Filed 1/31/14 P. v. Pacheco CA1/5


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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,
         Plaintiff and Respondent,                                       A134607
                                                                         A136180
                   v.
MARIO ALFREDO PACHECO,                                                   (Alameda County
                                                                         Super. Ct. No. 165739)
         Defendant and Appellant.

         Appellant Mario Alfredo Pacheco was convicted after a jury trial of multiple
counts relating to his practice of dentistry without a license. He argues (1) his
convictions and sentence violate double jeopardy; (2) his sentence violates Penal Code
section 654; (3) the trial court failed to sua sponte deliver a unanimity instruction; and
(4) an order of restitution was improper. We affirm.
                                                  BACKGROUND
         Appellant was charged with the uncertified practice of medicine (Bus. & Prof.
Code, § 2052; count 1); the practice of dentistry without a license (id., § 1701, subd. (f);
count 2); unlicensed dentistry creating a risk of harm (id., § 1701.1; count 3), with an
allegation of great bodily injury upon Teresa Flores (Pen. Code, § 12022.7, subd. (a));
unlicensed dentistry creating a risk of harm (Bus. & Prof. Code, § 1701.1; count 5), with




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an allegation of great bodily injury upon Reina Aguilera (Pen. Code, § 12022.7, subd.
(a)); and additional counts of which he was acquitted after trial.1
       At trial, Flores and Aguilera testified appellant performed extensive dental work
on them over a period of years.2 On Flores, appellant performed a root canal, replaced
existing crowns, extracted teeth, filed down teeth and installed crowns, and installed a
bridge.3 Flores paid appellant more than $10,000. Flores continued to experience
problems with her teeth: the crowns and bridges placed by appellant fell out, and her
gums were painful and became infected. On Aguilera, appellant performed root canals,
extracted a tooth, filed down teeth, installed crowns, and installed a bridge. Aguilera paid
appellant $1,500. Aguilera also had problems with appellant’s work.
       Mark David Stevenson, a licensed dentist, testified as an expert in general
dentistry and dental practice. He testified to become a licensed dentist in California a
person must graduate from an accredited dental school and complete written and clinical
examinations. Dr. Stevenson also testified to various risks involved if dental work is
performed improperly.
       Appellant was the sole witness testifying in his defense. He testified to extensive
experience as a dental technician — a person who makes dentures, crowns, bridges, and
other similar devices. He worked as a dental technician in a dental laboratory in El
Salvador and for the School of Dentistry at the University of El Salvador. He then spent
two years at a dental technician program in the United States, worked as a dental
technician at a dental laboratory in San Francisco, and opened a dental laboratory of his
own. After opening his own laboratory, he began performing free or low-cost dental
work for people who could not afford to have the work done by a licensed dentist.

1   We omit the background facts relating to the counts of which appellant was acquitted
as they are not relevant to this appeal.
2   Both Flores and Aguilera testified through an interpreter.
3  Expert testimony at trial established a crown is a complete cover over a tooth and
requires the tooth first be reduced from all sides, and a bridge, which replaces an
extracted tooth, consists of a replacement tooth anchored by crowns covering each of the
adjacent teeth.
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Appellant had no formal training in dentistry, but had observed dentists extracting teeth
and installing crowns and bridges, had sat in on some dentistry classes at the University
of El Salvador, and read journals and books on dentistry. He did not perform procedures
with which he was not familiar or comfortable.
       Appellant testified that he practiced dentistry on Flores, including removing
decayed portions of her teeth, performing a root canal, and installing crowns and bridges.
He also treated Aguilera, including replacing a bridge, extracting a tooth, and beginning
to perform a root canal.
       The jury convicted appellant of count 1, unlicensed practice of medicine; count 2,
unlicensed practice of dentistry; and counts 3 and 5, unlicensed dentistry creating a risk
of harm in violation of Business and Professions Code section 1701.1 (section 1701.1).4
With respect to counts 3 and 5, the jury found not true the allegations of great bodily
harm upon Flores and Aguilera, respectively.
       The trial court sentenced appellant to county jail for a one-year term on count 1
and a six-month term on count 2, but stayed both sentences pursuant to Penal Code
section 654. The trial court sentenced appellant to state prison for consecutive terms of
three years on count 3 and eight months on count 5. After a restitution hearing, the trial
court ordered restitution of $21,606 to Flores and $8,156 to Aguilera for past and future
dental costs.
                                      DISCUSSION
I. Double Jeopardy
       Appellant contends his four convictions all relate to his unlicensed practice of
dentistry and are prohibited by the double jeopardy clauses of the federal and the state

