Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court No. SCD209212 of San Diego County, Francis M. Devaney, Judge.
O'ROURKE, J.
A jury convicted Leonard Charles Perry, Jr. of the unauthorized practice of medicine. (Bus & Prof. Code, § 2052, subd. (a).) The trial court suspended imposition of sentence, placed him on three years of probation, imposed fines and 300 hours of community service. Perry contends the verdict was not supported by sufficient evidence and the trial court misinstructed the jury regarding the unauthorized practice of medicine. We affirm.
Perry was acquitted of attempting to dissuade a witness (Pen. Code, §136.1, subd. (a)(2), count 1); impersonating an officer (Pen. Code, § 146a, subd. (a)(1)(2), count 2); and burglary (Pen. Code, § 459, count 3).
FACTUAL BACKGROUND
A. Prosecution Case
Following a complaint that Dr. Kenneth Johnson, an employee at Medimar LLC (Medimar or the Medimar clinic), had issued a medical marijuana recommendation to a minor without his parents' consent, the California State Medical Board (CSMB) investigated Medimar in 2007. The investigator, Brent Bowser, found that Perry and Scott Koenekamp were not physicians and they registered with the California Secretary of State as members and managers who owned P&K LLC (P&K), doing business as Medimar. The articles of organization state that Medimar's purpose was to "lease office space to doctors for alternative medical services." Dr. Johnson signed Medimar's fictitious name permit and filed it with the CSMB. Perry was Medimar's registered agent for service of process.
Medimar's website displayed a picture of a physician with a stethoscope around his neck. The top of its homepage displayed the words, "Do it legally. Do it now." The website advertised Medimar's services for persons "suffer[ing] from migraines, glaucoma, depression, cancer, AIDS, anorexia, anxiety, and nausea, and many other medical disorders" and encouraged viewers to "call today to prequalify for free and set your appointment." The website included information regarding whether health insurance was accepted and the documents required for the evaluation. In 2008, Perry placed an advertisement in "The Reader" magazine using similar information from Medimar's website.
Between 2007 and 2008, Medimar changed its fictitious name to "Medical Cannabis Consultants, " also known as "MC-Squared." The advertisement ran under "Medical Cannabis Consultants, " but explicitly stated this company was formerly "Medimar." However, the business address was unchanged.
Pursuant to a search warrant, investigators found several Medimar business records in Perry's home and car. One document titled, "My Contributions, " listed the following: "conceived Medimar. R&D, developed artwork, developed all the forms... found office; stocked office; developed office procedures; started operation of Medimar; scheduled patients; verified patient appointments; stock office; verified patients at dispensaries; advertising; marketing; prep folders and files for patients; found and hired Doctor Ting; found [Los Angeles] office; hired Nate; have father develop contracts pro bono; run the office; open other expansion offices; found and hired Dr. Barns in a pinch; basically gave you a turnkey, underscore, million dollar business." Perry testified he wrote the list, which documented his involvement in the business because he wanted to make sure Dr. Johnson paid him for his contributions.
Business records titled "Medimar Independent Contractor Agreements" were also found in Perry's possession. He exclusively executed the contracts on Medimar's behalf with various physicians and non-physicians and signed the agreements in his capacity as owner of the business. Under the agreement, the independent contractors were bound by a non-compete clause prohibiting competition within a 15-mile radius from any Medimar clinic for three years after their employment was terminated. The agreement stated that medical records belonged to Medimar, and required the contracting physicians to release all patient-related documents to Medimar even after the physician stopped working for Medimar.
In 2007, Perry executed and filed articles of organization with the California Secretary of State for Bizad Services LLC (Bizad), doing business as Medimar, and listed Perry as its manager, chief executive officer, agent for process service, and sole owner. Bizad had the same business address as Medimar, and its business purpose was "office management services." A 42-page disbursement journal found in Perry's possession referred to several payments he had made from Medimar's account, which he owned and controlled. These payments were for a Honda car, local advertisements, Koenekamp, Doctors Johnson and Ting for their services, and Perry's wages as the receptionist or manager. Perry testified that he did not perform any administrative duties at Medimar's Los Angeles office because he worked in the San Diego office. He received profits from Medimar's Los Angeles office because he "went up to L.A. for Dr. Johnson and found a place for him to start the L.A. office." The investigator concluded that at the end of each business day, Dr. Johnson and other doctors were paid $45 in cash per patient evaluated at Medimar, and Perry received $25 per patient.
