Filed 8/28/14 P. v. Dambrose CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065208
Plaintiff and Respondent,
v. (Super. Ct. No. SCD243104)
HOWARD P. DAMBROSE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Charles R.
Gill, Judge. Reversed.
Elizabeth A. Missakian, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, William M. Wood and Brendon W. Marshall, Deputy Attorneys General, for
Plaintiff and Respondent.
A jury convicted Howard P. Dambrose of obtaining a prescription by fraud/deceit
(Health & Saf. Code, § 11173, subd. (a); count 1), but acquitted him of forgery of a prescription for a narcotic (Health & Saf. Code, § 11368; count 2) and attempting to
dissuade a witness from reporting a crime (Pen. Code,1 §136.1, subd. (b)(1); count 3).
The court sentenced Dambrose to three years summary probation and ordered him to pay
numerous fines, fees, and assessments.
Dambrose appeals, arguing the trial court erred in excluding a defense witness
from testifying as a discovery sanction and his trial counsel was ineffective for
committing discovery abuse, not completing an examination of a witness during trial, and
failing to investigate a key witness's criminal background. We conclude all of
Dambrose's contentions have merit. Accordingly, we reverse.
FACTS
The Charges
The prosecution originally charged Dambrose with four counts: (1) counts 1 and 3
for obtaining a prescription by fraud/deceit (Health & Saf. Code, § 11173, subd. (a)); and
(2) counts 2 and 4 for forgery of a prescription for a narcotic (Health & Saf. Code,
§ 11368). Counts 1 and 2 concerned a prescription request on January 20, 2012. Counts
3 and 4 involved a prescription refill on November 26, 2011.
Subsequently, the prosecution filed an information consisting of three counts:
(1) obtaining a prescription by fraud/deceit (Health & Saf. Code, § 11173, subd. (a);
count 1); (2) forgery of a prescription for a narcotic (Health & Saf. Code, § 11368; count
2); and (3) attempting to dissuade a witness from reporting a crime (§ 136.1,
1 Statutory references are to the Penal Code unless otherwise specified. 2 subd. (b)(1)); count 3). These counts only concerned the January 20, 2012 prescription
request.2
The case proceeded to trial.
Prosecution
On January 20, 2012, at about 5:00 p.m., Ricky Rodela went to Dependent's
Dental Center (DDC) for an emergency dental appointment because of an infected tooth.
Dambrose was the only dentist at DDC at that time and treated Rodela. After the
procedure, Rodela stated he was still in excruciating pain. Dambrose, however, was not
licensed to prescribe medicine. As such, he attempted to call other dentists employed by
DDC to have them call in the prescription for him. This was a typical occurrence in the
office.
Rodela believed Dambrose left three phone messages, asking for a call back, and
then Dambrose told Rodela to go to Walgreen's to pick up his prescriptions. Rodela did
not hear Dambrose tell his dental assistant to call in a prescription.
After failing to get a hold of any of the other dentists, Dambrose gave Norma
Ford, his dental assistant, a post-it note with prescription information and a DEA
number3 written on it.4 Dambrose asked Ford to call in the prescriptions for him. Ford,
2 At the preliminary hearing, the prosecution stated that it dropped the original counts relating to the refill of the prescription in November 2011 because it did not have sufficient evidence to proceed.
3 A DEA number is a number assigned to a health care provider (such as a medical practitioner, dentist, or veterinarian) by the U.S. Drug Enforcement Administration (DEA) allowing him or her to write prescriptions for controlled substances. Legally, the 3 following normal operating procedures, called in the prescription request while
Dambrose sat next to her. She recalled that one of the three medications she called in
was Vicodin and another was an antibiotic. Notations about these prescriptions in
Rodela's chart were not made by Ford. She did not remember if she gave the pharmacist
the dentist's name or just the DEA number when she called in the prescriptions. Ford did
not know Dambrose was not licensed to prescribe medication, and the DEA number
Dambrose gave Ford on the post-it note belonged to Dr. Justin Nguyen, another dentist
who worked at DDC. Ford had never called in any prescriptions for Nguyen. The only
prescriptions she ever called in while working at DDC were the ones Dambrose requested
when he handed Ford the post-it note on the evening of January 20, 2012.
