People v. Mohamed

Filed 5/3/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B262627
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA075002)
v.
EHAB ALY MOHAMED,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Michael V. Jesic, Judge. Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant Ehab A. Mohamed.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer, Deputy
Attorney General, and Michael R. Johnsen, Supervising Deputy Attorney General, for
Plaintiff and Respondent.
_________________________________
Ehab Aly Mohamed appeals from the judgment entered following a jury trial in
which he was convicted of involuntary manslaughter in violation of Penal Code
section 192, subdivision (b) (count 1), and elder abuse in violation of section 368 (count
2).1 As to count 1, the jury found true a great bodily injury allegation pursuant to section
1192.7, subdivision (c)(8).2 The court sentenced appellant to a total term of five years in
state prison, consisting of the upper term of four years on count 1, plus one year on
count 2.
Appellant contends (1) the evidence based on an accomplice’s uncorroborated
testimony was insufficient to support appellant’s conviction for involuntary
manslaughter; (2) the trial court prejudicially erred in failing to instruct on principles of
accomplice corroboration; and (3) the great bodily injury finding with regard to count 1
must be stricken because a great bodily injury enhancement cannot attach to a conviction
for manslaughter. We disagree and affirm.
FACTUAL BACKGROUND
In 2010, appellant was a board certified gynecologist who practiced cosmetic
surgery out of his Encino office. Appellant relied on “cutting edge” technology in his
practice and used a medical instrument called a “VASER” liposuction machine in his
liposuction procedures. The VASER liposuction performed by appellant involves a
three-step process: first, a solution of saline, epinephrine (a blood vessel constrictor), and
lidocaine (a local anesthetic) is injected or “infiltrated” under the skin; next, a titanium
probe is inserted under the skin to deliver ultrasound energy through the VASER
amplifier to loosen the fat cells; and finally, the injected solution along with the loosened
fat cells are sucked out, or “aspirated” from the body, resulting in a liquid aspirate
consisting of infiltrated solution, blood, and fat.
1 Undesignated statutory references are to the Penal Code.
2The jury found not true the great bodily injury allegation as to count 2.
(§ 12022.7, subd. (c).)
2
Appellant performed his liposuction procedures in a room in his medical office,
which was not an accredited surgical center. The office lacked an electrocardiogram
(EKG) machine, pulse oximeter, backup oxygen, a backup power supply, and a “crash
cart,” and had only a limited supply of drugs to reverse the effects of narcotics.
Appellant did not employ any certified advanced cardiac life support personnel, nor did
he have an anesthesiologist or a nurse anesthetist to handle sedation during his surgeries.
On occasion, appellant’s office assistant, Judy Evans, assisted him in his procedures.
Hired in 2001, Evans did everything in the office from performing general office work to
assisting in appellant’s surgeries and procedures. Evans received lip and facial injections
from appellant at cost. She had attended one year of nursing school about 40 years
earlier, but was not licensed as a nurse. As of 2011 she had not taken a CPR class in
eight years.
Zackie Handy
Zackie Handy went to see appellant in May 2010 about a treatment to reduce the
wrinkles on her face. She was 77 years old. Appellant convinced her to undergo
liposuction to remove fat from her abdomen, back, under her arms, and her legs, claiming
the treatment was “tax deductible” and would reduce the risk of heart attack and
Alzheimer’s, lower her cholesterol “by a lot,” and add 20 years to her life. He assured
her she would have “no downtime.” Appellant also told Handy she would be part of a
“Harvard study” and would receive a substantial discount. Handy agreed to the
liposuction procedure on her abdomen, and paid appellant with a $55,000 cashier’s check
from her equity line. She subsequently gave appellant two more postdated checks
totaling $45,000.
