Filed 10/8/26 P. v. Ombao CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E084218
v. (Super.Ct.No. RIF1601508)
JOEL GALLANO OMBAO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jerry C. Yang, Judge.
Affirmed.
Jeremiah Flores Valdez for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Arlene A. Sevidal, Assistant Attorney General, Collette C. Cavalier and Kathryn
Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Joel Gallano Ombao of four felony counts of elder or dependent
adult abuse. (Pen. Code, § 368, subd. (b)(1); unlabeled statutory citations refer to this
code.) Ombao argues that the prosecutor committed prejudicial misconduct by
repeatedly attempting to elicit testimony that the trial court had excluded. Ombao moved
for a mistrial and a new trial on the basis of the claimed misconduct, and he argues that
the court erred by denying his new trial motion. We affirm.
BACKGROUND
Ombao owned Secure Hands Incorporated (Secure Hands) and a number of other
companies that provided home health and hospice services. He was also the chief
executive officer (CEO) of Secure Hands. Secure Hands had a business license to
operate as a boarding house in Riverside, California, but the facility was not licensed to
provide any medical care. Ombao was a medical doctor in the Philippines and a nurse
practitioner in the United States.
Boarding houses are sometimes called independent living facilities. Such facilities
are for individuals who do not require care or supervision. People who need help with
activities of daily living (ADL’s) should not live in a boarding house or an independent
living facility. ADL’s include dressing, eating, ambulating or walking, transferring,
toileting, and hygiene or bathing.
2
The events underlying Ombao’s convictions occurred in January 2015. Early that
month, Celeste and Gilbert Calma were hired to cook and clean at Secure Hands.1 They
lived at the facility, and each was paid $50 per day. The Calmas were told that Secure
Hands was an independent living facility and that the residents could handle their own
ADL’s. No one told them that they were expected to care for the residents.
But many of the Secure Hands residents had serious medical conditions and
needed constant care. For example, one disabled and bedbound resident suffered from an
acute cerebrovascular disease, paralysis on the right side of his body, schizophrenia, a
history of heroin abuse and strokes, and stress incontinence. Another resident had
dementia, HIV/AIDS (Human Immunodeficiency Virus and Acquired Immunodeficiency
Syndrome), a seizure disorder, a shunt in his brain, and mental retardation. A third
resident had advanced cirrhosis, a seizure disorder, severe hepatic encephalitis, and
paralysis on the right side of his body.
On January 24, a relative of a Secure Hands resident called the police after the
relative visited the facility. Upon arrival, the responding officers were overcome by the
smell of human waste at the facility. The officers found one woman lying in feces on a
bare box spring. She had Alzheimer’s disease and was unable to move on her own or
1 The Calmas pled guilty to elder abuse and testified at trial as part of their plea
agreements. Ombao was tried jointly with two codefendants, Nimfa Molina and Ronnel
Tiburcio. Tiburcio was the marketer and “face” of Ombao’s companies. Molina was a
hospice nurse at one of Ombao’s companies, and she assessed patients at Secure Hands to
determine whether they qualified for hospice benefits. (People v. Molina (2025) 114
Cal.App.5th 1059, 1064.) In September 2025, we affirmed the judgment in Molina’s
case. (Id. at p. 1076.)
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speak. She was unclothed except for a soiled adult diaper, and there was a mattress next
to her that had feces and urine all over it. A second woman was trapped under another
mattress in the same room. The second woman was also unclothed except for an adult
diaper, which was saturated with feces and urine, and tears were streaming from her eyes.
She appeared weak and asked for water; she said that she had not had water for days.
The officers found male residents in other rooms. One appeared to be having a seizure,
and the other was screaming for food and said that he had not eaten in a while. The man
who asked for food was lying on a urine-soaked bed pad, and he said that the pad had not
been changed in days.
The People called two expert witnesses, a registered nurse and a physician, Dr.
Khai Nguyen, who specialized in internal medicine and geriatric medicine. During trial,
Ombao moved to exclude testimony by Dr. Nguyen that Ombao “owed a duty of care as
a nurse practitioner to patients at Secure Hands.” Ombao argued that such evidence was
irrelevant and improper, because there was no evidence that he was working as a nurse
practitioner at Secure Hands. Rather, he was the CEO of the facility, so the question was
“what duty of care is owed by a CEO.”