The post-it note was not an exhibit at trial and Ford testified that she did not know
what happened to it. She stated that she would not have thrown it away.
The next day, Rodela came back to DDC and complained that he was not able to
pick up his prescriptions. Ford responded by stating that she had called in the
prescriptions for Dambrose. Sheryl Wylie, an employee of DDC, overheard Ford's
statement and approached her, asking if Ford called in a prescription at Dambrose 's
request. When Ford affirmed she had, Wylie said, "You shouldn't have done that."
DEA number is solely to be used for tracking controlled substances. It is often used by the industry, however, as a general "prescriber number" that is a unique identifier for anyone who can prescribe medication.
4 According to a declaration signed by Ford on April 5, 2012, which she was provided to refresh her recollection at trial, the post-it note Dambrose handed her contained the pharmacy's name and phone number as well as a DEA number. 4 Wylie informed Ford that Dambrose had lost his DEA license in 2003 and, as a result, he
is not allowed to call in prescriptions.
Later, Ford became aware that the DEA number Dambrose had given her to use
belonged to Nguyen, who was out of the country on vacation when Dambrose asked Ford
to request the prescription. When Nguyen returned to work, Ford told him what
happened. Nguyen told Ford that he did not authorize the prescription and not to use his
DEA number again.
Concerned about other unauthorized use of his DEA number, Nguyen spoke to a
number of people and contacted an attorney. He also began reviewing his old patient
charts. He noticed that on November 26, 2011, a refill prescription was authorized for a
patient named Brittany Minderman. Nguyen did not recall authorizing a refill for
Minderman and believed the records indicated that Dambrose improperly authorized it.
Nguyen disclosed this apparent unauthorized refill, along with Rodela's unauthorized
prescription, to Stephen Nicas, an investigator for the California Dental Board. Nguyen
believed he made a copy of Minderman's chart and gave it to either Nicas when they first
met or his attorney.
Ford also contacted the dental board and was subsequently interviewed by Nicas.
After being informed of what happened, Nicas began investigating Dambrose. During
this process, Nicas also interviewed Nguyen and obtained his prescription history reports.
These reports disclosed that on January 20, 2012, prescriptions were requested under
Nguyen's DEA number for Rodela. Nguyen told Nicas that he did not authorize these
prescriptions.
5 When Dambrose realized Nguyen found out about the unauthorized prescriptions,
he apologized and asked Nguyen repeatedly not to report anything to the dental board or
the DEA. Dambrose was very apologetic and said that he was stupid. When Dambrose's
requests not to disclose his unauthorized uses of Nguyen's DEA number went
unanswered, he told Nguyen, "I thought we were friends" and that it would be best if
Nguyen did not work at DDC any longer.
Defense
Heather Johnson worked for Dambrose at DDC from August 2011 until he left the
practice. She worked at the front desk and dealt, up to three times a day, with calling in
prescriptions for patients if needed. When she started with DDC, she was told that
Dambrose could not call in a prescription. Johnson had been around Dambrose when he
was treating a patient who needed a prescription. Dambrose would explain to another
dentist why the patient needed a prescription. The associate dentist then would approve
and write the prescription. This process was the habit and custom of the office while
Johnson worked at DDC. Johnson's experience of the way in which Dambrose obtained
prescriptions for his clients was always during the daytime hours when another dentist
was physically present in the office and could authorize the treatment.
Alice Van Dyken worked with Dambrose at DDC during 2011 through the end of
2012. She was assistant manager and insurance biller. She has known Dambrose since
1988. Dambrose purchased DDC from Dr. Norman Mittelman. Mittelman sold the
business to Dambrose and stayed on as a consultant.
