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Hoffman v. Superior Court (The People)

California Court of Appeals, Fourth District, Third Division

November 7, 2017

SIM CARLISLE HOFFMAN, Petitioner,
v.
THE SUPERIOR COURT OF ORANGE COUNTY, Respondent THE PEOPLE, Real Party in Interest.

         Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County No. 14CF0243, Richard M. King, Judge. Petition denied.

          Moss Law Group, Richard A. Moss, and William C. Fleming, Jr., for Petitioner.

          Tony Rackauckas, District Attorney, and Yvette Patko, Deputy District Attorney for Real Party in Interest.

          OPINION

          IKOLA, J.

         The issue in this writ proceeding is whether an information may allege a single offense in a single count, but describe within that count multiple discrete acts, each of which constitute the charged offense. Here, the People have alleged 121 counts of healthcare insurance fraud. (Pen. Code, § 550, subds. (a)(5), (a)(6).)[1] Each count identifies multiple patient files and a timeframe that spans years. Defendant demurred to the information. The court overruled the demurrer and defendant then filed the present writ petition.

         We conclude the information is proper and will deny the writ petition. Each count alleges a single offense. Any complications, or undue prejudice to defendant, arising from the fact that multiple discrete acts may constitute the charged offense in each count are adequately dealt with by a unanimity instruction at trial, or by other tools at the court's disposal, such as a severance of counts, or trial continuances where appropriate. A demurrer on these grounds is not the proper vehicle to address defendant's concerns. The court correctly overruled the demurrer.

         FACTS

         In May 2011, defendant was indicted on 884 felony counts alleging healthcare insurance fraud in violation of section 550. That indictment was ultimately dismissed in 2013 on the ground that the prosecution had failed to provide exculpatory evidence to the grand jury.

         Rather than proceed by indictment, in January 2014, the People filed a felony complaint. The complaint alleged 159 counts of insurance fraud. One year and one-half later - after four amendments and two demurrers - the people filed a fifth amended complaint, alleging violations of section 550, subdivision (a)(5) (33 counts), subdivision (a)(6) (135 counts), and subdivision (a)(7) (one count).

         The preliminary hearing began on September 1, 2015, and ended on November 23 of that year. The resulting transcript spanned over 2, 300 pages. Over 53, 000 pages of documentary evidence was submitted. During the preliminary hearing, the complaint was amended again. This final amendment contained 102 counts alleging a violation of section 550, subdivision (a)(6), and one count alleging a violation of subdivision (a)(5).[2] Defendant was held to answer on all 103 counts.

         Afterwards the People filed an information alleging the same counts. One exemplar count will suffice to convey the gist of the charges. Count 2 alleged: “On or about and between February 16, 2012, and April 08, 2013, in violation of Section 550(a)(6) of the Penal Code (MEDICAL INSURANCE FRAUD), a FELONY, SIM CARLISLE HOFFMAN and his company: SOUTHERN CALIFORNIA MEDICAL DIAGNOSTIC GROUP INC., (TIN: 27-3236269), with the intent to defraud, did knowingly and unlawfully make and cause to be made a false and fraudulent claim to COUNTY OF SAN BERNARDINO for payment of a health care benefit in an amount exceeding nine hundred fifty dollars ($950), and did aid and abet, solicit, and conspire with another to do the same (3d Imaging/MRI).” Defendant demurred, and the court sustained the demurrer with leave to amend. The court found it “appropriate in this case... to require the People to set forth in the accusatory pleadings the acts relied upon for each count rather than by some informal specifications... which may or may not be effective.” The court granted leave to amend “to elect the acts on which [the People] intend to rely on for each count.”

         In response, the People filed an amended information, which is at issue here. The amended information contains 121 counts: 120 counts of violating section 550, subdivision (a)(6), and one count of violating subdivision (a)(5). Unlike the prior information, the amended information, for each count, included both patient names and references to the preliminary hearing exhibit numbers containing the evidence relevant to the particular offense. To take the same example as the original information, the amended information alleged count 2 as follows: “On or about and between February 16, 2012 and April 08, 2013, in violation of Section 550(a)(6) of the Penal Code (MEDICAL INSURANCE FRAUD), a FELONY, SIM CARLISLE HOFFMAN and his company: SOUTHERN CALIFORNIA MEDICAL DIAGNOSTIC GROUP INC., (TIN: 27-3236269), with the intent to defraud, did knowingly and unlawfully make and cause to be made a false and fraudulent claim to COUNTY OF SAN BERNARDINO for payment of a health care benefit in an amount exceeding nine hundred fifty dollars ($950), and did aid and abet, solicit, and conspire with another to do the same; to wit: By adding an additional charge for 3d MRI under CPT Code 76375, to each healthcare claim submitted for the following workers compensation patients: [10 names listed]. (PH Exhibit #6).”

         The patient names and preliminary hearing exhibit numbers were not new. They were provided to defendant in a chart summarizing the exhibits during the preliminary examination (this was the informal method the trial court had referenced in its demurrer ruling). The amended information essentially incorporated the chart into the information itself.

         Defendant demurred to counts 1 through 3, 5 through 12, 14 through 39, 41 through 50, 52 through 69, 71 through 95, and 97 through 121 of the amended information. This time the court overruled the demurrer. It found notice to be adequate, and concluded the People were permitted to allege multiple acts that form the basis of each count. It cautioned, however, that there was still work to be done before setting a trial date to ensure the defendant had clarity on what he would need to defend against at trial: “The court intends to have a pretrial or multiple pretrials to get this case ready for trial which is going to include the People identifying which witnesses and offers of proof as it relates to counts. ...


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