PEOPLE v. EROSHEVICH

Respondent, Khristine Elaine Eroshevich, Answer to Petition for Review

Cal.May 20, 2013

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, $210545 Plaintiff and Appellant, 2 CRIM, B231411 LASC BA353907 “ SUPREME COUR! KHRISTINE EROSHEVICHetal., F | LE D Defendants and Respondents. MAY 20 2013 Frank A. McGuire Clerk APPEAL FROM THE JUDGMENT OF “Der uty THE SUPERIOR COURT OF LOS ANGELES COUNTY wep THE HONORABLE ROBERTJ. PERRY, JUDGE PRESIDING ANSWERTO THE PETITION FOR REVIEW OF THE DISTRICT ATTORNEY OF LOS ANGELES COUNTY on behalfof KHRISTINE EROSHEVICH JANYCE KEIKO IMATA BLAIR State Bar No. 103600 Suite 3 Ocean Plaza 302 West Grand Avenue El Segundo,California 90245 Telephone: (310) 606-9262 Attorney by Appointment of the Court of Appeal for Defendant and Respondent IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, 8210545 Plaintiff and Appellant, 2 CRIM, B231411 LASC BA353907 VS. KHRISTINE EROSHEVICHetal., Defendants and Respondents. APPEAL FROM THE JUDGMENTOF THE SUPERIOR COURT OF LOS ANGELES COUNTY THE HONORABLE ROBERTJ. PERRY, JUDGE PRESIDING ANSWER TO THE PETITION FOR REVIEW OF THE DISTRICT ATTORNEY OF LOS ANGELES COUNTY on behalfof KHRISTINE EROSHEVICH JANYCE KEIKO IMATA BLAIR State Bar No. 103600 Suite 3 Ocean Plaza 302 West Grand Avenue El Segundo, California 90245 Telephone: (310) 606-9262 Attorney by Appointment of the Court ofAppeal for Defendant and Respondent Table of Contents Table of Authorities | If This Court Grants Review — | 3 Issues Presented for Review in This Answer | 5 Necessity of Review of the Issues Presented for Review in This Answer | 6 Procedural History Relevant to the Decision to Grant Review of Issues Presented in This Answer | 6 Statement of Facts Relevant to the Decision to Grant Review of Issues Presented in This Answer | 8 ARGUMENT| 9 I. RECONSIDERATION OF PEOPLE V. HATCH IS MADE NECESSARY BY EVANS V. MICHIGAN, WHICH HOLDS, CONSISTENT WITH THE HIGH COURT’S PRIOR HOLDINGS, THAT A JUDICIAL DETERMINATION THAT GOES TO A CRIMINAL DEFENDANT’S GUILT OR INNOCENCE CONSTITUTES A JUDICIAL ACQUITTAL AND TRIGGERS PROTECTION UNDER THE DOUBLE JEOPARDY CLAUSE OF THE UNITED STATES CONSTITUTION | 9 Il. THE TRIAL COURT’S RULING DISMISSING THE CONSPIRACY COUNTS AGAINST DR. EROSHEVICH WAS BASED ON THE PROSECUTION’S FAILURE TO PROVE CRIMINAL CULPABILITY AND Was By DEFINITION AN ACQUITTAL ON THE MERITS FOR PURPOSES OF THE DOUBLE JEOPARDY CLAUSE| 15 Il. PETITIONER’S CONTENTION THAT REINSTATEMENT OF THE VERDICT IS THE ONLY REMEDY AVAILABLEIN THIS CASE IS NOT SUPPORTED BY ITS CITED AUTHORITIES | 17 CONCLUSION | 20 CERTIFICATE OF WORD COUNT| 21 Table of Authorities Page(s) CASES Arizona v. Rumsey (1984) 467 U.S. 203 oneeesssssssccseccsesscsecseccsescsessenesscosassesenssesensescsssucsucsesessesssesssscsessees 13, 14 Burks v. United States (1978) 437 U.S. 1 oesscsssscecsseseccaceesseccsecessesesecsccesecesseacseesscsesesesscscsecsesececaesnsseseseesesesscaceess 14 Evans v. Michigan, (2013) 568 U.S.iessestsssesceserececscsesscacscsscessesesesscscesseseseneneesessssnesecesssssesesesees3,5, 7,17 Fong Foov. United States (1962) 369 U.S. LAD eeeeeesssceecsssenesssecesssscsesesscnesecucseseaeseseasacsuesesessesucecscsecsesesesssseseseseses 10 People v. Braxton (2004) 34 Cal.4th 798ou.esesscesesesssssessesesscesessesesesscseseeescsescssssesesscsesessesssecsecesesesseceseneesens2 People v. Hatch (2000) 22 Cal.4th 260 ou...cescsesescccscssssesescsssesescsesessesessesescsesensscsesssesesesssesesesesenees passim People v. Pierce (1979) 24 Cal.3d 199 ooecessessecsssesecessecesssectessssesecessseseeesescosseseassesseneceesssesseneneescnesenseeses 14 People v. Salgado (2001) 88 Cal.App.4th 5 ooo. cescssscsessseccsesescssenenssesessscsesceessesseeesssesesscsesrsesessessess2, 17, 19 People v. Van Eyk (1961), 56 Cal. 2d 471 oeccsesecsssssseecscecscseensscsecssecseseacsecssesasessisoesesesarsucsesesecessesaceteres 15 Pinkerton v. United States (1945) 328 U.S. 640oeeeecesccscesecesesseseesecsesesecscscesseacssssecesesssususesscceseessusssscnseeseseceseeeeeees 15 State v. Little 2013 Tenn. LEXIS 309, [No. E2009-01796-SC-R11-CD, decided March 22, 2013)...cccssescscsssesessssecsecsssssscsssesessesesnesessesssesenesceseasscscesesessensssesesssseessasesseneass4,11 United States v. Wilson (1975) 420 U.S. 332 wu. eeescscsssscssssesssccssssesescseessssssssesesssesscercosesenssesseaesssesseeesesestees2, 17, 18, 19 Table of Authorities Page(s) STATUTES Pen. Code, § 1181, subd. (6) uu...eesssssececseceecsessceressessscsceasacosenersescsseessrsesnsssusssnssesssnsssessesess7 Pen. Code, § 1260.00...escscsscssssssssessessesessencscsceseccacsessacessesescecnseescssesssscsessuessoseresesesosecusesesseoesons2 Pen. Code, § 1385.0...cceesscssscssssssecssnssscssssececencsccsececsccssscscessesssersssesseessesesaessssesasonssssesenes passim U.S. CONSTITUTION Fifth Amendment.cccccccccccccssssssscsssssssssovessscssssesssssssecesssssuesecsessssssssssecssssssssssssessseesseen3, 5, 6, 10, 14 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, $210545 Plaintiff and Appellant, 2 CRIM. B231411 vs. LASC BA353907 KHRISTINE EROSHEVICHet al., Defendants and Respondents. ANSWERTO THE PETITION FOR REVIEW OF THE DISTRICT ATTORNEY OF LOS ANGELES COUNTY on behalfof KHRISTINE EROSHEVICH To the Honorable Chief Justice and Associate Justices of the Supreme Court of the State of California: Pursuant to rule 8.500 of the California Rules of Court, respondent Dr. Khristine Eroshevich respectfully answers the Petition for Review (PRV)filed by petitioner District Attorney for Los Angeles County from the published decision of the Court of Appeal, Second Appeilate District, Division Five, filed on March 28, 2013. (Slip opinion attached.) In its opinion, the Court of Appeal discussed the post- remittitur proceedings available in this case. (Slip opn., at pp. 30-36.) The Court of Appeal relied upon the authority vested in it by Penal Code section 1260 and People v. Braxton (2004) 34 Cal.4th 798, 818-819, in holding that: “Upon remittitur issuance, the trial court may decide to grant Dr. Eroshevich’s newtrial motion as to counts 1 and 3. Orthe trial court may decide to dismiss counts 1 and 3 on other grounds.” (Slip opn., at p. 34.) The District Attorney by its Petition, and in briefing below, contends that reinstatement of the verdicts in counts 1 and 3 is the only remedy available to the trial court and to respondents. (See, in particular, Arguments I and II in the Petition for Review.) The District Attorney primarily supports its contention with the following authorities: footnote 9 in Evans v. Michigan, (2013) 568 U.S. __; 133 S.Ct. 1069; 185 L.Ed2d 124; United States v. Wilson (1975) 420 U.S. 332; People v. Salgado (2001) 88 Cal.App.4th 5 (PRV,at pp. 17-22.) Significantly, the issue before the courts in those cases was limited and specific, to wit, In the context of Double Jeopardy jurisprudence, does the government have the right to appeal a postconviction action? The question of whether verdict reinstatement was the only remedy available in these procedural circumstances was neverin issue. (See ArgumentIII, infra.) Because that is the case, the authorities do not provide the support the District Attorney assigns them. Moreover, the District Attorney’s Petition fails to address its “only available remedy” contention in the context of the very authorities — Penal Code section 1260 and People v. Braxton, supra — upon whichthe Court of Appeal relied in identifying the remedies available in this case. IF THIS COURT GRANTS REVIEW — If this Court does grant review, Dr. Eroshevich respectfully asks that this Court also address the issue of whether the United States Supreme Court’s decision in Evans v. Michigan (2013) 568 U.S. __; 133 S.Ct. 1069; 185 L.Ed.2d 124 (Evans) compels a determination, as she argued below, that the judicial acquittal dismissing the case against her constitutes an acquittal on the merits within the meaning of the Double Jeopardy Clause of the U.S. Constitution. The Court of Appeal contrarily determined that the Double Jeopardy Clause does not bar retrial of Dr. Eroshevich because thetrial court failed to apply the substantial evidence test when dismissing the conspiracy counts. In so concluding, the Court of Appeal relied on People v. Hatch (2000) 22 Cal.4th 260 (Hatch), which held that Penal Code section 1385 dismissals are not judicial acquittals for purposes of the Double Jeopardy Clause unless the trial court applied the procedurally correct substantial evidence standard. Evans, however, makes clear that Hatch’s reliance on a procedurally correct review standard, i.e., on an error of law unrelated to guilt as the measure of whether a ruling constitutes a judicial acquittal for Double Jeopardy purposes, is constitutionally infirm. Evans expressly stated that the constitutionally relevant distinction is whether the judicial determination goes to culpability. “Culpability (i-e., the ultimate question of guilt or innocence) is the touchstone.” (Evans, supra, 133 S.Ct. at p. 1077; internal quotation marks omitted.) Evans pointed out that the High Court’s relevant prior cases “all instruct that an acquittal due to insufficient evidence precludesretrial, whether the court’s evaluation of the evidence was correct or not, and regardless of whether the court’s decision flowed from an incorrect antecedentruling of law.” (Evans, supra, 133 S.Ct. at pp. 1075-1076; internal quotation marks omitted.) Evans noted that Double Jeopardy jurisprudence treats procedural dismissals (rulings based on errors of law unrelated to guilt) differently from acquittals based on substantive rulings (rulings related to the question of guilt). Evans explained that the distinction exists because retrial following a merits-related ruling such as an acquittal presents the risk that the government with its superior resources will wear down the defendant and would disturb the defendant’s expectation of repose. Procedural dismissals, on the other hand, for matters unrelated to a determination of factual guilt, carry no expectation of finality. (Evans, supra, 133 S.Ct. at p. 1075; internal quotation marks omitted.) Evans stated that judicial acquittals and jury acquittals must be treated in the same way, reasoning “there is no way for antecedent legal errors to be reviewable in the context of judicial acquittals unless those errors are also reviewable whenthey give rise to jury acquittals (contrary to the settled understanding that a jury verdict of acquittal is unreviewable), or unless we distinguish between juries that acquit pursuant to their instructions and judicial acquittals (notwithstanding that this is a purely formal distinction).” (Evans, supra, 133 S. Ct. at p. 1081 (italics added); see State v. Little 2013 Tenn. LEXIS 309, at p.29 fn.6 [No. E2009-01796- SC-R11-CD, decided March 22, 2013], in which the Supreme Court of Tennessee, in distinguishing the facts in Evans from the facts in the case before it, described Evans as “treating bench acquittals the same as jury acquittals for double jeopardy purposes.) Here, the trial court dismissed the conspiracy counts against Dr. Eroshevich after finding the prosecution had failed to prove the existence of an agreement between Dr. Eroshevich and Mr. Stern to violate the law. Thetrial court’s judgment of acquittal resolved the question of Dr. Eroshevich’s guilt or innocence as a matter of the sufficiency of the evidence, not on unrelated procedural grounds. (Evans, supra, 133 S.Ct. at p. 1078.) The Court of Appeal’s conclusion that the trial court’s dismissal of the conspiracy charges does not bar retrial because the record fails to indicate the trial court applied the substantial evidence standard of review (as required by Hatch) is manifestly a ruling based on a proceduralerror. (See ArgumentsI, II,infra.) Evans and the authorities upon whichit relies establish that the Court of Appeal’s decision and the authorities upon which it relies are not supported by the United States Constitution. ISSUES PRESENTED FOR REVIEWIN THIS ANSWER 1. Does Evans v. Michigan (2013) 568 U.S. __; 133 S.Ct. 1069; 185 L.Ed.2d 124, compel a determination that the judicial acquittal dismissing the case against Dr. Eroshevich constitutes an acquittal on the merits and that the Double Jeopardy Clause of the U.S. Constitution therefore bars retrial of Dr. Eroshevich? 