The Honda Ridgeline was registered to P&K, but Perry was the only member of Medimar who had a company car.
B. Defense Case
Perry testified that he and Koenekamp co-owned P&K, doing business as Medimar, and they derived its name from the first letters of their respective surnames. After incorporating Medimar in 2005, Perry selected the office space in San Diego and leased it in his name. He hired Dr. Johnson, stocked the office, and advertised Medimar's services. He helped Dr. Johnson create Medimar patient intake forms. Perry subsequently hired Doctors Ting, Catalano, Barns, and Clark to perform patient evaluations and write medical marijuana recommendations. Koenekamp provided $14,000 to start Medimar, but he did not have any hands-on involvement in managing the business. After Koenekeamp's initial loan was repaid, he was ousted from the business in 2007.
Perry recruited Doctors Johnson and Ting through advertisements posted on the website Craigslist.com. Perry testified that Dr. Johnson was never a board member nor a part of P&K, doing business as Medimar, because "[Dr. Johnson] was his own entity" and "[Dr. Johnson] had to be his own medical office.... " Dr. Johnson applied for and received a fictitious name permit for Medimar.
Perry managed Medimar's "administrative affairs, " which included giving the patients an intake form, reviewing identification cards, preparing the paperwork, and maintaining patients' medical files. He was the custodian of records and had access to all patient records that were locked in Doctor Johnson's office because at all hours of the day and night he received phone calls from dispensaries requesting that he verify that the patients were legitimate. After Perry completed the patient's paperwork, Dr. Johnson called the patient into a separate room to be evaluated. Perry was never present during those consultations and never gave any input regarding whether a patient would receive a recommendation. The doctors did not diagnose or treat the patients, but only issued recommendations authorizing medical marijuana use. Perry testified that Dr. Johnson only wanted to "do the recommendations, collect his money and go home."
Each patient paid $125 for the consultation; the issuing doctor received $45 and Perry received $25 in cash per patient at the end of each day. The remaining funds paid Medimar's operational costs, advertising, office lease, and supplies. Between 2005 and 2008, approximately 9, 000 patients were evaluated at Medimar.
DISCUSSION
I. Sufficiency of the Evidence
Perry challenges the sufficiency of the evidence to support his conviction, contending "(1) the activities taking place at Medimar did not constitute a practice of medicine, and (2) even if Medimar is deemed to have been a medical practice, [he] never engaged in any of its medical aspects."
Under the Business and Professions Code, the prohibition against practicing medicine without a license extends to any person "who advertises or holds himself or herself out as practicing" medicine, which is defined broadly to include among other things the diagnosis of ailments, diseases, injuries, or the "physical or mental condition of any person." (Bus. & Prof. Code, § 2052.) Medicine may be practiced in a partnership or group of physicians (Bus. & Prof. Code, § 2416), but "[c]orporations and other artificial legal entities... have no professional rights, privileges, or powers" (Bus. & Prof. Code, § 2400), and a "fictitious-name" permit to operate a facility called a " 'medical clinic' " can be issued only if the clinic is wholly owned by licensed physicians. (Bus. & Prof. Code, § 2415, subd. (b)(2).) (See Steinsmith v. Medical Bd. (2000) 85 Cal.App.4th 458, 465 (Steinsmith).)
"[Business and Professions Code, section 2052] was designed to prevent the provision of medical treatment to residents of the state by persons who are inadequately trained or otherwise incompetent to provide such treatment, and who have not subjected themselves to the regulatory regime established by the Medical Practice Act. Causing or intending an injury is not an element of the offense." (Hageseth v. Super. Ct. (2007) 150 Cal.App.4th 1399, 1417 (Hageseth).)
