People v. Tseng ( 2018 )

Filed 12/14/18
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B270877
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA394495)
v.
HSIU YING LISA TSENG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, George G. Lomeli, Judge. Affirmed.
Verna Wefald, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant Attorney
General, Victoria B. Wilson, and David Glassman, Deputy
Attorneys General, for Plaintiff and Respondent.
Pursuant to California Rules of Court, rules 8.1100 and
*
8.1110, this opinion is certified for publication with the exception
of the Discussion post, parts II-VII.
Defendant and appellant Hsiu Ying Lisa Tseng, a physician,
appeals from the judgment entered upon her convictions of three
counts of second degree murder, 19 counts of unlawfully prescribing
controlled substances, and one count of obtaining a controlled
substance by fraud. She contends that substantial evidence did
not support the murder convictions and that the trial court erred in
(1) admitting evidence of six uncharged patient deaths; (2) failing
to unseal and quash a search warrant of her financial records;
(3) failing to grant a mistrial based on prosecutorial misconduct;
(4) reopening closing argument; and (5) failing to apply Penal Code1
section 654 to the murder conviction sentences. None of her
arguments are meritorious. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
A. Tseng’s Medical Clinic and Practice
In approximately 2007, Tseng, a licensed physician practicing
internal medicine and osteopathy, joined Advance Care AAA
Medical Clinic (the clinic) in Rowland Heights, a general medical
practice operated by her husband. When Tseng first joined the
clinic, the patients came from the local Hispanic and Asian
communities, the wait time for each patient was 15 to 30 minutes
and 90 percent of the patients paid for treatment through their
insurance.
By 2008, the practice and the clientele of the clinic had
changed. Most of Tseng’s patients were now white males in their
1 All statutory references are to the California Penal Code
unless otherwise indicated.
2 This case involved a six-week trial on two dozen criminal
charges relating to Tseng’s medical practice and prescriptions
of controlled substances. We include only the facts and evidence
relevant to the issues on appeal.
2
20’s and 30’s who came from outside Los Angeles County seeking
pain and anxiety management medications. By 2010, the clinic had
developed a reputation as a place where patients could easily obtain
prescriptions for controlled substances, including opioids, sedatives,
muscle relaxants, and drugs used to treat drug addiction. In
addition, fees had doubled, and nearly all patients paid in cash.3
The clinic’s income increased from $600 a day in cash to $2,000 to
$3,000 per day.4
According to one visitor, the clinic looked “like a parole
office” with “drug dealing.” The wait time for Tseng’s patients
also increased to about six hours with 20-30 patients inside the
waiting room or outside the clinic at any one time. Some patients
appeared to be under the influence of drugs or suffering from drug
withdrawals, and one patient overdosed in the waiting room. When
G.R., the clinic’s receptionist, expressed concern about the number
of patients waiting and the level of anxiety and agitation they
expressed in the waiting room, Tseng told her that they were
“druggies” and could wait.
B. Tseng’s Treatment and Prescribing Methods
Beginning in 2008
Tseng spent about 10 to 15 minutes with new patients and
five minutes with them on return visits. Often she would see two or
three unrelated patients in the same examination room at the same
3 Tseng also charged $5 to “split” a prescription. “Splitting”
is a practice of writing a prescription on two different prescription
forms so that a patient could fill the prescription on different dates
or at different pharmacies.
4 It appears that the clinic’s earnings grew during this time
because of the increase in fees charged for services and in the
number of patients treated on a daily basis.
3
time. Tseng would often undertake no (or only a cursory) medical
examination of her patients; patients for whom she would prescribe
pain medications often expressed nonspecific complaints about
anxiety and pain from old injuries. Many times, she did not
obtain an adequate medical history or prior medical records before
prescribing medications. For example, she did not do drug testing
or review the California’s Controlled Substance Utilization Review
and Evaluation System (CURES) database5 to determine whether
patients had current or prior prescriptions for controlled substances
from other doctors. Tseng routinely wrote prescriptions for opioids
(such as oxycodone, oxymorphone, fentanyl, and hydrocodone),6
sedatives (such as promethazine and benzodiazepine),7 muscle
relaxants (such as carisoprodol, which is sold under the brand name
Soma®), and amphetamines, as well as controlled substances used
to treat drug and opioid addictions (such as methadone and
5 CURES collects prescription dispensation information
for all controlled substance prescriptions written in the State of
California for individual patients. By referring to the CURES
database, a doctor may determine when and from whom a
particular patient has obtained a prescription for a controlled
substance. This can reveal whether the patient may be abusing
controlled substances by obtaining prescriptions for the same drug
from multiple doctors.
6 Branded formulations of oxycodone are sold under the
brand names OxyContin® or Roxicodone®; branded formulations
of oxymorphone are sold under the brand names Opana® or
Opana ER®; and branded formulations of the drug hydrocodone are
sold under the brand names Norco®, Vicodin®, or Lortab®.
7Tseng prescribed a benzodiazepine drug sold under the
names alprazolam and Xanax®.
4
buprenorphine/naloxone).8 Tseng sometimes allowed patients to
pick up prescriptions for other patients who were not at the clinic.
The evidence presented at trial showed that on at least one
occasion Tseng prescribed a patient’s relative, who had never been
Tseng’s patient, a controlled substance. Tseng acknowledged that
some patients, who presented symptoms suggesting opioid and drug
addiction and withdrawal, were merely seeking drugs.
C. Investigations of Tseng’s Practice
Beginning in 2008, pharmacists began to refuse to fill
prescriptions written by Tseng because the prescriptions raised
“red flags”; the patients’ profiles, conduct, and the combination
of substances and quantities Tseng prescribed indicated no
legitimate medical purpose for writing the prescriptions. When
Tseng learned of this, she referred her patients to “mom and pop”
pharmacies, which continued to fill her prescriptions. That same
year, law enforcement investigators, including investigators from
the coroner’s office, began calling Tseng to discuss the deaths of
several of her patients and to apprise her that the patients had died
of suspected drug overdoses shortly after obtaining prescriptions
from her. Once she became aware of the deaths, she entered
“alerts” in some of the patients’ records indicating that they had
died from a possible drug overdose. She also altered9 patient
8 The United States Drug Enforcement Agency (DEA) had
not licensed Tseng to prescribe drugs to treat addiction.
9 During this period, the clinic began using digital patient
records that allowed Tseng to enter medical information, including
“alerts” in a patient file to convey information to a receptionist
about a patient. According to G.R., until authorities began
investigating the clinic and requesting information about Tseng’s
patients, many patient records were incomplete or blank. In
fact, the digital copies of medical records obtained in 2010 by
5
records but continued her prescribing practices until she was
arrested in 2012.
In 2010, the DEA and California Department of Justice (DOJ)
investigated Tseng for diversion of drugs. DEA agents executed a
search warrant at Tseng’s medical group. Agents seized computers
and created digital copies of her computer files. In 2012, the
Medical Board of California (the Medical Board) also executed
a search warrant on Tseng’s medical group, seizing patient records.
Evidence produced during the investigation revealed that from
2007 through 2010, the clinic’s gross receipts were approximately
$5,000,000.
D. Tseng’s Patients’ Overdose Deaths
In July 2012, Tseng was arrested and charged with
three counts of second degree murder (§ 187 (count 1, Vu Nguyen;
count 2, Steven Ogle; and count 4, Joseph Rovero)), 20 counts of
unlawfully prescribing controlled substances to patients (Health &
Saf. Code, § 11153, subd. (a) (count 3 & counts 5-23)), and one count
of obtaining a controlled substance by fraud (Health & Saf. Code,
§ 11173, subd. (a) (count 24)).
At trial, the prosecution presented evidence that from
September 2007 to December 2009, nine of Tseng’s patients—
ranging from 21 to 34 years of age—died shortly after filling
the prescriptions Tseng wrote them for controlled substances.
law enforcement from Tseng’s office computers contained few
exam notes for patients who had died from drug overdoses;
however, the same records seized by authorities in 2012 for the
same office visits revealed extensive exam notes, indicating that
Tseng had altered the records while she was under investigation.
6
1. Murder charges
a. Death of Vu Nguyen (count 1—second
degree murder) in 2009
In early February 2009, Tseng prescribed 28-year-old
Nguyen the sedative Xanax®, and the opioids Norco® and
Opana®.10 Nguyen died several days later of a drug overdose.