6 Van Dyken knew Dambrose could not write prescriptions for narcotics because he
had surrendered his DEA license in 2003. To her knowledge, that fact was well known in
the office. Dambrose would go to other dentists in the office when one of his patients
needed a prescription. She had called in prescriptions for Dambrose; however, she never
called in a prescription at Dambrose's request without another dentist's authorization. She
did not recall ever calling in a prescription at night at Dambrose's request.
Toward the beginning of 2012, the working relationship between Ford and
Dambrose was erratic. Many days, Ford worked well with Dambrose. On other days,
Ford would be upset about something. On one occasion, Ford came to Van Dyken's
office and complained, "I can't assist Dr. Dambrose anymore. He – my back hurts when I
assist him." Then she became upset and said "Dr. Dambrose is ruining my life." Van
Dyken admitted she is loyal to both Mittelman and Dambrose and is aware that Ford
brought charges against Dambrose, both criminal allegations and charges to the
California Dental Board.
Wylie worked with Dambrose from 2011 through the end of 2012 at DDC. She is
Mittelman's daughter and was DDC's business manager. When she was hired, Wylie was
informed that Dambrose could not write prescriptions for narcotics. Wylie confirmed all
employees were told of this limitation.
Wylie stated there were standard procedures to call in prescriptions. She knew of
a situation where Dambrose was treating a patient and needed a prescription. His habit
and custom was to have another dentist authorize it.
7 Wylie worked with Ford and was familiar with the interactions between Ford and
Dambrose. Ford had personality changes and a temper; she had a problem working with
employees in the office and with many of the dentists.
DISCUSSION
I
EXCLUSION OF A DEFENSE WITNESS
Dambrose contends the trial court committed reversible error when it excluded
Minderman from testifying during the defense's case-in-chief. We agree.
A. Background
During the preliminary hearing, six months before trial, Nicas testified about his
investigation of Dambrose, including his interview with Nguyen. Nicas testified that
after Nguyen was informed of Dambrose's misuse of Nguyen's DEA number, Nguyen
reviewed his patient files for any other unauthorized uses of his DEA number. Nguyen
told Nicas that he discovered that Dambrose improperly used his DEA number on
November 26, 2011 for a prescription refill for Minderman.
During cross-examination, Dambrose's counsel attempted to introduce
Minderman's dental chart to impeach Nguyen's statement to Nicas that Dambrose
improperly authorized the refill. However, the court did not allow defense counsel to use
a portion of Minderman's dental chart because he had not obtained Minderman's
authorization to do so.
Immediately prior to trial, Dambrose's trial counsel disclosed his initial witness list
that contained three defense witnesses: Johnson, Wylie, and Van Dyken. On the first
8 day of trial testimony, defense counsel informed the prosecutor for the first time that he
was attempting to locate a fourth witness, Minderman.
At the beginning of the defense's case-in-chief, Dambrose's trial counsel informed
the trial court that in addition to the three witnesses initially disclosed, he also would call
Minderman.5 Defense counsel intended to call Minderman to authorize the disclosure of
a November 26, 2011 dental chart note that indicated a refill prescription for her was
approved by Nguyen. He argued that the chart was relevant to impeach Nguyen. During
the prosecution's case-in-chief, Nguyen had testified that he did not authorize the refill,
but Dambrose had done so.
The prosecution objected to the late notification of Minderman as a defense
witness. Dambrose's trial counsel told the prosecution that he did not previously disclose
Minderman as a defense witness as he was a "busy dude" and had not been able to get in
contact with Minderman until now because "the phone numbers [he had were] no good"
and he did not locate her until just recently when he hired an investigator.
The trial court precluded Minderman from testifying based on a discovery
violation: defense counsel's failure to timely disclose Minderman as a defense witness.
The trial court noted that the potential relevancy of Minderman's medical chart was made
clear during the preliminary hearing, which occurred over six months prior to trial, and
thus, the court did not find good cause for the untimely disclosure.