The People opposed the motion. They noted that criminal negligence was an
element of the offense that they had the burden of proving. (People v. Medlin (2009) 178
Cal.App.4th 1092, 1103 [criminal negligence, or “a gross violation of an existing duty of
care,” required to show a violation of § 368].) The People argued that evidence of the
standard of care applicable to physicians, nurses, and corporations like Secure Hands was
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relevant to show whether Ombao was criminally negligent, especially in light of his
training and experience as a healthcare professional.
At the hearing on Ombao’s motion, the prosecutor said that he intended to ask the
expert witnesses whether each defendant breached the standard of care and, if so, whether
the breach was “ordinary” or “extreme.” The court ruled that the experts could testify
that Secure Hands “owe[d] a standard of care of whatever it is to these particular patients
and as a facility it failed to meet those standards of care.” But the experts could not
testify that Ombao’s actions (or the actions of his codefendants) failed to meet the
standard of care.
During the direct examination of Dr. Nguyen, the prosecutor identified one of the
victims by name and asked the doctor whether keeping that victim at Secure Hands
constituted an extreme departure from the standard of care. The court sustained defense
counsel’s objection that the question had been asked and answered. The prosecutor then
asked: “If it turned out, Doctor, just hypothetically speaking, if Secure Hands were run—
was owned by a nurse practitioner who was also the CEO of that company, would that be,
in your mind, a deviation of the standard of care for that nurse practitioner?” Defense
counsel objected on unspecified grounds and requested a sidebar conference. The court
sustained the objection and sent the jurors out for a recess.
The court then heard argument from the parties, and defense counsel explained
that her objection was based on the court’s earlier ruling limiting the expert testimony on
the standard of care. The court reminded the prosecutor that it “did rule that the expert
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cannot opine on a breach of the standard of care as to each of the defendants and can only
talk about Secure Hands as a, kind of, a whole, as an institution violating the duty of
care.” The court observed that the prosecutor could not circumvent that ruling by posing
the question as a hypothetical.
Later, defense counsel objected when the prosecutor asked Dr. Nguyen if there
was a different standard of care for nurse practitioners. Counsel cited Evidence Code
section 402 in her objection, and the court sustained it. Dr. Nguyen then testified that his
opinions concerned the standard of care generally applicable to healthcare professionals,
hospice companies, and home health companies. When the prosecutor asked if the
standard would apply to the CEO’s of such companies, defense counsel objected under
Evidence Code section 402, and the court sustained the objection. The prosecutor also
asked whether “the issues about the care” of a particular victim were “beyond the
expertise of a nurse or a nurse practitioner.” Defense counsel again objected on the basis
of Evidence Code section 402. The court did not rule but asked the prosecutor to repeat
the question, and the prosecutor instead moved on. He next asked about a particular
victim who was suffering from pressure wounds. The prosecutor asked whether nurses
and nurse practitioners have the training and skills necessary to recognize the standard of
care with respect to pressure wounds. Defense counsel once again objected and cited
Evidence Code section 402, and the court sustained the objection “as to ‘nurse
practitioner.’” Dr. Nguyen did not answer the question, and the court took a recess to
hold an unreported sidebar conference.
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During a later recess, the court and the parties discussed the unreported conference
on the record. The prosecutor apologized and stated that he did not intentionally violate
the court’s evidentiary ruling. Defense counsel stated that the prosecutor’s actions
“verg[ed] on misconduct,” but she noted that she was not moving for a mistrial at that
time. However, later in the day, defense counsel moved to dismiss the case or for a
mistrial on the basis of prosecutorial misconduct. She argued that the prosecutor’s
questioning about the standard of care attempted to elicit evidence previously excluded
by the court, and the prosecutor continued to do that even after the court sustained her
first objection. The court denied the motion. The court declined to find whether the
prosecutor intended to violate the prior evidentiary ruling. The court ruled that
regardless, Ombao was not prejudiced by the prosecutor’s questioning, because the court
sustained the defense objections and Dr. Nguyen did not respond.
The jury found Ombao guilty of four felony counts of elder or dependent adult
abuse. (§ 368, subd. (b)(1).) Each count concerned a separate victim. The jurors
deadlocked on two counts concerning two more victims, and the court declared a mistrial
on those counts.
Ombao moved for a new trial, arguing that the prosecutor committed prejudicial
misconduct by repeatedly violating the court’s ruling limiting expert testimony on the
standard of care. The court denied the new trial motion. The court concluded that the
prosecutor had committed misconduct by attempting to introduce inadmissible evidence,
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but the misconduct was not prejudicial. The court also reasoned that the misconduct did
not rise to the level of a due process violation.