Nguyen’s family did not believe he suffered from any medical
condition that required him to take painkillers. The Orange
County Coroner’s Division conducted Nguyen’s autopsy and
determined the cause of his death was the combined effects of
Opana® and Xanax®, although he had methadone in his system
as well.11
On March 9, 2009, the coroner’s investigator contacted
Tseng to discuss Nguyen’s death. Tseng told the investigator she
started treating Nguyen on August 9, 2008, for back and neck
pain. She prescribed the opioid Norco® and sedative Xanax®.12
Two weeks later, Nguyen returned and said he had taken all of
the medication because the pain was “too much.” Tseng wrote
him a refill prescription. Although Tseng claimed she told Nguyen
she would not write refill prescriptions for his medications “early”
again, she failed to discuss with him the potential health risks of
Norco® and Xanax®. Nguyen returned to Tseng at the beginning of
10 On February 7, 2009, Tseng prescribed Nguyen: Xanax®
(2 mg, 90 tablets); Norco® (10 mg, 90 tablets); and Opana® (10 mg,
90 tablets).
11 Tseng never prescribed Nguyen methadone.
12 The record does not contain evidence of the doses or
number of pills of Norco® or Xanax® that Tseng initially prescribed
Nguyen.
7
November 2008 and said the medications were not working. Tseng
prescribed the opioid Opana®, which is three times stronger than
Norco®, and wrote him a refill prescription for Xanax®. During
that visit, Nguyen also told Tseng that he had Attention Deficit
Disorder and reported he was having trouble concentrating. Tseng
did not attempt to corroborate the diagnosis of Attention Deficit
Disorder; nonetheless, Tseng prescribed him Adderall®.13 Nguyen
returned on December 1, and Tseng prescribed Vicodin®,14 Opana®,
and Xanax® for him. Nguyen returned on January 5, 2009, and
reported that the Vicodin® was not strong enough. Tseng
prescribed Nguyen a higher dose of the opioid Norco® (10 mg,
90 tablets), and gave him refill prescriptions for the opioid Opana®
(10 mg, 90 tablets) and the sedative Xanax® (2 mg, 90 tablets). A
month later, at Nguyen’s last visit, Tseng wrote those refill
prescriptions for the same dose and number of pills. Tseng told the
coroner’s investigator that Nguyen was always seeking more
medication and stronger doses.
The prosecution also presented evidence that Tseng did not
obtain information from Nguyen to corroborate his complaints of
pain and anxiety or complete an adequate physical examination to
determine whether a legitimate medical reason existed to prescribe
the controlled substances. In addition, although Nguyen reported
to Tseng that he was taking “high doses of opioids” prescribed by
other doctors, Tseng did not contact Nguyen’s other doctors. Tseng
did not obtain medical records relating to Nguyen’s prior treatment
or a complete medical and mental health history of Nguyen.
13 Adderall® is the brand name of an amphetamine drug
commonly prescribed to treat the symptoms of Attention Deficit
Disorder.
14 The opioid Vicodin® is a hydrocodone opioid of the same
degree of strength as the hydrocodone opioid Norco®.
8
Tseng’s medical records pertaining to Nguyen showed that
Tseng had not provided a treatment plan for Nguyen, nor had
she educated him about alternative treatments for his symptoms
or the potential risks of the substances she prescribed. In addition,
the prosecution presented evidence that Tseng had altered
Nguyen’s patient records between 2010 and 2012 by filling in
information in his records that she had left incomplete while she
was treating Nguyen.
The prosecution’s medical expert testified that Tseng’s
treatment of Nguyen represented an extreme departure from the
standard of medical care.
b. Death of Steven Ogle (count 2—second
degree murder; count 3—unlawful
prescription) in 2009
Steven Ogle, who lived in Palm Springs, sought treatment
from Tseng in early March 2009, complaining of pain caused by
a car accident that had occurred several years before. According
to Tseng’s patient records for Ogle, during his first visit to Tseng’s
clinic on March 2, 2009, he told Tseng he was taking six to eight
OxyContin® tablets (80 mg) per day,15 using heroin, and that he
wanted to take methadone. Tseng did not ask who had prescribed
Ogle the OxyContin®. Even though Tseng was not an addiction
specialist licensed to prescribe and monitor the use of methadone,
she wrote Ogle prescriptions for methadone (10 mg, 100 tablets)
15 According to expert testimony presented at trial, an
80 milligram dose of OxyContin® is an amount typically prescribed
to a terminal cancer patient. There was no evidence Ogle was
suffering from cancer.
9
and Xanax® (2 mg, 100 tablets).16 Ogle returned to the clinic two
weeks later on March 17, 2009, having used all of the medication
and suffering from symptoms of withdrawal. Tseng wrote refill
prescriptions for Ogle. On April 7, again having used all the
medications prescribed on March 17 and suffering from withdrawal
symptoms, Ogle returned to the clinic for more prescriptions.
Tseng again prescribed Xanax® (2 mg, 100 tablets) and methadone
(10 mg, 100 tablets). Ogle died two days later. Investigators found
three bottles of prescription medication near Ogle’s body. Tseng
had written prescriptions for two of these only two days earlier:
methadone, 100 tablets (7 remaining) and Xanax®, 100 tablets
(15.5 remaining). The third bottle, containing OxyContin®, had
been prescribed in January 2009 by another doctor. The coroner
opined that Ogle died of “methadone intoxication.”
In early May 2009, a coroner’s investigator called Tseng
regarding Ogle. Tseng confirmed that Ogle’s first visit was in
March 2009, about a month before his death. She said that
Ogle reported he was abusing OxyContin® and wanted her help
to stop, and therefore she prescribed methadone and Xanax®.
Tseng said she saw Ogle again two weeks later and wrote him refill
prescriptions. Tseng confirmed he returned in early April and she
16 Ogle’s sister-in-law accompanied him on visits to the
clinic. She testified it was her belief that at Ogle’s first visit on
March 2, 2009, Tseng prescribed Ogle: OxyContin®, Xanax®,
and the sedative promethazine. She also testified that at Ogle’s
second visit in mid-March, she believed that Tseng wrote refill
prescriptions and also prescribed methadone. Tseng’s patient
records for Ogle do not indicate that she prescribed him OxyContin®
or promethazine. Likewise, when Tseng spoke to the coroner’s
investigator in May 2009, after Ogle’s death, Tseng did not
mention prescribing Ogle OxyContin® or promethazine.
10
wrote Ogle refill prescriptions again. She claimed that she told
Ogle not to take methadone with other opioids.
The prosecution presented expert medical testimony that
Tseng’s method of treatment of Ogle represented an extreme
departure from the standard of care in various ways, including that
Tseng was not a licensed addiction specialist and did not have the
training to monitor Ogle’s use of methadone.
c. Death of Joseph Rovero (count 4—second
degree murder; count 5—unlawful
prescription) in 2009
In 2009, Rovero was a 21-year-old student at Arizona State
University, who traveled from Arizona seeking treatment at
Tseng’s clinic. Tseng saw Rovero only once, on December 9, 2009,
to treat his complaints of back pain, wrist pain, and anxiety.
Rovero informed Tseng he had been using high doses—six pills
(150 mg to 200 mg) of OxyContin® and Xanax® and the muscle
relaxant Soma®—every day and requested the same prescriptions.
Tseng prescribed him the opioid Roxicodone® (30 mg, 90 tablets),
Soma® (350 mg, 90 tablets), and Xanax® (2 mg, 30 tablets).
Nine days later, when Rovero died of a drug overdose, empty
bottles of medications prescribed by Tseng were found near his
body. The coroner in Arizona investigating Rovero’s death found
the cause of death was combined drug toxicity, including alcohol,17
prescription opioids, muscle relaxants (Soma®), and a sedative
(Xanax®).
When investigators questioned Tseng about Rovero’s death,
she admitted treating Rovero and knowing that he had been using
opioids, sedatives, and muscle relaxants prescribed by other
17 The amount of alcohol in Rovero’s blood at the time of
his death was a non-lethal amount.
11
doctors. She told investigators that she believed Rovero was
taking an inappropriate amount of OxyContin®. Consequently,
she prescribed Roxicodone® instead, as well as Xanax® and Soma®.
Her stated goal was to wean Rovero from opioids. Tseng did not,
however, verify the doses or the types of medications that Rovero
claimed other doctors had previously prescribed him. Tseng
reduced the doses of all three drugs Rovero reported taking by
80 percent, which, according to the evidence presented at trial,
guaranteed he would suffer from withdrawals. The prosecution’s
expert explained that when an individual has been abusing pain
medications by taking high doses of the medications—as Rovero
was—any efforts to “wean” the person from those drugs require a
gradual reduction in dosing; otherwise, the individual might
experience symptoms of drug withdrawal that place the individual
at risk of overdose or death. The prosecution also presented
evidence that the prescriptions Tseng wrote for Rovero likely
increased his potential for overdose and death because Tseng failed
to verify the doses of the drugs he had been previously prescribed.