5 Dambrose's trial counsel also stated he intended to call Mittleman. The court excluded Mittlemen from testifying because of Dambrose's trial counsel's failure to comply with the discovery provisions. Because Dambrose is not challenging this ruling, we do not discuss Mittleman's exclusion further. 9 On September 11, 2013, after judgment was rendered, Dambrose filed a motion
for new trial based on, in relevant part, the trial court's preclusion of Minderman as a
defense witness. The prosecution opposed the motion.
The trial court denied the motion for new trial.
B. Standard of Review and Applicable Law
We review a trial court's exclusion of evidence under the abuse of discretion
standard. (People v. Avila (2006) 38 Cal.4th 491, 578.)
No order for discovery can be made in a criminal case except as provided in
title 6, chapter 10 of the Penal Code. (§ 1054.5, subd. (a).) If the defense does not
comply with its discovery obligations under section 1054.3, the trial court may make any
order necessary to enforce those obligations, "including, but not limited to, immediate
disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or
the presentation of real evidence, continuance of the matter, or any other lawful order.
Further, the court may advise the jury of any failure or refusal to disclose and of any
untimely disclosure." (§ 1054.5, subd. (b).) Although a trial court has discretion in these
matters, that discretion is not unfettered. "The court may prohibit the testimony of a
witness pursuant to subdivision (b) only if all other sanctions have been exhausted."
(§ 1054.5, subd. (c).) However, "prohibiting the testimony of a witness is not an
appropriate discovery sanction in a criminal case absent a showing of significant
prejudice and of willful conduct." (People v. Gonzales (1994) 22 Cal.App.4th 1744,
1747, 1758 (Gonzales).)
10 C. Analysis
Dambrose contends his Sixth Amendment right to confront witnesses was violated
when the court excluded Minderman from testifying. Dambrose argues Minderman's
testimony was necessary to provide permission for his use of her dental records to
impeach Nguyen. Both of these contentions are well taken.
Here, the trial court did not consider or exhaust other sanctions before precluding
the testimony of Minderman. Instead, the trial court focused on Dambrose's trial
counsel's lack of good cause for failing to timely disclose Minderman as a witness. In
doing so, the trial court did not heed the procedure set forth in section 1054.5, subdivision
(c). As such, the trial court erred.
In addition, we find no support in the record that the prosecution would suffer
significant prejudice if Minderman testified. The trial court made no mention of any
prejudice the prosecution would suffer if Minderman testified. Moreover, the People's
claim of prejudice in their respondent's brief is unavailing. There, the People contend
they had no knowledge that Dambrose would call Minderman to testify at trial as a
rebuttal witness. The People's lack of knowledge, however, does not explain how
Minderman's testimony would have proved prejudicial. The People also claim they do
not know what Minderman's dental chart contains. Again, this argument glosses over any
explanation regarding the prejudicial impact of Minderman's testimony. Further, the
People's claim that they do not know the contents of Minderman's dental chart rings
somewhat hollow. The prosecution initially charged Dambrose with two counts related
to a refill prescription for Minderman. Although they dismissed these charges, Nguyen
11 testified at trial that, based on his review of Minderman's dental chart, he believed
Dambrose improperly authorized a refill of Minderman's prescription. Indeed, during
trial, Nguyen had his recollection refreshed with a two-page declaration he signed
regarding his conclusion that Dambrose improperly authorized Minderman's prescription
refill and provided additional, more specific testimony about the incident. Therefore, the
prosecution knew, prior to any indication that Dambrose planned to call Minderman as a
witness, that at least Nguyen believed Minderman's chart would show that Dambrose had
improperly authorized a prescription refill.
During trial, Dambrose's attorney made several objections to Nguyen's testimony
regarding the refill prescription for Minderman, but the court overruled these objections.
Apparently, both the trial court and the prosecution believed Nguyen's testimony to be
relevant and important regarding Dambrose's actions in DDC's office. Moreover,
because it was Nguyen's DEA number that Dambrose allegedly used, Nguyen's testimony
at trial was important to the prosecution's case. As such, it logically follows that
Dambrose would want to attack Nguyen's credibility at trial. To do so, Dambrose's trial
counsel wanted to call Minderman as a witness so she could authorize the use of her
dental chart and defense counsel believed he could use the chart to show that Nguyen was
not being truthful about the refill prescription.
