Unreported / Non-Citable
Background
Joel Gallano Ombao owned Secure Hands Incorporated, a Riverside facility licensed only as a boarding house, not to provide medical care, and served as its CEO; he was a medical doctor in the Philippines and a nurse practitioner in the United States. In January 2015, police responding to a call found residents in squalid conditions: a woman with Alzheimer's disease lying in feces on a bare box spring, another trapped under a mattress wearing only a soiled diaper, and male residents suffering seizures and hunger. Many residents had serious medical conditions requiring constant care, even though the facility was represented as an independent living home for people who could manage their own daily activities.
A jury convicted Ombao of four felony counts of elder or dependent adult abuse (Pen. Code, § 368, subd. (b)(1)), each involving a separate victim, and deadlocked on two additional counts. During trial, the court limited the People's expert testimony: experts could testify that Secure Hands as a facility failed to meet applicable standards of care, but could not opine that Ombao or his codefendants personally breached the standard of care. The prosecutor repeatedly asked Dr. Khai Nguyen questions skirting that ruling, including a hypothetical about a nurse practitioner who was also a CEO, drawing sustained objections and a defense motion for mistrial.
The trial court denied the mistrial motion, finding no prejudice because the objections were sustained and Dr. Nguyen did not answer the improper questions. After conviction, the court denied Ombao's new trial motion, concluding that while the prosecutor committed misconduct by attempting to introduce inadmissible evidence, the misconduct was not prejudicial and did not rise to a due process violation. In July 2024, the court sentenced Ombao to five years in state prison.
The Court’s Holding
The Court of Appeal affirmed, reviewing the denial of the new trial motion for abuse of discretion. Under settled law, prosecutorial misconduct violates due process only when it is so egregious that it infects the trial with unfairness; misconduct falling short of that may still violate state law if it uses deceptive or reprehensible methods. When a court has ruled testimony inadmissible, a prosecutor commits misconduct by posing questions that attempt to elicit it, whether intentionally or not.
But reversal requires a showing of prejudice. Ombao's conclusory assertion that the questioning violated due process failed because he bore the burden of showing the trial was rendered fundamentally unfair. Under the state-law standard, there was no reasonable probability Ombao would have achieved a more favorable result absent the objectionable questions: the court sustained the defense objections, so the jury never heard inadmissible testimony.
The trial court had instructed the jury under CALCRIM No. 222 that counsel's questions are not evidence, only witnesses' answers are evidence, and jurors must ignore questions when objections are sustained. The appellate court presumed the jurors followed that instruction, and the record showed otherwise nowhere. Because the misconduct was not prejudicial, the trial court did not abuse its discretion in denying the new trial motion.
Key Takeaways
- A prosecutor commits misconduct by asking questions that attempt to elicit testimony the trial court has ruled inadmissible, regardless of whether the violation was intentional.
- Even when misconduct occurs, reversal requires prejudice: either the trial was rendered fundamentally unfair in violation of due process, or under state law it is reasonably probable the defendant would have obtained a more favorable result absent the misconduct.
- Sustained objections plus a CALCRIM No. 222 instruction that questions are not evidence can defeat a prejudice claim, because appellate courts presume juries follow instructions to disregard questions when objections are sustained.
- Conclusory appellate assertions that misconduct violated due process are insufficient; the defendant bears the burden of showing how the questioning infected the trial with unfairness.
- Denial of a new trial motion based on prosecutorial misconduct is reviewed for abuse of discretion, and Penal Code section 1181 requires a showing of prejudice to grant such a motion.
Why It Matters
The decision reinforces the distinction between prosecutorial misconduct and prejudicial error: even clear violations of evidentiary rulings do not warrant reversal when sustained objections and proper jury instructions keep inadmissible evidence from the jury. It underscores the curative role of CALCRIM No. 222 and the presumption that jurors follow instructions to disregard questions when objections are sustained.
The case also illustrates the limits of expert testimony in criminal negligence cases. Experts may testify that a facility or institution failed to meet applicable standards of care, but they may not opine that an individual defendant personally breached the standard of care, and prosecutors cannot circumvent that ruling through hypothetical or rephrased questions.