2. Uncharged deaths of Tseng’s patients
During the trial, in addition to the deaths of Nguyen, Ogle,
and Rovero, the prosecution presented evidence of the following
six uncharged deaths of Tseng’s patients from prescription drug
overdoses between late 2007 and 2009: Matthew Stavron, Ryan
Latham, Nathan Keeney, Joshua Chambers, Joseph Gomez, and
Michael Katnelson.
Specifically, with respect to patient Stavron, who died in
2007, Tseng prescribed to him, among other drugs, OxyContin®
(80 mg). During the DEA’s investigation of Tseng’s practice, she
told an undercover DEA agent that an 80 milligram prescription of
OxyContin® is “super high.” She was also aware that OxyContin®
12
is primarily prescribed only to treat pain from broken bones or
cancer, and that Stavron did not suffer pain from broken bones
or cancer. Two days after Tseng wrote Stavron a prescription for
OxyContin®, he died from an overdose of that medication. When
the coroner’s investigator called Tseng to discuss Stavron’s death,
she told the investigator that Stavron was drug-seeking.
Tseng’s patients Latham and Keeney died in 2008. Tseng had
prescribed Latham Norco® (10 mg, 150 tablets), in addition to other
drugs. As Tseng told an undercover DEA agent, Norco® is addictive
and “evil.” Two days after Tseng wrote Latham the prescription, he
died from a Norco® overdose. During a call with the coroner’s
investigator, Tseng described the number of Norco® pills Latham
took per day and characterized him as a “drug-seeker.”
Tseng prescribed Keeney OxyContin® (80 mg, 60 tablets).
There was no indication that Keeney had broken bones or cancer.
Tseng also prescribed to him methadone (10 mg, 100 tablets). Four
days after filling the prescriptions from Tseng, Keeney died from a
methadone and OxyContin® overdose. Tseng told the coroner’s
investigator that Keeney had “somewhat drug-seeking behavior.”
Tseng was aware of Stavron’s and Latham’s overdose deaths
before she started treating murder victim Nguyen, and learned of
Keeney’s death while she was treating Nguyen. In addition, by
the time that murder victim Ogle died in April 2009, Tseng had also
learned of Nguyen’s death.
In 2009, Tseng’s patients Chambers, Gomez, and Katnelson18
also succumbed to drug overdoses. Specifically, concerning
Katnelson, Tseng prescribed him fentanyl (10 of the 75 mcg-
18 Tseng was charged with issuing unlawful prescriptions
with respect to Chambers (count 8), Gomez (count 10), and
Katnelson (count 13).
13
per-hour patches). Fentanyl is an opioid 100 times more
potent than morphine. Katnelson died the day after he filled
the prescription from Tseng. Tseng told the coroner’s investigator
that she did not know Katnelson well enough to know whether he
was abusing the medication.
Tseng prescribed Chambers, among other drugs, Norco®
(10 mg, 100 tablets); Chambers died three days later. The coroner
determined Chamber’s cause of death was a combination of drugs,
including Norco®. Tseng told the coroner’s investigator that
Chambers appeared to be drug-seeking because he finished his
drugs early and because his insurance company apprised her that
Chambers was seeking medication from other doctors. She also
reported that she suspected Chambers was abusing alcohol.
Tseng prescribed Gomez, among other drugs, the opioid
Roxicodone® (30 mg, 90 tablets) and Xanax® (2 mg, 100 tablets);
two days later, Gomez died. The coroner determined he died of
a combined intoxication, including Roxicodone® and Xanax®.
Tseng told the coroner’s investigator that Gomez attempted to get
medication from other doctors.
Tseng learned of the drug overdose deaths of Chambers,
Gomez, Katnelson, and Ogle before she began treating murder
victim Rovero in December 2009.
Similar to the deaths of the patients in the charged murder
counts—Nguyen, Ogle, and Rovero—the six uncharged patient
deaths of Stavron, Latham, Keeney, Chambers, Gomez, and
Katnelson all occurred within days after Tseng wrote them
prescriptions for high doses of opioids, sedatives, or other drugs.
These patients—Stavron, Latham, Keeney, Chambers, Gomez, and
Katnelson—also fit the same patient profile as Nguyen, Ogle, and
Rovero. They were in their 20’s or early 30’s, and Tseng knew they
were drug-seeking and drug-abusing. Tseng treated some of
14
these patients only once while others returned several times; each
time, Tseng prescribed high doses of controlled substances.
Moreover, after the coroner’s investigators contacted Tseng to
inform her when each patient had died from a drug overdose, Tseng
entered an “alert” in the clinic’s computer records for some of those
patients, indicating the patient had died from a possible drug
overdose. A comparison of the patient records seized in 2010 and
2012 also showed that Tseng had altered patient records, while she
was under investigation, by completing records that had been
previously left blank or incomplete.
Even after Tseng learned of these deaths, she continued
to prescribe high doses of controlled substances, including opioids,
sedatives, and in some cases, methadone to other patients.
A jury found Tseng guilty of three counts of second degree
murder, 19 counts of unlawfully prescribing controlled substances,
and one count of obtaining a controlled substance by fraud. The
trial court sentenced her to 30 years to life in state prison. Tseng
filed a timely notice of appeal.
15
DISCUSSION
I. Substantial Evidence Supports Tseng’s Second Degree
Murder Convictions
Tseng contends that substantial evidence does not support
her convictions of second degree murder of Nguyen, Ogle, and
Rovero because there was no evidence that she acted with implied
malice, and, in the case of Nguyen and Rovero, no evidence that her
conduct was the proximate cause of their deaths. She argues that
although she acted with negligence sufficient to support convictions
for involuntary manslaughter, there was no evidence that she
acted with conscious disregard for her patients’ lives. Specifically,
she asserts that because coroner and police investigators never
informed her that she was responsible for the victims’ deaths or
the deaths of other patients, her continued practice of prescribing
high doses and large quantities of opioids and other controlled
substances did not show the necessary reckless mindset to support
a finding of implied malice.
We review the evidence in the light most favorable to the
verdicts, presuming the existence of every fact the trier could have
reasonably deduced from the evidence. (People v. Johnson (1993)
6 Cal.4th 1, 38, overruled on other grounds by People v. Rogers
(2006) 39 Cal.4th 826.) We apply the same standard to our review
of circumstantial evidence. (People v. Ceja (1993) 4 Cal.4th
1134, 1138.) As set forth below, we conclude that substantial
evidence supports the jury’s verdict.
A. Evidence of Implied Malice
Implied malice exists when an intentional act naturally
dangerous to human life is committed “ ‘by a person who knows
that his conduct endangers the life of another and who acts with
conscious disregard for life.’ ” (People v. Lasko (2000) 23 Cal.4th
16101, 107, quoting Pen. Code, § 188.) “It is the ‘ “ ‘conscious
disregard for human life’ ” ’ that sets implied malice apart from
gross negligence.”19 (People v. Contreras (1994) 26 Cal.App.4th 944,
954.) “Implied malice is determined by examining the defendant’s
subjective mental state to see if . . . she actually appreciated
the risk of . . . her actions.” (People v. Superior Court (Costa)
(2010) 183 Cal.App.4th 690, 697 (Costa); see People v. Olivas (1985)
172 Cal.App.3d 984, 988 [“[T]he state of mind of a person who acts
with conscious disregard for life is, ‘I know my conduct is dangerous
to others, but I don’t care if someone is hurt or killed.’ ”].) “Implied
malice may be proven by circumstantial evidence.” (Costa, supra,
183 Cal.App.4th at p. 697; see People v. Nieto Benitez (1992)
4 Cal.4th 91, 110 [“Even if the act results in a death that is
accidental . . . the circumstances surrounding the act may evince
implied malice.”].)
The record discloses overwhelming evidence that
Tseng’s treatment of Nguyen, Ogle, Rovero, and other patients
was well below the standard of care in the practice of medicine
and prescribing opioid medications. We recognize that, although
probative of Tseng’s subjective appreciation of risk, a departure
from the medical standard of care alone would not be sufficient to
support an implied malice finding. (See People v. Klvana (1992)
19 Second degree murder (based on implied malice) and
involuntary manslaughter both involve a disregard for life. For
murder, however, the disregard is judged by a subjective standard,
whereas for involuntary manslaughter, the standard is an objective
one. (People v. Watson (1981) 30 Cal.3d 290, 296–297.) Implied
malice murder requires a defendant’s conscious disregard for life,
meaning that the defendant subjectively appreciated the risk
involved. (Ibid.) In contrast, involuntary manslaughter merely
requires a showing that “a reasonable person would have been
aware of the risk.” (Id. at p. 297.)