When Handy arrived for the procedure on her abdomen, she told “Nurse Judy” she
had taken baby aspirin that day. Evans said that would be fine and gave Handy four
Vicodin pills (a combination of acetaminophen and the opioid hydrocodone) and
1.5 milligrams of Xanax (an anti-anxiety drug) to take orally. Handy told appellant not to
do anything to her face. Handy fell asleep during the procedure and woke to find her face
blotchy and lumpy from fillers appellant had injected into her lip, chin, eyelids, and
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eyebrows. Appellant told her that he had been forced to stop the liposuction because of
excessive bleeding due to the aspirin and had worked on her face instead.
Unhappy about the fillers, Handy nevertheless returned to appellant for the
liposuction two days later. This time, she was given seven Vicodin pills and a half-
milligram of Xanax. Again she fell asleep. According to appellant’s record of Handy’s
liposuction procedure on May 21, 2010, he removed 7,600 cubic centimeters (cc’s) of
aspirate from Handy’s body.
During a follow-up appointment, Handy complained about the appearance and
pain from the lumps on her face. Appellant gave her a “free” Botox injection, which she
did not want. As a result of the injection, Handy could not close one eye, and she
continued to experience pain and headaches from the fillers. Handy canceled further
appointments with appellant, stopped payment on the two postdated checks she had given
him, and reported him to the California Medical Board.
Sharon Carpenter
On August 17, 2010, Sharon Carpenter consulted with appellant about having
“whole body” liposuction. She was 61 years old. Appellant told her that he performed a
unique form of liposuction, and she would receive a discount by being part of a “Harvard
study.” Carpenter was eager to have the procedure and agreed to pay appellant’s
$100,000 fee.
Carpenter returned to appellant’s office with her husband for the liposuction on
August 21, 2010. They arrived approximately 9:00 a.m., but appellant was not there yet.
After speaking with appellant on the phone, Evans applied a fentanyl patch (a
transdermal opioid) to Carpenter’s neck.3 Carpenter took Vicodin and 0.5 milligrams of
Xanax given to her at 10:47 a.m.
3 The fentanyl patch was Evans’s own prescription which she had brought to the
office from home. Appellant had prescribed it to her for pain following her own
liposuction procedure in June 2010.
4
Appellant started Carpenter’s liposuction procedure assisted by Evans at 1:10 p.m.
by placing 12 skin ports on Carpenter’s body. At 2:30 p.m. appellant began infiltration of
approximately 5,000 cc’s of a normal saline solution containing 1 percent lidocaine and
one part per million epinephrine. Carpenter received another milligram of Xanax at 2:35
p.m., and appellant started using the VASER at 3:35 p.m. Appellant gave Carpenter oral
doses of Percocet (a combination of acetaminophen and the opioid oxycodone) at 4:45
p.m. and again at 7:00 p.m. Carpenter received an injection of Zofran (an anti-nausea
medication) at 2:45 p.m. and another after she vomited, about nine hours into the
procedure. The fentanyl patch was removed at 10:00 p.m.
In lieu of electronic monitoring, appellant and Evans manually monitored
Carpenter’s vital signs throughout the 11-hour procedure. Appellant or Evans took
Carpenter’s pulse by hand, both watched her breathing for changes, and appellant
monitored her oxygenation and consciousness by maintaining conversation with her
throughout the procedure. Carpenter did not receive intravenous fluids, but drank water
and other liquids during the surgery. Appellant and Evans estimated she drank about
three and a half liters. During the procedure, Carpenter urinated into a bedpan, and Evans
“eyeballed” the volume of urine.
At approximately 11:30 p.m. Carpenter refused to take any more fluids, and
appeared dehydrated. Appellant twice called Encino Hospital across the street seeking to
borrow or purchase IV tubing, normal saline bags, and an 18-gauge cannula. According
to the nursing supervisor who spoke with him, his voice sounded urgent. The hospital
refused to give appellant any medical supplies.
