll.
2. West Coast’s falsification of patient records
West Coast’s business was based on billing Medi-Cal.
Cannon handled the billing, payroll, and accounting. From the
opening of West Coast through its 2013 closure, Oliver served as
medical director, signing off on files, plans, and billing. He
received a salary of $1,500 per month, which later increased to
$2,500 per month. As a Medi-Cal facility, West Coast agreed to
provide only medically necessary services and, as medical
director, it was Oliver’s responsibility to ensure compliance with
Medi-Cal rules and regulations.
Jessica Moreno worked at West Coast as a counselor,
although she had no certification or counseling experience or
training. Administrators instructed Moreno to alter patient
charts to reflect drug and alcohol abuse when they had actually
sought treatment for parenting or anger management, because
otherwise Medi-Cal would not pay them. If Moreno listed anger
management or family relations in the file, Cannon or Bailey
would return the file and instruct her to list alcohol or substance
abuse. Love left West Coast in 2009 and Moreno became the
acting director, still reporting to Bailey.
Cannon, Bailey and Moreno directed counselors to fill in
incomplete intake forms with false information and input
progress notes in files of patients who the counselors never
counseled. Bailey charged Moreno with ensuring that West
Coast reported 300 youth and 200 adult clients to Medi-Cal each
month, even though West Coast only saw about 50 individual
4
youth and 20 adult clients per month. To accomplish this,
approximately twice per month, Bailey gave counselors patient
names and dates so they could prepare false progress notes in the
files. If the counselors refused to falsify notes, then their
paycheck was withheld, a practice which did not stop even after
the counselors complained.
Oliver visited the office once or twice per month to review
files, sign them, and return them to counselors. Bailey gave
counselors advance notice when Oliver planned to visit the office,
and withheld counselors’ paychecks if the files were not ready for
Oliver’s signature. Neither Oliver nor any other doctor conducted
examinations or required medical preapproval for counseling, and
there were no examination rooms at the facility. Oliver signed a
physical examination waiver for clients.
Every few months, the files were returned to Oliver for his
required sign-off on continued services. The files often contained
inconsistencies, from biographical information to diagnoses and
treatment plans, but Oliver never questioned them.
Bailey also instructed the counselors to list group sessions
as lasting three hours, even though no sessions went that long. If
counselors failed to do so, their pay checks would be withheld
until “necessary corrections” to the entries were made. Each
month, patient files were verified to determine whether a patient
was Medi-Cal eligible and if they were, Medi-Cal continued to be
billed for a year regardless of whether the patient came to the
clinic.
Counselors complained about the falsification of records
during a staff meeting with Cannon, Bailey, Oliver, and Moreno.
Oliver said to Bailey, “You need to stop doing that with the staff.”
The counselors were asked to leave the meeting room. After the
5
meeting, Oliver continued to sign off on patient visits that had
not occurred.3
In one instance, a counselor was fired and left with 20 to 50
patient files. Moreno told Cannon that because a Medi-Cal audit
was scheduled, the files needed to be recreated. Cannon told
Oliver what had occurred and Oliver agreed to sign the re-created
files. West Coast passed the audit based upon the re-created
files.
In 2010, Cannon informed Oliver that counselors
complained about falsifying records. Oliver laughed and said, “I
told you that the counselors would be the ones to take you down.”
West Coast’s practices were unchanged thereafter.
3. Increase in falsification under Juanita Antiporda
In 2012, Cannon learned that Moreno lacked the
credentials under Medi-Cal for the director position. Cannon and
Bailey had also complained that Moreno was not bringing in
enough patients. Cannon approached Oliver about replacing
Moreno and Oliver recommended Juanita Antiporda as someone
who could increase the number of clients. Cannon hired
Antiporda as director.
West Coast was doing well financially prior to Antiporda’s
hiring, making $1.5 million annually. After Antiporda’s hiring,
earnings increased by millions of dollars. The false billing
continued. West Coast also began offering incentives to
encourage Medi-Cal recipients to come into their office and
provide their Medi-Cal card in exchange for vouchers for food,
3 Oliver’s opening brief suggests that Moreno testified that
Oliver only attended two management meetings, but the
testimony from Moreno cited by Oliver establishes he only
attended two staff meetings of which Moreno was aware.