17
11 Cal.App.4th 1679, 1703-1705 [even though the evidence
showed that doctor’s treatment of patients fell below the standard
of care, his second degree implied malice murder convictions
were affirmed not based on the evidence of the doctor’s negligence
but, instead, because sufficient evidence demonstrated doctor’s
actual awareness and conscious disregard of the life-threatening
dangers of his treatment of patients].) As noted above, to sustain
an implied malice murder conviction, there must be substantial
evidence that Tseng subjectively appreciated the risk to her
patients of her opioid prescription practices. Here, substantial
evidence supports the jury’s finding that Tseng acted with a
subjective appreciation of the risks involved in her medical
treatment of Nguyen, Ogle, and Rovero.
As a licensed physician, Tseng had expert knowledge of the
life-threatening risk posed by her drug prescribing practices. She
knew that the drugs she prescribed were dangerous and that the
combination of the prescribed drugs, often with increasing doses,
posed a significant risk of death. Tseng’s experience and medical
training regarding opioids and other controlled substances
endowed her with special knowledge of those dangers. During the
investigation of her practice, Tseng admitted to undercover DEA
agents that she understood that the drugs she was prescribing were
addictive and typically would only be prescribed to treat pain from
cancer and broken bones. She knew that she was prescribing those
drugs in high doses and in dangerous combinations to patients who
did not suffer from those conditions.
Tseng also took other actions that showed her awareness of
the danger of her prescribing practices. After larger pharmacies,
such as CVS and Walgreens, contacted Tseng to raise questions
about the lack of medical justification for her prescriptions, and
ultimately refused to fill those prescriptions, Tseng sent her
18
patients to small “mom and pop” pharmacies which she knew would
continue to fill her prescriptions. Moreover, although she knew
some patients were also obtaining similar prescriptions from
other doctors and were taking drugs in lethal combinations, Tseng
did not contact those other doctors to determine which drugs other
doctors had prescribed or in what doses and when; nor did she
check the CURES database for that information. Rather, Tseng
told patients—some of whom she knew were addicted to
prescription pain medication—not to mix the drugs.
There is substantial evidence of Tseng’s subjective
awareness of the risk of death her prescribing practices posed
to the three charged murder victims. Concerning Nguyen, the
evidence showed that from his initial visit, Tseng knew that
Nguyen was drug-seeking and that he was taking high doses of
opioids prescribed by other doctors. Nonetheless, she failed to
corroborate his complaints of pain and anxiety, contact his other
doctors, or do the kind of physical examination required to
determine whether a legitimate medical reason existed for
prescribing the drugs he requested. Instead, Tseng prescribed to
Nguyen opioids and sedatives, and when he returned two weeks
later having used up all the medications, she simply wrote him
refill prescriptions. According to Tseng, during the second visit,
she told Nguyen that she would not write him a prescription for his
medications “early” again. She failed, however, to discuss with him
the severe health risks of those combined medications. After that,
Nguyen returned almost every month until his death in February
2009 seeking more medication in higher doses. Tseng wrote him
refill prescriptions without further inquiry into the need for those
refills, let alone in higher doses. A reasonable jury could infer from
this evidence that Tseng was aware Nguyen was abusing the
opioids and sedatives she had prescribed, and that by continuing
19
to prescribe the drugs in greater amounts and stronger doses, Tseng
acted in conscious disregard for his life.
In addition, even while Tseng was treating Nguyen, she
learned of the deaths of other patients—Stavron, Latham, and
Keeney—who had similar patient profiles. They, like Nguyen, were
otherwise healthy, young men seeking prescriptions for controlled
substances and willing to pay cash, who died of drug overdoses
shortly after Tseng treated them. They also expressed vague
complaints about pain and reported taking prescription opioids and
sedatives. Tseng admitted she knew that many of these patients
were drug-seeking and had presented with symptoms of drug
addiction when she prescribed controlled substances to them.
She told her receptionist that her patients were “druggies.” She,
nonetheless, continued to prescribe high doses of opioids, sedatives,
and muscles relaxants without performing adequate physical
examinations of these patients and without corroborating their
claims of pain and prior injuries. When these patients returned
for subsequent visits and sought to refill the prescriptions, Tseng
complied and sometimes wrote them prescriptions for stronger
medications, again with no medical justification.
Substantial evidence further supports that Tseng acted
with implied malice when treating Ogle. At his first visit in
March 2009, Ogle told Tseng that he was taking extremely high
doses of OxyContin®—in amounts used to treat terminal cancer
patients—and using heroin daily. Rather than investigate this
report of Ogle’s drug use and prior treatment, Tseng prescribed him
100 tablets each of Xanax® as well as methadone—a drug she knew
she was not licensed or trained to prescribe. Ogle then returned
twice in the next month having used all the medications Tseng
had prescribed. During those visits, he informed Tseng that he had
taken all the medications and wanted refill prescriptions, and
20
Tseng observed that Ogle was suffering from symptoms
of withdrawal from drugs. Tseng did not, however, refer him
to an addiction specialist. Instead, Tseng just wrote him refill
prescriptions. From this evidence, and from the evidence that at
the time Tseng was treating Ogle she was aware of the deaths of
her patients Stavron, Latham, Keeney, and Nguyen, the jury could
reasonably have found that Tseng acted with implied malice in
treating Ogle.
Substantial evidence also supports that Tseng acted with
implied malice in treating Rovero. By the time she prescribed
drugs for Rovero in December 2009, Tseng knew that eight of her
patients (Stavron, Latham, Keeney, Chambers, Gomez, Katnelson,
Nguyen, and Ogle) had died shortly after she had prescribed the
types of drugs Rovero sought. Even armed with this knowledge,
she continued to prescribe dangerous drugs in conscious disregard
for Rovero’s life. Specifically, Rovero presented to Tseng as using
extremely high doses of OxyContin®, Xanax®, and the muscle
relaxant Soma® every day. Tseng did not, however, verify the
doses or the types of medications that other doctors had previously
prescribed to Rovero. Instead, Tseng substituted one brand of
opioid (OxyContin®) for another (Roxicodone®) and prescribed
Xanax® and Soma® in reduced doses, which, according to the
evidence presented at trial, guaranteed Rovero would suffer from
withdrawals and raised his potential for overdose and death.
Our conclusion that substantial evidence supports a finding
of implied malice with respect to each of the charged murders is
not unprecedented. Our research has uncovered three cases—a
federal case applying New York law and cases from California and
Michigan—in which appellate courts addressed the sufficiency of
evidence to support convictions of second degree murder or similar
21
charges, requiring evidence of recklessness or conscious disregard of
life, stemming from a licensed physician’s treatment of a patient.
Thus, in Einaugler v. Supreme Court of State of N.Y. (2d Cir.
1997) 109 F.3d 836, a medical doctor was charged under the
New York Penal Code with reckless endangerment and willful
patient neglect in connection with the death of his patient. The
prosecution presented evidence that he endangered his patient,
who was in a nursing home, when he prescribed that she be fed
through her dialysis catheter instead of her feeding tube, and then
engaged in willful neglect by delaying the patient’s hospitalization,
despite being told by other doctors that prompt treatment of the
patient in a hospital was necessary. (Id. at pp. 840-841.) Although
the doctor was not charged with second degree implied malice
murder, the reckless endangerment charge against him required
proof, as in Tseng’s case, of the doctor’s subjective awareness of the
danger of his treatment. (Id. at p. 840.)
After the state appellate court affirmed the doctor’s
conviction, the doctor filed a petition for a writ of habeas corpus
in the federal district court challenging the sufficiency of the
evidence supporting his conviction. In denying the petition,
the district court observed “[t]he reckless endangerment charge
required proof that [the doctor] had recklessly engaged in conduct
that created a substantial risk of serious physical injury. [New
York] Penal Law [section] 120.20. For [the doctor’s] act to be
reckless, he must have grossly deviated from a reasonable person’s
standard of conduct and consciously disregarded a substantial and
unjustifiable risk. See [New York] Penal Law [section] 15.05.”
(Einaugler v. Supreme Court of State of N.Y., supra, 109 F.3d at p.
840, italics omitted.) The district court concluded that the doctor’s
convictions were supported by “sufficient” evidence. The court
observed that the doctor knew of the dire health condition in which
22
his directions had placed his patient, had been directed
to hospitalize his patient immediately once she showed signs of
distress, and was aware of the serious health risk if she was not
transferred promptly. He nevertheless waited 10 hours before
transferring her to a hospital. (Ibid.)