After calling the hospital, appellant resumed the liposuction. Carpenter became
sleepy and appellant assured her the procedure would only be 15 minutes longer. But
appellant continued the liposuction for another 30 to 40 minutes, reaching a total of 5,000
cc’s of extracted aspirate. At 12:17 a.m.—11 hours into the procedure—appellant
noticed that Carpenter’s breathing was shallow, and she was unresponsive. He also
noticed her lips were slightly cyanotic (blue), which meant that she was not getting
sufficient oxygen. As appellant began rescue efforts, Evans called 911. At 12:25 a.m.
5
appellant lost Carpenter’s pulse, and appellant and Evans moved her to the floor to
perform CPR.
Paramedics arrived at the building at 12:22 a.m., but the door was locked, delaying
their entry. When they reached appellant’s medical office on the seventh floor, they
found appellant performing CPR, and blood was everywhere. Carpenter had no pulse
and was not breathing; the paramedics took over CPR, started epinephrine, and gave her
atropine, to no effect. Twenty minutes later Carpenter was pronounced dead.
Los Angeles County Coroner’s investigator Betsy Magdaleno arrived at
appellant’s office at 2:40 a.m. and interviewed appellant after he had finished writing his
notes. The only medical equipment she saw in the procedure room was a stethoscope.
She observed no patient monitoring devices: No EKG monitor, no pulse oximeter, no
oxygen tanks, no “crash cart.” She saw six 1,000 cc canisters containing aspirate in the
room. Four were overturned on the floor, one was on a table, and one was still hooked up
to the liposuction machine.
Expert Opinion
Dr. Raffi Djabourian, the Senior Deputy Medical Examiner for the Los Angeles
County Coroner, conducted an autopsy of Sharon Carpenter on August 23, 2010. Based
on toxicology tests on blood and tissue samples, he concluded that the cause of death was
opioid toxicity from the lidocaine, fentanyl and oxycodone she had received. Dr.
Djabourian explained that a drug overdose resulting from the combination of these drugs
could have caused death in several different ways: by depressing breathing, causing an
abnormal heart rhythm, or depressing or overactivating brain function causing seizure.
He further opined that undiagnosed artherosclerosis (blockage of the coronary arteries)
made her particularly vulnerable to a drug overdose and was a contributing factor in
Carpenter’s death.
Other experts who reviewed appellant’s records in the case and consulted with the
coroner opined that the drug administration and monitoring procedures employed by
appellant during Carpenter’s liposuction constituted “extreme negligence,” a “terrible
departure from the standard of care,” medical negligence, involved numerous “extreme
6
departures from the standard of care, and violated California regulations governing
liposuction procedures as well as guidelines promulgated by the American Society of
Anesthesiologists. (Cal. Code Regs., tit. 16, § 1356.6.) Specifically, these experts found
that appellant committed multiple violations of the standards of reasonable medical care
by: subjecting Carpenter to nearly 12 hours of surgery without cardiac monitoring and
without IV fluid administration or IV access in a non-accredited facility;4 failing to
properly monitor and replace the volume of fluid removed from Carpenter’s body;
attempting to monitor Carpenter’s vitals while simultaneously performing surgery; failing
to have available during the surgical procedure basic monitoring and safety equipment
such as a pulse oximeter, EKG machine, and crash cart; orally administering a
combination of opioids during surgery; authorizing administration of a fentanyl patch for
a liposuction procedure in combination with other opioids;5 and failing to halt the
procedure when Carpenter’s condition had deteriorated to the point where appellant
found it necessary to try to obtain basic medical supplies from a nearby hospital.
One expert also identified appellant’s numerous violations of the California
regulations which govern liposuction procedures as well as the guidelines promulgated
by the American Society of Anesthesiologists.6 The California regulations require that a
procedure resulting in the extraction of more than 5,000 cc’s of aspirate must be
4One expert expressed bewilderment at the length of a procedure that resulted in
the removal of only 6,000 cc’s of aspirate: “I don’t know why you would start at 10:00
in the morning or whatever, finish at midnight, and remove only . . . six liters . . . that
doesn’t make sense to me. What are you doing there all that time?”
