P. v. Pacheco
Filed 1/31/14 P. v. Pacheco CA1/5
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff
and Respondent,
v.
MARIO ALFREDO PACHECO,
Defendant and Appellant.
A134607
A136180
(
Super. Ct. No. 165739)
Appellant Mario Alfredo Pacheco was
convicted after a jury trial of
multiple counts relating to his practice of dentistry without a license. He argues (1) his convictions and sentence
violate double jeopardy; (2) his
sentence violates Penal Code section 654; (3) the trial court failed to sua
sponte deliver a unanimity instruction; and (4) an order of restitution
was improper. We affirm.
BACKGROUND
Appellant was charged with the
uncertified practice of medicine (Bus. & Prof. Code, § 2052; count 1);
the practice of dentistry without a license (id., § 1701, subd. (f); count 2); unlicensed dentistry
creating a risk of harm (
allegation of great bodily
injury upon Teresa Flores (Pen. Code, § 12022.7, subd. (a));
unlicensed dentistry creating a risk of harm (Bus. & Prof. Code,
§ 1701.1; count 5), with an allegation of
(Pen. Code, § 12022.7, subd. (a)); and additional counts of which he was
acquitted after trial.
name="_ftnref1" title="">[1]
At trial, Flores and Aguilera
testified appellant performed extensive dental work on them over a period of
years.
title="">[2] On Flores, appellant performed a root canal, replaced existing crowns,
extracted teeth, filed down teeth and installed crowns, and installed a bridge.
$10,000. Flores continued to experience
problems with her teeth: the crowns and bridges placed by appellant fell out,
and her gums were painful and became infected.
On Aguilera, appellant performed root canals, extracted a tooth, filed
down teeth, installed crowns, and installed a bridge. Aguilera paid appellant $1,500. Aguilera also had problems with appellant’s
work.
Mark David Stevenson, a licensed
dentist, testified as an expert in general dentistry and dental practice. He testified to become a licensed dentist in California a
person must graduate from an accredited dental school and complete written and
clinical examinations. Dr. Stevenson
also testified to various risks involved if dental work is performed
improperly.
Appellant was the sole witness
testifying in his defense. He testified
to extensive experience as a dental technician — a person who makes dentures,
crowns, bridges, and other similar devices.
He worked as a dental technician in a dental laboratory in El Salvador and for the School of Dentistry at the University of El Salvador. He then spent two years at
a dental technician program in the United States, worked as a dental technician
at a dental laboratory in San Francisco, and opened a dental laboratory of his
own. After opening his own laboratory,
he began performing free or low-cost dental work for people who could not
afford to have the work done by a licensed dentist. Appellant had no formal training in dentistry,
but had observed dentists extracting teeth and installing crowns and bridges,
had sat in on some dentistry classes at the University of El Salvador,
and read journals and books on dentistry. He did not perform procedures with which he
was not familiar or comfortable.
Appellant testified that he
practiced dentistry on Flores, including removing decayed portions of her teeth, performing a
root canal, and installing crowns and bridges.
He also treated Aguilera, including replacing a bridge, extracting a
tooth, and beginning to perform a root canal.
The jury convicted appellant of count
1, unlicensed practice of medicine; count 2, unlicensed practice of dentistry;
and counts 3 and 5, unlicensed dentistry creating a risk of harm in violation
of Business and Professions Code section 1701.1 (section 1701.1).
5, the jury found not true the allegations of great bodily harm upon Flores and
Aguilera, respectively.
The trial court sentenced appellant
to county jail for a one-year term on count 1 and a six-month term on count 2,
but stayed both sentences pursuant to Penal Code section 654. The trial court sentenced appellant to state
prison for consecutive terms of three years on count 3 and eight months on count
5. After a restitution hearing, the
trial court ordered restitution of $21,606 to Flores and $8,156 to Aguilera
for past and future dental costs.
DISCUSSION
I. Double Jeopardy
Appellant contends his four
convictions all relate to his unlicensed practice of dentistry and are
prohibited by the double jeopardy clauses of the federal and the state Constitutions.
(U.S.
Const., 5th Amend.; Cal. Const., art. I, § 15.)