Our opinion in People v. Klvana, supra, 11 Cal.App.4th 1679also supports our conclusion that substantial evidence supports the
jury’s finding of Tseng’s implied malice. In that case, we affirmed
a medical doctor’s convictions of second degree murder for the
deaths of nine infants. We concluded that a reasonable jury could
have found implied malice to support the murder convictions
based on the following evidence: The defendant repeatedly ignored
obvious signs of medical distress in his patients during delivery;
he advised parents not to take their children to the hospital
despite clear indications of the need to do so; he induced vaginal
births in inappropriate circumstances, after having been warned
on numerous occasions that his treatment was dangerously
substandard; and he continued to deliver babies despite the
fact that his hospital privileges had been suspended because
of substandard performance. (Id. at pp. 1704-1705.) Further
paralleling the facts here, in Klvana, the prosecution presented
evidence of an uncharged baby’s death resulting from the doctor’s
treatment to support the doctor’s subjective knowledge of the grave
risks of his treatment practices. (Ibid.)
People v. Stiller (2000) 242 Mich.App. 38, 43 (Stiller), is
also instructive. In Stiller, the Michigan appellate court affirmed
the implied malice second degree murder conviction of a doctor
who, for a four-month period, prescribed his patient high doses
of hydrocodone unrelated to any rational medical treatment.
(Id. at p. 43.) The patient then died from an overdose of drugs,
including hydrocodone. (Id. at p 41.)
23
In challenging his murder conviction, the doctor argued that
“there was no evidence that he actually instructed [his patient] to
take a fatal dose of drugs.” (Stiller, supra, 242 Mich.App. at p. 47.)
The Stiller court rejected the doctor’s argument: “[B]y prescribing
huge quantities of medicine unrelated to any rational medical
treatment and that had a possibility of interacting with other drugs
he prescribed, defendant should have known that an overdose was
likely to occur, and he therefore exhibited a wanton and willful
disregard of the likelihood that the natural tendency of his behavior
was to cause death or great bodily harm.” (Ibid.) The court also
supported its decision with evidence that pharmacies had warned
the doctor about his dangerous prescribing practices, the doctor
had prescribed very high doses of powerful drugs, and he had
knowledge that there was no legitimate medical reason for his drug
prescription for the murder victim. (Id. at pp. 43-45.) The same is
true here.
Finally, even accepting Tseng’s claim that investigators did
not expressly inform her that she was directly responsible for the
deaths of Nguyen, Ogle, Rovero, or other patients, her conduct,
after learning of these deaths, demonstrated she was aware of
the lethal consequences of her prescribing practices. For example,
Tseng placed “alerts” in the patient files indicating that they died
of suspected drug overdoses. She also altered patient records after
she learned she was under investigation. From this evidence
and other circumstantial evidence in the record, a jury could have
reasonably found Tseng knew the cause of Nguyen’s, Ogle’s, and
Rovero’s deaths and of her role in their demise. In sum, substantial
evidence supports the jury’s findings of implied malice.
24
B. Evidence of Causation
Tseng argues substantial evidence did not support the finding
that she caused Nguyen’s and Rovero’s deaths.20 We disagree.
Concerning Nguyen, the coroner determined that the
cause of his death was the combined effects of Opana® and Xanax®,
both prescribed by Tseng. Nguyen also had small amounts of
methadone in his system when he died. Tseng argues that the
presence of methadone was an “unforeseeable intervening” cause
that demonstrates she did not cause his death. Tseng’s argument
is unavailing because it asks us to reweigh the evidence, which
we cannot do. (See People v. Protopappas (1988) 201 Cal.App.3d
152, 168 [appellate court will not reweigh the evidence and draw
inferences which the jury rejected].)
Although “an ‘independent’ intervening cause will absolve
a defendant of criminal liability[,] . . . the intervening cause must
be ‘unforeseeable . . . an extraordinary and abnormal occurrence,
which rises to the level of an exonerating, superseding cause.’
[Citation.] On the other hand, a ‘dependent’ intervening cause
will not relieve the defendant of criminal liability. ‘A defendant
may be criminally liable for a result directly caused by his act
even if there is another contributing cause. If an intervening cause
is . . . normal and reasonably foreseeable . . . the intervening act
is “dependent” and not a superseding cause, and will not relieve
defendant of liability.’ ” (People v. Funes (1994) 23 Cal.App.4th
1506, 1523.)
Here, Tseng’s medical expert opined that the amount of
methadone in Nguyen’s system was “pretty small” and alone
would not have killed Nguyen. Tseng’s expert and the coroner’s
20 On appeal, Tseng does not contest that there was
substantial evidence of causation with respect to Ogle’s death.
25
investigator agreed that the medications Tseng prescribed to
Nguyen were contributing causes of his death. Thus, even if
methadone played a role in Nguyen’s death, the jury could have
reasonably concluded that the presence of methadone was not
an unforeseen, independent intervening event that would relieve
Tseng of liability for Nguyen’s death.
Likewise, there was substantial evidence that Tseng’s actions
were a proximate cause of Rovero’s death. Tseng prescribed Rovero
Roxicodone®, Soma®, and Xanax®. The coroner found that the cause
of Rovero’s death was the combined drug toxicity from alcohol and
the drugs Tseng had prescribed. Evidence was also presented that
the amount of alcohol in his system could not have been lethal. The
jury could have reasonably inferred from this evidence that alcohol
was not an independent intervening cause of Rovero’s death.
II. The Court Did Not Err in Admitting Evidence of
the Six Uncharged Deaths of Tseng’s Patients
Tseng contends the trial court erred in permitting the
prosecution to present evidence of the uncharged deaths of Stavron,
Latham, Keeney, Chambers, Gomez, and Katnelson. She argues
that the trial court should have excluded this evidence under
Evidence Code section 1101, subdivision (a), because the six
patient deaths were not relevant for any purpose authorized by
Evidence Code section 1101, subdivision (b). Tseng further asserts
that the trial court should have excluded the evidence under
Evidence Code section 352 because the undue prejudice from this
evidence substantially outweighed its probative value and its
admission also violated her due process rights. We disagree.
Under Evidence Code section 1101, subdivision (b), evidence
that a defendant has committed a crime, civil wrong, or some
other act is admissible to prove a material fact “such as motive,
opportunity, intent, preparation, plan, knowledge, identity, [the]
26
absence of mistake or accident.” (Evid. Code, § 1101, subd. (b); see
People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) The admissibility
of prior acts evidence “turns largely on the question whether the
uncharged acts are sufficiently similar to the charged offenses to
support a reasonable inference of the material fact they are offered
to prove.” (People v. Erving (1998) 63 Cal.App.4th 652, 659-660.)
“The least degree of similarity (between the uncharged act and
the charged offense) is required in order to prove intent.” (People v.
Ewoldt, supra, 7 Cal.4th at p. 402.) “On appeal, the trial court’s
determination of this issue, being essentially a determination of
relevance, is reviewed for abuse of discretion.” (People v. Kipp
(1998) 18 Cal.4th 349, 369.)
The trial court did not abuse its discretion in admitting
evidence of the six uncharged deaths to prove Tseng’s intent. This
evidence was relevant to the issue of Tseng’s subjective awareness
of the dangerous consequences of overprescribing opioids and
other controlled substances to patients whom she knew to be
“drug-seeking” or suffering the symptoms of addiction.
The evidence showed that, over the course of a few years,
Tseng was repeatedly made aware of the potentially lethal risks
posed by her prescribing practices, yet she ignored those warnings.
Prior to the charged deaths, Tseng had learned of the uncharged
deaths of her patients—Stavron, Lathan, Keeney, Chambers,
and Katnelson—from overdoses of the same or similar drugs she
prescribed Nguyen, Ogle, and Rovero. Despite this knowledge,
Tseng continued to prescribe Nguyen, Ogle, Rovero, and others
these drugs in sometimes even higher doses without any medical
justification for doing so. Her prescribing practices thus tended to
show a conscious disregard for the lives of her patients, including
the murder victims. Even if the investigators did not expressly
inform Tseng that her treatment and prescription practices
27
caused the deaths of the uncharged patients, her knowledge of
the uncharged patients’ deaths after she prescribed powerful
drugs with no medical justification for those prescriptions
was circumstantial evidence of her subjective knowledge of risk
to support an implied malice mental state. In short, evidence of
her knowledge of the uncharged murders helped the jury assess
Tseng’s level of awareness of the risk in determining whether,
at the time of the murders, she acted with conscious disregard for
life. The evidence was therefore admissible under Evidence Code
section 1101, subdivision (b).
Further, the trial court did not abuse its discretion under
Evidence Code section 352 in admitting the uncharged crimes.
Evidence of the uncharged deaths was highly probative on the
key issue in the case—whether Tseng harbored implied malice—
and was not substantially outweighed by its prejudicial effect.
(See Evid. Code, § 352 [“The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the
probability that its admission will . . . create substantial danger
of undue prejudice.”].)
Finally, admission of uncharged crimes under Evidence Code
sections 352 and 1101 did not violate Tseng’s constitutional rights
to due process, a fair trial, and a reliable adjudication. (People v.