Although the right to present exculpatory evidence has limitations (see Taylor v.
Illinois (1988) 484 U.S. 400, 410-411), on the record before us, we determine that it was
error for the trial court to exclude Minderman from testifying and the court clearly abused
its discretion by not exploring any other possible sanctions before excluding Minderman
12 from testifying (see § 1054.5, subd. (c); see also Gonzales, supra, 22 Cal.App.4th at
p. 1758.) Dambrose's Sixth Amendment rights were violated.
A violation of the compulsory process clause is an error of constitutional
magnitude. We therefore must determine whether the error was "harmless beyond a
reasonable doubt." (Chapman v. California (1967) 386 U.S. 18, 24-25.) The People
argue that even if the trial court erred in excluding Minderman's testimony, the error was
harmless. We are not persuaded.
The prosecution's case depended largely on Nguyen's testimony, which included
his claim that Dambrose had improperly authorized a refill of Minderman's prescription
as well as his statement that he had not authorized anyone to use his DEA number. The
trial court should have permitted Dambrose to challenge Nguyen's credibility by
impeaching him with the use of Minderman's dental chart. This is especially true in a
case such as this where the jury only convicted the defendant of one of the three charged
crimes. Put differently, this was a very close case and the prosecution did not present an
overwhelming case of guilt. Accordingly, we cannot, on the record before us, determine
that the exclusion of Minderman's testimony was harmless beyond a reasonable doubt.
II
INEFFECTIVE ASSISTANCE OF COUNSEL
Dambrose contends that his trial counsel rendered ineffective assistance. First, he
claims his trial counsel was ineffective because he failed to timely disclose Minderman as
a witness. As detailed above, Dambrose's trial counsel did not disclose that he intended
13 to call Minderman as a witness until after the prosecution finished its case-in-chief. The
record indicates that defense counsel explained his delay by commenting that he was a
"busy dude" and had difficulty tracking down Minderman because the phone numbers he
had were "no good." The court excluded Minderman from testifying as a sanction for a
discovery violation because of defense counsel's failure to timely disclose her as a
witness.
Dambrose also contends his trial counsel was ineffective for failing to complete
the examination of Johnson at trial. At trial, defense counsel attempted to broach the
subject of the refill of Minderman's prescription with Johnson:
"Q. Do you have any recollection of an incident that occurred in November of 2011 where the pharmacy contacted Dependents Dental Care for a Vicodin refill for Brittany Minderman?
"A. Correct.
"Q. Can you explain what you did when that occurred?
"A. The pharmacy actually called the office to okay a refill.
"[Prosecution]: Objection. Lack of foundation. Calls for hearsay.
"THE COURT: Sustained as to foundation.
"[Defense Counsel]: Let me rephrase, your Honor.
"Q. Did you consult with Dr. Nguyen giving authorization for the refill that was called in by the pharmacy?
"[Prosecution]: Objection. Move to strike. Calls for hearsay.
"THE COURT: Overruled.
"[Defense Counsel]: I have no further questions for this witness."
14 Finally, Dambrose claims that his trial counsel was ineffective because he did not
investigate Ford's criminal background. Ford was a prosecution witness who called in
the prescription for Rodela that led to the three charges against Dambrose. As part of her
testimony during the prosecution's case-in-chief, Ford stated that she had no disciplinary
actions since being licensed in 1990.
However, on October 22, 1985, a felony complaint was filed charging Ford with
two counts of unlawfully obtaining aid for children not in fact entitled to, in an amount
more than $400 in violation of Welfare and Institutions Code section 11483; two counts
of perjury in violation of section 118; and one count of unauthorized participation in the
federal food stamps program in violation of section 396. Ford ultimately entered a West6
plea to a violation of Welfare and Institutions Code section 11483. Welfare fraud is a
crime of moral turpitude. (See People v. Barnett (1998) 17 Cal.4th 1044, 1128.)