In July 2024, the court sentenced Ombao to a total of five years in state prison,
consisting of the low term of two years on one count, plus one year for each of the three
remaining counts (one-third of the three-year middle term). (§ 368, subd. (b)(1).)
DISCUSSION
Ombao argues that the prosecutor committed prejudicial misconduct by violating
the court’s evidentiary ruling and that the court erred by denying his new trial motion.
We disagree.
We review the court’s ruling concerning prosecutorial misconduct for abuse of
discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 213.) “In California, the law
regarding prosecutorial misconduct is settled: ‘When a prosecutor’s intemperate
behavior is sufficiently egregious that it infects the trial with such a degree of unfairness
as to render the subsequent conviction a denial of due process, the federal Constitution is
violated. Prosecutorial misconduct that falls short of rendering the trial fundamentally
unfair may still constitute misconduct under state law if it involves the use of deceptive
or reprehensible methods to persuade the trial court or the jury.’” (People v. Masters
(2016) 62 Cal.4th 1019, 1052.)
When the court has ruled that certain testimony is inadmissible, a prosecutor
commits misconduct by posing questions that attempt to elicit that testimony. (People v.
Friend (2009) 47 Cal.4th 1, 33 [“the prosecutor violated the trial court’s prior evidentiary
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ruling, and, whether done intentionally or not, committed misconduct”]; People v. Trinh
(2014) 59 Cal.4th 216, 248 (Trinh) [“it was misconduct for the prosecutor repeatedly to
ask questions in a form the court had prophylactically barred the prosecution from using
because of the risk of yielding improper responses, and to which the court thereafter time
and again sustained objections”].)
Even if prosecutorial misconduct occurs, reversal is not required unless the
defendant demonstrates that prejudice resulted. (People v. Fernandez (2013) 216
Cal.App.4th 540, 564.) To the extent that prosecutorial misconduct violates the federal
constitution, we evaluate whether the misconduct was harmless beyond a reasonable
doubt. (Ibid., citing Chapman v. California (1967) 386 U.S. 18.) If the misconduct
implicates only state law, then we evaluate whether it is reasonably probable that the
defendant would have achieved a more favorable result absent the misconduct. (People
v. Parker (2022) 13 Cal.5th 1, 71-72; People v. Watson (1956) 46 Cal.2d 818, 836.)
The court did not abuse its discretion by determining that the prosecutor’s
misconduct was not prejudicial. First, the court concluded that the prosecutor’s
questioning constituted misconduct under state law, but the misconduct did not rise to the
level of a due process violation. Ombao argues in a conclusory manner that the
prosecutor’s misconduct violated his due process rights. Those conclusory assertions do
not demonstrate that the prosecutor’s questioning infected the trial with unfairness to
such a degree that he was denied due process. (People v. Sullivan (2007) 151
Cal.App.4th 524, 549 [the defendant bears the burden of demonstrating error on appeal].)
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Second, there is no reasonable probability that Ombao would have achieved a
more favorable result absent the prosecutor’s objectionable questions concerning the
standard of care. The court sustained defense counsel’s objections to the questions, so
the jury did not hear any inadmissible testimony. (Trinh, supra, 59 Cal.4th at p. 249 [the
prosecutor’s attempts to elicit improper testimony were not prejudicial when the court
sustained the defense objections].) Ombao nevertheless contends that the prosecutor’s
questions prejudiced Ombao “by exposing the jury to suggestive, inadmissible content.”
But the court correctly instructed the jurors under CALCRIM No. 222 that counsel’s
questions were not evidence; only the witnesses’ answers were evidence; the jurors
should not assume that something was true “just because one of the attorneys asked a
question that suggested it was true”; and the jurors had to ignore a question if the court
sustained an objection to it. We presume that the jurors understood and applied those
instructions, and the record does not show otherwise. (People v. Covarrubias (2016) 1
Cal.5th 838, 926.)
Because the prosecutorial misconduct did not prejudice Ombao, the court did not
abuse its discretion by denying the new trial motion. (People v. Lightsey (2012) 54
Cal.4th 668, 730 [ruling on a new trial motion reviewed for abuse of discretion].) Section
1181 requires a showing of prejudice to grant a new trial motion on the basis of
prosecutorial misconduct. (§ 1181, subd. (5).)
For these reasons, the court did not err by concluding that the prosecutor’s
misconduct was not prejudicial or by denying the new trial motion.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
RAMIREZ
P. J.
FIELDS
J.
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