6
clothes, and transportation. The patients never returned and
West Coast would use their files to bill Medi-Cal for services for a
year and then discharge them. Parents were recruited to bring
their children to get services they did not need in exchange for
bus passes. Oliver suggested that West Coast pay group homes
for referring clients to West Coast. When CNN reporters came to
West Coast to interview Oliver, Antiporda told Moreno to locate
clients to come into the office and put in rooms to receive
counseling.
In May or June 2012, Moreno complained to Oliver about
the increase in false patient files and chart entries. Oliver told
her not to do it and to write down every incident she had with
Bailey. Bailey called her a snitch and as punishment gave her
more patient files to sign. If Moreno refused to sign progress
notes or forge clients’ signatures, Bailey withheld her paycheck.
Oliver eventually called Moreno into a meeting and told her she
was suspended for insubordination, and specifically not following
Bailey’s instructions.
When Moreno returned, she was transferred to a quality
assurance role in which she examined billing statements for
completeness and Oliver’s later signature. The number of false
patient files only increased. Cannon discussed the increased
revenue with Oliver, and told him that she planned to sell West
Coast for $3.5 million—a valuation that included the fraudulent
billing—and give Oliver 20 percent. Oliver was glad.
Natasha Ashley worked as a West Coast intake counselor
in 2012. Ashley complained to Antiporda, Cannon, Oliver, and
Bailey about having to write notes on clients she had not
counseled. In one instance, Ashley placed a file for a patient she
had not counseled on Antiporda’s desk, and Antiporda gave the
7
file back to Ashley. This prompted Ashley to take a leave of
absence, which she also described as resigning her position.
Bailey later asked Ashley to return to clean up files she had
handled. Ashley returned to discover her initials accompanying
notes that she did not write. Ashley showed Oliver her forged
signature and told him about her disagreement with Antiporda.
Oliver did not ask her to elaborate and said that he would discuss
it with Antiporda.
Starting in 2012, Leonard Olivas performed counseling and
office manager duties for West Coast. In February 2013, Olivas
raised billing discrepancies with Oliver, and Oliver did not
seemed surprised and responded, “Don’t worry about it. It’s
okay.” After that conversation, Olivas was demoted and no
longer performed office manager duties.
4. Oliver’s other business ventures
From 2006 to 2017, Gwendolyn Grove worked at Central
Desert. Central Desert received credit card payments, cash
payments, and private insurance, but did not accept Medi-Cal
patients. Grove was quickly elevated to the director of
operations, overseeing daily operations, payroll, staff, supply
orders, and meeting Oliver’s needs.
Because Oliver was tired of having to manage Central
Desert, he approached Grove and offered her part ownership,
with Oliver retaining 51 percent and Grove holding 49 percent of
the company. This split was necessary as only a physician could
own a medical group such as Central Desert, and Grove was not a
physician. Grove agreed and on January 1, 2010, Oliver gave
Grove written agreements authorizing Grove to manage Central
Desert under the corporation Grove Medical Management (Grove
Medical)—a name Oliver chose. Oliver instructed Grove
8
regarding corporate formation, general and payroll bank
accounts, as well as filling out a fictitious business name
statement so that Grove could deposit checks for both companies,
Central Desert and Grove Medical. Grove and Oliver had access
to both business’s bank accounts. Central Desert staff was
informed that Grove was now part owner and to approach her if
they needed anything. Thereafter, Oliver did not often visit
Central Desert, and instructed Grove to communicate only
verbally and not by text messages or email.
Cannon did Central Desert’s taxes and accounting from
2009 to 2015, listing income based on figures Oliver provided.
Oliver only reported income from checks, not cash or credit card
payments. Oliver furnished deposit slips only from Central
Desert—and not Grove Medical—to Cannon.
Grove sent Cannon deposit slips from check deposits into
the Central Desert bank account. Grove deposited checks made
out to Central Desert into the Grove Medical account, a practice
of which Oliver was aware. Grove did not send Cannon any
deposit slips for deposits into the Grove Medical account. Grove
did Grove Medical’s accounting, but did not file tax returns on its
behalf. Credit card payments were deposited into Central
Desert’s bank account and were eventually transferred into
Grove Medical’s account, a practice of which Oliver was also
aware. Cash payments of approximately a couple hundred
dollars per week were given to Oliver and not documented for tax
purposes. Regarding their not reporting these payments to
Cannon, Oliver said to Grove: “What the IRS didn’t need to know,
they didn’t need to know.” Central Desert also entered into an
agreement with a medication supply company obligating
payments to Central Desert, but Grove deposited their checks
9
into the Grove Medical bank account and Cannon was never
informed of the agreement.