2. Does Evans v. Michigan (2013) 568 U.S. __; 133 S.Ct. 1069; 185 L.Ed.2d 124 and the logic and principles upon which it relies require reconsideration of People v. Hatch (2000) 22 Cal.4th 260 and cases similarly holding that Penal Code section 1385 dismissals are not judicial acquittals for purposes of the Double Jeopardy Clause unless the trial court applied the procedurally correct substantial evidence standard, a distinction which Evans explicitly states is not the relevant distinction in distinguishing rulings constituting judicial acquittals from those that are not? NECESSITY OF REVIEW OF THE ISSUES PRESENTED FOR REVIEWIN THIS ANSWER Review should be granted to settle an important question of law, to wit, whether Evans v. Michigan and the logic and principles upon whichit relies require reconsideration of People v. Hatch and cases holding similarly because these cases fail to recognize that the relevant distinction between court rulings that trigger protection under the Double Jeopardy Clause of the U.S. Constitution and those that do not is between judicial determinations that go to a criminal defendant’s lack of criminal culpability and those that hold that a defendant, although criminally culpable, may not be punished because of a supposed procedural error. (Evans, supra, 133 S.Ct. at p. 1077.) Review should also be granted to determine whether Evansv. Michigan and the logic and principles upon which it relies compel the conclusion that the judicial acquittal dismissing the case against Dr. Eroshevich is an acquittal on the merits for purposes of the Double Jeopardy Clause, as a result of which the Court of Appeal’s contrary holding is erroneous andretrial of Dr. Eroshevichis barred. PROCEDURAL HISTORY RELEVANT TO THE DECISION TO GRANT REVIEW OF ISSUES PRESENTED IN THIS ANSWER Defendants and respondents Dr. Eroshevich and Howard Stern were convicted of two counts of conspiracy. Both defendants moved for new trial (Pen. Code, § 1181, subd. (6)) and for dismissal (Pen. Code, § 1385.) The trial court granted Mr. Stern’s motion for new trial and then dismissed the two conspiracy counts for both defendants. The District Attorney appealed. The Court of Appeal initially filed its opinion on October 18, 2012, but on November 19, 2012, granted rehearing on its own motion to await the decision of the United States Supreme Court in Evans v. Michigan (2013) 568 U.S. _. The decision in Evans wasfiled on February 20, 2013. In Supplemental Letter Briefs II] and IV, Dr. Eroshevich contended that Evans madeclear (1) that in Double Jeopardy jurisprudence judicial and jury acquittals are to be treated alike; (2) that any judicial ruling that the prosecution’s proof is insufficient to convict is an acquittal for Double Jeopardy purposes; (3) that in this case in which judicial rulings set aside jury verdicts of conviction, Double Jeopardy jurisprudence allows the District Attorney a right of review; (4) that the reviewing court’s taskis to determine whetherthetrial court’s ruling is directed at a substantive or a procedural purpose; and (5) that under these precepts the trial court’s ruling dismissing. the conspiracy counts against Dr. Eroshevich constituted a judicial acquittal on the merits. The Court of Appeal filed its opinion on March 28, 2013. The Court of Appeal reversed the dismissal order for Dr. Eroshevich! and the new trial and dismissal orders for Mr. Stern. The Court of Appeal further noted that “nothing in Evans warrants a change in our prior analysis,” and issued an opinion that but for “minoralterations” reached the 1 The Court of Appeal concludedthatthe trial court never ruled on Dr. Eroshevich’s newtrial motion. (Slip opn., at p. 33.) same conclusions the court had originally reached, including the conclusions that under Hatch the trial court’s ruling dismissing counts 1 and 3 was not an acquittal and that the Double Jeopardy Clause did not bar retrial of Dr. Eroshevich on the conspiracy counts. STATEMENT OF FACTS RELEVANT TO THE DECISION TO GRANT REVIEW OF ISSUES PRESENTED IN THIS ANSWER In this Answerto the District Attorney’s Petition for Review filed with this Court, Dr. Eroshevich has presented issues pertaining to the application of the Double Jeopardy Clause in the wake of Evans v. Michigan, supra. The trial court dismissed the conspiracy counts (counts 1, 3) against Dr. Eroshevich. In doing so, the court stated: Now,having dismissed counts ] and 3 against Howard Stern, I address the issue of Eroshevich. I don’t think there was an agreement between the two of them to violate the law, and I think the conspiracy counts as to Eroshevich, even though she is [sic] a doctor should have known about the C.U.R.E.S. system, I don’t think the conspiracy counts can stand, and so I dismiss those as well as to Eroshevich. (48RT 15329:22-15330:1.) The court’s ruling was quite clearly directed at an evaluation of the prosecution’s evidence that Dr. Eroshevich was party to an agreement and the conclusion that the evidence wasinsufficient to prove that element. Thetrial court’s statement thus revealed that the court had resolved the question of Dr. Eroshevich’s culpability as a matter of the sufficiency of the evidence as to her participation in an agreement, and not on procedural grounds unrelated to guilt. ARGUMENT I. RECONSIDERATION OF PEOPLE Vv. HATCH IS MADE NECESSARY BY EVANS VY. MICHIGAN, WHICH HOLps, CONSISTENT WITH THE HIGH CouRT’sS PRIOR HOLDINGS, THAT A JUDICIAL DETERMINATION THAT GOES TO A CRIMINAL DEFENDANT’S GUILT OR INNOCENCE CONSTITUTES A JUDICIAL ACQUITTAL AND TRIGGERS PROTECTION UNDER THE DOUBLE JEOPARDY CLAUSE OF THE UNITED STATES CONSTITUTION In People v. Hatch (2000) 22 Cal.4th 260, this Court held that dismissals pursuant to Penal Code section 1385 should not be construed as dismissals for legal insufficiency unless the record clearly showed that the court viewed the evidencein the light mostfavorable to the prosecution and concluded that no reasonable trier of fact could find guilt beyond a reasonable doubt. (/d., at p. 273.) Thus, according to Hatch, section 1385 dismissals are not judicial acquittals for purposes of the Double Jeopardy Clause unless the court applied the procedurally correct substantial evidence standard. (Jbid.) Hatch reasoned that this requirement was appropriate because “section 1385 dismissals often are not based on the insufficiency of the evidence as a matter of law.” (Ibid.) Hatch quite clearly held the relevant determinative in deciding whethera judicial ruling constituted a judicial acquittal turns on whetherthe trial court appliedthe procedurally correct standard of review. In Evans v. Michigan, supra, the United States Supreme Court held that the Double Jeopardy Clause bars retrial following an erroneously granted judicial acquittal based on the prosecution’s failure to prove an element of the offense that the prosecution was not required to prove. (Evans, supra, 133 S.Ct. at p. 1073.) In so holding, Evans confirmed that the relevant distinction between court rulings that constitute judicial acquittals that trigger protection under the Double Jeopardy Clause of the United States Constitution and those that do not is between judicial determinations that go to a criminal defendant’s lack of criminal culpability and those that hold that a defendant, although criminally culpable, may not be punished because of a supposed procedural error. The former constitute judicial acquittals; the latter are not. In its analysis, Evans’ relied upon the logic and principles underlying Double Jeopardy jurisprudence. The Court noted that in Fong Foo v. United States (1962) 369 US. 141, 143, it recognized that the Double Jeopardy Clause bars retrial following a judicial acquittal even when the acquittal is based on an error. (Evans, supra, 133 S.Ct. at p. 1074.) Evans observed that the Court has since applied Fong Foo’s principle broadly and that it has “defined an acquittal to encompass any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense.” (Evans, supra, 133 S.Ct. at pp. 1074-1075; Fong Foo v. United States (1962) 369 U.S. 141, 143; emphasis added.) The Court pointed out that its decisions have treated what Evans termed procedural dismissals (rulings based on errors of law unrelated to guilt) differently from acquittals based on substantive rulings (rulings related to the question of guilt) and explained that this is so because retrial following a merits-related ruling such as an acquittal presents the risk that the government with its superior resources will wear 10 down the defendant and would disturb the defendant’s expectation of repose. Procedural dismissals, on the other hand, for matters unrelated to a determination of factual guilt, carry no expectation of finality. (Evans, supra, 133 S.Ct. at pp. 1075-1076; internal quotation marks omitted.) | Evans explainedthat a specific logic drives the application of these principles to its consideration of judicial acquittals and that logic is tied to the law’s treatment of jury acquittals. There is a settled understanding that a jury verdict of acquittal precludesretrial or appeal. Evans reasoned that unless antecedent legal errors are reviewable in the context ofjury acquittals there is no way for them to be reviewable in the context ofjudicial acquittals. Evans rejected the argumentthat the Double Jeopardy Clause must leave open a way to correct legal errors. (Evans, supra, 133 S.Ct. at p. 1080-1081; internal quotation marks omitted; see State v. Little 2013 Tenn. LEXIS 309,at p.29 fn.6 [No. E2009-01796-SC- R11-CD, decided March 22, 2013], Evans “[treats] bench acquittals the sameas jury acquittals for double jeopardy purposes.”) The Court defined an acquittal as “any ruling that the prosecution’s proof is insufficient to establish criminalliability for an offense”; “a ruling by the court that the evidence is insufficient to convict”: “a factual finding [that] necessarily establish[es] the criminal defendant’s lack of criminal culpability;” and “any other “rulin[{g] which relate[s] to the ultimate question of guilt or innocence.” (Evans, supra, 133 S.Ct. at p. 1074-1075; internal quotation marks omitted.) Evans explained that the “relevant distinction is between judicial determinations that go to the criminal defendant’s lack of criminal culpability and those that hold that a defendant, although criminally 1] culpable, may not be punished because of a supposed procedural error.” (Evans, supra, 133 S.Ct. at p. 1077; internal quotation marks omitted.) The Court emphasized that “[c]ulpability (i.e., the ultimate question of guilt or innocence) is the touchstone, not whether any particular elements were resolved or whether the determination of nonculpability was legally correct.” (Evans, supra, 133 S.Ct. at p. 1077; internal quotation marks omitted.) Evansreasonedthat the analysis “turns not on the form of the trial court’s action, but rather whether it serve[s] substantive purposes or procedural ones.” (Evans, supra, 133 S.Ct. at p. 1078; internal quotation marks omitted.) In the case before the Court, the State of Michigan argued that the trial court did not use the word “acquit” in its remarks. Of this argument, the Court said: “Here we know thetrial court acquitted Evans, not because it incanted the word ‘acquit’ (which it did not), but because it acted on its view that the prosecution had failed to prove its case.” (Evans, supra, 133 S.Ct. at p. 1078; internal quotation marks omitted.) Evans explained that the fact that the acquittal may result from “erroneous interpretations of governing legal principles affects the accuracy of that determination, but it does notalter its essential character”; in short, a “mistaken acquittal is an acquittal nonetheless.” (Evans, supra, 133 S.Ct. at pp. 1073-1074; internal quotation marks, citations omitted.) Evansestablishes that for Double Jeopardy purposes Hatch’s reliance on a procedurally correct review standard, i.e., on an error of law unrelated to guilt, as the measure of whether a ruling constitutes a judicial acquittal is not constitutionally correct. The constitutionally relevant distinction is whether the judicial determination goes to culpability. 12 “Culpability (i.e., the ultimate question of guilt or innocence) is the touchstone.” (Evans, supra, 133 S.Ct. at p. 1077; internal quotation marks omitted.) Evans took note that the Court’s relevant prior cases “all instruct that an acquittal due to insufficient evidence precludesretrial, whether the court’s evaluation of the evidence was correct or not, and regardless of whether the court’s decision flowed from an incorrect antecedent ruling of law.” (Evans, supra, 133 S.Ct. at pp. 1075-1076; internal quotation marks omitted; citations omitted.) Moreover, the respective procedural postures of the cases in Evans and Hatch do not affect the application of Evans here. In Evans, the trial court entered a directed verdict of acquittal after the prosecution rested its case based on the court’s view, albeit mistaken, that the prosecution had failed to prove an element of the offense. In Hatch, the trial court dismissed the case pursuant to Penal Code section 1385 after the jury declared itself deadlocked. (People y, Hatch, supra, 22 Cal.4th at p. 266.) The trial court in the present case also dismissed the action against Dr. Eroshevich and Mr. Stern pursuantto section 1385. Nothing in Evans suggests that the logic and principles driving its reasoning — that, for Double Jeopardy purposes, the constitutionally required determinative is whether the court’s ruling related to culpability or to a matter unrelated to guilt — are limited to judicial rulings made before the case is submitted to the jury. In fact, in resolving the specific question before it, Evans relied on Arizona v. Rumsey (1984) 467 U.S. 203, a capital case, in which the trial court in a benchtrial misconstrued a statute during the penalty phase of the trial and found the prosecution had failed to prove its case. The state appealed and won a 13 death sentence on remand. In this post-verdict, post-appeal, post-retrial procedural scenario, the Court, in Rumsey, held that retrial of the penalty phase violated the Double Jeopardy Clause. (Arizona v. Rumsey, supra, 467 U.S. at p. 211 (“Reliance on an error of law, . . does not change the double jeopardy effects of a judgment that amounts to an acquittal on the merits.”).) (Evans, supra, 133 S.Ct. at pp. 1073, 1076-1077.) Accordingly, to the extent that Hatch may be read to suggest that Double Jeopardy jurisprudence treats pre- and post-jury submission judicial rulings differently and that Evans does not apply to Penal Code section 1385 rulings, Hatch is constitutionally incorrect. Evans expressly rejected any contention that the Double Jeopardy Clause mustitself leave open a way of correcting legal errors. (Evans, supra, 133 S.Ct. at p. 1081.) Burks v. United States (1978) 437 U.S. 1 held that the Fifth Amendmentprecludesretrial if a court determines the evidence attrial was insufficient to support a conviction as a matter of law. The rule of Burks applies to trials conducted in California courts. (People v. Pierce (1979) 24 Cal.3d 199, 210; People v. Hatch, supra, 22 Cal.4th at p. 272.) 