4   Section 1701.1, subdivision (a) provides, in relevant part: “[A] person who willfully,
under circumstances or conditions that cause or create risk of bodily harm, serious
physical or mental illness, or death, practices or attempts to practice, or advertises or
holds himself or herself out as practicing dentistry without having at the time of so doing
a valid, unrevoked, and unsuspended certificate, license, registration, or permit as
provided in this chapter, or without being authorized to perform that act pursuant to a
certificate, license, registration, or permit obtained in accordance with some other
provision of law, is guilty of a public offense . . . .”
                                             3
Constitutions. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.) He further contends
double jeopardy precludes the imposition of sentences for both counts of violation of
section 1701.1. We disagree with both contentions.
         Double jeopardy does not preclude multiple convictions in a single criminal
proceeding. “As regards federal double jeopardy principles, ‘[t]he Double Jeopardy
Clause “protects against a second prosecution for the same offense after acquittal. It
protects against a second prosecution for the same offense after conviction. . . .”
[Citation.]’ [Citation.] [These protections] are clearly not implicated here because we
are directly concerned only with multiple convictions in a unitary trial, not multiple
punishments in successive unrelated criminal proceedings.” (People v. Sloan (2007) 42
Cal.4th 110, 120-121 (Sloan); accord, People v. Anderson (2009) 47 Cal.4th 92, 103-
104.)5
         Appellant cites cases for the proposition that a single actus reus cannot be the basis
for more than one conviction based on the same statute in a single proceeding, arguing
one of his two section 1701.1 convictions is thereby barred. These cases do not appear to
be based on double jeopardy principles, and in any event are distinguishable. One
involves a single incident, rather than the years-long course of conduct at issue here.
(See Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 348 [conduct was “a single incident
of driving under the influence”].) In others, the court concluded the relevant statute
contemplated only a specific continuous course of conduct, and thus such a course of
conduct constituted a single violation. For example, People v. Lewis (1978) 77
Cal.App.3d 455 (Lewis) involved a statute penalizing “ ‘[a]ny person who, knowing
another person is a prostitute, lives or derives support or maintenance in whole or in part
from the earnings or proceeds of such person’s prostitution . . . .’ ” (Id. at p. 460.) The
defendant was charged with multiple counts of violating the statute, which all “involved


5  Appellant argues the federal double jeopardy clause is not limited to successive
proceedings, but we are bound by the California Supreme Court’s interpretation of
United States Supreme Court cases. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.)
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the same prostitute; they differ only as to date.” (Ibid.) The court held only one count
could be charged because “[r]easonable interpretation of the statutory definition leads to
but one conclusion — that the legislative intent was that living or deriving support or
maintenance from the earnings of a prostitute or proceeds of her prostitution knowing her
to be a prostitute is an ongoing continuing offense that occurs over a period of time.”6
(Id. at p. 462; see also People v. Garcia (2003) 107 Cal.App.4th 1159, 1162, fn. 1, 1163
[crime of “ ‘flee[ing] or attempt[ing] to elude a pursing peace officer’ ” violated only
once by “an uninterrupted single course of conduct, i.e., one continuous act of driving
lasting 30 minutes” because the statute “contemplates a continuous course of driving,
which may transpire over a short or long period of time”].)
       As we discuss below, section 1701.1 can be violated either by a single act or by a
course of conduct of practicing unlicensed dentistry over time which causes a risk of
harm to a particular individual. (See parts II & III.B., post.) Accordingly, counts 3 and 5
charged distinct crimes — courses of conduct involving Flores and Aguilera, respectively
— which do not constitute a single actus reus.
       Appellant notes the double jeopardy clause also protects against multiple
punishments, but “the Supreme Court has made clear that ‘[t]he [Double Jeopardy]
Clause protects only against the imposition of multiple criminal punishments for the same
offense . . . [citations] . . . and then only when such occurs in successive proceedings.
[Citation.]’ [Citation.]” (Sloan, supra, 42 Cal.4th at p. 121.) When punishment is
imposed in a single proceeding, “[f]ederal law, like California statutory law, clearly
recognizes that cumulative punishment may be imposed under two statutes, even where
they proscribe the same conduct, if the Legislature has specifically authorized cumulative
punishment. [Citation.]”7 (Ibid.) Penal Code section 654 sets forth the Legislature’s