Grove withdrew a few thousand dollars in cash several
times per month from Grove Medical’s bank account to deliver to
Oliver. Grove never declined Oliver’s requests for money because
Oliver yelled and threw things when he was mad.
5. Department of Justice investigation
The Department of Justice investigative auditor assigned
to investigate West Coast determined that Medi-Cal paid West
Coast approximately $2.8 million between January 2010 and
September 2013, approximately half of which was for one-on-one
counseling for three hours per day three days per week. Such
services comprised 32 percent of West Coast’s billing in its first
year. Those services increased by almost four times the next
year, and almost doubled every year over the next three years.
Additionally, the investigation revealed that Oliver had deposited
several hundred thousand dollars worth of checks into the
Central Desert and/or Grove Medical accounts that went
unreported on Central Desert’s tax returns. Central Desert
failed to pay $203,744 in taxes over four years.
6. The prosecution’s expert testimony
Dr. Elizabeth Romero testified that, in order to bill Medi-
Cal, a business must take Medi-Cal patients, agree to be audited,
and provide medically necessary services. Upon reviewing
approximately 700 files of West Coast’s Medi-Cal patients,
Romero determined that West Coast’s medical records did not
support the claims it submitted. Among other things, the files
did not contain Oliver’s required assessments of medical
necessity.
10
According to Romero, a physical examination is required
before determining counseling is necessary, and that requirement
can only be waived under certain circumstances. Oliver signed
waiver forms without adequate justification. In every case
reviewed, Oliver waived the examination, did not examine the
client, and failed to establish medical necessity. Oliver also never
declined a patient for counseling and never referred a patient to a
higher level of care. Romero opined that it was improbable that
all 700 patients would have had a medical need for counseling.
B. Defense evidence
During an interview, Ashley told Department of Justice
investigator Crispin Beltran that West Coast fired her for
complaining about having to write a report on a patient she never
saw.
DISCUSSION
I. The trial court did not err in denying Oliver’s
mistrial request
Oliver contends that the trial court abused its discretion
when it denied a mistrial after Ashley said during her trial
testimony that Oliver was “ ‘guilty of signing charts.’ ” We
disagree.
A. Relevant factual and procedural history
During defense counsel’s cross-examination of Ashley, the
following sequence of events occurred, forming the basis for the
claims we address in sections I & II of this opinion:
“Q. Right. And you told Agent Beltran that the only time
you complained to Dr. Oliver was when you were called back to
do the recreation of the files; correct?
“A. Yes.
11
“Q. And you also said that you had complained in January
to Perry Bailey, correct?
“A. Yes.
“Q. Because you were dating Perry Bailey, correct?
“A. False.
“Q. You didn’t tell them you were dating Perry Bailey?
“A. I did not tell him I was dating Perry Bailey.
“Q. Did you tell him you—
“A. I told him I went on a date. A date and dating is
different.
“Q. Okay. So Perry Bailey asked you out; correct?
“[Prosecutor]: Objection, Your Honor; relevance.
“The Court: Do you—
“[Defense counsel]: It goes to bias.
“The Witness: I don’t understand why he’s going through
this. You guys know that man is guilty of signing charts.
“The Court: Ma’am—Ma’am, quiet.
“[Defense counsel]: Move to strike everything she said.
“The Court: Everything is stricken.
“Ma’am, I have to advise you, you cannot speak out of order
in court.
“The Witness: I’m sorry. I’m sorry, but this is irritating my
soul.
“The Court: All right. Stop, ma’am. Please, stop.
“The Witness: I come from Nevada sick, and they know
this man is guilty.”
After the jury was excused, the court admonished Ashley
and indicated that the objection was sustained because the court
did not think that Ashley’s “one date with Perry Bailey” evinced
12
bias.4 Defense counsel asked for a mistrial based upon Ashley’s
assertion that Oliver was guilty. The court denied the motion,
stating that it would again instruct the jury that the testimony is
stricken and that the jury’s opinion based on the evidence is what
matters.