14 Il. THE TRIAL COURT’S RULING DISMISSING THE CONSPIRACY COUNTS AGAINST DR. EROSHEVICH WAS BASED ON THE PROSECUTION’S FAILURE TO PROVE CRIMINAL CULPABILITY AND WAS By DEFINITION AN ACQUITTAL ON THE MERITS FOR PURPOSES OF THE DOUBLE JEOPARDY CLAUSE Thetrial court dismissed the conspiracy counts (counts 1, 3) against Dr. Eroshevich. In doing so, the court stated: Now,having dismissed counts 1 and 3 against Howard Stern, I address the issue of Eroshevich. I don’t think there was an agreement between the two of them to violate the law, and I think the conspiracy counts as to Eroshevich, even though she is [sic] a doctor should have known about the C.U.R.E.S. system, I don’t think the conspiracy counts can stand, and so I dismiss those as well as to Eroshevich. (48RT 15329:22-15330:1.) Under California law, a conspiracy is an agreement between two or more persons to do some unlawful act, accompanied by an overt act done in furtherance of the conspiracy. (People v. Van Eyk (1961), 56 Cal. 2d 471, 478.) It is the agreement, not the object of the agreement, that is punishable. (Pinkerton v. United States (1945) 328 U.S. 640, 644.) Here, when the trial court said, “I don’t think there was an agreement between [Dr. Eroshevich and Mr. Stern] to violate the law,” and dismissed the conspiracy counts as to Dr. Eroshevich, the court’s assessmentthat the prosecution had failed to prove that Dr. Eroshevich was 15 a party to an agreement with Mr. Stern wentto the gravamen of the crime of conspiracy. The court’s ruling was directed at an evaluation of the prosecution’s evidence that Dr. Eroshevich was party to an agreement and the conclusion that the evidence wasinsufficient. The trial court’s statement thus revealed that the court had resolved the question of Dr. Eroshevich’s culpability as a matter of the sufficiency of the evidence as to her participation in an agreement, and not on procedural grounds unrelated to guilt. The trial court evaluated the prosecution’s evidence and acted on its view that the prosecution had failed to prove its case that Dr. Eroshevich was party to an agreement. The court’s ruling constituted a judicial acquittal on the merits for Double Jeopardy purposes. 16 III. PETITIONER’S CONTENTION THAT REINSTATEMENT OF THE VERDICT IS THE ONLY REMEDY AVAILABLE IN THIS CASE Is NOT SUPPORTED BY ITS CITED AUTHORITIES Petitioner argues that upon reversal of the trial court’s ruling dismissing counts 1 and 3, the only available remedy is the reinstatement of the verdicts. (PRV, at pp. 17-26.) The District Attorney primarily supports its contention with the following authorities: footnote 9 in Evans v. Michigan, (2013) 568 U.S. ___; 133 S.Ct. 1069; 185 L.Ed2d 124; United States v. Wilson (1975) 420 U.S. 332; and People v. Salgado (2001) 88 Cal.App.4th 5. (PRV,at pp. 17-22.) But, as will be shown, the legal issue before the courts in these cases is whether the prosecution hadtheright to appeal in the context of Double Jeopardy jurisprudence. The issue under consideration was not whetherverdict reinstatement was the only remedy available to respondents in the present procedural context. So, for example, Evans presented footnote 9 in the context of a prosecution claim that mid-trial judicial acquittals deny “the prosecution a full and fair opportunity to presents its evidence to the jury, while the defendant reaps a ‘windfall’ from the trial court’s unreviewable error.” (Evans v. Michigan, supra, 133 S.Ct. at p. 1081.) Evans noted that the states could disallow such a practice, explaining that: “Manyjurisdictions, including the federal system, allow or encourage their courts to defer consideration of a motion to acquit until after the jury returns a verdict, which mitigates double jeopardy concerns.” (Jbid.) In that context, footnote 9 was attached to the last quoted sentence and read: “If a court 17 grants a motion to acquit after the jury has convicted, there is no double jeopardy barrier to an appeal by the government from the court’s acquittal, because reversal would result in reinstatement of the jury verdict of guilt, not a new trial. (United States v. Wilson, 420 U. S. 332, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975).” (bid.) So, footnote 9 was written to inform the discussion regarding the prosecution’s right to appeal in that procedural context and does not support petitioner’s contention that the Court of Appeal was wrongin its identification of other post-remittitur proceedings. The focus in Wilson was also upon the government’s right to appeal in the context of Double Jeopardy jurisprudence, as the following excerpt establishes. A system permitting review ofall claimed legal errors would have symmetry to recommend it and would avoid the release of some defendants who have benefited from instructions or evidentiary rulings that are unduly favorable to them. But we haverejected this position in the past, and we continue to be of the view that the policies underlying the Double Jeopardy Clause militate against permitting the Government to appeal after a verdict of acquittal. Granting the Government such broad appeal rights would allow the prosecutor to seek to persuade a second trier of fact of the defendant’s guilt after having failed with the first; it would permit him to re-examine the weaknesses in his first presentation in order to strengthen the second; and it would disserve the defendant’s legitimate interest in the finality of a verdict of acquittal. These interests, however, do not apply in the case of a postverdict ruling of law by a trial judge. Correction of an error of law at that stage would not grant the prosecutor a new trial or subject the defendant to the harassment traditionally associated with multiple prosecutions. Wetherefore conclude that when a judge rules in favor of the defendant after a verdict of guilty has been 18 entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause. (United States v. Wilson, supra, 420 U.S.at pp. 352- 353.) Nothing in Wilson supports Petitioner’s contention that reinstatementofthe verdict is the only available remedy. Theright of the governmentto appeal in a criminal case was also at issue in Salgado, which relied upon Wilson in holding that the governmenthadthe right to appeal a postverdict action by thetrial court in the context of Double Jeopardy jurisprudence because the prosecution could be resolved by entering a judgment on the verdict. (People v. Salgado, supra, 88 Cal.App.4th at pp. 12-13.) Nothing in Salgado supports Petitioner’s contention that — reinstatementofthe verdict is the only available remedy. 19 CONCLUSION For the reasons herein set forth, Dr. Eroshevich respectfully requests that the issues set forth above be addressed if this Court does grant reviewin this case. DATED: May15, 2013 Respectfully submitted, JANYCE KEIKO IMATA BLAIR SBN 103600 Attorney by Appointment of the Court of Appeal | for Defendant and Respondent Khristine Eroshevich 20 CERTIFICATE OF WORD COUNT Rule 8.504(d), California Rules of Court, states that an answer to a petition for review produced on a computer must not exceed 8400 words including footnotes, but excluding the tables, the certificate of word count required by the rule, and any permitted attachment. Pursuant to Rule 8.504(d), and in reliance upon Microsoft Office Word 2010 software which was used to prepare this document, I certify that the word countofthis brief is 4744 words. DATED: May 15, 2013 JANYCE KEIKO IMATA BLAIR SBN 103600 Attorney by Appointment of the Court of Appeal for Defendant and Respondent Khristine Eroshevich 21 PROOF OF SERVICE I declare that I am over the age of eighteen years and not a party to the within entitled action. My business addressis 321 RichmondStreet, Suite A, El Segundo, California 90245. On the date of execution hereof, I served the attached document, Answer to the Petition for Review in People v. Eroshevich et al. (B231411), by placing true copies thereof in sealed envelopes addressedas stated below, with delivery fee fully prepaid, at El Segundo, California, with the United Parcel Service. 1. District Attorney’s Office CS Foltz Criminal Justice Center 210 West Temple Street Los Angeles, CA 90012 Attn: Serena Murillo California Appellate Project LA 520 S. Grand Avenue, Fourth Floor Los Angeles, CA 90071 Khristine Eroshevich, Respondent (Address omitted) Bradley Brunon,Esq. 12100 Wilshire Blvd., Ste 1960 Los Angeles, CA 90025 Clerk, Superior Court ofLos Angeles County CSF CriminalJustice Center 210 West Temple Street Los Angeles, CA 90012 For Hon. Robert J. Perry Peter Gold, Esq. Attorney for Mr. Stern 2269 Chestnut St., Ste 124 San Francisco, CA 94123 Court of Appeal Second Appellate District, Div. 5 300 South Spring Street Los Angeles, CA 90013 I declare under penalty of perjury that the foregoing is true and correct. Executed on May16, 2013, at El Segundo, California. 22 Filed 3/28/13 Opinion following rehearing CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, B231411 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BA353907) v. KHRISTINE ELAINE EROSHEVICHet al., Defendants and Respondents. Appeal from orders of the Superior Court ofLos Angeles County, Robert J. Perry, Judge. Reversed with directions. Steve Cooley and Jackie Lacey,District Attorneys, Irene Wakabayashi, Head Deputy District Attorney, Brentford J. Ferreira, Shirley Sui-Nin Sun and Natasha Cooper, Deputy District Attorneys, for Plaintiff and Appellant. Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Respondent Khristine Elaine Eroshevich. Peter Gold, under appointment by the Court of Appeal, for Defendant and Respondent Howard Kevin Stern. I. INTRODUCTION The People of the State of California appeal after a series of rulings which resulted in the dismissal of charges against two defendants, Dr. Khristine Elaine Eroshevich and Howard Kevin Stern. Mr. Stern’s new trial motion was granted. Two conspiracy counts were then dismissed pursuant to Penal Code! section 1385, subdivision(a) (section 1385). We will reverse the new trial and dismissal orders. Defendants were convicted after a jury trial. After the verdicts were returned, the trial court granted Mr. Stern’s new trial motion. The ground for granting Mr. Stern’s new trial motion wasthat the evidence was insufficient as matter of law. The trial court did not address a numberof other groundsspecified in Mr. Stern’s new trial motion. The trial court then proceeded to dismiss the charges against Mr. Stern pursuantto section 1385. Thetrial court, without ruling on Dr. Eroshevich’s newtrial motion, dismissed the charges as to her. We agree with the prosecution that Mr. Stern’s newtrial motion could not be granted nor the charges dismissed on the ground the evidence wasinsufficient as a matter of law. But, as we will explain, what can occur to Mr. Stern once the remittitur issues is limited by the double jeopardy provisions of our Constitutions. The federal and state constitutional double jeopardy protections apply to both trials and sentences. (J/linois v. Vitale (1980) 447 U.S. 410, 415; Ludwig v. Massachusetts (1976) 427 U.S. 618, 631.) In thetrial context, the core protection ofthe double jeopardy clauseis the prohibitionofa retrial after an acquittal. (Dowling v. United States (1990) 493 U.S. 342, 355; Wang v. Withworth (6th Cir. 1987) 811 F.2d 952, 957-958; People v. Salgado (2001) 88 Cal.App.4th 5, 13.) An acquittal most often results when a jury returns a not guilty verdict. Although less common,an acquittal for double jeopardy purposes also can occur whena trial court grants a defendant’s newtrial motion for evidentiary insufficiency. (See Hudson v. Louisiana (1981) 450 U.S. 40, 44; People v. Lagunas (1994)8 Cal.4th 1030, 1038, fn. 6.) Also comparatively unusual, an 1 Unless otherwise noted,all future statutory references are to the Penal Code. 2 acquittal for double jeopardy purposes can occur whena trial court dismisses a case pursuant to section 1385 for evidentiary insufficiency. (People v. Hatch (2000) 22 Cal.4th 260, 273; People v. Belton (1979) 23 Cal.3d 516, 520-521.) In double jeopardy jurisprudence, evidentiary insufficiency means the evidenceis insufficient as a matter of law;that is, the verdict is not supported by substantial evidence. | Here, we concludethe trial court incorrectly granted Mr. Stern’s new trial motion; the evidence was not insufficient as a matter of law. As will becomeclear, the former jeopardy effect of the erroneous order granting Mr. Stern’s new trial motion is the same as an acquittal. Similarly, we conclude the trial court dismissed the charges against both defendants based on an erroneousfinding the evidence wasinsufficient as a matter of law. Thus, wereverse the orders granting Mr. Stern’s new trial motion and dismissing the case pursuantto section 1385 as to both defendants. Once the remittitur issues, the trial court may take up the remaining newtrial motion issues, dismiss on other grounds pursuant to section 1385, or even impose sentence. But, there is one thing the trial court maynot do andthat is to order Mr. Stern to beretried. On October 18, 2012, we issued an opinionin this case which reached the precise same result we do today. On November 19, 2012, we granted rehearing on our own motion. Wedid so because the United States Supreme Court was reconsidering aspects of its double jeopardy jurisprudence in Evans v. Michigan (2013) 568 U.S. ,_—- [2013 U.S. LEXIS 1614, **6-32]. On February 20, 2013, the United States Supreme Court issued its opinion in Evans. Nothing in Evans warrants a changein ourprior analysis. Thus, with minor alterations, we reach the same conclusionswedidoriginally. II. PROCEDURAL HISTORY A. Charges And Verdicts Vicki Lynn Marshall died on February 8, 2007. Toxicologytests revealed an above therapeutic level of metabolites of a controlled substance—chloral hydrate—in her 3 blood. Our discussion of the evidence in part III of this opinion focuses onthe testimony relevant to the two conspiracy counts of whichthe jury convicted Mr. Stern and Dr. Eroshevich. However, by way ofprocedural background, the prosecutorfiled an 11- count information against Mr. Stern and Dr. Eroshevich. Also charged was Dr. Sandeep Kapoor. Dr. Kapoor was acquitted ofall charges. As to count3, the jury found defendants conspired between June 5, 2004, and September 10, 2006. As to count1, the jurors found defendants conspired between September 11, 2006, and February 8, 2007. The jury found defendants conspired to commit two crimes. Thefirst target offense was to obtain controlled substances by fraud, deceit or misrepresentation or concealmentof a material fact. (Health & Saf. Code, § 11173, subd. (a)?.) The second target offense was to unlawfully give false namesor addressesin prescriptions for controlled substances in violation of Health and Safety Code section 11174.3 Dr. Eroshevich wasalso convicted oftwo other charges. She was convicted in count 7 of obtaining controlled substances by fraud or misrepresentation in violation of Health and Safety Code section 11173, subdivision (a). Further, she was convicted as charged in count9 of giving a false nameor address in a controlled substance prescription in violation of Health and Safety Code section 11174. 