6   The reasoning of Lewis does not preclude the possibility of multiple counts involving
different prostitutes.
7  The cases cited by appellant in which the legislature did not authorize cumulative
punishment are inapposite. (E.g., Rutledge v. United States (1996) 517 U.S. 292, 307;
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determination of when multiple punishments in the same criminal proceeding are
authorized. We discuss its application to this case below.
II. Penal Code Section 654
        Appellant argues the imposition of consecutive sentences on both counts of
section 1701.1 violated Penal Code section 654.
        Penal Code section 654 precludes multiple punishments for a single “act or
omission.”8 “ ‘Whether a course of criminal conduct is divisible and therefore gives rise
to more than one act within the meaning of [Penal Code] section 654 depends on the
intent and objective of the actor. If all of the offenses were incident to one objective, the
defendant may be punished for any one of such offenses but not for more than one.’
[Citation.]” (Correa, 54 Cal.4th at p. 336.) “The ‘intent and objective’ test is a rigorous
one, however, since ‘a “broad and amorphous” view of the single “intent” or “objective”
needed to trigger the statute would impermissibly “reward the defendant who has the
greater criminal ambition with a lesser punishment.” ’ [Citation.]” (People v. Morelos
(2008) 168 Cal.App.4th 758, 769.) “A trial court’s express or implied determination that
two crimes were separate, involving separate objectives, must be upheld on appeal if
supported by substantial evidence. [Citation.]” (People v. Brents (2012) 53 Cal.4th 599,
618.)
        Appellant argues the two section 1701.1 counts used identical language, including
the same time period of January 1, 2006 through December 31, 2009. However, the
verdict form for each count included the allegation of great bodily injury identifying a
different victim: Flores and Aguilera, respectively. This indicated to the jury that count 3
involved the unlicensed practice of dentistry creating a risk of harm to Flores, and count 5


Ball v. United States (1985) 470 U.S. 856, 861-864; Ex parte Lange (1873) 85 U.S. 163,
164.) As we discuss in part II., below, the punishment imposed here was so authorized.
8  In 2012, the California Supreme Court held Penal Code section 654 does not bar
multiple punishments for multiple convictions of the same code section. (People v.
Correa (2012) 54 Cal.4th 331, 344 (Correa).) However, it applied this new rule
prospectively only. (Ibid.) As appellant’s crimes were committed between 2006 and
2009, this new rule does not apply to him.
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involved the unlicensed practice of dentistry creating a risk of harm to Aguilera. The
prosecutor’s closing argument confirmed this understanding of the separate basis for each
count: as to “Flores, the evidence has shown that [when appellant] committed [c]ount 3,
he committed unlicensed practice of dentistry creating risk of harm”; “[c]ount 5 involved
. . . Aguilera.” The distinction between counts 3 and 5 was based on the victim involved.
       Appellant argues the years-long period of practicing unlicensed dentistry creating
a risk of harm is a single act or indivisible course of conduct. There were indisputably
multiple discrete acts of such practice over this period of time. Moreover, a course of
conduct violating section 1701.1 can be divisible. In People v. Brown (1991) 234
Cal.App.3d 918 (Brown), the Court of Appeal considered an analogous statute
prohibiting the unlicensed practice of medicine creating a risk of harm (Bus. & Prof.
Code, former § 2053);9 Brown conducted such unlicensed practice on four separate dates
over a period of months, each involving the same individual, and was convicted on four
separate counts. (Id. at pp. 924-925, 933.) The Court of Appeal rejected Brown’s
argument that his actions constituted an indivisible course of conduct precluding
imposition of punishment on each count: “Based on the clear evidence of Brown’s
practicing medicine without a license on separate occasions and receiving separate
payments in connection with each occasion, the evidence supports the trial court’s




