Appeal from orders of the Superior Court of Los Angeles County, Robert J. Perry, Judge. (Los Angeles County Super. Ct. No. BA353907)
The opinion of the court was delivered by: Turner, P.J.
Opinion following rehearing
CERTIFIED FOR PUBLICATION
Reversed with directions.
The People of the State of California appeal after a series of rulings which resulted in the dismissal of charges against two defendants, Dr. Khristine Elaine Eroshevich and Howard Kevin Stern. Mr. Stern's new trial motion was granted. Two conspiracy counts were then dismissed pursuant to Penal Code*fn1 section 1385, subdivision (a) (section 1385). We will reverse the new trial and dismissal orders.
Defendants were convicted after a jury trial. After the verdicts were returned, the trial court granted Mr. Stern's new trial motion. The ground for granting Mr. Stern's new trial motion was that the evidence was insufficient as matter of law. The trial court did not address a number of other grounds specified in Mr. Stern's new trial motion. The trial court then proceeded to dismiss the charges against Mr. Stern pursuant to section 1385. The trial court, without ruling on Dr. Eroshevich's new trial motion, dismissed the charges as to her. We agree with the prosecution that Mr. Stern's new trial motion could not be granted nor the charges dismissed on the ground the evidence was insufficient as a matter of law. But, as we will explain, what can occur to Mr. Stern once the remittitur issues is limited by the double jeopardy provisions of our Constitutions.
The federal and state constitutional double jeopardy protections apply to both trials and sentences. (Illinois v. Vitale (1980) 447 U.S. 410, 415; Ludwig v. Massachusetts (1976) 427 U.S. 618, 631.) In the trial context, the core protection of the double jeopardy clause is the prohibition of a retrial after an acquittal. (Dowling v. United States (1990) 493 U.S. 342, 355; Wang v. Withworth (6th Cir. 1987) 811 F.2d 952, 957-958; People v. Salgado (2001) 88 Cal.App.4th 5, 13.) An acquittal most often results when a jury returns a not guilty verdict. Although less common, an acquittal for double jeopardy purposes also can occur when a trial court grants a defendant's new trial motion for evidentiary insufficiency. (See Hudson v. Louisiana (1981) 450 U.S. 40, 44; People v. Lagunas (1994) 8 Cal.4th 1030, 1038, fn. 6.) Also comparatively unusual, an acquittal for double jeopardy purposes can occur when a trial court dismisses a case pursuant to section 1385 for evidentiary insufficiency. (People v. Hatch (2000) 22 Cal.4th 260, 273; People v. Belton (1979) 23 Cal.3d 516, 520-521.) In double jeopardy jurisprudence, evidentiary insufficiency means the evidence is insufficient as a matter of law; that is, the verdict is not supported by substantial evidence.
Here, we conclude the trial court incorrectly granted Mr. Stern's new trial motion; the evidence was not insufficient as a matter of law. As will become clear, the former jeopardy effect of the erroneous order granting Mr. Stern's new trial motion is the same as an acquittal. Similarly, we conclude the trial court dismissed the charges against both defendants based on an erroneous finding the evidence was insufficient as a matter of law. Thus, we reverse the orders granting Mr. Stern's new trial motion and dismissing the case pursuant to section 1385 as to both defendants. Once the remittitur issues, the trial court may take up the remaining new trial motion issues, dismiss on other grounds pursuant to section 1385, or even impose sentence. But, there is one thing the trial court may not do and that is to order Mr. Stern to be retried.
On October 18, 2012, we issued an opinion in this case which reached the precise same result we do today. On November 19, 2012, we granted rehearing on our own motion. We did so because the United States Supreme Court was reconsidering aspects of its double jeopardy jurisprudence in Evans v. Michigan (2013) 568 U.S. ___, ___-___ [2013 U.S. LEXIS 1614, **6-32]. On February 20, 2013, the United States Supreme Court issued its opinion in Evans. Nothing in Evans warrants a change in our prior analysis. Thus, with minor alterations, we reach the same conclusions we did originally.
Vicki Lynn Marshall died on February 8, 2007. Toxicology tests revealed an above therapeutic level of metabolites of a controlled substance--chloral hydrate--in her blood. Our discussion of the evidence in part III of this opinion focuses on the testimony relevant to the two conspiracy counts of which the jury convicted Mr. Stern and Dr. Eroshevich. However, by way of procedural background, the prosecutor filed an 11-count information against Mr. Stern and Dr. Eroshevich. Also charged was Dr. Sandeep Kapoor.