2 Health and Safety Code section 11173, subdivision(a) states, “No person shall obtain or attempt to obtain controlled substances, or procure or attempt to procure the administration of or prescription for controlled substances, (1) by fraud, deceit, misrepresentation, or subterfuge; or (2) by the concealment of a material fact.” 3 Health and Safety Code section 11174 states, “No person shall, in connection with the prescribing, furnishing, administering, or dispensing of a controlled substance, give a false name or false address.” 4 B. New Trial And Dismissal Motions 1. Mr. Stern On November 29, 2010, Mr. Stern filed a motion inviting the trial court to exercise its discretion to dismiss the action under section 1385. Mr. Stern raised two points in support of his motion. First, using false names on prescription medications to protect the privacy of celebrities was a common practice in Los Angeles. Dr. Eroshevich knew Ms. Marshall was the intended recipient of the prescribed medications. And according to Mr. Stern, Ms. Marshall knew those same prescriptions were for her use. Further, doctors and hospitals had routinely prescribed medications for Ms. Marshall’s use in other names. And Mr. Stern readily admitted to investigators that controlled substance prescriptions intended for Ms. Marshall were written in his nameto protect her privacy. Hence, Mr. Stern asserted, there wasno substantial evidence he lacked a good faith belief his actions were legal. Second, Mr. Stern argued he was“selectively targeted” for prosecution in violation of his due process rights. Moreover, as to the non-opiate controlled substance prescriptions, the district attorney delayed filing what would have been misdemeanorchargesuntil after the statute of limitations had run. Asa result, the district attorney was forced to charge felony conspiracies. Also on November29, 2010, Mr. Stern filed a new trial motion. In addition to the grounds arguedin his invitation to dismiss, Mr. Stern raised two further issues. First, Mr. Stern argued a deputy district attorney committed prejudicial misconduct in argument to the jury. Second, Mr. Stern urgedthe trial court to reduce the two felony conspiracy verdicts to misdemeanors. 2. Dr. Eroshevich On December 1, 2010, Dr. Eroshevich filed a single “omnibus request” for dismissal, for a newtrial, or to reduce the felonies to misdemeanors. Dr. Eroshevich raised several arguments. First, with respect to the two conspiracy counts, Dr. Eroshevich asserted there was in fact only one agreement, not two separate conspiracies; therefore count 1 should be dismissed. Dr. Eroshevich further argued: there was no evidence Mr. Stern and she shared a common purpose to violate the law; they simply openly engagedin a practice that was common to numerousdoctors and hospitals; and Mr. Stern readily admitted that prescriptions in his name werein fact for Ms.Marshall. In addition, Dr. Eroshevich argued count 9 was lesser included offense of count 7. She further asserted she was the subject of selective prosecution because her conduct was consistent with that of “numerousother” medical professionals. Moreover, Dr. Eroshevich contended, the jury was likely influenced by evidence she had violated various standards of practice. This evidence, Dr. Eroshevich argued, obscuredthereal issue—whetherthe prescriptions were medically legitimate. On these grounds, Dr. Eroshevich argued, a newtrial should be granted or the case dismissed. Also, Dr. Eroshevich argued that the remaining counts should be reduced to misdemeanors. She reasonedthat the crimes actually committed were misdemeanors; further, a conspiracy to commit a misdemeanoris a “wobbler” that may be punished as a misdemeanor. Finally, Dr. Eroshevich requestedthat the trial court, on its own motion, dismiss the charges pursuant to section 1385. She argued that even if thereis sufficient evidence ofguilt, a trial court may dismiss an action wherea retrial would not further the interests ofjustice. 3. The Trial Court’s Rulings a. Mr. Stern Preliminarily, the trial court found Ms. Marshall suffered from chronic pain syndrome;further, her “drug-seeking behavior” was primarily due to inadequate control of pain rather than addiction. The trial court was further persuaded the overriding 6 purposein procuring controlled substances in namesother than Ms. Marshall’s true name was to protect her privacy. With respect to prescribing medications in a false name,the trial court concluded the law was vague as to what constitutes a false name. Thetrial court found no basis for charging a conspiracy ending on September 10 and a new one beginning the very next day on September 11, 2006. More significantly, the trial court found, “[T]here is [no] evidence in the record at all that Howard Stern lacked a goodfaith beliefthat the practice of obtaining prescription medicines for [Ms. Marshall] in names other than [her true name] could be against the law.” Thetrial court found Mr. Stern acted to protect Ms. Marshall’s privacy, as had most of the doctors and hospitals that had dealt with her. The trial court concluded: “When I considerall the evidence, and even viewing it in a light most favorable to upholding the verdict, I find it is clearly insufficient. Under these circumstances, I find no reasonable trier of fact could find that HowardStern had a specific intent to violate either of these target crimes . . . and I do grant a motion for newtrial to Mr. Stern on these [conspiracy] counts... .” Immediately after granting Mr. Stern’s new trial motion,thetrial court stated: “[B]ut I’m going further. [{] I find the evidenceat trial was so lacking and insufficient to show a specific intent to join a conspiracy on the part of Howard Stern to commit these target crimes, that I do believe the interest ofjustice supports the dismissal of these counts as to Mr. Stern, and I so order. Andthis, of course, is under Penal Code section 1385 ....” The minute order prepared for Mr. Stern sets forth the trial court’s reasons for dismissing counts 1 and 3 as required by section 1385: “On the court’s motion, counts 1 and 3 are dismissed due to insufficiency of the evidence. [{] The court furtherclarifies that it is dismissing counts | and 3 in their entirety, which includesall hung target offenses, due to insufficiency of the evidence as a matter of law pursuant to Penal Code section 1385.” b. Dr. Eroshevich Having dismissed the conspiracy counts as to Mr.Stern, the trial court turned to Dr. Eroshevich’s motion. The trial court concluded: “I don’t think there was an agreement betweenthe twoofthem to violate the law, and... I don’t think the conspiracy counts can stand [as to Dr. Eroshevich], and so I dismiss those as well... .” The clerk’s minutes for Dr. Eroshevich contain no statement of reasonsfor the dismissal. The minutes state concerning Dr. Eroshevich: “The causeis argued and the court grants defense motion to dismiss counts 1 and 3 pursuantto . . . section 1385 due to insufficiency of the evidence.” No other languagepertinent to the dismissal of counts 1 and 3 as to Dr. Eroshevich is contained in the clerk’s minutes. Wewill later discuss the effect of the absence of any language in the trial court’s oral order or the clerk’s minutes concerning: the substantial evidence standard of review; having viewed the evidencein a light most favorable to the verdicts; and that no reasonabletrier of fact couldfind guilt beyond a reasonable doubt. (People v. Hatch, supra, 22 Cal.4th at p. 273; People v. Salgado, supra, 88 Cal.App.4th at p. 10.) However, thetrial court denied Dr. Eroshevich’s motion for a newtrial or to dismiss as to counts 7 and 9: “I choosenotto disturb the jury’s verdict regarding [Dr.] Eroshevich on counts 7 and 9. There is no doubt in the court’s mind that based on the evidence [Dr.] Eroshevich acted outof a heart-felt desire to help herfriend. Obtaining a prescription in the name of another person, Charlene Underwood, without [Ms.] Underwood’s knowledgeor consent was clearly wrong and constituted a violation of the law. As a doctor[,] [Dr.] Eroshevich well knew she should not have done this and it is clear to the court that she acted with the required intent to defraud.” However, the trial court “vacated” the count 9 conviction on groundsit was not appropriate to punish Dr. Eroshevich twice for the same act. Thetrial court then reduced count 7 to a misdemeanor. The prosecution has not appealed thetrial court’s orders with respect to counts 7 or 9. Il. THE EVIDENCE A. Overview OfThe Participants Webegin by generally describing the key participants in the counts that resulted in Ms.Marshall’s death on February 8, 2007. Mr. Stern became Ms. Marshall’s lawyer in 1996. Overthe course of a 12-year relationship, Mr. Stern becamea regular part of Ms.Marshall’s entourage. From at least June 5, 2004, until Ms. Marshall’s death, the dates of the conspiracies as found by the jury, Mr. Stern was her attorney, manager, “right-hand man” and close companion. He managedher day-to-day affairs and escorted her to events. By some accounts, a romantic relationship developed between Mr. Stern and Ms. Marshall in the year before she died. Mr. Stern was closely involved in Ms. Marshall’s medical care. He accompanied her to medical appointments, discussed her health and drug use with hertreating physicians, assisted her in acquiring prescription medication and monitored her medication use. He kept track of her medication schedule and personally ensured she took her prescribed drugs on time. At times, Mr. Stern injected Ms. Marshall with liquefied vitamins and medications. Ms. Marshall was hospitalized from April 24 to May 2, 2006. During her hospitalization, Mr. Stern consulted with Ms. Marshall’s staff physicians. On April 26, 2006, Ms. Marshall was examined by Dr. Nathalie Maullin. During the examination, at which Mr. Stern was present, Ms. Marshall was asked about her medical history. Ms. Marshall told Dr. Maullin to ask Mr. Stern. Also, Ms. Marshall was asked what medication she was taking. Ms. Marshall told Dr. Maullin, “Ask Howard,” referring to Mr. Stern. At a later point during the examination, Ms. Marshall wasasked again what medications she had taken. Once again, Ms. Marshall told Dr. Maullin, “Ask Howard.” Dr. Eroshevich was a California-licensed psychiatrist and, beginning in October 2002, Ms. Marshall’s neighbor and friend. Between June 5, 2004 and February 8, 2007, the dates of the conspiracies as found by the jury, Dr. Eroshevich repeatedly prescribed 9 controlled substances for Ms. Marshall’s use. Dr. Eroshevich kept no medical records with respect to Ms. Marshall. Ten prescription drugs including three controlled substances were foundin the hotel room where Ms. Marshall died. The three controlled substances were prescribed to Howard K.Stearn. Dr. Eroshevich wrote all 10 ofthe prescriptions. Prior to the dates of the conspiracies, from March 2001 until about January 2004, Dr. Victor Kovner had treated Ms. Marshall for, among other things, chronic pain. Dr. Kovner kept Ms. Marshall’s medical file under the name Michelle Chase. The file also contained references to Anna Nicole Smith and Vickie Marshall. At all times, Dr. Kovnerandhis staff knew Michelle Chase and Anna Nicole Smith were pseudonyms for Ms. Marshall. Dr. Kovner did not know Ms. Marshall was obtaining pain medications and benzodiazepines from other physicians. Mr. Stern accompanied Ms. Marshall to her appointments with Dr. Kovner. Mr. Stern conferred with Dr. Kovner about Ms. Marshall’s treatment. From timeto time, the two men discussed Ms. Marshall’s medication use. Mr. Stern was concernedthat Ms. Marshall not overuse her medications. Whenprescriptionrefills were needed, Ms. Marshall’s assistant, Kim Walther, or Mr. Stern would call Dr. Kovner’soffice. Occasionally, Mr. Stern requested early refills because Ms. Marshall was traveling. Dr. Kovner wrote prescriptions for Ms. Marshall’s use in her true name, Vicki Lynn Marshall. But he prescribed methadoneto her under a pseudonym, Michelle Chase. Dr. Kovner could not remember why he wrote the prescriptions in two names, but he assumed the name Michelle Chase was used for privacy reasons.. Dr. Kovner denied any attempt or intent to defraud. Dr. Ira Freeman was a pharmacist and the owner of Key Pharmacy. Dr. Freeman filled Dr. Kovner’s prescriptions for Ms. Marshall. Drs. Kovner and Freeman discussed the use of a false name for Ms. Marshall’s methadoneprescription. Dr. Freeman described their initial conversation on the subject of