5 Fentanyl is an opioid drug 50 to 100 times more potent than morphine. It is
indicated for chronic pain where the patient no longer responds to weaker opioids or to
manage pain at the end of a patient’s life. Use of a fentanyl patch during a liposuction
procedure is considered unusual and presents special risks due to the strength and
variability of transdermal absorption of the drug.
6According to Dr. Selma Calmes, an anethesiologist who consulted with the
coroner in this case, the guidelines require the use of monitoring equipment such as a
blood pressure monitor, an EKG monitor, and a pulse oximeter whenever a patient is
under sedation.
7
performed in a hospital or an accredited surgical center. (Cal. Code Regs., tit. 16,
§ 1356.6, subd. (a).) For a procedure resulting in the removal of more than 2,000 cc’s of
aspirate, the regulations require a pulse oximeter to monitor blood oxygen levels, a blood
pressure monitor, an electrocardiogram, and fluid loss and replacement monitoring and
recording.7 (Cal. Code Regs., tit. 16, § 1356.6, subd. (b).) In addition, the California
regulations require the presence of a person whose main job is to monitor the patient and
keep records. If the physician is administering the sedation, a licensed person certified in
advanced cardiac life support must be present and monitoring the patient. (Cal. Code
Regs., tit. 16, § 1356.6, subd. (b).) With the exception of manual blood pressure
monitoring during Carpenter’s procedure, appellant followed none of these requirements.
Dr. Mohamed
Appellant testified in his own behalf at trial.8 He explained that he does not
perform traditional liposuction, describing his methods as a “step above the most
advanced techniques” employed by other doctors. His advanced techniques produce
better outcomes, but take much longer than traditional liposuction, which is why he
7 A copy of section 1356.6 of the California Code of Regulations, in effect in
2010, was admitted as People’s Exhibit 94. In addition to the requirements cited by Dr.
Calmes, the regulations provide that in a procedure resulting in extraction of 2,000 cc’s or
more of total aspirate, “There shall be a written detailed plan for handling medical
emergencies and all staff shall be informed of that plan. The physician shall ensure that
trained personnel, together with adequate and appropriate equipment, oxygen, and
medication, are onsite and available to handle the procedure being performed and any
medical emergency that may arise in connection with that procedure.” (Cal. Code Regs.,
tit. 16, § 1356.6, subd. (b)(1).) The regulations also provide that anesthesia may be
administered only by a qualified, licensed practitioner. (Cal. Code Regs., tit. 16, §
1356.6, subd. (b)(2).)
For any procedure resulting in the removal of more than 150 cc’s of total aspirate,
the regulations mandate that “[t]he following monitoring shall be available”: pulse
oximeter, blood pressure, fluid loss and replacement monitoring and recording, and
electrocardiogram. (Cal. Code Regs., tit. 16, § 1356.6, subd. (b).)
8 Appellant suffered convictions for forgery in 2012 and commercial burglary in
2013.
8
charges much more than other doctors.9 Although he did not hold the patent on the
VASER liposuction machine he used, he planned to patent his unique method of
performing VASER liposuction.
Appellant defended his use of the drugs administered to Carpenter and Handy,
explaining that he keeps his patients alert during liposuction because he believes
monitoring their condition through conversation is the fastest and most effective way to
detect a problem. Indeed, according to appellant, “If you wait for hypoxia to be detected
by pulse ox you’re an idiot” because by then it will be “very late.” He testified that he
personally monitored Carpenter’s pulse and oxygenation and recorded her vitals
throughout the procedure. While acknowledging that Carpenter was sedated during her
procedure, he believed that monitoring and emergency equipment were required only
when a patient was given intravenous sedation, not when oral sedatives were used. But
he admitted that he was not aware of the California regulations that applied to the
procedures he was performing until he received notification from the California Medical
Board that he had violated the law.