Lewis (2009) 46 Cal.4th 1255, 1289 [“ ‘ “routine application of state
evidentiary law does not implicate [a] defendant’s constitutional
rights” ’ ”]; People v. Lindberg (2008) 45 Cal.4th 1, 26.)
28
III. Tseng Has Not Demonstrated Prejudicial Error in
the Trial Court’s Denial of Her Motion to Unseal
the Affidavit in Support of the Warrant to Search
Her Bank Accounts, or in Finding that the Warrant
Was Supported by Probable Cause, Nor Has She
Demonstrated any Miscarriage of Justice from
Introduction at Trial of the Financial Information
Obtained Through the Warrant
Tseng argues that the trial court erred in failing to unseal
the entire affidavit submitted in support of the warrant to search
her financial records, and in failing to quash or traverse the
warrant because it was not supported by probable cause. Tseng
further asserts that these errors violated her constitutional rights.
A. Background
When the forensic examiners imaged Tseng’s computers, they
discovered that the vast majority of Tseng’s patients paid in cash
and that Tseng deposited the cash into multiple accounts at more
than a dozen banks. In addition, the clinic’s receptionist, G.R.,
confirmed that Tseng required patients to pay for services in cash
and that the clinic’s cash revenue and the number of patients had
increased dramatically since 2007. Investigators suspected that
Tseng’s motivation in issuing medical prescriptions was financial.
They also suspected that Tseng might have engaged in other
crimes, such as money laundering, although Tseng ultimately was
never charged with any such crime.
Based on this information, on April 16, 2013, Sergeant
Thomas Greep, an investigator for the Los Angeles County District
Attorney’s Office, prepared a search warrant for approximately
13 banks, requesting account information from multiple accounts
held by Tseng and her husband. Sergeant Greep’s affidavit
supporting the search warrant was submitted under seal pursuant
29
to People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs), because, according
to the affidavit, if the information in the affidavit and attachments
were made public, they would have compromised the investigation.
The search warrant was issued, and the financial records were
seized.
Thereafter, on April 29, 2013, Tseng filed motions to
unseal the affidavit and to quash and traverse the search warrant.
The trial court conducted an in camera, ex parte hearing under
the procedures outlined in Hobbs. At the hearing, the trial court
questioned Sergeant Greep about the basis of probable cause for
the warrant and the representations he made in the affidavit. The
court further examined him as to the justification for sealing the
affidavit and the supporting documents. (Hobbs, supra, 7 Cal.4th
at p. 976.)
The trial court observed that although sealing the affidavit
may have been initially justified to protect the confidentiality
and integrity of the investigation, much of the information in the
affidavit, including the identity of the clinic’s receptionist, G.R., had
already been disclosed to the defense.21 The prosecutor agreed, but
also stated that some of the information—including the identity of
some of the banks and the account information subject to seizure—
had not been disclosed to the defense. The prosecutor also asserted
that the investigation was not complete because some banks were
21 We have reviewed the sealed documents and the transcript
of the above-described in camera hearing. We observe that in
addition to G.R.’s identity, it appears that the identity of three of
the banks identified in the affidavit were no longer confidential by
the time of the hearing. An employee of one of the banks had tipped
off Tseng to the existence of the subpoena in the warrant and the
DEA had already learned of the identity of two other banks from its
earlier seizure of Tseng’s and her medical corporation’s records.
30
still producing records. The prosecutor told the trial court that
depending on what the investigation revealed, an asset forfeiture
procedure might be brought and, therefore, he argued that the
identity of the banks and accounts subject to the warrant should
remain under seal to protect the integrity of the assets in the
accounts. Investigators feared that if Tseng became aware of the
identity of all of the accounts subject to search, she might remove
her funds from those accounts.
The trial court concurred that the information about
the banks should remain under seal, but ordered unsealing
the first seven pages of the affidavit that contained information
already known to Tseng (except for part of the conclusion on
the seventh page which remained sealed).22 The trial court also
22 The trial court ordered disclosed the following information:
The DEA and the Medical Board had investigated Tseng’s medical
practice; the DEA warrant had revealed that Tseng and her
husband had numerous bank accounts; Tseng and her husband
purchased real property; G.R.’s statement that the clinic accepted
cash; and Sergeant Greep’s belief that probable cause existed
that Tseng had violated Health and Safety Code section 11153,
subdivision (a) (prescriptions written for no legitimate medical
purpose).
The following information at the bottom of page seven of the
affidavit remained sealed: Tseng and her husband had 51 bank
accounts and had purchased multiple real properties; and given
the number of transactions and accounts, Sergeant Greep believed
that Tseng and her husband were laundering their money in
violation of section 186.10.
In September 2017, Tseng filed a motion in this court to
unseal the warrant, the portions of the affidavit that remained
sealed, and the transcript from the June 2013 in camera hearing
in which the trial court held pursuant to Hobbs to consider
Tseng’s motion to quash and traverse. In November 2017, this
31
denied the motion to quash, finding that the warrant was
supported by probable cause, and denied the traverse, finding
no basis to conclude that the warrant was based on falsities,
misrepresentations, or omissions. After the trial court unsealed
part of the affidavit, Tseng never renewed her motions or sought
to suppress the evidence discovered pursuant to the warrant.
Tseng argues on appeal that the trial court should have
ordered the entire affidavit unsealed because there was no
justification for sealing the search warrant and the entire
supporting affidavit in the first place. She argues that under
Hobbs, the only legal basis for sealing a warrant is to protect the
identity of a confidential informant. Tseng elaborates that the only
witness identified in the warrant, G.R., was not a confidential
informant and was already known to Tseng. In addition, noting
that she was never charged with money laundering, Tseng
maintains that the sealed information did not disclose a basis of
probable cause to issue a warrant.
B. Analysis
Pursuant to Evidence Code sections 1040 (privilege to refuse
to disclose official information acquired in confidence), 1041 (the
privilege to refuse to disclose the identity of a confidential
informant), and 1042, subdivision (b) (protecting confidential
information and an informant’s identity in a warrant from
disclosure) and Hobbs, supra, 7 Cal.4th at page 971, all or part
of a search warrant may be sealed or redacted to protect official
confidential information or the identity of a confidential informant.
(Ibid.; People v. Galland (2008) 45 Cal.4th 354, 363-364 (Galland);
court ordered the unsealing of the entire affidavit, but denied the
request to unseal the warrant; in December 2017, we ordered that
the transcript from the June 2013 Hobbs hearing be unsealed.
32
People v. Heslington (2011) 195 Cal.App.4th 947, 955-956
(Heslington).) To preserve a defendant’s right to reasonable
access to information that might form the basis for a challenge
to the validity of a warrant, and to strike a fair balance between
the privileges in Evidence Code sections 1040 and 1041, a trial
court must follow certain procedures when a defendant moves
to unseal, quash, or traverse a sealed warrant.23 (Hobbs, supra,
7 Cal.4th at pp. 962, 971–975; Galland, supra, 45 Cal.4th at p. 364;
Heslington, supra, 195 Cal.App.4th at pp. 955–958.)
On appeal, we review Tseng’s claims de novo. (See Hobbs,
supra, 7 Cal.4th at pp. 975, 977.) We review Hobbs error under
the state law harmless error standard. (See Heslington, supra,
195 Cal.App.4th at pp. 960-961 [applying a state law standard of
prejudice to a claim of error under Hobbs].)
The trial court acknowledged that Tseng was aware of
G.R.’s identity and thus protecting the identity of a confidential
informant did not justify denying Tseng’s request to unseal the
23 The trial court must first conduct an in camera hearing
to determine whether there are sufficient grounds for maintaining
the confidentiality of the informant’s identity or the information
sought to remain sealed. (Galland, supra, 45 Cal.4th at p. 364;
Hobbs, supra, 7 Cal.4th at p. 972; People v. Martinez (2005)
132 Cal.App.4th 233, 240–241.) Once the affidavit is found to have
been properly sealed, the court must determine whether there
was “ ‘ “a fair probability” that contraband or evidence of a crime
would be found in the place searched pursuant to the warrant’
(if the defendant has moved to quash the warrant) or ‘whether
the defendant’s general allegations of material misrepresentations
or omissions are supported by the public and sealed portions of
the search warrant affidavit . . .’ (if the defendant has moved to
traverse the warrant).” (Galland, supra, 45 Cal.4th at p. 364;
Hobbs, supra, 7 Cal.4th at pp. 974–975; Heslington, supra,
195 Cal.App.4th at p. 957.)
33
entire affidavit. In addition, other information in the sealed
affidavit was no longer confidential, i.e., the government’s
awareness of at least three of the banks that were the subject of
the search warrant. Moreover, presumably Tseng was aware of her
bank account information, such as her bank account numbers.