The trial court subsequently admonished the jury as
follows: “Ladies and gentlemen of the jury, obviously, if
somebody is not feeling well, it’s always difficult. So I’m just
going to remind you that I reminded you—of the instruction at
the beginning of the trial: If I issue a ruling, that you’re to strike
testimony, and that testimony is not to be considered for any
purpose whatsoever. [¶] So any last question and last answer
that you might have heard, we’re going to strike it. Also
remember that the whole point of a trial is for the jury’s opinion
to decide if something occurred or not. That’s why we don’t have
anybody else testify to their opinions whether they think
somebody did an act or not. It’s for 12 independent jurors to
decide, and only based on facts presented in the case, not
opinions.”
The court later instructed the jury with CALCRIM No. 222,
stating in pertinent part: “During the trial, the attorneys may
have objected to questions or moved to strike answers given by
the witness[es]. I ruled on the objections according to the law. If
I sustained an objection, you were to ignore the question. If the
witness was not permitted to answer, please do not guess what
the answer might have been or why I ruled as I did. [¶] As you
4 Later, when Oliver called Beltran to testify as part of the
defense case, defense counsel attempted to ask Beltran whether
Ashley told Beltran that she had dated Bailey, the court
sustained objections to the questioning on relevance grounds.
13
heard throughout the trial, sometimes the witness answered
anyway, so if I ordered testimony stricken from the record, you
must disregard it and not consider that testimony for any
purpose.”5
B. Relevant legal principles
“A trial court should grant a motion for mistrial ‘only when
“ ‘a party’s chances of receiving a fair trial have been irreparably
damaged’ ” ’ [citation], that is, if it is ‘apprised of prejudice that it
judges incurable by admonition or instruction’ [citation].
‘Whether a particular incident is incurably prejudicial is by its
nature a speculative matter, and the trial court is vested with
considerable discretion in ruling on mistrial motions.’ [Citation.]
Accordingly, we review a trial court’s ruling on a motion for
mistrial for abuse of discretion.” (People v. Avila (2006) 38
Cal.4th 491, 573.)
5 During the charge conference, defense counsel again moved
for a mistrial, and also requested a modified version of CALCRIM
No. 316 (Additional Instructions on Witness Credibility—Other
Conduct) that included the following language: “ ‘During this
trial you received an admonition from the Bench in reference to
an angry outburst, in open court, of personal animosity and
opinion by Prosecution Witness Natasha Ashley against [Oliver].
You MUST abide by the admonition from the Bench and you are
not to discuss Ms. Ashley’s outburst in any manner during your
deliberations.’ ” The court denied those requests, reasoning that
Oliver’s proposal was already covered by CALCRIM No. 222 and
that a more tailored instruction would give the testimony more
deference than it was worth. Because Oliver raises no separate
argument with respect to the denial of that request, we do not
address it further.
14
“Although most [mistrial requests] involve prosecutorial or
juror misconduct as the basis for the motion, a witness’s
volunteered statement can also provide the basis for a finding of
incurable prejudice.” (People v. Harris (1994) 22 Cal.App.4th
1575, 1581.) “[A] trial court can almost always cure the prejudice
of an improperly volunteered statement by granting a motion to
strike and charging the jury with an appropriate curative
instruction.” (People v. Navarrete (2010) 181 Cal.App.4th 828,
836.) “A jury is presumed to have followed an admonition to
disregard improper evidence particularly where there is an
absence of bad faith. [Citations.] It is only in the exceptional
case that ‘the improper subject matter is of such a character that
its effect . . . cannot be removed by the court’s admonitions.’ ”
(People v. Allen (1978) 77 Cal.App.3d 924, 934–935.) Such a case
may exist when “ ‘the incompetent evidence goes to the main
issue and where the proof of defendant’s guilt is not clear and
convincing.’ ” (People v. Hardy (1948) 33 Cal.2d 52, 61; People v.
McKelvey (1927) 85 Cal.App. 769, 771.)
An erroneous denial of a mistrial request prejudices the
defendant only if it is reasonably probable that, but for the
admission of the material upon which the motion was based, the
defendant would have obtained a more favorable outcome. (See
People v. Welch (1999) 20 Cal.4th 701, 749–750; People v. Watson
(1956) 46 Cal.2d 818 [harmless error standard applies to denial of
mistrial based on erroneous evidentiary ruling].)