Appellant opined that Carpenter died due to undiagnosed and asymptomatic
coronary disease, and he maintained that the doses of the various drugs he gave her were
correct and safe. He testified that he removed about 5,000 cc’s of aspirate during
Carpenter’s liposuction, but admitted that his records of the procedure “were deficient in
certain areas” and contained mistakes and omissions that may have made it difficult to
interpret his notes.
9 One expert dismissed appellant’s claims, noting that Carpenter was told she
would receive a unique treatment for $100,000, when in truth “there would be surgeons
lined up to do that procedure for $15,000.”
9
DISCUSSION
I. Substantial Evidence Supports Appellant’s Conviction for
Involuntary Manslaughter
Appellant contends that as an active participant in Carpenter’s surgery who
administered the fatal dose of fentanyl, Evans was an accomplice, and without her
uncorroborated testimony there was insufficient evidence to support appellant’s
conviction for involuntary manslaughter. Appellant further contends that the trial court
erred by failing to instruct the jury sua sponte on principles of accomplice corroboration.
Omission of such instructions, appellant maintains, violated his federal constitutional
rights to a fair trial, to due process, to present a defense, and for a reliable judgment in
accordance with the Fifth, Sixth, Eighth, and Fourteenth Amendments. We disagree. In
the absence of any evidence to suggest that Evans knew Carpenter’s surgery was
performed in a grossly negligent manner or that she otherwise shared appellant’s grossly
negligent mental state, Evans cannot be considered an accomplice to appellant’s
commission of involuntary manslaughter. Moreover, even if Evans were an accomplice,
there was abundant corroboration of her testimony, rendering any instructional error
harmless.
A. Evans Was Not an Accomplice
An accomplice is subject to prosecution for the identical offense charged against
the defendant by reason of being a direct perpetrator, aider and abettor, or coconspirator.
(§ 1111; People v. Houston (2012) 54 Cal. 4th 1186, 1224.) “This definition encompasses
all principals to the crime [citation], including aiders and abettors and coconspirators.”
(People v. Stankewitz (1990) 51 Cal. 3d 72, 90.) Thus, “[t]o be chargeable with an
identical offense, a witness must be considered a principal under section 31 [and] must
have ‘ “guilty knowledge and intent with regard to the commission of the crime.” ’ ”
(People v. Lewis (2001) 26 Cal. 4th 334, 368–369; People v. Boyer (2006) 38 Cal. 4th 412,
466.) Even where an act has the effect of giving aid and encouragement, there can be no
accomplice liability in the absence of knowledge of the criminal purpose of the person
aided. (People v. Valdez (2012) 55 Cal. 4th 82, 147; People v. Williams (2008) 43 Cal. 4th
10
584, 637 [evidence of acts assisting crimes did not establish the requisite mental state for
accomplice liability as a matter of law]; People v. Beeman (1984) 35 Cal. 3d 547, 559.)
A conviction for involuntary manslaughter requires criminal negligence in the
commission of the offending act. (Walker v. Superior Court (1988) 47 Cal. 3d 112, 135;
People v. Penny (1955) 44 Cal. 2d 861, 879.) Our Supreme Court has defined criminal
negligence as “ ‘ “aggravated, culpable, gross, or reckless . . . conduct . . . [that is] such a
departure from what would be the conduct of an ordinarily prudent or careful [person]
under the same circumstances as to be incompatible with a proper regard for human
life . . . .” ’ [Citation.] ‘Under the criminal negligence standard, knowledge of the risk is
determined by an objective test: “[I]f a reasonable person in defendant’s position would
have been aware of the risk involved, then defendant is presumed to have had such an
awareness.” ’ ” (People v. Valdez (2002) 27 Cal. 4th 778, 783; Williams v. Garcetti
(1993) 5 Cal. 4th 561, 574 [“there can be no criminal negligence without actual or
constructive knowledge of the risk”]; Walker v. Superior Court, supra, 47 Cal.3d at
pp. 135–136 [“criminal negligence must be evaluated objectively”].)
