People v. Hering

Opinion

In this case we must determine whether Business and Professions Code section 650 and Insurance Code section 750 require instruction on specific intent. In the abstract, both may be characterized as specific intent crimes because in certain circumstances their commission contemplates an intention to bring about future acts. Nevertheless, the conduct proscribed in the statutory definition fully incorporates the requisite mental state. We therefore decline to impose any additional instructional obligation on the trial court, unless the defendant has proffered a mental state defense.

Factual and Procedural Background

Defendants Norton Hering, M.D., and Jose Fermín were convicted of violating Business and Professions Code section 650 and Insurance Code section 750 by offering rebates on medical fees as inducement for the referral of patients. The charges arose from an undercover investigation by the Orange County District Attorney’s office into illegal activity by medical clinics and attorneys primarily specializing in personal injury cases. As part of this operation, district attorney investigator Frank Lopez posed as Frank Rios, the administrator of a fictitious law firm.

About two months later, Lopez met with both Fermín and Hering at the medical group office and audiotaped the conversation. Lopez asked Hering “what kind of arrangement” he normally had with attorneys. Hering responded that “20% is deducted at the end of our bill when the case is settled.” For example, “let’s assume that we have a three or four thousand dollar bill and the case settled for fifteen. And therefore we expect our bill to be paid, normally we ask you to deduct 20% at the end of that bill. . . . [1] And then just send us the difference.”

In his defense, Hering testified he had been tricked or “led” into the conversation by Lopez. He further stated the 20 percent discount to be applied at the end of the case was to facilitate settlement of patients’ claims and only intended to secure prompt payment. He denied offering to discount any medical bills as consideration or inducement for the referral of other patients.

Dennis Duarte, an attorney specializing in personal injury cases, also testified for the defense as an expert witness. He explained that it is customary for a medical care provider to discount the bill to allow for settlement of related litigation, particularly when the settlement may not be sufficient to cover all costs. However, he acknowledged he had never negotiated the amount of a discount in advance of treatment.

Both defendants requested the trial court to instruct that the crimes required the specific intent “that the one receiving the consideration will, in the future, refer clients, patients or customers.” The court declined to so instruct and directed the jury only as to general criminal intent, i.e., that the defendant “does that which the law declares to be a crime . . . even though

On review, defendant Fermín endorses the construction of the Court of Appeal that these statutes require an intention “to actually commit the act of paying a rebate.” Somewhat more circumspectly, defendant Hering advocates that the intent is “to induce the referral” of patients. The Attorney General argues the crimes require no particular mental state beyond the intent to commit the proscribed acts.

As explained in a now familiar passage from People v. Hood (1969) 1 Cal.3d 444 , 456-457 [ 82 Cal.Rptr. 618 , 462 P.2d 370 ] (Hood): “When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent. There is no real difference, however, only a linguistic one, between an intent to do an act already performed and an intent to do the same act in the future.”

“The distinction between specific and general intent crimes evolved as a judicial response to the problem of the intoxicated offender” and the availability of voluntary intoxication as a defense. (Hood, supra, 1 Cal.3d at p. 455; see People v. Whitfield (1994) 7 Cal.4th 437 [ 27 Cal.Rptr.2d 858 , 868 P.2d 272 ]; Pen. Code, § 22, subd. (b); see also id., § 28, subd. (a) [evidence of mental disease, mental defect, or mental disorder admissible as defense to specific intent crime].) Outside this context, the terms “have been notoriously difficult ... to define and apply” (Hood, supra, 1 Cal.3d at p. 456) and even perhaps “have proved to be mischievous.” (People v. Cain (1995) 10 Cal.4th 1 , 84 [ 40 Cal.Rptr.2d 481 , 892 P.2d 1224 ] (cone. opn. of Mosk, J.); see Perkins on Criminal Law (2d ed. 1969) ch. 7, § 1, p. 751.) In any event, courts should avoid rote application. As we noted in Hood, “assault is appropriately characterized as a specific intent crime under [the definition of an intention to do a future act or achieve a particular result]. An assault, however, is equally well characterized as a general intent crime under the definition of general intent as an intent merely to do a violent act.” (Hood, supra, 1 Cal.3d at pp. 457-458.)

Our analysis must therefore begin with an examination of the statutory language describing the proscribed conduct, including any express or implied reference to a mental state. As relevant here, Business and

Whether these offenses require some other specific intent is a closer question. Neither includes language typically denoting specific intent crimes, such as “with the intent” or “for the purpose of.” (See, e.g., Pen. Code, §§ 653f, subd. (a) [solicitation must be made “with the intent that the crime [solicited] be committed”], 653.22, subd. (a) [loitering unlawful if done “with the intent to commit prostitution”], 289, subd. (a)(1) [penetration by foreign object must be “for the purpose of sexual arousal, gratification, or abuse”], 499b [taking of automobile must be “for the purpose of temporarily using or operating the same”].) Nevertheless, to offer some form of consideration as inducement for referrals does connote an “intent to . . . achieve some additional consequence.” (Hood, supra, 1 Cal.3d at p. 457.) To “induce” may mean “to lead on to some action, condition, belief, etc.; prevail on; persuade” or “to bring on; bring about, cause, effect.” (Webster’s New World Dict. (3d college ed. 1988) p. 689.) Under either definition, Business and Professions Code section 650 and Insurance Code section 750 can be read to require a finding that the defendant made the offer of a rebate for the purpose of inducing the referral of patients. Thus, if constrained to do so, we would denominate them specific intent crimes. (See, e.g., People v. Lyons (1991) 235 Cal.App.3d 1456 , 1460 [ 1 Cal.Rptr.2d 763 ].)

Such classification is, however, necessary only when the court must determine whether a defense of voluntary intoxication or mental disease,

The trial court did not prejudicially err by instructing the jury in accordance with the statutory definitions of Business and Professions Code section 650 and Insurance Code section 750 and refusing to instruct that either offense requires a specific intent. Accordingly, we reverse the judgment of the Court of Appeal. Since the Court of Appeal did not address other issues raised by defendants, we remand for further proceedings consistent with this opinion.

George, C. J., Mosk, J., Kennard, J., Baxter, J., Werdegar, J., and Chin, J., concurred.