C. The trial court’s denial of Oliver’s mistrial request was
not erroneous
Here, the record demonstrates that the trial court’s refusal
to grant a mistrial was not an abuse of discretion. It is well
established that “[a] witness may not express an opinion on a
15
defendant’s guilt.” (People v. Coffman and Marlow (2004) 34
Cal.4th 1, 77.) However, the trial court promptly recognized this
when, immediately after Ashley made the challenged statement,
it acted to remedy the problem by striking the testimony and
admonishing the jury to disregard it. The court then excused the
jury and discussed the issue with counsel. The jury was
thereafter not only advised that the challenged testimony had
been stricken from the record and was not to be considered “for
any purpose whatsoever,” it was also told that whether someone
committed certain acts was “for 12 independent jurors to decide,
and only based on facts presented in the case, not opinions.”
Later, the jury was instructed—in a sum and substance for a
third time—that all questions and answers that were the subject
of sustained objections must be ignored, and not considered “for
any purpose.”
As noted, admonitions of this nature are typically adequate
cures for an error in the admission of evidence, especially when
the error was not a product of bad faith. (People v. Allen, supra,
77 Cal.App.3d at p. 934.) Here, the defense elicited this
testimony, and thus it cannot be said the prosecution instigated
the evidentiary violation in bad faith. Further, Ashley was not in
law enforcement and was not otherwise suggested to have “ ‘an
aura of special reliability and trustworthiness’ ” as to the
question of whether Oliver’s conduct was criminal in nature, a
situation which might have otherwise counseled for additional
caution. (United States v. Gutierrez (9th Cir. 1993) 995 F.2d 169,
172; see United States v. Scanio (2d Cir. 1990) 900 F.2d 485, 493
[similar].) Even were that not the case, Ashley’s allegation that
Oliver was “guilty of signing charts” did not actually equate with
guilt of any of the charged offenses. Oliver was not charged with
16
merely “signing charts,” and there was no dispute that Oliver had
signed charts during his tenure at West Coast. Rather, as Oliver
himself acknowledges, the primary disputed issue at trial was
whether Oliver knew that the documents he signed contained
false information.6 Ashley’s stricken outburst had minimal
bearing upon that question.
Moreover, there was ample other evidence of Oliver’s
knowledge beyond what Ashley—who became employed at West
Coast in 2012, years after the commencement of the fraudulent
conduct and only one year before the facility’s closure—had
witnessed. Moreno, for example, testified that counselors
complained in Oliver’s presence about falsifying records, but
nothing changed. Then, when Moreno complained directly to
Oliver and Oliver told her not to falsify records and to write down
every incident with Bailey, Bailey approached her and called her
a snitch and punished her by giving her more files. After Moreno
continued to refuse to forge patient files, Oliver called her into a
meeting and suspended her, citing her inability to cooperate with
Bailey. The falsification again did not abate. Counselors such as
Olivas continued to approach Oliver with complaints, but Oliver
did not seem surprised and told them not to “worry about it.”
Olivas was then demoted. Cannon, too, reported that when she
approached Oliver about the counselors’ complaints, Oliver
laughed and said, “I told you that the counselors would be the
ones to take you down.”
6 Oliver does not suggest that Ashley’s testimony had any
relation to the tax evasion convictions pertaining to Grove
Medical. We thus do not address the errors as they relate to
those convictions further.