Appellant contends Evans must be considered an accomplice not only because she
assisted in the surgery on Carpenter, but because she administered a fatal dose of her
personal prescription of fentanyl to Carpenter—“something that an ordinary person
would have reasonably known was not acceptable.” But appellant’s culpability for
Carpenter’s death was not predicated simply on the single instance of allowing his office
assistant to administer a fentanyl patch to his patient, but on his multiple flagrant
deviations from reasonable standards of medical care which amounted to criminal
negligence.
Moreover, according to appellant’s own testimony, it was he, not Evans, who
made every decision pertaining to the medical care Carpenter received during her
procedure. Thus, it was appellant, not Evans, who determined what medications and
what dosages to give Carpenter before and during the surgery; it was appellant, not
Evans, who had the training and expertise to predict and avoid the potential toxic effects
of the cocktail of pain killers administered to Carpenter before and during her surgery; it
11
was appellant, not Evans, who monitored Carpenter’s pulse and oxygenation and
recorded her vital signs throughout the procedure; it was appellant, not Evans, who
determined what monitoring and safety equipment to have on hand for his surgical
procedures; and it was appellant, not Evans, who performed the liposuction procedure
and determined what amounts of infiltrate and aspirate were appropriate and safe for
Carpenter. Finally, it was appellant, not Evans, who was responsible for knowing and
following the law as it applied to the liposuction procedures he was performing in his
non-accredited facility.
Evans, who was not even qualified as a nurse, much less a physician, clearly did
not share appellant’s medical knowledge, training, and background to enable her to
appreciate the risks presented by appellant’s multiple deviations from accepted standards
of medical care, which ranged from ordering a potentially lethal cocktail of opioids and
pain killers for his patient to conducting a nearly 12-hour surgical procedure without
basic monitoring or medical safety equipment while assisted by unqualified personnel.
Because Evans could not have been guilty of involuntary manslaughter as a direct
perpetrator, aider and abettor, or coconspirator, she bore no liability as an accomplice.
(See People v. Beeman, supra, 35 Cal.3d at p. 560 [aider and abettor shares perpetrator’s
intent when he knows full extent of criminal purpose and gives aid or encouragement
with intent of facilitating commission of the crime]; People v. Smith (2014) 60 Cal. 4th
603, 611; People v. Morante (1999) 20 Cal. 4th 403, 416 [“conspiracy requires proof that
the defendant and another person had the specific intent to agree or conspire to commit
an offense, as well as the specific intent to commit the elements of that offense, 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”].)
B. Evans’s Testimony Was Sufficiently Corroborated to Support the
Conviction and Render Any Instructional Error Harmless
Even if Evans could be considered an accomplice, her testimony was corroborated
by appellant’s own testimony. Moreover, abundant evidence other than Evans’s
testimony connected appellant to the crime and supported his conviction. Accordingly,
12
any error in failing to instruct on the need for corroboration of Evans’s testimony must be
deemed harmless.
Section 1111 provides that “[a] conviction cannot be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall tend to connect the
defendant with the commission of the offense; and the corroboration is not sufficient if it
merely shows the commission of the offense or the circumstances thereof.” “If sufficient
evidence is presented at trial to justify the conclusion that a witness is an accomplice, the
trial court must so instruct the jury, even in the absence of a request.” (People v. Brown
(2003) 31 Cal. 4th 518, 555.)