methadoneprescriptions: “Dr. Kovnercalled meto tell me he was referring over a patient, part of his pain 10 managementpractice. The patient’s name was Anna Nicole Smith, but on one ofthe prescriptions, he was going to have a different name, and that name was Michelle Chase.” Dr. Freemanat all times knew prescriptions in the name Michelle Chase were in fact for Ms. Marshall. In 2001 and 2002, Ms. Walther retrieved Ms. Marshall’s _ prescriptions from Key Pharmacy. However, beginning at somepoint in 2003 or 2004,it was Mr. Stern who usually picked themup. In early 2004, Dr. Kapoor took over Dr. Kovner’s practice. Dr. Kapoor continued Dr. Kovner’s practice of prescribing methadone for Ms. Marshal] in the name Michelle Chase. With two exceptions—onJune 10 and 17, 2004—all of Drs. Kovner’sand Kapoor’s prescriptions for Ms. Marshall were filled at Key Pharmacy. Mr. Stern spoke with Dr. Kapoor about Ms. Marshall’s health issues. Mr. Stern called Dr. Kapoor’s office to obtain refills of Ms. Marshall’s prescriptions. B. The Narcotics And The MethodFor Detecting Prescription Abuse The jury wasinstructed that, for purposes of this case, the following were “controlled substances”: alprazolam (Xanax or Niravam); chloral hydrate (Somnote); clonazepam (Klonopin); diazepam (Valium); flurazepam (Dalmane); hydrocodone with acetaminophen (Vicodin); hydromorphone(Dilaudid); lorazepam/lorazepam intensol (Ativan); meperidine/pethidine (Demerol); methadone (Methadose); modafinil (Provigil); and zolpidem (Ambien). A subset of those controlled substances—alprazolam (Xanax), clonazepam (Klonopin), flurazepam (Dalmane), diazepam (Valium) and lorazepam (Ativan}—are sedative hypnotic drugs called benzodiazepines. Benzodiazepines are commonly usedto treat anxiety and insomnia. The controlled substancesalso include opiates (pain relievers): hydrocodone with acetaminophen (Vicodin); hydromorphone (Dilaudid); meperidine/pethidine (Demerol); and methadone (Methadose). Chloral hydrate (Somnote) for insomnia, modafinil (Provigil) for narcolepsy and zolpidem (Ambien) for insomnia round outthelist. 11 The California Department of Justice Bureau ofNarcotics Enforcement maintains a “Controlled Substance Utilization Review and Evaluation System.” This is a record of all controlled substances prescribed. Prescriptions are tracked through a patient’s name, address, date of birth and gender, as well as information about the prescribing doctor and pharmacist. Doctors can consult the review system to determine whethera patientis taking medication prescribed by other physicians. C. Count 3: June 5, 2004-September 10, 2006 Dr. Eroshevich’sfirst prescription for Ms. Marshall was written on June 5, 2004. Asnoted above, Dr. Eroshevich kept no medical records with respect to Ms. Marshall. Initially, Dr. Eroshevich wrote prescriptions for Ms. Marshall, including for controlled substances, in the names Vickie or Vicki Marshall and Anna N. Smith. Prescriptions Dr. Eroshevich wrote in the name Vickie Marshall were, with two early exceptions,filled at a Rite Aid pharmacy. Prescriptions Dr. Eroshevich wrote in the name Anna N. Smith were dispensed from a grocery store pharmacy. Dr. Eroshevich never sent any of Ms. Marshall’s prescriptions to Key Pharmacy. As noted above, Drs. Kovner’s and Kapoor’s prescriptions were filed at Key Pharmacy. And the pharmacist at Key Pharmacy, Dr. Freeman, knew both Dr. Eroshevich and Mr. Stern. Dr. Freeman also knew that Dr. Eroshevich and Ms. Marshall were neighbors. Between June 5, 2004 and April 24, 2006, when Ms. Marshall was admitted to a hospital, Dr. Eroshevich wrote or approvedrefills for various medications. On more than 20 dates the medications included controlled substances prescribed in the names Vickie Marshall or Anna N. Smith. Onat least 10 of those occasions, Mr. Stern retrieved the medications from the dispensing pharmacy. Ms.Marshall, who waspregnant, was hospitalized from April 24 to May 2, 2006. She was identified by the hospital and in medical records as Jane Brown,but hertreating physicians knew hertrue name. Dr. Kapoor and Mr. Stern both consulted with staff 12 doctors. A detoxification plan was developed in consultation with Ms. Marshall, Mr. Stern and Dr. Kapoor. The plan was to stabilize Ms. Marshall and then wean heroff benzodiazepines and methadone. Dr. Maullin recommended an inpatient drug treatment program. Ms. Marshall then stopped speaking to Dr. Maullin. Ms. Marshall told Mr. Stern she wanted to self-discharge from the hospital. Upon discharge, Dr. Maullin prescribed methadone and an anti-depressant, Cymbalta, for Ms. Marshall. Dr. Maullin wrote the prescriptions in the name Anna Nicole Smith to be filled under the name Jane Brown. Dr. Maullin did so to link the prescriptions to Ms. Marshall’s hospital medical chart. As noted, Ms. Marshall’s hospital medical records listed her as Jane Brown. Following Ms. Marshall’s discharge from the hospital, she traveled to South Carolina and then to the Florida Keys. In July 2006, Ms. Marshall, who was pregnant, traveled to the Bahamas. Mr. Stern joined her there. Dr. Kapoor continued to prescribe methadone for Ms. Marshall under the false name Michelle Chase through September 2006. However, consistent with the detoxification plan developed during Ms. Marshall’s hospitalization, Dr. Kapoor lowered her methadone dosage and stopped prescribing benzodiazepines. Dr. Kapoor spoke to Dr. Freeman, the pharmacist, about Ms. Marshall’s methadone. Dr. Kapoor said he wanted to taper Ms. Marshall’s methadone down prior to delivery of the baby. Dr. Kapoor’s last methadoneprescription for Ms. Marshall was dated August 25, 2006. The methadonewasin liquid form for injection. At Mr. Stern’s direction, Dr. Freeman shipped the methadoneby air to Ms.Marshall in the Bahamas. At the same time, and in direct contravention of Dr. Kapoor’s detoxification efforts, Dr. Eroshevich began prescribing benzodiazepines—diazepam (Valium), lorazepam (Ativan), and alprazolam (Xanax)—to “Howard K.Stearn.” The medications prescribed for “Howard K. Stearn” were to be used by Ms. Marshall. They were not for Mr. Stern’s use. Dr. Eroshevich had nopatient file for Mr. Stern. In June, July and August 2006, Mr. Stern retrieved prescriptions written in the misspelled version ofhis name, Stearn, but intended for Ms. Marshall’s use. Mr. Stern then flew from the United 13 States to the Bahamas. Dr. Eroshevichalso prescribed other medications for Ms.Marshall’s use. Ms. Marshall gave birth to a daughter on September7, 2006 in the Bahamas. Three dayslater, on September 10, her adult son died. Ms. Marshall was discharged from the hospital that same day. -D. Count 1: September 11, 2006-February 8, 2007 Mr. Stern notified Dr. Eroshevich that Ms. Marshall’s adult son had died. On September. 11, 2006, Dr. Eroshevichfilled two controlled substance prescriptions for Anna Smith—chloral hydrate (Somnote) and lorazepam intensol (Ativan)—at a Burbank pharmacy. Lorazepam intensolis a concentrated form of lorazepam. Lorazepam intensol is administered in hospitals but is not commonly usedas an outpatient drug. Dr. Eroshevichfilled out the Lorazepam prescription forms for Ms. Marshall in the pharmacist’s presence. Dr. Eroshevich brought the medication to the Bahamasfor Ms. Marshall’s use. From that point forward, Dr. Eroshevich ceased writing prescriptions in the names Vickie Marshall or Anna Smith. Instead, Dr. Eroshevich began writing prescriptions in the name of Howard K.Stearn andthat of her ex-husband, Wesley Irwin. The prescribed medications were intended not for Mr. Stern or Mr. Irwin but for Ms. Marshall. On September 15, 2006, Dr. Eroshevich sent a facsimile transmission to Dr. Kapoor’soffice in California. Dr. Eroshevich requested that six medications be dispensed under the name Michelle Chase and sent or brought to the Bahamas. Thelist included four controlled substances—two opiates, hydromorphone (Dilaudid) and methadone, and two benzodiazepines, lorazepam intensol (Ativan) and flurazepam (Dalmane). The list also included a musclerelaxant, carisoprodol (Soma). Dr. Kapoor’s office forwarded Dr. Eroshevich’s list to Key Pharmacy. Dr. Freeman refusedto fill the prescriptions. Dr. Freeman determined the quantity of 14 medication and dosing instructions were excessive. Dr. Freeman spoke to Mr. Stern by telephone and expressed his concerns about the excessive quantity and dosage. Additionally, Dr. Freeman contacted Dr. Gregory Allan Thompson,the founder and former director of the Los Angeles Regional Drug and Poison Information Center. Dr. Eroshevich subsequently telephoned Dr. Thompson. Dr. Thompson urged Dr. Eroshevich to check Ms. Marshall into a hospital or clinic. Because she was unable to acquire the desired medications through Dr. Kapoor, Dr. Eroshevich resorted to other means. Dr. Eroshevich wrote a series of prescriptions in several different namesandfilled them at varying pharmacies. Members of Ms.Marshall’s entourage then ferried the medications to her in the Bahamas. On September 18, 2006, Mr. Irwin traveled from the Bahamas to Los Angeles. On September 22, 2006, per Dr. Eroshevich’s instructions, Mr. Irwin picked up several prescriptions she had called into a grocery store pharmacy. Twoprescriptions were in Mr. Irwin’s name. Those prescriptions were for carisoprodol (Soma), a muscle relaxant, and clonazaepam (Klonopin), a benzodiazepine. Threeprescriptions were in the name “Howard K. Stearn”: clonazepam; carisoprodol; and chloral hydrate (Somnote) for insomnia. Mr. Irwin testified the medications were for Ms. Marshall or for Mr. Stern. The following week, Ms. Marshall’s bodyguard, Maurice Brighthaupt, flew from the Bahamasto Fort Lauderdale, Florida. Mr. Brighthaupt returned to the Bahamas three dayslater. On October 17, 2006, Dr. Eroshevich called in two controlled substance prescriptions, chloral hydrate and clonazepam,to a California pharmacy, Unipharma. The pharmacy wasnot open to the public. Dr. Eroshevich falsely said the patient was Charlene Underwood. Dr. Eroshevich lied and claimed to be Ms. Underwood’saunt. Dr. Eroshevich used Mr. Irwin’s birth date and the address of one of her offices as the patient’s information. Later that day, Dr. Eroshevich retrieved the prescription medications and paid cash for them. Dr. Eroshevich flew to the Bahamas on October18, 15 2006. Ms. Marshall’s son was buried in the Bahamas on October 19, 2006. Dr. Eroshevich returned to California on November5, 2006. On November 24, 2006, Dr. Eroshevichfilled three controlled substance prescriptions at Unipharma—two benzodiazepines, alprazolam (Xanax) and diazepam (Valium), and a pain killer, hydrocodone (Vicodin). Dr. Eroshevich again falsely identified the patient as Ms. Underwood. Asbefore, Dr. Eroshevich picked up the prescriptions and paid cash for them. Two dayslater, she returned to the Bahamas. There was in fact a person named Charlene Underwood. The real Ms. Underwood was a worker’s compensation lawyer who had once corresponded with Dr. Eroshevich. However, the real Ms. Underwood had never met Dr. Eroshevich. The real Ms. Underwoodwas neither Dr. Eroshevich’s niece nor patient. The real Ms. Underwooddid not give anybody permission to use her name. Thereal Ms. Underwoodneverreceived any medications prescribed by Dr. Eroshevich. Other than being the victim ofthe deceitful misuse of her name, Ms. Underwoodhad nothingto do with the fraudulent conspiracyto violate this state’s narcotics laws. Dr. Eroshevich returned to California on December 3, 2006. On December4, 2006, the grocery store pharmacyrefilled two controlled substance prescriptions written by Dr. Eroshevich for “Howard Stearn”—chloral hydrate and clonazepam. On December 12, 2006, Mr. Irwin picked the medications up and paid cash for them. Dr. Eroshevich returned to the Bahamasthe following day. On December 27, 2006, Dr. Eroshevich returned to California. On January 2, 2007, Dr. Eroshevich called in prescriptions for “Howard K. Stearn” and collected them from the grocery store pharmacythe following day. The prescriptions included two controlled substances, chloral hydrate (Somnote) and clonazepam (Klonopin), andthe muscle relaxant carisoprodol (Soma). On January 5, 2007, Dr. Eroshevich called two additionalcontrolled substance prescriptions into the grocery store pharmacy, onefor “Howard K. Stearn” (diazepam (Valium)) and the other for “Ben Stern”(lorazepam (Ativan)). Dr. Eroshevich picked up the medications that day, paid cash for them, and 16 sent them by Federal Express to Mr. Brighthaupt in Florida. On January 29, 2007, Mr. Brighthaupt flew from Fort Lauderdale to the Bahamas. On January 26, 2007, Dr. Eroshevich wentto the grocery store pharmacy. Dr. Eroshevich requested early refills of prescriptions for “Howard K. Stearn” including the controlled substances clonazepam (Klonopin), diazepam (Valium) and chloral hydrate (Somnote) together with the muscle relaxant carisoprodol (Soma). Dr. Eroshevich did not explain that the medicines were intended for use by Ms. Marshall or anyoneelse. The pharmacist, Emma Avakyan, told Dr. Eroshevich it was too early to refill the prescriptions. Dr. Eroshevich said she was going to take the medication to “Mr. Stearn” in the Bahamas. On that basis, Ms. Avakyan filled the prescriptions early. Mr. Irwin picked up at least some of the prescriptions and paid for them on January 27, 2007. On January 29, 2007, Dr. Eroshevich returned to the Bahamas. The medicationsrefilled at the grocery store pharmacy were in Ms. Marshall’s hotel room on the day she died. In the Bahamas, Mr. Stern administered the medication to Ms. Marshall. Sometimesshe could take the medicine on her own; other times she needed help. Mr. Stern gave Ms. Marshall injections of liquefied medications and Vitamin B-12. Mr. Stern and Dr. Eroshevich both said the medication needed to be