17
The evidence of Oliver’s knowledge that the documents he
was signing contained false information was overwhelming, and
Oliver’s contrary arguments are unavailing. Oliver points to
further interactions such as when he told Bailey “[y]ou need to
stop doing that with the staff” after Moreno raised concern about
the falsification of records as evidence that he was attempting to
“put a stop” to West Coast’s falsification of records. However,
Oliver’s construction of that evidence is unsupported by the
record. As noted, the record is replete with examples of Oliver
continuing to sign off on false records in the face of complaints
from Moreno and other counselors, and condoning if not directly
retaliating against them for said complaints. Especially where
there was evidence that Oliver was cognizant of the implications
of leaving a paper trail and speaking openly regarding his frauds,
the jury’s declining to credit Oliver’s alleged discouragements
was eminently reasonable.7
7 Oliver’s further arguments that Ashley’s statement was
prejudicial because there was no evidence that he personally
directed an employee to falsify records and because the statement
constitutes improper predisposition evidence under Evidence
Code section 1101 are likewise meritless. Oliver cites no
authority supporting the proposition that an express directive of
that nature is required to demonstrate knowledge, and we are
aware of none. (Cf. People v. Harbert (2009) 170 Cal.App.4th 42,
55 [“ ‘knowledge, like other facts, may be proved by
circumstantial evidence’ ”].) Further, the fact that evidence
prompting a mistrial request may run afoul of Evidence Code
section 1101 does not singularly establish prejudice from the
denial of that mistrial request. (See People v. Welch (1999) 20
Cal.4th 701, 749–750 [erroneously admitted Evid. Code § 1101
evidence subject to prejudice analysis].)
18
Under the circumstances, there is no reason to believe that
Ashley’s isolated remark was of such an exceptionally prejudicial
nature that the jury would not follow the court’s instructions
aimed at curing any potential prejudice from the improper
testimony. We therefore conclude that the trial court did not err
in denying a mistrial.
II. The trial court did not err in refusing Oliver’s
request to cross-examine a witness for bias and
motive
Oliver further contends that the trial court abused its
discretion when it refused to permit counsel to explore Ashley’s
alleged relationship with Bailey.8 We again disagree.
A party may cross-examine a witness about bias and
motive. (Evid. Code, § 780, subd. (f).) Nonetheless, trial courts
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.” (Evid. Code, § 352.) “[T]he latitude
[Evidence Code] section 352 allows for exclusion of impeachment
evidence in individual cases is broad. The statute empowers
courts to prevent criminal trials from degenerating into
nitpicking wars of attrition over collateral credibility issues.”
(People v. Wheeler (1992) 4 Cal.4th 284, 296.)
We review a trial court’s exclusion of impeachment
evidence for an abuse of discretion. (People v. Clair (1992) 2
8 Oliver does not claim that this evidence’s exclusion violated
his constitutional right to present a defense or confront
witnesses.
19
Cal.4th 629, 655.) “Because the court’s discretion to admit or
exclude impeachment evidence ‘is as broad as necessary to deal
with the great variety of factual situations in which the issue
arises’ [citation] a reviewing court ordinarily will uphold the trial
court’s exercise of discretion.” (People v. Clark (2011) 52 Cal.4th
856, 932.)
Here, the exclusion of the alleged impeachment evidence
was not an abuse of discretion. The probative value of the alleged
bias/motive evidence was minimal, at best. Ashley denied that
she “was dating” Bailey, specifically correcting defense counsel
that she merely went on “a date” with Bailey, and that “a date
and dating [were] different.” Further, Ashley implicated Bailey
in the scheme when she testified that he made her come back to
clean up patient files, and further that she complained about
Bailey to Oliver, evidence that further underscores Ashley’s lack
of bias in Bailey’s favor. Given the impeachment evidence’s
minimal probative value and the likelihood of unnecessary
consumption of time, if not undue prejudice and confusion of the
issues, the trial court soundly exercised its broad discretion by
precluding Oliver from inquiring further as to Ashley’s alleged
relationship with Bailey.
However, even were we to find error, Oliver does not
explain how the allegedly erroneous evidentiary ruling prejudiced
him, offering only a conclusory sentence in his opening brief and
declining to file a reply brief to address the Attorney General’s
contrary arguments. (See, e.g., People v. Nero (2010) 181
Cal.App.4th 504, 510, fn. 11 [defendant bears burden of spelling
out how the alleged error prejudiced him].) Based on our
independent review, we cannot say much about the prejudice to
Oliver, either. It was not reasonably probable that Oliver would
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have obtained a more favorable verdict had he been allowed to
probe Ashley’s purported relationship with Bailey. (See People v.
Cunningham (2001) 25 Cal.4th 926, 999 [exclusion of evidence
under Evidence Code section 352 that does not implicate
constitutional right governed by People v. Watson, supra, 46
Cal.2d 818].) The bulk of our prejudice discussion in the
preceding section applies equally here, most notably that there
was ample other witness testimony beyond Ashley’s
corroborating Oliver’s awareness of the falsification of patient
records.
