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New statute requires review of sentencing
IN The People v. Howard Oliver, B317368, California Court of Appeals, Second District, Third Division (May 12, 2023) Howard Oliver appealed the sentence entered after a jury convicted him of conspiracy to defraud and defraud Medi-Cal, Medi-Cal fraud; grand theft, false and fraudulent statements, insurance fraud and four counts of tax evasion for 2012 to 2015. Oliver was sentenced to a total of seven years and eight months in prison and ordered to pay over $2.85 million in restitution.
BACKGROUND
In 1997, Oliver hired accountant Lou Cannon to help with taxes and accounting for his company, Central Desert Industrial Medical Group (Central Desert), an Apple Valley medical clinic that provided medical care to injured workers. Cannon eventually found out that Oliver was also the head of lucrative alcohol and drug counseling centers and became interested in running one. Oliver advised her on setting up a facility, provided her with information and documentation to submit with relevant applications, and loaned her money to set up the facility.
In 2008, Cannon opened the West Coast Counseling Center (West Coast) in Long Beach, naming himself as executive director and Oliver as medical director. Oliver provided his medical license and advised Cannon on which office to rent, informing her that an exam room was not necessary.
The West Coast falsification of patient records
West Coast operations were based on Medi-Cal billing. Cannon handled invoicing, payroll and accounting. Oliver served as medical director and signed off on files, plans and billing. He received a salary of $1,500 per month, which later increased to $2,500 per month.
Cannon urged counselors to fill out incomplete intake forms with false information and enter progress notes into files with patients the counselors never counseled. To accomplish this, about twice a month, Bailey gave counselors patient names and dates so they could prepare false progress notes in the files.
Oliver visited the office once or twice a month to review files, sign them, and return them to advisors. Oliver signed a physical exam waiver for clients.
Bailey also instructed the counselors to list group sessions that lasted three hours, although no sessions lasted that long. If advisors failed to do so, their paychecks would be withheld until “necessary corrections” were made to the records.
Counselors complained about the falsification of medical records during a staff meeting with Cannon, Bailey, Oliver and Moreno. Oliver told Bailey, “You need to stop doing that to the staff.” The counselors were asked to leave the meeting room. After the meeting, Oliver continued to sign off on patient visits that had not occurred.
The west coast did well financially. The West Coast also began offering incentives to encourage Medi-Cal recipients to come to their offices and provide their Medi-Cal card in exchange for vouchers for food, clothing and transportation.
The Ministry of Justice’s investigation
The Justice Department’s investigative auditor assigned to investigate West Coast determined that Medi-Cal paid West Coast approximately $2.8 million between January 2010 and September 2013, about half of which was for one-on-one counseling for three hours a day, three days a week . The investigation revealed that Oliver had deposited checks for several hundred thousand dollars into Central Desert and/or Grove Medical accounts that were not reported on Central Desert’s tax returns. Central Desert failed to pay $203,744 in taxes over four years.
DISCUSSION
The trial court’s denial of Oliver’s motion for an assault was not erroneous
The evidence of Oliver’s knowledge that the documents he signed contained false information was overwhelming, and Oliver’s arguments to the contrary are without merit. The court concluded that the district court did not err in denying a mistrial.
Assembly Bill No. 518 requires reconsideration
Assembly Bill 518, which took effect on January 1, 2022 (days after Oliver’s December 7, 2021 sentence), amended section 654 to provide, as applicable: “An act or omission punishable variously by various provisions of law may be punished under any of these provisions, but in no case shall the act or omission be punished under more than one provision.” A trial court must exercise its sound judgment when sentencing a defendant.
Oliver was convicted of five counts related to Medi-Cal fraud and four counts related to tax evasion. Under the prior statute, the trial court was required to impose the longer sentence on count 2 and to defer sentence on counts 1, 3, 4, and 6 because, as the trial court acknowledged, these five counts arose out of “essentially all the same act.”
Under the amended statute, the trial court had the option of sentencing Oliver under one of the less severe provisions and suspending the sentence on the other counts stemming from the same acts and omissions.
Howard Oliver’s sentence was vacated and the case remanded to the district court for retrial. Otherwise, the judgment was upheld.
Defrauding the state and federal governments is a serious crime. Oliver did it with impunity for a payment of $2,500 a month plus whatever he could steal from the company and by lying on his tax returns. He was properly convicted of the crimes and sentenced appropriately. Hopefully, although I hold out little hope, when the sentence is reviewed again, the court will exercise its discretion and maintain or extend the sentence that Oliver must serve.
(c) 2023 Barry Zalma & ClaimSchool, Inc.
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