He further contends double jeopardy precludes the imposition of
sentences for both counts of violation of section 1701.1. We disagree with both contentions.
Double jeopardy does not preclude
multiple convictions in a single criminal proceeding. “As regards federal double jeopardy
principles, ‘[t]he Double Jeopardy Clause “protects against a
after acquittal. It protects against a
after conviction. . . .†[Citation.]’ [Citation.] [These protections] are clearly not implicated
here because we are directly concerned only with multiple convictions in a
unitary trial, not multiple punishments in successive unrelated criminal
proceedings.†(People v. Sloan (2007) 42 Cal.4th 110, 120-121 (
Appellant cites cases for the
proposition that a single actus reus cannot be the basis for more than one conviction based on the same
statute in a single proceeding, arguing one of his two section 1701.1
convictions is thereby barred. These
cases do not appear to be based on double jeopardy principles, and in any event
are distinguishable. One involves a
single incident, rather than the years-long course of conduct at issue
here. (See Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 348 [conduct was “a
single incident of driving under the influenceâ€].) In others, the court concluded the relevant
statute contemplated only a specific
continuous course of conduct, and thus such a course of conduct constituted a
single violation. For example,
(Lewis) involved a statute penalizing
“ ‘[a]ny person who, knowing another person is a prostitute, lives or
derives support or maintenance in whole or in part from the earnings or
proceeds of such person’s prostitution . . . .’ †(Id.
at p. 460.) The defendant was
charged with multiple counts of violating the statute, which all “involved the
same prostitute; they differ only as to date.†(Ibid.) The court held only one count could be
charged because “[r]easonable interpretation of the statutory definition leads
to but one conclusion — that the legislative intent was that living or deriving
support or maintenance from the earnings of a prostitute or proceeds of her
prostitution knowing her to be a prostitute is an ongoing continuing offense
that occurs over a period of time.â€
v. Garcia (2003) 107 Cal.App.4th 1159, 1162, fn. 1, 1163 [crime of
“ ‘flee[ing] or attempt[ing] to elude a pursing peace officer’ â€
violated only once by “an uninterrupted single course of conduct, i.e., one
continuous act of driving lasting 30 minutes†because the statute “contemplates
a continuous course of driving, which may transpire over a short or long period
of timeâ€].)
As we discuss below, section 1701.1
can be violated either by a single act or by a course of conduct of practicing
unlicensed dentistry over time which causes a risk of harm to a particular
individual. (See parts II & III.B.,
Accordingly, counts 3 and 5 charged distinct crimes — courses of conduct
involving Flores and Aguilera, respectively — which do not constitute a single
actus reus.
Appellant notes the double jeopardy
clause also protects against multiple punishments, but “the Supreme Court has
made clear that ‘[t]he [Double Jeopardy] Clause protects only against the
imposition of multiple criminal punishments for the same offense
. . . [citations] . . . and
then only when such occurs in successive proceedings. [Citation.]’
[Citation.]†(
p. 121.) When punishment is imposed
in a single proceeding, “[f]ederal law, like California
statutory law, clearly recognizes that cumulative punishment may be imposed
under two statutes, even where they proscribe the same conduct, if the
Legislature has specifically authorized cumulative punishment. [Citation.]â€
654 sets forth the Legislature’s determination of when multiple punishments in
the same criminal proceeding are authorized.
We discuss its application to this case below.
II. Penal Code Section 654
Appellant argues the imposition of
consecutive sentences on both counts of section 1701.1 violated Penal Code
section 654.
Penal Code section 654 precludes
multiple punishments for a single “act or omission.â€
criminal conduct is divisible and therefore gives rise to more than one act
within the meaning of [Penal Code] section 654 depends on the intent and
objective of the actor. If all of the
offenses were incident to one objective, the defendant may be punished for any
one of such offenses but not for more than one.’ [Citation.]†(Correa,
54 Cal.4th at p. 336.) “The ‘intent
and objective’ test is a rigorous one, however, since ‘a “broad and amorphousâ€
view of the single “intent†or “objective†needed to trigger the statute would
impermissibly “reward the defendant who has the greater criminal ambition with
a lesser punishment.†’ [Citation.]†(People
v. Morelos (2008) 168 Cal.App.4th 758, 769.) “A trial court’s express or implied
determination that two crimes were separate, involving separate objectives,
must be upheld on appeal if supported by substantial evidence. [Citation.]â€
(People v. Brents (2012) 53
Cal.4th 599, 618.)