The prosecutor informed the trial court that the People
were seeking to keep a portion of the affidavit sealed to shield
that the People were exploring potential additional charges related
to how Tseng used her bank accounts to hide the cash she received
from her medical practice. The prosecutor sought to keep this
information sealed to prevent Tseng from removing the funds from
those accounts while the People were considering whether to bring
any such additional charges against Tseng. Acknowledging the
prosecutor’s concerns, the trial court ordered that those sections of
the affidavit relating to the ongoing confidential investigation
remain sealed.
Tseng argues that the Hobbs sealing procedures apply only
to protect the identity of confidential informants. We note that
the Evidence Code states that an informant’s identity and other
confidential official information may remain under sealed. (See
Evid. Code, § 1042, subd. (b) [providing that when a search warrant
is valid on its face, a public entity bringing a criminal proceeding
may establish the search’s legality without revealing to the
defendant any official information or an informant’s identity],
italics added.) Similarly, in dicta, the Heslington court observed
that “[b]y statutory privilege, public entities may refuse to disclose
official information and an informant’s identity when disclosure
is against the public interest.” (Heslington, supra, 195 Cal.App.4th
at pp. 955-956, italics added.) Arguably, the fact of the People’s
confidential investigation into potential money laundering
and similar charges against Tseng could constitute such official
34
information. (See People v. Jackson (2003) 110 Cal.App.4th
280, 287 [holding that “[o]ngoing investigations fall under the
privilege for official information,” and affirming the prosecution’s
refusal to disclose information about an ongoing police investigation
based on Evidence Code section 1040]; see also People v. Otte (1989)
214 Cal.App.3d 1522, 1531, fn. 4 [observing that the definition of
“official information” subject to the privilege includes “more sources
of information and the different methods of its acquisition than that
furnished by the informants”].)
We need not, however, resolve this issue. Even assuming
arguendo that the court erred in failing to unseal the entire
affidavit, any such error was not prejudicial as to the Hobbs
proceedings or the trial itself.
First, Tseng suffered no prejudice from the court’s order
sealing the information about the government’s investigation of
the three banks (and Tseng’s accounts) because he had already
learned the information from other sources.
Second, as to the other information in the affidavit, upon our
review of the sealed portions of the affidavit, we have concluded
there was no reasonable probability that Tseng would have
prevailed on her motion to quash or traverse had the entire
affidavit been unsealed. Concerning the motion to traverse, the
sealed portion of the affidavit contained no inconsistencies or
insufficiencies indicating that the affiant included a false statement
made “knowingly and intentionally, or with reckless disregard
for the truth” that was “necessary to the finding of probable cause.”
(Franks v. Delaware (1978) 438 U.S. 154, 155-156.) Thus, the
sealed information would not have supported Tseng’s motion to
traverse.
With regard to the motion to quash, we also agree with the
trial court’s finding that the affidavit detailed probable cause for
35
issuance of the warrant. Tseng’s claim to the contrary is based
solely on the sealed portion of the affidavit. Aside from the fact
that the sealed affidavit contained additional evidence of probable
cause, the information in the first seven pages of the affidavit,
which was unsealed and disclosed to Tseng the factual basis
for the warrant—including that Tseng’s practice was under
investigation for its prescribing practices by state and federal
authorities, that Tseng had numerous bank accounts, and Tseng
accepted cash payments for service—was sufficient by itself to
make the requisite showing of probable cause. Tseng’s argument
downplays this information and ignores the reasonable inferences
of guilt of the violation of Health and Safety Code section 11153,
subdivision (a) (prescriptions written for no legitimate medical
purpose) that was being investigated.
Finally, Tseng claims that the failure to unseal the entire
affidavit violated her constitutional rights to due process and
the effective assistance of counsel. Tseng’s motion to unseal the
affidavit was a discovery motion. (See People v. Navarro (2006)
138 Cal.App.4th 146, 169-170 [characterizing motions to disclose
information in sealed affidavits supporting search warrants
pursuant to Hobbs as “discovery” procedures].) “It is settled
that an accused must demonstrate that prejudice resulted from a
trial court’s error in denying discovery.” (People v. Memro (1985)
38 Cal.3d 658, 684, overruled on other grounds by People v. Gaines
(2009) 46 Cal.4th 172; accord, People v. Clark (1992) 3 Cal.4th
41, 133, overruled on other grounds in People v. Pearson (2013)
56 Cal.4th 393, 462.) Tseng has not done so. She does not explain
how the part of the affidavit that remained sealed could have
assisted her in challenging the warrant and she never moved to
suppress the evidence obtained in the search even after the trial
court unsealed portions of the affidavit and warrant.
36
Tseng has not shown she suffered a miscarriage of justice
under the state law standard of prejudice. Evidence of Tseng’s
finances may have suggested a possible motive for the crimes
underlying her convictions. But motive was not an element of
those crimes. Furthermore, even absent this financial evidence,
there was overwhelming evidence of Tseng’s knowledge of risk
and reckless indifference to her patients’ lives in her prescribing
practices to support her convictions, as we have detailed above.
Thus, viewed from any vantage point in the proceedings, any error
in applying Hobbs was harmless.24
IV. Tseng Has Not Demonstrated that the Prosecution
Committed Prejudicial Misconduct Warranting
Reversal
Tseng complains that the prosecution committed prejudicial
misconduct on two separate occasions during the trial by eliciting,
in violation of a court order, information about the deaths of
two victims of the unlawful prescription charges. She contends that
this prosecutorial misconduct denied her due process.
A. Background
1. Nicholas Mata
During the trial, John Mata testified that his son was one
of Tseng’s patients, Nicholas Mata, the victim in count 14, an
unlawful prescription charge. The prosecutor asked John Mata
24 Also unavailing is Tseng’s general attack on the
constitutionality of the Hobbs procedure. Our Supreme Court has
rejected such an attack. (Hobbs, supra, 7 Cal.4th at pp. 971-975
[authorizing procedures the trial court followed here and rejecting
that those procedures violate due process].) We are bound by
Hobbs. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.)
37
the date of his son’s death; he responded that his son died on
May 14, 2010. Tseng’s counsel objected, reminding the trial
court that under a prior order, the prosecution was prohibited
from eliciting evidence of Nicholas Mata’s death because the
death had occurred after the last charged death. The prosecution
conceded the error. The trial court informed counsel that it could
instruct the jury to disregard the evidence of the death, but was
concerned that any instruction might highlight the death. The
trial court asked the prosecution to remind the witness not to
mention his son’s death. Thereafter, at the conclusion of the direct
examination, Tseng’s counsel requested that the trial court strike
the testimony of John Mata and dismiss count 14. The trial court
denied the request, finding the misconduct was not prejudicial
and did not warrant dismissal of the charge. The trial court,
however, admonished the jury that Tseng was not being charged
with Nicholas Mata’s death and that John Mata’s testimony was
relevant only to the unlawful prescribing count.
2. Michael Huggard
The prosecution elicited testimony from the doctor who
conducted the autopsy of Huggard, the victim in count 11 (an
unlawful prescription charge), that Huggard had died. Tseng’s
counsel complained that “this is evidence of another instance of
prosecutorial misconduct. . . . Huggard . . . passed away after the
other three counts [Nguyen, Ogle, and Rovero], and his death was
not to be mentioned. They were only limited to the overdose.” The
prosecutor responded that Huggard was “in the window” because he
had died in 2009. Tseng’s counsel moved for a mistrial. The court
instructed the prosecution to determine Huggard’s date of death.
After the lunch break, the prosecution stated that Huggard
had died in 2010 and that they had been mistakenly operating
38
under the assumption that Huggard had died in 2009. Thereafter,
the trial court denied the mistrial motion and subsequently
admonished the jury to disregard the testimony of Huggard’s death
and to consider only the evidence about the unlawful prescription
allegation. At the close of the case, the trial court also instructed
the jury not to “consider for any purpose any offer of evidence that
was rejected or any evidence that was stricken by the court; treat it
as though you had never heard it.”
Before this court, Tseng argues the trial court’s instructions
were insufficient to cure the harm and that the trial court should
have stricken John Mata’s testimony, dismissed count 14 after the
first instance of misconduct, and granted Tseng’s mistrial motion
after the reference to Huggard’s death.
B. Analysis
The Attorney General concedes, and we agree, that the
prosecution’s questions referencing Mata’s and Huggard’s deaths
constituted prosecutorial misconduct because the trial court had
previously ordered that this evidence not be presented to the jury.
(See People v. Bell (1989) 49 Cal.3d 502, 532 [holding that the
deliberate asking of questions and calling for inadmissible and
prejudicial answers is misconduct].)
We conclude, however, that the prosecution’s actions did not
violate Tseng’s due process rights and did not warrant reversal.
