Hoffman v. Superior Court of Orange Cnty.

• Decision Date: 07 November 2017
• Docket Number: G054414
• Citation: 224 Cal.Rptr.3d 818,16 Cal.App.5th 1086
• Court: California Court of Appeals Court of Appeals
• Parties: Sim Carlisle HOFFMAN, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; The People, Real Party in Interest.

16 Cal.App.5th 1086

224 Cal.Rptr.3d 818

Sim Carlisle HOFFMAN, Petitioner,

v.The SUPERIOR COURT of Orange County, Respondent;

The People, Real Party in Interest.

G054414

Court of Appeal, Fourth District, Division 3, California.

Filed November 7, 2017

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

No appearance for Respondent.

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

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. So there is going to be work done because I'm going to make sure that when the People answer ready, the defense is going to be ready to defend the charges in front of the jury."

In response, defendant filed the present petition for a writ of mandate directing the court to sustain the demurrer. We initially summarily denied the petition. The California Supreme Court granted review and transferred the case to us with instructions to issue an order to show cause.

DISCUSSION

Defendant contends the court erred in overruling the demurrer to the amended information. " ‘ "[A] demurrer raises an issue of law as to the sufficiency of the accusatory pleading, and it tests only those defects appearing on the face of that pleading." [Citation.]’ [Citations.] On appeal, we review the order overruling defendant's demurrer de novo." ( People v. Osorio (2015) 235 Cal.App.4th 1408, 1412, 185 Cal.Rptr.3d 881.) Before addressing defendant's specific contentions, we begin by setting forth the statutory framework governing criminal pleadings.

"The accusatory pleading must contain: [¶] 1. The title of the action, specifying the name of the court to which the same is presented, and the names of the parties; [¶] 2. A statement of the public offense or offenses charged therein." (§ 950.) "In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused. In charging theft it shall be sufficient to allege that the defendant unlawfully took the labor or property of another." (§ 952.) "The precise time at which the offense was committed need not be stated in the accusatory pleading, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense." (§ 955.) "Words used in a statute to define a public offense need not be strictly pursued in the accusatory pleading, but other words conveying the same meaning may be used." (§ 958.)

"The accusatory pleading is sufficient if it can be understood therefrom: [¶] 1. That it is filed in a court having authority to receive it, though the name of the court be not stated. [¶] 2. If an indictment, that it was found by a grand jury of the county in which the court was held, or if an information, that it was subscribed and presented to the court by the district attorney of the county in which the court was held. [¶] 3. If a complaint, that it is made and subscribed by some natural person and sworn to before some officer entitled to administer oaths. [¶] 4. That the defendant is named, or if his name is unknown, that he is described by a fictitious name, with a statement that his true name is to the grand jury, district attorney, or complainant, as the case may be, unknown. [¶] 5. That the offense charged therein is triable in the court in which it is filed, except in case of a complaint filed with a magistrate for the purposes of a preliminary examination. [¶] 6. That the offense was committed at some time prior to the filing of the accusatory pleading." (§ 959.)

Witkin provides a helpful historical context for these simplified pleading rules. "Early criminal pleading was lengthy, particular, detailed, and technical, and often led to reversal for variance despite convincing evidence of guilt at the trial. [Citations.] The...