However, a trial court’s erroneous omission of instruction under section 1111 is
harmless if there is sufficient corroborating evidence in the record for the accomplice’s
testimony. (People v. Valdez, supra, 55 Cal.4th at p. 147; People v. Hinton (2006) 37
Cal. 4th 839, 880.) “Corroborating evidence may be slight, entirely circumstantial, and
entitled to little consideration when standing alone. [Citations.] It need not be sufficient
to establish every element of the charged offense or to establish the precise facts to which
the accomplice testified. [Citations.] It is ‘sufficient if it tends to connect the defendant
with the crime in such a way as to satisfy the jury that the accomplice is telling the
truth.’ ” (People v. Valdez, supra, 55 Cal.4th at pp. 147–148; People v. Gonzales and
Soliz (2011) 52 Cal. 4th 254, 303–304 [“even in cases where the full complement of
accomplice instructions . . . was erroneously omitted, we have found that sufficient
corroborating evidence of the accomplice testimony rendered the omission harmless”].)
Furthermore, a defendant’s own testimony and the reasonable inferences therefrom may
supply the necessary corroboration for an accomplice’s testimony. (People v. Williams
(1997) 16 Cal. 4th 635, 680; see also People v. Hinton, supra, 37 Cal.4th at p. 880.)
Here, we need look no further than appellant’s own testimony to find ample
corroborative evidence that “tend[s] to connect the defendant with the commission of the
offense.” (§ 1111; see People v. McDermott (2002) 28 Cal. 4th 946, 986.) As set forth
above, appellant made every decision pertaining to the medical care Carpenter received
during her procedure. Appellant testified clearly that he alone made the determinations
13
about which drugs to give Carpenter, and how much to give her. Appellant also stated
that he alone was responsible for monitoring Carpenter’s pulse, oxygenation, and level of
consciousness, as well as recording her vitals throughout the procedure. Appellant’s
testimony further established that he performed the liposuction procedure and determined
what amounts of infiltrate and aspirate were appropriate and safe for Carpenter. Finally,
appellant admitted that he had no monitoring or emergency equipment available during
Carpenter’s surgery, he did not believe such equipment was necessary, and he was
unaware of regulations requiring such equipment.
Other witnesses also provided corroboration to connect appellant with the
commission of the offense. The coroner’s investigator, Betsy Magdaleno, testified that
the surgical room in which Carpenter died lacked basic monitoring and emergency
equipment, including an EKG machine, pulse oximeter, oxygen tanks, and crash cart.
Statements made by appellant during his interview with Magdaleno immediately after
Carpenter’s death, as well as photographs of the scene and medical and autopsy records
established the length of the procedure, the amount of aspirate removed, and the
quantities and schedule of drugs given to Carpenter throughout the day. Finally, the
nursing supervisor at Encino Hospital confirmed appellant’s frantic attempt to obtain
basic medical supplies shortly before Carpenter died.
The evidence other than Evans’s testimony that connected appellant to the crime
in this case was a far cry from the “slight” corroborative evidence required under section
1111: It was extensive and overwhelming. Accordingly, any error in the court’s failure
to give accomplice instructions was harmless.
II. The Jury Properly Made a Great Bodily Injury Finding as to the
Involuntary Manslaughter Conviction Pursuant to
Section 1192.7
Characterizing the jury’s great bodily injury finding under section 1192.7 as an
enhancement, appellant contends the finding must be stricken because “no great bodily
injury enhancement could attach to the [in]voluntary manslaughter conviction.” In so
arguing, appellant relies on People v. Cook (2015) 60 Cal. 4th 922, in which our Supreme
14
Court held that the great bodily injury enhancement under section 12022.7 does not apply
to a conviction for murder or manslaughter. (Id. at p. 938.)
Appellant would be correct if the trial court had imposed a great bodily injury
enhancement under section 12022.7; it did not. Rather, the jury made its great bodily
injury finding in this case under section 1192.7, subdivision (c)(8), which means that in
any future proceeding against appellant, his conviction for involuntary manslaughter will
qualify as a prior “serious felony.” The finding was not made under section 12022.7, nor
was it used to enhance appellant’s sentence. Because appellant makes no attempt to
explain why the jury’s finding under section 1192.7 would be invalid, his claim fails.
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
LUI, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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