administered by injection because Ms. Marshall was having trouble swallowing. Ms. Marshall’s Bahamian obstetrician, Dr. Hubert Minnis, visited her at home. On oneofthose occasions, prior to Dr. Minnis’s arrival, Mr. Stern was observed moving Ms. Marshall’s medications from a table in her bedroom to the bathroom. On February 5, 2007, Ms. Marshall, Dr. Eroshevich and Mr. Stern flew from the Bahamas to Miami, Florida. Mr. Brighthaupt picked up a package containing chloral hydrate which had been shipped and broughtit to Ms. Marshail’s hotel. A Walgreen’s pharmacyin Fort Lauderdale, Florida filled Dr. Eroshevich’s Tamiflu prescription for “Irma Katz.” On February 6, 2007, the same pharmacyfilled the doctor’s Cipro prescription for “Alex Katz.” 17 Ms. Marshall died in her hotel room on February 8, 2007. Toxicology reports showed an above therapeutic level of metabolites of chloral hydrate together with therapeuticlevels of other drugs. Ms. Marshall had been consuming chloral hydrate (Somnote) in liquid form to induce sleep. Although the prescription was for two teaspoonsat bedtime, she had been drinkingit straight from the bottle. As noted above, 10 prescription drugs were recovered from Ms. Marshall’s hotel room. All of the medication wasprescribed by Dr. Eroshevich. Six prescriptions, includingall three controlled substances, were written for Howard K. Stearn. Mr. Stern told investigators the prescriptions written in his name werefor Ms.Marshall. Mr. Stern said his name was used to protect Ms. Marshall’s privacy. There were several days oftestimony on the standardofpractice or care issues. Thetrial court repeatedly advised the jury that acting outside the standard of practice was not a violation of law. The jury wasinstructed: “If you find that a defendantphysician acted outside the standardofpractice for his or her profession, you may considerthat along with the other evidence in the case. A physician’s acts outside the standard of practice do not alone constitute a violation of any crime in this case. It is up to the jury to assign whatever weight you deem appropriate to this evidence.” The trial court determinedthe parties and witnesses should refer to a “standard of practice” rather than a “standard of care.” Dr. James Gagnesaid “standard ofpractice” and “standard of care” were interchangeable terms. He defined “standard of practice”as follows: “The standard of practice is the sort of care every physician treating a certain kindofpatient should employ. It’s not a minimum, but it’s—it’s the baseline of what you should do. There are best practices which are if you’re doing everything correctly would go beyond the standard of practice. The standard of practice to some exten{t]is the minimum required to have a reasonable likelihood of a good outcome.” (Dr. Gagne testified primarily with respect to Dr. Kapoor’s conduct.) The uncontradicted testimonyindicated six related deviations from the standard of practice by Dr. Eroshevich. First, Dr. Eroshevich’s practice of treating Ms. Marshall and 18 prescribing opiates and benzodiazepines on a regular basis without keeping any medical records was outside the standard of practice. Dr. Victor Kovnertestified it was below the standard of medical practice to prescribe opiates and benzodiazepines on a regular basis without keeping a medical chart. Dr. Kovner explained, “[{A] medical recordis essential for the benefit of the patient so that there can be continuity of care so one doesn’t have to just rely upon recall.” Dr. Kovner furthertestified, “[I]t’s illegal to prescribe without a goodfaith examination, and the only patients it’s legal to prescribe for are patients of another physician with whom you have a coveragerelationship; in other words, you’re covering their practice and you have reasonto believe that they are taking their medication.” Dr. Gagne likewise testified medical records must be kept for a patient who has been prescribed opiates: “[T]he standard of practice is that everything thatis pertinent to [a patient] visit [be put in writing] and that would inform yourself or someone else looking at the record about what happened during that visit [would] be present in the record.” Dr. Perry Gordon Finetestified that within the standard of practice a doctor prescribing opiates must maintain “accurate” records. Further, it would be outside the standard of practice for a physician to prescribe opiates over a period of three years without any medical records for that patient. Second, Dr. Eroshevich operated outside the standard of practice to the extent opiates were prescribed for Ms. Marshall. Dr. Gagnetestified that although commonly done, it was “absolutely” outside the standard of practice to prescribe opiates for psychological pain. (There was conflicting evidence, of course, whether Dr. Eroshevich wastreating Ms. Marshall for psychological or physical pain.) Dr. Gagne furthertestified that in the case of a patient in Ms. Marshall’s situation, it was an extreme deviation from the standard of practice to treat her pain with opiates. Third, Dr. Eroshevich operated outside the standard of practice to the extent she treated Ms. Marshall for chronic pain without: taking a comprehensivehistory; performing a physical examination; and conducting indicated tests including laboratory analysis, imagingand x-rays. Dr. Gagnetestified that within the standard ofpractice, 19 when patient complains of chronic pain, “[The physician] needs to do a comprehensive history, a physical exam, and any neededlabsor imaging, x-rays and M.R.I.’s and so forth.” If a patient has a history of taking opiates for at least a couple of years andisstill complaining of chronic pain, the standard of practice is to “assess addiction in more detail.” Dr. Gagne discussed the situation where a patient is a neighbororfriend of a physician. If the physician saw thefriend or neighbor, took a history, conducted a physical examination and wrote down the encounter in a medical record, that would be within the standard of practice. With respectto “hallway prescribing,” Dr. Gagne testified: “Hallway prescribing is always risky because youreally are not in a medical setting where you can establish a good history and physical and get enough ofa basis to form an understanding of what the patient needs. So if a patient has trivial illness and you’re pretty certain that’s all that’s going on, it’s acceptable and within the standard of practice.... Anything else, anything that’s nottrivial, it’s a departure from the standard of practice... .” Dr. Gagnetestified: “[Prescribing opiates to someone with whom you have a friendship] would have to happen in a medicalsetting. And so long as I have a chart and I write downthe history and physical and obtain a [medical] history and physical and I’m satisfied that I have the basis for care, that doesn’t have to happen in a physician’soffice, but it has to have the elementsof . . . genuine doctor/patientvisit where youtake the time to establish what’s going on with that patient, write it down, and have a medical record.” Prescribing an opiate without creating any medical recordis an extreme departure from the standard of practice according to Dr. Gagne, “Any controlled drug prescribing needs to happen in the context of a genuine physician/patient relationship with . . . a history, a physical exam, a medical record, and it has to be a good solid, good faith doctor/patient relationship.” Dr. Timothy Botello offered a different view of the standardofpractice for psychiatrists. Dr. Botello testified a person can be a friend or a patient but not both. A psychiatrist acting as a general practitioner should consult with othertreating physicians. 20 A psychiatrist prescribing opiates and benzodiazepines should communicate with the patient’s medical doctor to ensure there is no overprescribing of the same medication to a chronic pain patient. Dr. Botello furthertestified it was outside the standard ofpractice in psychiatry to cross boundaries—for example, Dr. Eroshevich’s being naked in a tub with Ms. Marshall. And it was outside the standard of practice to treat Ms. Marshall in the Bahamasand to bring medicine to her there. This is because Dr. Eroshevich wasnot licensed to practice medicine in the Bahamas. Fourth, Dr. Eroshevich’s treatment was outside the standard of practice when she requested, by facsimile, large quantities of opiates and sedatives. Dr. Gagnetestified that if the medications listed on People’s exhibit 57 were intended for Ms. Marshall, that would be a departure from the standard of practice. Dr. Gagne explained: “That’s a very large amount of medication. Now,possibly somebody could be so usedto taking enormous amounts of opiates and sedatives so that would not cause a problem. But there’s a grave risk that somebody would take so muchofthis that they would stop breathing. So that’s a very concerning request.” | Fifth, it was an extreme departure from the standard of practice when Dr. Eroshevich prescribed benzodiazepines to Ms. Marshall after she was released from the hospital. Dr. Gagnetestified any prescribing of benzodiazepines after Ms. Marshall wasreleased from the hospital and while she was pregnant was not merely outside the standard ofpractice. Rather, Dr. Eroshevich engaged in an extreme departure from the standard of practice. Dr. Gagne wasreferring specifically to Dr. Kapoor’s prescriptions. But Dr. Eroshevich also prescribed benzodiazepines to Mr. Marshall during her pregnancy subsequentto her hospitalization. Sixth, Dr. Eroshevich engaged in a departure from the standard of practice by prescribing multiple benzodiazepines to Ms. Marshall. Dr. Gagnetestified, “[I]n the vast majority of cases, using multiple benzodiazepines is a departure from the standard of practice. Now, in a non-addict I would considerit a simple departure. In an addict, it’s an extreme departure.” 21 IV. DISCUSSION A. Overview As to Mr. Stern, the trial court ruled no reasonable jury could have found he engagedin the conspiracies charged in counts 1 and 3. We begin by analyzing the elements of conspiracy to violate Health and Safety Code sections 11173, subdivision (a) and 11174. Then, we will discuss whether there was substantial evidence Mr. Stern could be convicted under counts 1 and 3. Finally, we will conclude as to Mr. Stern: the newtrial and dismissal orders must be set aside; the verdicts as to counts 1 and 3 must be reinstated; and, upon remittitur issuance, the trial court must proceed to rule on other new trial issues, dismissal groundsand, if appropriate, sentence him; but under no circumstances mayheberetried. Asto Dr. Eroshevich, we conclude the section 1385 dismissal order must be reversed. But as to her,thetrial court must decide the otherissues raised by Dr. Eroshevich’s dismissal and newtrial requests set forth in her “omnibus request”: for dismissal; for a newtrial; or to reduce the felonies to misdemeanors. Depending on the post-remittitur rulings as to Mr. Stern and Dr. Eroshevich, only she is subjectto retrial. B. The Legal Elements OfThe Charges In Counts 1 And 3 The prosecution had the burden of proving Mr. Stern specifically intended to commit unlawful acts. Section 182, subdivision (a) defines a conspiracy. It states: “If two or more persons conspire: [{] (1) To commit any crime. [J] ... [J] They are punishable ....” (§ 182, subd. (a); People v. Morante (1999) 20 Cal.4th 403, 416; People v. Swain (1996) 12 Cal.4th 593, 600.) Conspiracy is a specific intent crime. (People v. Morante, supra, 20 Cal.4th at p. 416; People v. Cortez (1998) 18 Cal.4th 1223, 1232; People v. Swain, supra, 12 Cal.4th at p. 600; People v. Horn (1974) 12 Cal.3d 290, 22 - 296, disapproved on another point in People v. Cortez, supra, 18 Cal.4th at p. 1238; People v. Marsh (1962) 58 Cal.2d 732, 743.) Our Supreme Court has explained: “‘The specific intent required divides logically into two elements: (a) the intent to agree, or conspire, and (b) the intent to commit the offense which is the object of the conspiracy. ... To sustain a conviction for conspiracy to commit a particular offense, the * prosecution must shownotonly that the conspirators intended to agree, but also that they intended to commit the elements ofthat offense.’ (People v. Horn{, supra, | 12 Cal.3d [at p.] 296, citations omitted, italics added.)” (People v. Swain, supra, 12 Cal.4th at p. 600; accord, People v. Morante, supra, 20 Cal.4th at p. 416; People v. Croy (1985) 41 Cal.3d 1, 23.) As our Supreme Court explained in Marsh: “The essence of the crime of conspiracyis the ‘evil’ or ‘corrupt’ agreement to do an unlawfulact. It is the evil intent that makes a combination criminally indictable. ‘The association ofpersons with an honest intent is not conspiracy, and oneofthe tests on a conspiracytrialis, did the accusedact in ignorance without criminal intent? In other words, did they honestly entertain a belief that they were not committing an unlawful act? [Citation.] ... [{] For these reasons,it is often said that conspiracyis a ‘specific intent’ crime [citation]. This specific intent of the conspirators must be provedin each case by the prosecution and will not be presumed from the mere commission of an unlawfulact [citation]. Therefore, even though a conspiracy has as its object the commission of an offense which can be committed without any specific intent, there is no criminal conspiracy absent a specific intent to violate the law. That is, to uphold aconviction for conspiracy to commit a ‘public welfare offense’ there must be a showing that the accused knew of the law and intended to violate it. [Citations.]” (People v. Marsh, supra, 58 Cal.2d at p. 743; accord, People v. Urziceanu (2005) 132 Cal.App.4th 747, 774-779 [conspiracy to sell marijuana]; People v. Bernhardt (1963) 222 Cal.App.2d 567, 585-586 [conspiracy to practice medicine without a license]; People v. Bowman (1958) 156 Cal.App.2d 784, 797-799 [conspiracy to, inter alia, unlawfully prescribe, administer or furnish narcotics]; 19 CalJur.3d Criminal Law: Miscellaneous Offenses § 72, pp. 108-110; 1 Witkin, Cal. 23 Criminal Law (4th ed. 2012) Elements, § 81, pp. 377-379.) Based on the foregoing, the jury was instructed in part, “If a defendant had a goodfaith belief that his or her actions were legal, he orshe is not guilty of conspiracy.” In convicting defendants of conspiracy, the jury necessarily rejected this good faith defense. Interstate and international drug distribution conspiracies based on fraudulent use of namesand,in onecase, identity theft (the use of Ms. Underwood’s name) are ordinarily not “public welfare” violations. (People v. Coria (1999) 21 Cal.4th 868, 876- 878; People v. Urziceanu, supra, 132 Cal.App.4th at pp. 774-779.) Here, the prosecution does not contendthe trial court committed any error in instructing on defendant’s good faith defense. We express no opinion on whether the good faith defense applies here. Conspiracy, including the requisite specific intent, may be proved by circumstantial evidence. (People v. Zamora, supra, 18 Cal.3d at p. 559; People v. Marsh, supra, 58 Cal.2d at p. 746; People v. Osslo (1958) 50 Cal.2d 75, 94-95; People v. Steccone (1950) 36 Cal.2d 234, 238; People v. Lawrence (1904) 143 Cal. 148, 153-154; People v. Vu (2006) 143 Cal.App.4th 1009, 1024-1025; People v. Herrera (1999) 70 Cal.App.4th 1456, 1464, disapproved on another point in People v. Mesa (2012) 54 Cal.4th 191, 199.) As our Supreme Court held: “A conspiracy is almost always of necessity provable only by circumstantial evidence, that is to say, by inference reasonably deduced from facts proven, and this is so because the law recognizesthe intrinsic difficulty of establishing a conspiracy by direct evidence. Consequently the conspiracy complained ofmay oftentimesbe inferred from the nature of the acts complainedof, the individual and collective interest of the alleged conspirators, the situation and relation of the parties at the time of the commissionofthe act, and generally all of the circumstances preceding and attending the culmination of the claimed conspiracy. [Citation.]” (Siemon v. Finkle (1923) 190 Cal. 611, 615-616, abrogated on another point in Lundquistv. Reusser (1994) 7 Cal.4th 1193, 1208-1212; see People v. Bogan (2007) 152 Cal.App.4th 1070, 1074.) As explained in People v. Bentley (1888) 75 Cal. 407, 409: “A conspiracy, like most other facts, may be proved by circumstantial evidence. Indeed,it is not often 24 that the direct facts of a common design, whichis the essence of a conspiracy, can be proven otherwise than by the establishment of independentfacts, bearing moreorless remotely upon the main central object, and tending to convince the mind reasonably and logically, of the existence of the conspiracy. [{] ... ‘If it be proved that the defendants pursued bytheir acts the same object, often by the same means, one performing onepart and another anotherpart of the same so as to completeit, with a view to the attainment of the same object,the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object.’ [Citation.]” (See People v. Bawden (1962) 208 Cal.App.2d 589, 596-597.) Here, the jury was instructed on the sufficiency of circumstantial evidence generally and to prove a specific intent. C. Mr. Stern 1. There Was Sufficient Evidence For A Rational Jury To Convict Mr. Stern Of The Conspiracies Charged In Counts 1 And 3 Asnoted, the trial court’s new trial order was premised on the conclusion no rational jury could find Mr. Stern wasguilty of the conspiracy charges in counts 1 and3. Before discussing the effects of the trial court’s findings, we address the pure legal issue of whether there was substantial evidence to support the counts | and 3 verdicts. | There was sufficient evidence for a rational jury to convict Mr. Stern of the charged conspiracies. Viewing the evidencein the light most favorable to the verdicts, the jury reasonably could have found as follows. Mr. Stern was intimately involved in procuring and dispensing medication to Ms. Marshall over an extended period oftime. Mr. Stern accompanied Ms. Marshall to medical appointments, consulted with her physicians, obtained her medications and administered them to her. Ms. Marshall befriended Dr. Eroshevich. 25 Thereafter, it was agreed, expressly ortacitly, that Dr. Eroshevich would provide Ms. Marshall with controlled substances. The quantity of drugs exceeded those prescribed by Ms. Marshall’s treating physicians. Mr. Stern participated with Dr. Eroshevich in procuring controlled substances for Ms. Marshall. He did so with knowledge Dr. Eroshevich was not Ms. Marshall’s treating physician and no medical records were being kept. There is evidence Mr. Stern knowingly participated in conduct designed to avoid detection and scrutiny. Mr. Stern knew Dr. Eroshevich’s prescriptions were written in names other than Ms. Marshall’s, including his own, and werefilled at varying pharmacies. Mr. Stern knewthat Dr. Eroshevichfilled prescriptions in the name Vickie Marshall at one pharmacyandin the name AnnaN.Smith at another. Neither pharmacy was used by Ms. Marshall’s treating physicians. Mr. Stern knew Dr. Eroshevich prescribed controlled substances for Ms. Marshall’s use utilizing the names: Anna N. Smith; Vickie Marshall; Wesley Irwin; Mr. Stern; Howard K. Stearn; Ben Stern; and Charlene Underwood. Mr. Stern knew multiple doctors were prescribing controlled substances and other medications to Ms. Marshall.. Mr. Stern also knewthathertreating physicians were unaware ofthat fact. On one day in June 2006, for example, Dr. Kapoor prescribed Zoloft, an anti-depressant, and lorazepam (Ativan), a controlled substance,to Michelle Chase. The prescriptions were filled at Key Pharmacy. At the sametime, Dr. Eroshevich prescribed Zoloft and lorazepam in higher quantities to Howard K. Stearn. Those prescriptions werefilled at the grocery store pharmacy. Mr. Stern admitted to investigators prescriptions written in his name were intended for Ms. Marshall. When Ms. Marshall became pregnant and detoxification was indicated, Mr. Stern and Dr. Eroshevich knowingly side-stepped Dr. Kapoor’s detoxification efforts. They provided Ms. Marshall with controlled substances that were inconsistent with the detoxification plan. During their stay in the Bahamas, Mr. Stern, Dr. Eroshevich, and 26 other members ofMs. Marshall’s entourage, went to great lengths to secure medication, including controlled substances. These narcotics were given to Ms. Marshall. Dr. Eroshevich was unable to secure prescriptions in the name Michelle Chase through Drs. Kapoor and Freeman. Dr. Eroshevich.then resorted, with Mr. Stern’s knowledge, to the use of other names: Howard K.Stearn; Wesley Irwin; Charlene Underwood; and Ben Stern. Mr. Stern, who was caring for Ms. Marshall in the United States and Bahamas, including administering medications to her, was impliedly aware of these facts. Mr. Stern was physically present in the United States and the Bahamas when Ms. Marshall was ingesting the drugs with prescriptions in other person’s names. His knowledge and involvement was such the jury could reasonably conclude Mr. Stern knowingly participated in the ongoing practice of securing illegal prescriptions. Mr. Stern argues that, as a matter of law, he could in goodfaith believe the widespread procurementof controlled substances utilizing false names was legal. This argument has no merit. His knowledge and involvement was such the jury could reasonably conclude Mr. Stern, a lawyer, knowingly participated in the ongoingillegal practice of securing illegal prescriptions. The prescriptions were secured unsupervised by treating physicians or pharmacists and without medical documentation. The controlled substances were procured for Ms. Marshall with the fraudulent use of multiple namesother than her own. The jury could reasonably have concluded that a lawyer would know such ongoing and unrelenting fraudulent activity was unlawful. Mr. Stern argues that since in limited circumstances over a several years period medical professionals used aliases for Ms. Marshall, he reasonably believed he could participate in the scheme. No doubt,in light of how the jury was instructed, Mr. Stern could posit such an argumentto the jury in support of his defense he acted in goodfaith. But such a problematic state of mind by anybody, muchless a lawyer, does not constitute _ adefense as a matter oflaw given thefacts ofthis case. 27 2. The Legal Effect Of The Presence Of Substantial Evidence On The Order Granting Mr. Stern A New Trial Asnoted, the sole ground upon whichthetrial court granted Mr. Stern’s newtrial motion was: “When I consider all the evidence, and even viewingit in a light most favorable to upholding the verdict, I find it is clearly insufficient. Under these circumstancesI find no reasonable trier of fact could find that Howard Stern had a specific intent to violate either of these target crimes . . . and I do grant a motion for new trial to Mr. Stern on these [conspiracy] counts ....” Thetrial court ruledthat the evidence wasinsufficient as a matter of law whenit granted the new trial motion. The trial court was empowered to grant newtrial motion on the legal ground the evidence was insufficient as a matter of law. (Hudson v. Louisiana, supra, 450 U.S.at p. 44; see People v. Lagunas, supra, 8 Cal.4th at p. 1038, fn. 6.) Typically, a new trial motion is reviewedfor an abuse ofdiscretion. (People v. Lightsey (2012) 54 Cal.4th 668, 729; People v. Thompson (2010) 49 Cal.4th 79, 140.) But becausethe trial court ruled the evidence wasinsufficient as a matter of law, we do not apply the abuseofdiscretion standard of review. Rather, we engagein the precise same task undertakenbythetrial court; we examine the record to determine whether substantial evidence supports the verdicts. (People v. Johnston (2003) 113 Cal.App.4th 1299, 1310 [if the trial judge reduces the verdict to an included offense because no reasonable jury could convict ofthe greater crime, appellate court review is de novo]; People v Salgado, supra, 88 Cal.App.4th at p. 15 [dismissal of carjacking conviction on evidentiary insufficiency grounds reviewed to determine whethera rational jury could convict].) The result would be different if the trial court, acting as the so-called “13th juror,” reweighed the evidence and concluded Mr. Stern wasentitled to a newtrial. (See Porter v. Superior Court (2009) 47 Cal.4th 125, 133; People v. Lagunas, supra, 8 Cal.4th at p. 1038.) Under those circumstances, we would apply the traditional abuse of discretion standard of review. (People v. Dickens (2005) 130 Cal.App.4th 1245, 1252; People v. Johnston, supra, 113 28 Cal.App.4th at pp. 1307-1308; see People v. Ault (2004) 33 Cal.4th 1250, 1261.) As we have explained, there was substantial evidence to support the jury’s counts 1 and 3 verdicts. Thus, the new trial order mustbe set aside as to Mr. Stern and the guilty verdicts reinstated. (People v. Johnston, supra, 113 Cal.App.4th at p. 1314; People v. Salgado, supra, 88 Cal.App.4th at p. 16.) In terms ofthe section 1385 dismissal, the analysis is the same. Typically, section 1385 dismissal orders involve competing interests and must be issued only in furtherance ofjustice. (See People v. Wallace (2004) 33 Cal.4th 738, 747; People v. Orin (1975) 13 Cal.3d 937, 945.) Asa result, section 1385 dismissal orders in most circumstances are reviewed by appellate courts for an abuse of discretion. (See People v. Carmony (2004) 33 Cal.4th 367, 374; People v. Memro (1995) 11 Cal.4th 786, 835-836.) But weare. reviewing a pure legal issue—thelegal sufficiency of the evidence. We respectfully disagree with thetrial court’s ruling that there is insufficient evidence, as a matter of law, Mr. Stern is legally culpable for the two charged conspiracies. On the other hand, an abuse of discretion can occur whenits exercise involves decisionmaking outside the confines ofestablished legal criteria. (People v. Jacobs (2007) 156 Cal.App.4th 728, 737; People v. Jackson (1992) 10 Cal.App.4th 13, 22.) Or an abuse ofdiscretion can be establishedifit is entirely premised on a legal error. (People v. Cannedy (2009) 176 Cal.App.4th 1474, 1483; People v. Millard (2009) 175 Cal.App.4th 7, 26.) The trial court’s sole basis for the dismissal decision was that the evidence was insufficient as a matter of law. Since, as we have explained, that decision was incorrect, the section 1385 dismissal order can be viewed as one beyondthe allowable scope ofjudicial decision. Regardless of the standard of review, we respectfully disagree with thetrial court’s ruling there is legally insufficient evidence Mr. Stern is guilty of the two charged conspiracies. 