We review a jury's findings of fact under the substantial evidence standard. "In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - evidence that is reasonable, credible and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Snow (2003) 30 Cal.4th 43, 66.) We do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We will not reverse unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to support the jury's verdict. (People v. Redmond (1969) 71 Cal.2d 745, 755; see also People v. Stewart, at p. 790.)
In Painless Parker v. Board of Dental Examiners (1932) 216 Cal. 285, a dentist challenged a finding that his corporation, an unlicensed person, unlawfully practiced dentistry, which led the Board of Dental Examiners to suspend his dentistry license. (Id. at p. 287.) Appellant, who had formed a corporation named Painless Parker Dentist, argued a distinction existed between the practice of dentistry and the purely "business side" of the practice. (Id. at 295.) The California Supreme Court rejected that argument, concluding that "the law does not assume to divide the practice of dentistry into such departments. Either one may extend into the domain of the other in respect that would make such a division impractical if not impossible. The subject is treated as a whole." (Id. at 296.) The court relied on the rationale that the corporation employed the licensed dentist, but the corporation was a purely commercial enterprise and none of its directors needed to be a licensed dentist and could act with or against the dentist's wishes "as may be to their commercial advantage." (Id. at 297.)
Painless Parker is controlling, and substantial evidence supports Perry's conviction because his ownership and control of Medimar "extend[ed] into the domain" of the unauthorized practice of medicine. (Painless Parker, supra, 216 Cal. at p. 296-298.) Therefore, Perry's contention that he did not evaluate patients or authorize recommendations, but rather carried out "administrative activities" is unavailing. The articles of organization for P&K and Bizad show that Perry owned and operated the medical facility, although he was not a licensed physician. (See Pacific Employers Ins. Co. v. Carpenter (1935) 10 Cal.App.2d 592, 594-595 ["neither a corporation nor any other unlicensed person or entity may engage, directly or indirectly, in the practice of certain learned professions including the legal, medical, and dental professions"].) He was Medimar's owner, manager, executive chief officer, agent for process service, and made professional decisions that only a licensed physician could properly make. (See, e.g., Steinsmith, supra, 85 Cal.App.4th at p. 465; Marik v. Super. Ct. (1987) 191 Cal.App.3d 1136, 1140.) He controlled Medimar's bank account and distributed the $125 patient fee between Dr. Johnson and himself, and used the remaining funds to pay for his corporate car, supplies, and office lease.
Perry created Medimar's patient intake forms that required patients to disclose their medical history and confidential information. He interviewed and hired doctors as independent contractors because a licensed professional was needed to issue medical marijuana recommendations. He required the independent contractors to sign non-compete agreements that purported to limit their professional career options after their employment with Medimar was terminated. He was the custodian of records for Medimar, which owned the medical records, and he kept them in his possession and consulted them to verify that the individuals received medical marijuana recommendations.
Perry was mainly responsible for placing Medimar's advertisements in different publications. Perry concedes that Dr. Johnson's involvement with the advertisements was limited because "[Dr. Johnson] didn't want a whole lot of hands-on work. He didn't want to work a lot.... [Just] do the recommendations, collect his money and go home." Perry testified "Well, I might have kind of come up with how - what [the advertisements] should say, how [the advertisements] should be said." Perry was responsible for emailing or bringing the potential advertisement to various publications. One online advertisement for Medimar's medical services showed a picture of a physician wearing a stethoscope and encouraged prospective patients suffering from "migraines, glaucoma, depression, cancer, AIDS, anorexia, anxiety, and nausea" and other ailments to make appointments. Medimar advertised in various magazines and thus held itself out as "practicing a system or mode of treating the sick or afflicted, " in violation of the plain language of Business and Professions Code, section 2052, subdivision (a); accord Hagaseth, supra, 150 Cal.App.4th at pp. 1416-1417.) The foregoing constitutes substantial evidence supporting the jury's finding that Perry unlawfully practiced medicine through a corporation, an unlicensed person.