The prosecution’s misconduct was not so pervasive as to infect the
trial with such “ ‘unfairness as to make the resulting conviction
a denial of due process.’ ” (Darden v. Wainwright (1986) 477 U.S.
168, 181.) Furthermore, given the evidence of the other overdose
deaths that was properly admitted, “it is not reasonably probable
that a result more favorable to defendant would have been reached
in the absence of any alleged misconduct.” (People v. Turner (1994)
39
8 Cal.4th 137, 194, abrogated on another ground by People v. Griffin
(2004) 33 Cal.4th 536, 555, fn. 5.) We assume the jury followed the
trial court ’s admonitions, which further obviated any prejudice.
(People v. Jones (1997) 15 Cal.4th 119, 168, overruled on other
grounds by People v. Hill (1998) 17 Cal.4th 800.)
In addition, the trial court did not abuse its discretion in
denying the motion for a mistrial. “A mistrial should be granted
if the court is apprised of prejudice that it judges incurable by
admonition or instruction. [Citation.] Whether a particular incident
is incurably prejudicial is by its nature a speculative matter, and
the trial court is vested with considerable discretion in ruling on
mistrial motions.” (People v. Haskett (1982) 30 Cal.3d 841, 854.)
We conclude that the trial court did not abuse its discretion here,
particularly given that the jury had already heard evidence about
the nine uncharged deaths of Tseng’s patients.
V. The Trial Court Did Not Err in Reopening Closing
Arguments
Tseng argues that the trial court’s decision to reopen the
argument during deliberations coerced the jury to return a guilty
verdict on the murder charges and thus violated her due process
rights. We disagree.
A. Background
On the eighth day of deliberations, the jury submitted two
questions to the trial court: “Do we have to be unanimous in not
guilty of second degree to deliberate on manslaughter? [And]
[w]hat if we are split on second degree?” After consulting with,
and obtaining the agreement of the parties, the court instructed
the jury with CALJIC No. 17.49 [Use of Multiple Verdict Forms—
Implied Acquittal—First], which informed the jury in pertinent
part: “Since the lesser offenses are included in the greater, you
40
are instructed that if you find the defendant guilty of the greater
offenses, you should not complete the verdicts on the corresponding
lesser offenses, and those verdicts should be returned to the
court unsigned by your foreperson. If you unanimously find
the defendant not guilty of the felonies charged, you then need to
complete the verdicts on the lesser included offenses by determining
whether the defendant is guilty or not guilty of the lesser included
crimes, and the corresponding verdicts should be completed and
returned to the court signed by your foreperson.” The court also
reminded the jurors to consider the evidence about each murder
count separately and carefully review all of the evidence. The jury
resumed deliberations.
The next day, outside the jury’s presence, the trial court
indicated it had planned to instruct the jurors (pursuant to defense
counsel’s request) with CALJIC No. 17.10 [Conviction of Lesser
Included or Lesser Related Offense—Implied Acquittal— First] to
augment the instruction it had given the previous day. The trial
court explained it had also decided to grant the parties’ requests
to argue for 10 additional minutes “regarding that specific issue of
greater versus lesser” offense. The trial court also acknowledged
that the bailiff had informed the court that jurors stated they “had
resolved the issue that was in their question.” The trial court said
it was inclined to proceed as it had previously planned.
Tseng’s counsel objected, pointing out that the trial court
was permitted to reopen argument only if the jury is “deadlocked.”
The trial court responded: “It appears that they’re deadlocked
based on their questions yesterday, or at least they were divided,
and so the court can allow it under those circumstances, as well.”
The jurors entered the courtroom, and the trial court
instructed in accordance with CALJIC No. 17.10, which informed
them that “the court cannot accept a guilty verdict on a lesser crime
41
unless you have unanimously found the defendant not guilty of
the charged greater crime,” and then returned the jurors to the jury
room to decide whether further argument would be helpful. Shortly
thereafter, the jury sent the trial court the following request: “We
would like to listen to the additional argument!” The jury returned
to the courtroom and heard 10 minutes of argument from each side,
focusing on the issue previously identified by the jury. The jury
continued deliberations for the remainder of that day, and at the
end of the following day—the 10th day of deliberations—the jury
reached its verdicts.
B. Analysis
When faced with questions from a jury, including a question
referencing an impasse, “a court must do more than figuratively
throw up its hands and tell the jury it cannot help. It must at
least consider how it can best aid the jury.” (People v. Beardslee
(1991) 53 Cal.3d 68, 97 (Beardslee), italics omitted.) A further
argument is permissible where a jury reports it has reached an
impasse in deliberations. (People v. Young (2007) 156 Cal.App.4th
1165, 1170; see Cal. Rules of Court, rule 2.1036(b)(3).)
Here, the jury initially indicated that it was “split on
second degree.” The jury’s subsequent communications indicated
it had resolved one of the questions coupled with its desire to
hear additional argument. Taken together, the jury’s inquiries
demonstrated that it was struggling with its deliberations and had
reached an impasse. Under these circumstances, we conclude that
the trial court’s decision to allow the parties to reopen argument
to assist the jury in its deliberative process was not an abuse of
discretion. (People v. Ardoin (2011) 196 Cal.App.4th 102, 129, fn. 10
[further argument is permissible “when a jury expresses confusion
and an impasse in its deliberations related to the governing law and
42
instructions, particularly in light of the trial court’s broad discretion
to alter the sequence of trial proceedings”].)
By asking if additional argument might be helpful, the trial
court did no more than ascertain the reasonable probability of
resolving the impasse and a means by which that might be
accomplished. Further, the procedure was neutral, giving each
side a brief opportunity to argue. The trial court did not make any
coercive remarks or give any coercive instructions. It did not urge
the jurors to reach an agreement. We see no abuse in the court’s
exercise of its discretion. Furthermore, even if the trial court erred
in allowing further argument, there was no reasonable probability
that Tseng suffered prejudice as a result of that decision. (See
Beardslee, supra, 53 Cal.3d at pp. 97-98 [a court’s error in resolving
concerns or questions from the jury during the deliberation
reviewed for harmless error under state law prejudice standard].)
VI. The Imposition of Consecutive Sentences on
Counts 1 and 4 Did Not Violate Section 654
Tseng argues that the consecutive sentences imposed on her
second degree murder convictions for count 1 (murder of Nguyen)
and count 4 (murder of Rovero) violated section 654. She maintains
that the trial court should have run those sentences concurrently
with the sentence on her second degree murder conviction for
count 2 (murder of Ogle).
Pursuant to section 654, subdivision (a): “An act or omission
that is punishable in different ways by different provisions of law
shall be punished under the provision that provides for the longest
potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” (Ibid.)
Section 654 precludes multiple punishments not only for a single
act but also for an indivisible course of conduct. (People v. Hester
(2000) 22 Cal.4th 290, 294.)
43
Tseng contends that because the prosecution’s theory at
trial was that Tseng committed the charged crimes pursuant to
a common pattern of criminal conduct of overprescribing drugs
to her patients, and pursuant to a single intent and objective of
enriching herself, separate sentencing for the murder convictions
was impermissible under section 654. Even if we were to consider
that all of the murders were committed with a single generalized
intent and objective, separate sentencing would still be permissible
under section 654.
Here, the crimes involved separate murder victims, Nguyen,
Ogle, and Rovero and occurred months apart. Acts of violence
against separate victims at different times may be separately
punished. (See, e.g., People v. Price (1991) 1 Cal.4th 324, 492
[section 654 does not preclude separate punishments for crimes of
violence committed against separate victims]; People v. Kwok (1998)
63 Cal.App.4th 1236, 1255-1256 [where the offenses are temporally
separated in such a way as to afford the defendant an opportunity
to reflect and to renew his or her intent before committing the next
one, section 654 does not apply].) Accordingly, the second degree
murder convictions of Nguyen, charged in count 1, and Rovero
charged in count 4, were not subject to section 654.
VII. The Cumulative Error Doctrine Does Not Apply
Tseng contends even if the alleged individual errors
addressed above were harmless when viewed in isolation, the
cumulative effect of the errors warrants reversal of her convictions.
“Under the cumulative error doctrine, the reviewing court must
‘review each allegation and assess the cumulative effect of any
errors to see if it is reasonably probable the jury would have
reached a result more favorable to defendant in their absence.’
[Citation.] When the cumulative effect of errors deprives the
44
defendant of a fair trial and due process, reversal is required.”
(People v. Williams (2009) 170 Cal.App.4th 587, 646.) Because
Tseng has not demonstrated that the trial court committed any
error, the “cumulative” error doctrine does not apply.
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
ROTHSCHILD, P. J.
We concur.
CHANEY, J.
BENDIX, J.
45