The record indicates that Dambrose's trial counsel did not investigate Ford's past
criminal conviction, and accordingly, offered no evidence at trial about Ford's criminal
background.
B. The Law and Analysis
To show that trial counsel's performance was constitutionally defective, an
appellant must prove: (1) counsel's performance fell below the standard of
reasonableness, and (2) the "deficient performance prejudiced the defense." (Strickland
v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) It is the defendant's burden to
6 People v. West (1970) 3 Cal.3d 595. 15 prove the inadequacy of trial counsel, and the defendant's burden is difficult to satisfy on
direct appeal. Competency is presumed unless the record affirmatively excludes a
rational basis for trial counsel's choice. (People v. Ray (1996) 13 Cal.4th 313, 349;
People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.) We reverse on the ground of
inadequate assistance only if the record affirmatively discloses no rational tactical
purpose for counsel's act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
"Competent counsel is not required to make all conceivable motions or to leave an
exhaustive paper trail for the sake of the record. Rather, competent counsel should
realistically examine the case, the evidence, and the issues, and pursue those avenues of
defense that, to their best and reasonable professional judgment, seem appropriate under
the circumstances." (People v. Freeman (1994) 8 Cal.4th 450, 509.)
Here, in regard to Dambrose's trial counsel's performance, the People do not
attempt to justify defense counsel's actions and/or inactions or otherwise argue that
defense counsel's representation of Dambrose did not fall below the standard of
reasonableness. (See Strickland, supra, 466 U.S. at pp. 687-688.) We view the People's
failure to contest the reasonableness of defense counsel's representation of Dambrose as a
tacit concession that his representation fell below the standard of reasonableness.
In addition, we struggle to attribute any reasonable tactical decision explaining
Dambrose's trial counsel's actions. As evidenced by the final jury verdict convicting
Dambrose of only one of the three charged counts, this was a close case. Two of the
prosecution's key witnesses were Nguyen and Ford. Dambrose allegedly used Nguyen's
DEA number to order prescriptions for Rodela. Nguyen also testified that he believed
16 Dambrose had earlier improperly authorized the refill of Minderman's prescription. As
such, Dambrose's trial counsel had every reason to challenge Nguyen's credibility. He
neglected to do so by failing to timely disclose Minderman as a witness and continue his
examination of Johnson.
In addition, the record shows that, despite defense counsel's claim to the contrary,
Minderman was not difficult to locate. A declaration of a private investigator filed in
support of Dambrose's motion for a new trial indicated that the investigator easily located
Minderman through a basic, "industry standard" internet search. Thus, we are not
convinced that defense counsel could not have easily located Minderman had he
attempted to do so prior to trial. Accordingly, we see no reasonable justification for
defense counsel's failure to timely disclose Minderman as a witness.
Likewise, we are perplexed by Dambrose's trial counsel's failure to complete his
examination of Johnson. Nguyen had testified that he believed Dambrose authorized the
refill of Minderman's prescription. Johnson apparently possessed knowledge regarding
the subject refill. After the court sustained an objection to one of defense counsel's
questions regarding the refill, defense counsel was able to rephrase the question to
withstand an objection by the prosecution. Therefore, the court was going to allow
Johnson to answer the question: "Did you consult with Dr. Nguyen giving authorization
for the refill that was called in by the pharmacy?" However, Dambrose's trial counsel did
not ask Johnson to answer the question after the court overruled the objection. Instead,
he merely stated he had no further questions.
17 There is no reasonable tactical decision for defense counsel's action here. He was
offering Johnson's testimony to attack Nguyen's credibility. He successfully rephrased
his question to allow Johnson to discuss her interaction with Nguyen regarding the refill.
Yet, defense counsel never had Johnson answer the question. In this context, Dambrose's
trial counsel's action is nothing short of baffling.