II. Jury Instruction Regarding the Elements of Business and Professions Code, section 2052
The court instructed the jury as follows: "You may consider the following factors to determine whether the defendant illegally operated, owned, conducted, managed, or controlled the corporation, business entity, or physician. Whether the defendant advertised the business. Any corporate documents themselves. Defendant's personal possession of any property registered or owned by the corporation or business entity. Whether defendant retained corporate profits from work performed by a physician. If patient payments were made to the corporation, business entity, or the defendant, and physician was paid out of the corporate profits. Whether any physicians were actual members, officers, or shareholders of the corporation or business entity. Whether the defendant paid a 'per-patient' commission to any Medimar workers or physicians. Whether defendant hired physicians and employees. Whether the defendant retained or attempted to retain any patient records. Whether defendant ever possessed and removed patient records from the Medimar building. Whether the defendant restricted or attempted to restrict any physicians' ability to practice or administer medical marijuana to any patients. Whether the defendant restricted any physician or worker's ability to sue forms or retain intellectual property from the corporation or business entity after termination of any agreements. Whether the defendant attempted to prevent any physician from retaining patient records or information after termination of any agreements between the physician and defendant."
Perry contends that "[t]he court's lengthy instruction relieved the prosecution of its burden of proof by permitting a conviction for the unauthorized practice of medicine without the prosecution ever establishing, beyond a reasonable doubt, that the accused had diagnosed, treated, or prescribed for the sick or the afflicted as an unlicensed person."
"In reviewing claims of instructional error, we look to whether the defendant has shown a reasonable likelihood that the jury, considering the instruction complained of in the context of the instructions as a whole and not in isolation, understood that instruction in a manner that violated his constitutional rights." (People v. Vang (2009) 171 Cal.App.4th 1120, 1129.) "If a trial court's instructional error violates the United States Constitution, the standard stated in Chapman v. California (1967) 386 U.S. 18, 24, requires the People, in order to avoid reversal of the judgment, to 'prove beyond a reasonable doubt that the error... did not contribute to the verdict obtained.' [Citation.] But if a trial court's instructional error violates only California law, the standard is that stated in People v. Watson (1956) 46 Cal.2d at p. 818, 836, which permits the People to avoid reversal unless 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (People v. Mower (2002) 28 Cal.4th 457, 484.) A correct statement of the law in a jury instruction is not an error. (See People v. Sanchez (1950) 35 Cal.2d 522, 528.) Under Penal Code section 1127, the trial court properly instructed the jury with a correct statement of the law.
Penal Code section 1127 states: "Either party may present to the court any written charge on the law, but not with respect to matters of fact, and request that it must be given. If the court thinks it [is] correct and pertinent, it must be given; if not, it must be refused, the court must endorse and sign its decision and a statement showing which party requested it. If part be given and part refused, the court must distinguish, showing by the endorsement what part of the charge was given and what part was refused." Here, the People submitted the proposed jury instructions, which the court modified.
Perry's argument relies on the same false dichotomy between the ownership and management of a medical facility, a limited liability corporation, and the administering of medical care to patients that the Painless Parker court rejected. The trial court's instruction was a correct statement of the law as stated in Painless Parker, supra, 216 Cal.at p. 299. Nothing in the instruction contradicts Business and Professions Code, section 2052, subd. (a). The instruction merely clarified the criteria that Painless Parker considered for its holding that the statute makes no distinction between the practice of medicine and the business side of managing a medical practice. (Painless Parker, at p. 299.)We note that, "Although the Painless Parker case involved dentistry rather than medicine, its reasoning and holding apply equally to medical practice. [Citations.] The unlicensed practitioner in Painless Parker was a corporation, but it has long been 'well settled' that 'any other unlicensed person or entity' is subject to the same sanctions for unlawful practice as an unlicensed corporation." (Steinsmith, supra, 85 Cal.App.4th at p. 466.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.