Dr. Kapoor was acquitted of all charges. As to count 3, the jury found defendants conspired between June 5, 2004, and September 10, 2006. As to count 1, the jurors found defendants conspired between September 11, 2006, and February 8, 2007. The jury found defendants conspired to commit two crimes. The first target offense was to obtain controlled substances by fraud, deceit or misrepresentation or concealment of a material fact. (Health & Saf. Code, § 11173, subd. (a)*fn2 .) The second target offense was to unlawfully give false names or addresses in prescriptions for controlled substances in violation of Health and Safety Code section 11174.*fn3
Dr. Eroshevich was also convicted of two other charges. She was convicted in count 7 of obtaining controlled substances by fraud or misrepresentation in violation of Health and Safety Code section 11173, subdivision (a). Further, she was convicted as charged in count 9 of giving a false name or address in a controlled substance prescription in violation of Health and Safety Code section 11174.
B. New Trial And Dismissal Motions
On November 29, 2010, Mr. Stern filed a motion inviting the trial court to exercise its discretion to dismiss the action under section 1385. Mr. Stern raised two points in support of his motion. First, using false names on prescription medications to protect the privacy of celebrities was a common practice in Los Angeles. Dr. Eroshevich knew Ms. Marshall was the intended recipient of the prescribed medications. And according to Mr. Stern, Ms. Marshall knew those same prescriptions were for her use. Further, doctors and hospitals had routinely prescribed medications for Ms. Marshall's use in other names. And Mr. Stern readily admitted to investigators that controlled substance prescriptions intended for Ms. Marshall were written in his name to protect her privacy. Hence, Mr. Stern asserted, there was no substantial evidence he lacked a good faith belief his actions were legal. Second, Mr. Stern argued he was "selectively targeted" for prosecution in violation of his due process rights. Moreover, as to the non-opiate controlled substance prescriptions, the district attorney delayed filing what would have been misdemeanor charges until after the statute of limitations had run. As a result, the district attorney was forced to charge felony conspiracies.
Also on November 29, 2010, Mr. Stern filed a new trial motion. In addition to the grounds argued in his invitation to dismiss, Mr. Stern raised two further issues. First, Mr. Stern argued a deputy district attorney committed prejudicial misconduct in argument to the jury. Second, Mr. Stern urged the trial court to reduce the two felony conspiracy verdicts to misdemeanors.
On December 1, 2010, Dr. Eroshevich filed a single "omnibus request" for dismissal, for a new trial, or to reduce the felonies to misdemeanors. Dr. Eroshevich raised several arguments. First, with respect to the two conspiracy counts, Dr. Eroshevich asserted there was in fact only one agreement, not two separate conspiracies; therefore count 1 should be dismissed. Dr. Eroshevich further argued: there was no evidence Mr. Stern and she shared a common purpose to violate the law; they simply openly engaged in a practice that was common to numerous doctors and hospitals; and Mr. Stern readily admitted that prescriptions in his name were in fact for Ms. Marshall.
In addition, Dr. Eroshevich argued count 9 was a lesser included offense of count 7. She further asserted she was the subject of selective prosecution because her conduct was consistent with that of "numerous other" medical professionals. Moreover, Dr. Eroshevich contended, the jury was likely influenced by evidence she had violated various standards of practice. This evidence, Dr. Eroshevich argued, obscured the real issue--whether the prescriptions were medically legitimate. On these grounds, Dr. Eroshevich argued, a new trial should be granted or the case dismissed.
Also, Dr. Eroshevich argued that the remaining counts should be reduced to misdemeanors. She reasoned that the crimes actually committed were misdemeanors; further, a conspiracy to commit a misdemeanor is a "wobbler" that may be punished as a misdemeanor. Finally, Dr. Eroshevich requested that the trial court, on its own motion, dismiss the charges pursuant to section 1385. She argued that even if there is sufficient evidence of guilt, a trial court may dismiss an action where a retrial would not further the interests of justice.
3. The Trial Court's Rulings a. Mr. Stern
Preliminarily, the trial court found Ms. Marshall suffered from chronic pain syndrome; further, her "drug-seeking behavior" was primarily due to inadequate control of pain rather than addiction. The trial court was further persuaded the overriding purpose in procuring controlled substances in names other than Ms. Marshall's true name was to protect her privacy. With respect to prescribing medications in a false name, the trial court concluded the law was vague as to what constitutes a false name. The trial court found no basis for charging a conspiracy ending on September 10 and a new one beginning the very next day on September 11, 2006. More significantly, the trial court found, "[T]here is [no] evidence in the record at all that Howard Stern lacked a good faith belief that the practice of obtaining prescription medicines for [Ms. Marshall] in names other than [her true name] could be against the law." The trial court found Mr. Stern acted to protect Ms. Marshall's privacy, as had most of the doctors and hospitals that had dealt with her. The trial court concluded: "When I consider all the evidence, and even viewing it in a light most favorable to upholding the verdict, I find it is clearly insufficient. Under these circumstances, I find no reasonable trier of fact could find that Howard Stern had a specific intent to violate either of these target crimes . . . and I do grant a motion for new trial to Mr. Stern on these [conspiracy] counts . . . ." Immediately after granting Mr. Stern's new trial motion, the trial court stated: "[B]ut I'm going further. [¶] I find the evidence at trial was so lacking and insufficient to show a specific intent to join a conspiracy on the part of Howard Stern to commit these target crimes, that I do believe the interest of justice supports the dismissal of these counts as to Mr. Stern, and I so order. And this, of course, is under Penal Code section 1385 . . . ."