Similar to defense counsel's actions with Minderman and Johnson, we also see no
possible tactical justification for his failure to investigate Ford. Ford was Dambrose's
dental assistant at the time Dambrose treated Rodela. She called in the prescription that
led to counts 1 and 2. Further, Ford put her character at issue by stating she had no
disciplinary actions since being licensed in 1990. However, defense counsel could have
offered evidence that she had made a West plea to a crime of moral turpitude. This
evidence could have impacted Ford's credibility. However, defense counsel did not offer
any such evidence because he never investigated Ford's background. As she was one of
the prosecution's key witnesses, it defies any rationalization why defense counsel would
not have investigated her. This is especially true here where there also was evidence that
Ford and Dambrose did not get along.
Having concluded Dambrose's trial counsel's performance fell below the standard
of reasonableness, we next determine if Dambrose was prejudiced by his counsel's
performance. (See Strickland, supra, 466 U.S. at pp. 687-688.) Prejudice flowing from
criminal defense counsel's deficient performance is shown when there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. (In re Hardy (2007) 41 Cal.4th 977, 1018.) Reasonable
18 probability is a probability sufficient to undermine confidence in the outcome. (Id. at
pp. 1018-1019; see Strickland, supra, at pp. 693-694, 697-698 ["reasonable probability"
does not mean "more likely than not," but merely "probability sufficient to undermine
confidence in the outcome"].) A more favorable outcome under this analysis includes a
hung jury. (Cf. People v. Soojian (2010) 190 Cal.App.4th 491, 519-521.)
The People contend that Dambrose was not prejudiced by his trial counsel's
deficient performance. They point out that no operative charges were related to the refill
of Minderman's prescription. Further, the People argue there was overwhelming
evidence of Dambrose's guilt as to count 1. To this end, the People emphasize that Ford
testified that after Rodela's procedure was completed, Dambrose gave her a post-it note
containing Nguyen's DEA number and prescription information and asked Ford to call in
the prescriptions. The People also assert that it was uncontested that Nguyen was out of
the country when Ford called in the subject prescriptions and he had not authorized the
use of his DEA number. We are not persuaded.
Contrary to the People's position here, the evidence they rely on underscores the
prejudice Dambrose experienced based on his counsel's deficient performance. The
prosecution's case relied heavily on Nguyen's and Ford's testimony. As such, Dambrose
was clearly prejudiced by his attorney's failure to challenge their credibility. It is
reasonable that the jury may have been influenced to distrust Ford's testimony if it was
aware of her welfare violation. She was the prosecution's only witness about the calling
in of the prescriptions for Rodela. Further, the post-it note Ford claimed Dambrose gave
her was not an exhibit at trial and apparently was not found. As such, the prosecution
19 was forced to rely predominately on Ford's recollection of the subject events. Any
challenge to Ford's credibility, especially evidence that she had made a West plea to a
crime of moral turpitude, could have had a significant impact on the jury.
Further, the People fail to appreciate the importance of Nguyen's credibility.
Although it might have been uncontroverted that Nguyen was out of the country when
Rodela's prescription was called in, the prosecution still relied on Nguyen's testimony that
he had not authorized the use of his DEA number. To this extent, Nguyen's credibility
was critical for the prosecution's case. Here, Nguyen might have wrongfully accused
Dambrose of authorizing the refill of Minderman's prescription and there may have been
evidence showing Nguyen actually authorized the refill. However, Dambrose's trial
counsel never offered any evidence to challenge Nguyen's testimony about the refill. On
the record before us, we cannot conclude that there was no reasonable probability that
Dambrose would have received a more favorable outcome.
Again, this was a close case. The prosecution charged Dambrose with three
counts, all based on the prescriptions for Rodela. The fact that the jury only convicted
Dambrose of one of the counts highlights the weakness of the prosecution's case. We
simply cannot say, without serious doubt, there is not a reasonable probability, absent
Dambrose's trial counsel's deficient performance, that a different outcome would have
occurred.
20 DISPOSITION
The judgment is reversed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
McINTYRE, J.