Appellant argues the two section
1701.1 counts used identical language, including the same time period of January 1, 2006 through December 31, 2009. However, the verdict form for each count
included the allegation of great bodily injury identifying a different victim:
Flores and Aguilera, respectively. This
indicated to the jury that count 3 involved the unlicensed practice of
dentistry creating a risk of harm to Flores, and count 5 involved the unlicensed practice of dentistry creating
a risk of harm to Aguilera. The
prosecutor’s closing argument confirmed this understanding of the separate
basis for each count: as to “Flores, the evidence has shown that [when
appellant] committed [c]ount 3, he committed unlicensed practice of dentistry
creating risk of harmâ€; “[c]ount 5 involved . . . Aguilera.†The distinction between counts 3 and 5 was
based on the victim involved.
Appellant argues the years-long
period of practicing unlicensed dentistry creating a risk of harm is a single
act or indivisible course of conduct.
There were indisputably multiple discrete acts of such practice over
this period of time. Moreover, a course
of conduct violating section 1701.1 can be divisible. In People
v. Brown (1991) 234 Cal.App.3d 918 (Brown),
the Court of Appeal considered an analogous statute prohibiting the unlicensed
practice of medicine creating a risk of harm (Bus. & Prof. Code, former
§ 2053);
name="_ftnref9" title="">[9] Brown conducted such unlicensed practice on four separate dates
over a period of months, each involving the same individual, and was convicted
on four separate counts. (
that his actions constituted an indivisible course of conduct precluding
imposition of punishment on each count: “Based on the clear evidence of Brown’s
practicing medicine without a license on separate occasions and receiving
separate payments in connection with each occasion, the evidence supports the
trial court’s implied finding a different intent and objective attended each of
the four counts of violating Business and Professions Code [former] section
2053.†(Id. at p. 933.)
Appellant’s counts were not divided
by date, as was the case in Brown,
but instead by the individuals upon whom he practiced unlicensed
dentistry. Such a division is also
contemplated by section 1701.1. (See
91, 97 [in practicing medicine without a license with numerous patients, the
practice in connection with each patient would be a separate violation
divisible in time from the others].)
The trial court found appellant had
a different objective in practicing unlicensed dentistry on Flores and on Aguilera. Substantial evidence supports this
finding. The imposition of consecutive
sentences for each section 1701.1 count was not precluded by Penal Code section
654.
III. Unanimity Instruction
Appellant argues the trial court
erred in failing to instruct the jury, sua sponte, it was required to unanimously
agree on the act or acts supporting a conviction on all counts for which
appellant was convicted.
“[I]f one criminal act is charged,
but the evidence tends to show the commission of more than one such act, ‘
specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree
that the defendant committed the same specific criminal act.’ [Citation.]â€
(People v. Napoles (2002) 104
Cal.App.4th 108, 114 (Napoles).)
A. Counts 1
and 2
Count 1 alleged the uncertified practice
of medicine with respect to Monica Santiago, an investigator for the Dental
Board of California. Santiago testified
at trial that, in an undercover operation, she complained to appellant about a
painful molar; appellant examined and diagnosed her tooth. Santiago only visited appellant on one date.
Although count 2 did not specifically identify Santiago, the prosecutor
explained in his opening statement, “the first two crimes dealt with Monica
Santiagoâ€; Santiago saw appellant “on June 24th, [2009, and] he wrongly
prescribed a medical treatment . . . . Those are the first two counts of the
case.†As the prosecution relied on only
a single act to prove these charges, no unanimity instruction was required.
In any event, appellant’s counsel
admitted his guilt on these two counts in both opening and closing statements;
any error was thus harmless. (
18, 24; People v. Watson (1956) 46
Cal.2d 818, 836; see also Napoles, supra,
104 Cal.App.4th at p. 119, fn. 8 [“[t]here is a split of authority on the
proper standard for determining whether the erroneous failure to give a
unanimity instruction is reversibleâ€].)