The minute order prepared for Mr. Stern sets forth the trial court's reasons for dismissing counts 1 and 3 as required by section 1385: "On the court's motion, counts 1 and 3 are dismissed due to insufficiency of the evidence. [¶] The court further clarifies that it is dismissing counts 1 and 3 in their entirety, which includes all hung target offenses, due to insufficiency of the evidence as a matter of law pursuant to Penal Code section 1385."
Having dismissed the conspiracy counts as to Mr. Stern, the trial court turned to Dr. Eroshevich's motion. The trial court concluded: "I don't think there was an agreement between the two of them to violate the law, and . . . I don't think the conspiracy counts can stand [as to Dr. Eroshevich], and so I dismiss those as well . . . ." The clerk's minutes for Dr. Eroshevich contain no statement of reasons for the dismissal. The minutes state concerning Dr. Eroshevich: "The cause is argued and the court grants defense motion to dismiss counts 1 and 3 pursuant to . . . section 1385 due to insufficiency of the evidence." No other language pertinent to the dismissal of counts 1 and 3 as to Dr. Eroshevich is contained in the clerk's minutes. We will later discuss the effect of the absence of any language in the trial court's oral order or the clerk's minutes concerning: the substantial evidence standard of review; having viewed the evidence in a light most favorable to the verdicts; and that no reasonable trier of fact could find guilt beyond a reasonable doubt. (People v. Hatch, supra, 22 Cal.4th at p. 273; People v. Salgado, supra, 88 Cal.App.4th at p. 10.)
However, the trial court denied Dr. Eroshevich's motion for a new trial or to dismiss as to counts 7 and 9: "I choose not to disturb the jury's verdict regarding [Dr.] Eroshevich on counts 7 and 9. There is no doubt in the court's mind that based on the evidence [Dr.] Eroshevich acted out of a heart-felt desire to help her friend. Obtaining a prescription in the name of another person, Charlene Underwood, without [Ms.] Underwood's knowledge or consent was clearly wrong and constituted a violation of the law. As a doctor[,] [Dr.] Eroshevich well knew she should not have done this and it is clear to the court that she acted with the required intent to defraud." However, the trial court "vacated" the count 9 conviction on grounds it was not appropriate to punish Dr. Eroshevich twice for the same act. The trial court then reduced count 7 to a misdemeanor. The prosecution has not appealed the trial court's orders with respect to counts 7 or 9.
A. Overview Of The Participants
We begin by generally describing the key participants in the counts that resulted in Ms. Marshall's death on February 8, 2007. Mr. Stern became Ms. Marshall's lawyer in 1996. Over the course of a 12-year relationship, Mr. Stern became a regular part of Ms. Marshall's entourage. From at least June 5, 2004, until Ms. Marshall's death, the dates of the conspiracies as found by the jury, Mr. Stern was her attorney, manager, "right-hand man" and close companion. He managed her day-to-day affairs and escorted her to events. By some accounts, a romantic relationship developed between Mr. Stern and Ms. Marshall in the year before she died.
Mr. Stern was closely involved in Ms. Marshall's medical care. He accompanied her to medical appointments, discussed her health and drug use with her treating physicians, assisted her in acquiring prescription medication and monitored her medication use. He kept track of her medication schedule and personally ensured she took her prescribed drugs on time. At times, Mr. Stern injected Ms. Marshall with liquefied vitamins and medications. Ms. Marshall was hospitalized from April 24 to May 2, 2006. During her hospitalization, Mr. Stern consulted with Ms. Marshall's staff physicians. On April 26, 2006, Ms. Marshall was examined by Dr. Nathalie Maullin. During the examination, at which Mr. Stern was present, Ms. Marshall was asked about her medical history. Ms. Marshall told Dr. Maullin to ask Mr. Stern. Also, Ms. Marshall was asked what medication she was taking. Ms. Marshall told Dr. Maullin, "Ask Howard," referring to Mr. Stern. At a later point during the examination, Ms. Marshall was asked again what medications she had taken. Once again, Ms. Marshall told Dr. Maullin, "Ask Howard."
Dr. Eroshevich was a California-licensed psychiatrist and, beginning in October 2002, Ms. Marshall's neighbor and friend. Between June 5, 2004 and February 8, 2007, the dates of the conspiracies as found by the jury, Dr. Eroshevich repeatedly prescribed controlled substances for Ms. Marshall's use. Dr. Eroshevich kept no medical records with respect to Ms. Marshall. Ten prescription drugs including three controlled substances were found in the hotel room where Ms. Marshall ...