9   Business and Professions Code former section 2053 provided, in relevant part: “Any
person who willfully, under circumstances or conditions which cause or create risk of
great bodily harm, serious physical or mental illness, or death, practices or attempts to
practice, or advertises or holds himself or herself out as practicing, any system or mode
of treating the sick or afflicted in this state, or diagnoses, treats, operates for, or
prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury or
other physical or mental condition of any person, without having at the time of so doing a
valid, unrevoked and unsuspended certificate as provided in this chapter, or without being
authorized to perform that act pursuant to a certificate obtained in accordance with some
other provision of law, is punishable by imprisonment in the county jail for not exceeding
one year or in the state prison.” (As amended by Stats. 1987, ch. 1336, § 2, p. 4808,
repealed by Stats. 2002, ch. 1085, § 15, p. 7023; Brown, supra, 234 Cal.App.3d at
pp. 927-928.)
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implied finding a different intent and objective attended each of the four counts of
violating Business and Professions Code [former] section 2053.” (Id. at p. 933.)
       Appellant’s counts were not divided by date, as was the case in Brown, but instead
by the individuals upon whom he practiced unlicensed dentistry. Such a division is also
contemplated by section 1701.1. (See People v. Eckley (1973) 33 Cal.App.3d 91, 97 [in
practicing medicine without a license with numerous patients, the practice in connection
with each patient would be a separate violation divisible in time from the others].)
       The trial court found appellant had a different objective in practicing unlicensed
dentistry on Flores and on Aguilera. Substantial evidence supports this finding. The
imposition of consecutive sentences for each section 1701.1 count was not precluded by
Penal Code section 654.
III. Unanimity Instruction
       Appellant argues the trial court erred in failing to instruct the jury, sua sponte, it
was required to unanimously agree on the act or acts supporting a conviction on all
counts for which appellant was convicted.
       “[I]f one criminal act is charged, but the evidence tends to show the commission
of more than one such act, ‘either the prosecution must elect the specific act relied upon
to prove the charge to the jury, or the court must instruct the jury that it must
unanimously agree that the defendant committed the same specific criminal act.’
[Citation.]” (People v. Napoles (2002) 104 Cal.App.4th 108, 114 (Napoles).)
       A. Counts 1 and 2
       Count 1 alleged the uncertified practice of medicine with respect to Monica
Santiago, an investigator for the Dental Board of California. Santiago testified at trial
that, in an undercover operation, she complained to appellant about a painful molar;
appellant examined and diagnosed her tooth. Santiago only visited appellant on one date.
Although count 2 did not specifically identify Santiago, the prosecutor explained in his
opening statement, “the first two crimes dealt with Monica Santiago”; Santiago saw
appellant “on June 24th, [2009, and] he wrongly prescribed a medical treatment . . . .