For these reasons, the trial court did not err, much less
prejudicially err, by denying Oliver’s request to further inquire as
to Ashley’s motive or bias.
III. Assembly Bill No. 518 requires resentencing
Oliver’s seven year eight month aggregate sentence is
comprised of the low term of two years for count 2, plus a middle
term of three years for the enhancement that the loss exceeded
$500,000 (§ 186.11, subd. (a)(2)), and eight months each for
counts 7 through 10.9 The court also imposed a concurrent
9 The Attorney General suggests that the single
enhancement on count 2 reflected in the abstract of judgment
does not correspond with the two enhancements pronounced at
sentence. However, after the court pronounced a sentence of one
year for the enhancement that the loss exceeded $1.3 million
(former § 12022.6, subd. (a)(3)) and two years for the
enhancement that the loss exceeded $500,000 (§ 186.11,
subd. (a)(2)), the prosecutor pointed out that a three-year term
was required for the section 12022.6, subdivision (a)(3)
enhancement. As a result, the court struck that enhancement
and imposed a three-year term on the section 186.11,
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sentence of one year four months on count 1 and 16-month
sentences for counts 3, 4, and 6 and stayed them under section
654. On appeal, Oliver asserts that Assembly Bill No. 518 (2021–
2022 Reg. Sess.) requires that his case be remanded for
resentencing to permit the court to exercise its discretion to stay
his conviction on count 2 rather than count 1, pursuant to section
654. The Attorney General agrees, as do we.
Assembly Bill No. 518, which took effect on January 1,
2022 (days after Oliver’s December 7, 2021 sentencing), amended
section 654 to provide, in pertinent part: “An act or omission that
is punishable in different ways by different provisions of law may
be punished under either of such provisions, but in no case shall
the act or omission be punished under more than one provision.”
(See Stats. 2021, ch. 441, § 1; People v. Mendoza (2022) 74
Cal.App.5th 843, 862; cf. former § 654 [requiring sentencing court
to impose the sentence that “ ‘provides for the longest potential
term of imprisonment’ ” and stay execution of the other term].)
Oliver is entitled to the benefit of Assembly Bill No. 518,
permitting the court to exercise its sentencing discretion
pursuant to section 654. (In re Estrada (1965) 63 Cal.2d 740,
745; People v. Sek (2022) 74 Cal.App.5th 657, 666–667.) A trial
court must exercise its informed discretion when sentencing a
defendant. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) If
the court proceeds on the assumption that it lacks discretion,
remand for resentencing is required unless the record “ ‘clearly
indicate[s]’ ” that the court would have reached the same
conclusion had it been aware of its discretionary powers. (Ibid.)
subdivision (a)(2) enhancement. Thus, the abstract of judgment
accurately corresponds with the court’s oral pronouncement.
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As noted, Oliver was convicted of five counts related to
Medi-Cal fraud (counts 1 through 4 and 6) and four counts
related to tax evasion (counts 7 through 10). Under the former
statute, the trial court was required to impose the longer
sentence for count 2 and to stay the sentences for counts 1, 3, 4,
and 6 because, as the trial court recognized, those five counts
arose out of “essentially all the same course of action.” Under the
amended statute, the trial court now has discretion to sentence
Oliver under one of the less severe provisions (counts 1, 3, 4, or 6)
and stay sentences on the other counts arising out of the same
acts and omissions (including count 2).
Because there is no clear indication that the trial court
would have reached the same conclusion had it been aware of its
discretion, we agree with the parties that remand for
resentencing is required so that the trial court may consider
whether to exercise its discretion to stay Oliver’s sentence upon
count 2 under the amended section 654.10
10 Oliver does not raise any challenge to the restitution order
under section 1202.4, subdivision (f). Because the imposition of
restitution under section 1202.4, subdivision (f) is mandatory and
cannot be stayed (see Cal. Const., art. I, § 28, subd. (b); see also
People v. Woods (2010) 191 Cal.App.4th 269, 272–273), our
opinion does not disturb the restitution order.
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DISPOSITION
Howard Oliver’s sentence is vacated and the case is
remanded to the trial court for resentencing. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
HEIDEL, J.*
We concur:
EDMON, P. J.
EGERTON, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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