People v. Eroshevich, B231411

CourtCalifornia Court of Appeals
Citation154 Cal.Rptr.3d 799
Decision Date10 July 2013
Docket NumberB231411
PartiesThe PEOPLE, Plaintiff and Appellant, v. Khristine Elaine EROSHEVICH et al., Defendants and Respondents.

154 Cal.Rptr.3d 799

The PEOPLE, Plaintiff and Appellant,
Khristine Elaine EROSHEVICH et al., Defendants and Respondents.


Court of Appeal,
Second District, Division 5, California.

Filed March 28, 2013
Review Granted July 10, 2013

Appeal from orders of the Superior Court of Los Angeles County, Robert J. Perry, Judge.
Reversed with directions. (Los Angeles County Super. Ct. No. BA353907)
Steve Cooley and Jackie Lacey, District Attorneys, Irene Wakabayashi, Head Deputy District Attorney, Brentford J. Ferreira, Shirley Sui–Nin Sun and Natasha Cooper, Deputy District Attorneys, for Plaintiff and Appellant.

Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Respondent Khristine Elaine Eroshevich.

Peter Gold, under appointment by the Court of Appeal, for Defendant and Respondent Howard Kevin Stern.


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 1section 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, 100 S.Ct. 2260, 65 L.Ed.2d 228; Ludwig v. Massachusetts (1976) 427 U.S. 618, 631, 96 S.Ct. 2781, 49 L.Ed.2d 732.) 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, 110 S.Ct. 668, 107 L.Ed.2d 708; Wang v. Withworth (6th Cir.1987) 811 F.2d 952, 957–958; People v. Salgado (2001) 88 Cal.App.4th 5, 13, 105 Cal.Rptr.2d 373.) 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, 101 S.Ct. 970, 67 L.Ed.2d 30; People v. Lagunas (1994) 8 Cal.4th 1030, 1038, fn. 6, 36 Cal.Rptr.2d 67, 884 P.2d 1015.) Also comparatively unusual, an acquittal for double jeopardy purposes can occur when a trial court dismisses a case pursuant to section 1385 for [154 Cal.Rptr.3d 803]evidentiary insufficiency. (People v. Hatch (2000) 22 Cal.4th 260, 273, 92 Cal.Rptr.2d 80, 991 P.2d 165; People v. Belton (1979) 23 Cal.3d 516, 520–521, 153 Cal.Rptr. 195, 591 P.2d 485.) 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. ––––, –––– – ––––, 133 S.Ct. 1069, 1073–1081, –––L.Ed.2d ––––]. 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.

A. Charges And Verdicts

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)2.) 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 11174.3

[154 Cal.Rptr.3d 804]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
1. Mr. Stern

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.

2. Dr. Eroshevich

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;[154 Cal.Rptr.3d 805]further, a conspiracy to commit a misdemeanor is a “wobbler” that may be punished as a misdemeanor. Finally, Dr....

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  • People v. Eroshevich, B231411
    • United States
    • California Court of Appeals
    • 10 July 2013
    ...?154 Cal.Rptr.3d 799The PEOPLE, Plaintiff and Appellant,v.Khristine Elaine EROSHEVICH et al., Defendants and Respondents.B231411Court of Appeal, Second District, Division 5, California.Filed March 28, 2013Review Granted July 10, Reversed with directions. Mosk, J., filed a concurring and dis......

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