                                               8
Those are the first two counts of the case.” As the prosecution relied on only a single act
to prove these charges, no unanimity instruction was required.
       In any event, appellant’s counsel admitted his guilt on these two counts in both
opening and closing statements; any error was thus harmless. (Chapman v. California
(1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836; see also Napoles,
supra, 104 Cal.App.4th at p. 119, fn. 8 [“[t]here is a split of authority on the proper
standard for determining whether the erroneous failure to give a unanimity instruction is
reversible”].)
       B. Counts 3 and 5
       Even where multiple acts are relied upon with respect to a single count, “no
unanimity instruction is required where the acts proved constitute a continuous course of
conduct. [Citation.]” (Napoles, supra, 104 Cal.App.4th at p. 115.) This exception may
arise when “ ‘the statute contemplates a continuous course of conduct of a series of acts
over a period of time,’ ” as demonstrated by statutory language which “ ‘focuses on the
goal or effect of the prohibited crime.’ ” (Ibid.) Section 1701.1 penalizes “a person who
willfully, under circumstances or conditions that cause or create risk of bodily harm,
serious physical or mental illness, or death, practices or attempts to practice” dentistry
without a license. The statute’s focus is on the effect of the prohibited crime — the risk
of harm to an individual caused by such unlicensed dentistry. Thus, this statute may be
violated by a continuous course of conduct involving several incidents of unlicensed
dentistry creating a risk of harm.
       Contrary to appellant’s argument, this conclusion does not preclude the possibility
that the statute may also be violated by a single incident or by a course of conduct
involving a single individual. In Napoles, which held no unanimity instruction was
required for a child abuse charge, the court noted, “child abuse is not invariably charged
as a course of conduct offense; one act or omission constituting abuse may be sufficient
for conviction.” (Napoles, supra, 104 Cal.App.4th at p. 116.) Similarly, in People v.
Sanchez (2001) 94 Cal.App.4th 622, 634, the court found, “while animal cruelty may be
committed by a continuous course of conduct, it may also be committed by a single act of

                                              9
abuse such as by kicking or beating an animal.” The inquiry turns on how the violation is
charged and presented to the jury. Where the count alleges conduct occuring over a
range of dates, that “language alerts the jury that the charge consists of a continuous
course of conduct, to be proved by evidence of more than one individual act.” (Napoles,
at p. 117.) If the evidence conforms with this understanding, establishing conduct “on an
ongoing basis during the charged period of time” causing the effect targeted by the
statutory language, the offense charged is a continuing one and no unanimity instruction
is required. (Sanchez, at p. 634.) In contrast, where the charge alleges “a particular act
on a particular day” (Napoles, at p. 116) or the evidence establishes two or more “discrete
criminal events . . . , each sufficient to support a conviction” (Sanchez, at p. 634), a
unanimity instruction is required.
       The information here charged conduct occurring between January 1, 2006 and
December 31, 2009, with respect to both Flores (count 3) and Aguilera (count 5). It was
undisputed that appellant practiced unlicensed dentistry on both of these women over a
period of years. In his closing statement, the prosecutor did not argue that any individual
incident of unlicensed dentistry was sufficient for a conviction, but instead, in
conformance with the charging document and the evidence, argued the violation was
proven by the continuous course of conduct. As counts three and five involved
continuous courses of conduct with respect to Flores and Aguilera, respectively, no
unanimity instruction was required.
IV. Restitution
       Appellant challenges the order awarding restitution to Flores and Aguilera. He
does not contest the amounts claimed, but rather argues his unlicensed practice of
dentistry could not have caused the losses.
       Restitution is authorized “in every case in which a victim has suffered economic
loss as a result of the defendant’s conduct.” (Pen. Code, § 1202.4, subd. (f).) Tort
principles of causation apply, requiring the conduct be a “ ‘ “more than negligible or
theoretical” ’ ” cause of the harm. (People v. Holmberg (2011) 195 Cal.App.4th 1310,


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1321.) “[W]e review the trial court’s restitution order for abuse of discretion.” (People
v. Giordano (2007) 42 Cal.4th 644, 663.)
       Appellant in essence contends the crimes of which he was convicted can cause no
harm. We disagree. Unlicensed dentistry is prohibited because of the risk the dental
work will be performed improperly. The trial court found appellant’s unlicensed
dentistry was performed improperly, and the improperly performed dental work required
Flores and Aguilera to seek additional dental work, thereby incurring economic loss. The
finding was not an abuse of discretion.
                                     DISPOSITION
       The judgment is affirmed.




                                                 SIMONS, J.



We concur.




JONES, P.J.




BRUINIERS, J.




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