B. Counts 3
and 5
Even where multiple acts are relied
upon with respect to a single count, “no unanimity instruction is required
where the acts proved constitute a continuous course of conduct. [Citation.]â€
(Napoles, supra, 104
Cal.App.4th at p. 115.) This exception may arise when “ ‘the
statute contemplates a continuous course of conduct of a series of acts over a
period of time,’ †as demonstrated by statutory language which
“ ‘focuses on the goal or effect of the prohibited crime.’ †(Ibid.) Section 1701.1 penalizes “a person who
willfully, under circumstances or conditions that cause or create risk of
bodily harm, serious physical or mental illness, or death, practices or
attempts to practice†dentistry without a license. The statute’s focus is on the
risk of harm to an individual caused by such unlicensed dentistry. Thus, this statute may be violated by a
continuous course of conduct involving several incidents of unlicensed
dentistry creating a risk of harm.
Contrary to appellant’s argument,
this conclusion does not preclude the possibility that the statute may
by a course of conduct involving a single individual. In Napoles,
which held no unanimity instruction was required for a child abuse charge, the
court noted, “child abuse is not invariably charged as a course of conduct offense;
one act or omission constituting abuse may be sufficient for conviction.†(Napoles,
supra, 104 Cal.App.4th at p. 116.)
Similarly, in People v. Sanchez
(2001) 94 Cal.App.4th 622, 634, the court found, “while animal cruelty may be
committed by a continuous course of conduct, it may also be committed by a
single act of abuse such as by kicking or beating an animal.†The inquiry turns on how the violation is
charged and presented to the jury. Where
the count alleges conduct occuring over a range of dates, that “language alerts
the jury that the charge consists of a continuous course of conduct, to be
proved by evidence of more than one individual act.†(Napoles,
at p. 117.) If the evidence
conforms with this understanding, establishing conduct “on an ongoing basis
during the charged period of time†causing the effect targeted by the statutory
language, the offense charged is a continuing one and no unanimity instruction
is required. (Sanchez, at p. 634.) In
contrast, where the charge alleges “a particular act on a particular day†(
establishes two or more “discrete criminal events . . . , each
sufficient to support a conviction†(Sanchez,
at p. 634), a unanimity instruction is required.
The information here charged conduct
occurring between January 1, 2006 and December 31, 2009, with respect to both Flores (count 3) and Aguilera (count 5). It was undisputed that appellant practiced
unlicensed dentistry on both of these women over a period of years. In his closing statement, the prosecutor did
not argue that any individual incident of unlicensed dentistry was sufficient
for a conviction, but instead, in conformance with the charging document and
the evidence, argued the violation was proven by the continuous course of
conduct. As counts three and five
involved continuous courses of conduct with respect to Flores and Aguilera,
respectively, no unanimity instruction was required.
IV. Restitution
Appellant challenges the order
awarding restitution to Flores and Aguilera.
He does not contest the amounts claimed, but rather argues his
unlicensed practice of dentistry could not have caused the losses.
Restitution is authorized “in every
case in which a victim has suffered economic loss as a result of the
defendant’s conduct.†(Pen. Code,
§ 1202.4, subd. (f).) Tort
principles of causation apply, requiring the conduct be a “ ‘ “more
than negligible or theoretical†’ †cause of the harm. (People
v. Holmberg (2011) 195 Cal.App.4th 1310, 1321.) “[W]e review the trial court’s restitution
order for abuse of discretion.†(
644, 663.)
Appellant in essence contends the
crimes of which he was convicted can cause no harm. We disagree.
Unlicensed dentistry is prohibited because of the risk the dental work
will be performed improperly. The trial
court found appellant’s unlicensed dentistry was performed improperly, and the improperly performed dental work
required Flores and Aguilera to seek additional dental work, thereby incurring
economic loss. The finding was not an
abuse of discretion.
DISPOSITION
The
judgment is affirmed.
SIMONS,
J.
We concur.
JONES, P.J.
BRUINIERS, J.
facts relating to the counts of which appellant was acquitted as they are not
relevant to this appeal.
testified through an interpreter.