29 3. Post-remittitur proceedings We now address the issue of what may occur oncethe remittitur issues. The prosecution argues the verdict must be reinstated and Mr. Stern sentenced. Weare in accord with the prosecution that Mr. Stern’s verdicts must be reinstated. (United States v. Sharif(9th Cir. 1987) 817 F.2d 1375, 1379; People v. Johnston, supra, 113 Cal. App. 4th at pp, 1313-1314.) But before Mr. Stern may be sentenced,there are series of hurdles that must be overcome. Thetrial court neverruled on other issues raised by Mr. Stern’s newtrial motion. Asnoted, he raised other issues including: the weightofthe evidence indicated he acted in goodfaith; prosecutorial misconduct; selective prosecution; and both conspiracy counts should be reduced to misdemeanorsas permitted by section 17, subdivision (b)(3). Before any sentencing can occur, the trial court must rule on these issues. Thetrial court’s ruling was precise—the evidence was insufficient as matter of law. No effort was made to rule on these other matters nor was there any reason to do so given the dismissal order and the new trial motion evidentiary insufficiency finding. Oncethe remittitur issues,the trial court may rule on Mr. Stern’s newtrial motion, subject to our former jeopardy analysis. (§ 1260; People v Braxton (2004)34 Cal.4th 798, 818-819.) Thetrial court has a variety of options. Conceivably,the trial court could deny the newtrial motion and sentence Mr.Stern to prison, place him on probation or reduce the two conspiracy counts to misdemeanors. Orthe trial court could deny the newtrial motion but dismiss the case pursuantto section 1385 on some ground other than evidentiary insufficiency as a matter of law. Orthetrial court could grant the newtrial motion after reweighing the evidence (acting as the so-called “13th juror’) subjectto the following double jeopardy analysis. Orthe trial court could dismiss counts 1 and 3 on other than legal insufficiency grounds. We express no opinion as to howthetrial court should exercise its discretion. 30 But under no circumstances maya retrial occur. As discussed in this opinion’s introduction, for double jeopardy purposes, a newtrial order based on evidentiary insufficiency grounds can havethe effect of an acquittal. Our Supreme Court has summarized the applicable law in the section 1385 dismissal context: “[T]he United States Supreme Court has long held that ‘what constitutes an “acquittal” is not to be controlled by the form of the judge’s action.’ ((U.S. v. Martin Linen Supply Co. (1977)] 430 US. [564,] 571.) Rather, appellate courts ‘must determine whetherthe ruling of the judge, whateverits label, actually represents a resolution, correct or not, of someorall of the factual elements of the offense charged.’ (/bid.) Ifa trial court rules the evidence is insufficient as a matter of law, then the ruling bars retrial even if it is patently erroneous or the court has no statutory authority to make it. (See Sanabria v. United States (1978) 437 US. 54, 64 [a trial court finding of legal insufficiency based on an erroneous foundation is still an acquittal for double jeopardy purposes]; People v. Valenti (1957) 49 Cal.2d 199, 203, 209 [a trial court dismissal for legal insufficiency made without statutory authorization barsretrial under the California Constitution], disapproved on other grounds in People v. Sidener (1962) 58 Cal.2d 645, 647; see also Fong Foov. United States (1962) 369 U.S. 141, 143 [a ruling by trial court acquitting a defendant bars retrial even if the ruling is ‘egregiously erroneous’ and the court lacks the power to makethe ruling].)” (People v. Hatch, supra, 22 Cal.4th at pp. 270-271; see Evans v. Michigan, supra, 568 U.S. at-p.___—« [2013 U.S. LEXIS **13]; Mannes v. Gillespie (9th Cir. 1992) 967 F.2d 1310, 1313-1316.) The sameis true in the new trial order context—an order granting a newtrial motion on the groundof evidentiary insufficiency bars a retrial. (Hudson v. Louisiana, supra, 450 U.S. at p. 44; People v. Lagunas, supra, 8 Cal.4th at p. 1038, fn. 6.) In Hudson,thetrial court granted the defendant’s newtrial motion and stated: “‘I heard the same evidencethe jury did[;] I’m convinced that there was no evidence,certainly not evidence beyond a reasonable doubt,to sustain the verdict of the homicide committed by this defendant of this particular victim.’” (Hudson v. Louisiana, supra, 450 U.S.at pp. 31 41-42; see Freer v. Dugger (11th Cir. 1991) 935 F.2d 213, 217-218.) In Hudson, the United States Supreme Court relied uponits prior decision in Burks v. United States (1978) 437 U.S.1, 2-11. Burks held thatif a judgment is reversed on appeal on evidentiary insufficiency grounds, there can be noretrial. (Jd. at pp. 16-17; see People v. Anderson (2009) 47 Cal.4th 92, 104.) Citing Burks, in Hudson, the high court held: “We considered in Burks the question ‘whether an accused may be subjected to a secondtrial when conviction in a prior trial was reversed by an appellate court solely for lack of sufficient evidence to sustain the jury’s verdict.’ [Citation.] Weheldthat a reversal ‘due to a failure of proofat trial,’ where the State received a ‘fair opportunity to offer whatever proofit could assemble,’ bars retrial on the same charge. [Citation.] We also held that it makes ‘no difference that the reviewing court, rather than the trial court, determined the evidenceto be insufficient,’ [citation] or that ‘a defendant has sought a newtrial as one ofhis remedies, or even as the sole remedy.’ [Citation.] [§] Our decision in Burks controls this case, for it is clear that petitioner movedfor a newtrial on the ground that the evidence was legally insufficient to support the verdict and thatthe trial judge granted petitioner’s motion on that ground.” (Hudson v. Louisiana, supra, 450 U.S.at pp. 42-43; Freerv. Dugger, supra, 935 F.2d at p. 218; see People v. Trevino (1985) 39 Cal.3d 667, 699, disapproved on another ground in People v. Johnson (1989) 47 Cal.4th 1194, 1221.) The prosecutor in Hudson argued that the trial court’s comments werenot entitled to double jeopardy effect because it was acting as the “13th juror” in granting the accused’s newtrial motion. (Hudson v. Louisiana, supra, 450 U.S.at p. 44.) The high court rejected this argument explaining: “As the State readsthe record, thetrial judge granted a newtrial only because he entertained personal doubts aboutthe verdict. Accordingto the State, the trial judge decided that he, as a ‘13th juror,’ would not have found petitioner guilty and he therefore granted a newtrial even though the evidence was not insufficient as a matter of law to support the verdict. The State therefore reasons that Burks does not preclude a newtrial in such a case, for the newtrial was not granted ‘due 32 to a failure of proof at trial.’ [Citation.] [{] This is not such a case, as the opinion of the Louisiana Supreme Court and the statementsofthe trial judge make clear. Thetrial judge granted the newtrial because the State had failed to prove its case as a matter of law, not merely because he, as a ‘13th juror,’ would have decidedit differently from the other 12 jurors. Accordingly, there are no significant facts which distinguish this case from Burks, and the Double Jeopardy Clause barred the State from prosecuting petitioner a secondtime.” (Hudson v. Louisiana, supra, 450 U.S.at pp. 44-45, fns. omitted; accord Freer v. Dugger, supra, 935 F.2d at p. 219.) The sameis true here except the trial court ruled with materially greater clarity than in Hudson. In Hudson,the trial court spoke of “no evidence, certainly not evidence beyond a reasonable doubt” to sustain the homicide verdict. By contrast, here the trial court spoke with precision: there was no evidence Mr.Stern acted in bad faith; Mr. Stern’s motive was to protect Ms. Marshall’s privacy; it had consideredall of the evidence; the evidence wasclearly insufficient; and no reasonable trier of fact could find Mr. Stern had the specific intent to commit the target offense. Hudsonis controlling. There can be no retrial in our case. Given the double jeopardy effect of the new trial order, we need not address whetherthe section 1385 dismissal orderfor evidentiary insufficiency also barsretrial. Once the remittitur issues, the trial court may exercise its new trial and section 1385 discretion as it deemsfit. We have already listed some ofthe trial court’s options. Butifthe trial court grants Mr. Stern’s newtrial motion, the case against him must be dismissed on double jeopardy grounds. Mr. Stern maynotberetried. D. Dr. Eroshevich The issue is more straightforward as to Dr. Eroshevich. Thetrial court never ruled on her newtrial motion. Thetrial court had just dismissed counts 1 and 3 as to Mr. Stern. Thetrial court merely dismissed counts 1 and 3 because Dr. Eroshevich could notact alone as a memberof a conspiracy. As noted, the information alleged the co-conspirators 33 were Dr. Kapoor, Dr. Eroshevich and Mr. Stern. The jury acquitted Dr. Kapoorand the trial court dismissed the counts 1 and 3 charges against Mr. Stern. Thus,the sole remaining charged and convicted co-conspirator was Dr. Eroshevich. A conspiracy requires the agreementof at least two persons. (People v. Palmer (2001) 24 Cal.4th 856, 864; People v. Herrera, supra, 70 Cal.App.4th at p. 1464.) Thus, the sole factual predicate of the dismissal order as to Dr. Eroshevich— Mr. Stern could not have been a memberofthe conspiracy—is no longer extant. We have reversed the ruling that Mr. Stern, as a matter of law, was not a memberofthe charged conspiracies. Because the legal basis of Dr. Eroshevich’s dismissal order was incorrect, the trial court did not possessthe discretion to dismiss counts 1 and 3 pursuant to section 1385. Thus, Dr. Eroshevich’s dismissal order is reversed. No doubt, there can be inconsistent verdicts. The fact that all of Dr. Eroshevich’s co-conspirators may be so acquitted does not mean she must, as a matter of law, also be found not guilty. Our Supreme Court has expressly so held. (People v. Palmer, supra, 24 Cal.4th at p. 864; Witkin & Epstein, Cal. Criminal Law, supra, Elements § 86, pp. 386-387.) We need not discuss that issue as no party has addressed that question. Upon remittitur issuance,the trial court may decide to grant Dr. Eroshevich’s new trial motion as to counts | and 3. Orthe trial court may decide to dismiss counts 1 and 3 on other grounds. (§ 1260; People v Braxton, supra, 34 Cal.4th at pp. 818-819.) As in the case of Mr. Stern, these are matters that rest in the good handsofthe trial court. We express no opinion on howthetrial court should exerciseits discretion. Wereject any suggestion that Dr. Eroshevich’s dismissal bars retrial on double jeopardy grounds. Our Supreme Court has set forth explicit requirements as to when double jeopardy effects attach to a section 1385 dismissal order. In Hatch, our Supreme Court held the record mustclearly state the trial court applied the substantial evidence standard of review in a section 1385 dismissal order. In People v. Hatch, supra, 22 Cal.4th at page 273, our Supreme Court held: “Because section 1385 dismissals often are not based on the insufficiency of the evidence as a matter of law, we believe these 34 dismissals should not be construed as an acquittal for legal insufficiency unless the record clearly indicatesthat the trial court applied the substantial evidence standard. Specifically, the record must show that the court viewed the evidence in the light most favorable to the prosecution and concluded that no reasonabletrier of fact could find guilt beyond a reasonable doubt. (See Lagunas, supra, 8 Cal.4th at p. 1038, fn. 6 [declining to construethetrialcourt’s grant of a newtrial as an acquittal for legal insufficiency because the record indicates that the court did not use the “‘substantial evidence” standard’].) Absent such a showing, we will assumethe court did not intend to dismiss for legal insufficiency and foreclose reprosecution.” Here, the trial court made no such express statement concerning the use of the substantial evidence test when orally dismissing counts.1 and 3. Asnoted,the trial court merely orally stated: “I don’t think there was an agreement between the two ofthem to violate the law, and. . . I don’t think the conspiracy counts can stand [as to Dr. Eroshevich], and so I dismiss those as well.... The clerk’s minutes for Dr. Eroshevich contain no statementofreasons for the dismissal. The minutes only state concerning Dr. Eroshevich, “The cause is argued and thecourt grants defense motion to dismiss counts 1 and 3 pursuant to ... section 1385 due to insufficiency of the evidence.” No languagereferring to the substantial evidence rule is contained in the clerk’s minutes. (Actually, the trial court did not grant the “defense motion”to dismiss. Thetrial court raised the issue on its own motion. The defense has no right to moveto dismiss. (§ 1385; People v. Konow (2004) 32 Cal.4th 995, 1022 [defendant mayaskthetrial court to consider dismissal on its own motion]).) Depending on the circumstances, Dr. Eroshevich can beretried on counts 1 and 3 if a new trial motion is granted. V. DISPOSITION As to defendant, Howard Kevin Stern, the new trial and dismissal orders are reversed. The verdicts as to counts 1 and 3 are ordered reinstated. Upon remittitur 35 issuance,the trial court shall proceed as discussedin part IV(C)(3) ofthis opinion. The dismissal order as to defendant, Dr. Khristine Elaine Eroshevich, is reversed. Upon remittitur issuance, the trial court shall proceed as discussed in parts IV(C)and (D)ofthis opinion. CERTIFIED FOR PUBLICATION TURNER,P.J. I concur: ARMSTRONG,J. 36 People v. Khristine Elaine Eroshevichetal. Case No. B231411 MOSK,J., Concurring and Dissenting I have difficulty with the majority’s conclusion in Section IV. C. 3. The District Attorney cogently questions why, uponreinstatement of the verdict, Mr. Stern may not reinitiate his Penal Code section 1181 motion if he so chooses, and receive a newtrialif the trial court grants the motion acting as a so-called “13th juror,” or on other grounds applicable under that provision. By opting to move for a newtrial, Mr. Stern would, in effect, waive his Double Jeopardy rights. (See UnitedStates v. Alvarez-Moreno(9th Cir. 2011) 657 F.3d 896, 901 [“the defendant’s consent is the reason double jeopardyis not implicated when the court granted his motion for newtrial . . .”]; see also United States v. Smith (1947) 331 U.S. 469, 474 [“it is such request [for new trial] which obviates any later objection the defendant might make on the ground of double jeopardy”].) As the District Attorney suggests, the People are barred from retrial, not the defendant. I concurin the reversals, but asdiscussed above, not with respect to the entire remainderofthe Disposition. MOSK,J.