People v. Van Hoang Mong Pham

Opinion

COMPTON, J. —Defendant, charged in a multicount felony complaint, pleaded guilty in the municipal court to one count of violating Welfare and Institutions Code section 14107 (filing a false claim under the Medi-Cal program) after an unsuccessful attempt to suppress evidence pursuant to Penal Code section 1538.5. Sentence was pronounced in the superior court. (Pen. Code, § 859a.) She appeals seeking review of the denial of her motion to suppress. (Pen. Code, § 1538.5, subd. (m).) We affirm.

We first observe that defendant appears to labor under a misconception of the office of a motion to suppress pursuant to Penal Code section 1538.5. Subdivision (a) of that statute provides in part that “[a] defendant may move ... to suppress ... any ... thing obtained as a result of a search or seizure____” (Italics added.)

While there was apparently a search warrant executed in this case on February 15, 1984, the defendant, as is too often the case, fails to specify for us just what evidence was seized under that warrant and what specific evidence she sought to suppress. Instead, defendant simply takes the position that all evidence against her should have been suppressed even though she admits in her brief that “[t]he charges against [defendant] were based primarily on the information obtained by the undercover operations of August 9, 1983 and September 6, 1983.”

The charge to which defendant pleaded guilty was for filing a false Medi-Cal claim on September 6, 1983. It appears that defendant’s assessment is correct and that the search warrant executed some five months later produced no significant evidence. In fact, on appeal defendant focuses entirely on the conduct of the undercover operators on August 9 and September 6.

It is clear from the record that the evidence gathered by the undercover operators came from face to face conversations with the defendant at her husband’s medical office—a place that was open to the public. Hence, the evidence which defendant sought to suppress was not the product of a search or seizure.

[1534]The procedure outlined in Penal Code section 1538.5 was designed to avoid litigating the issue of the validity of a search and seizure during trial and after jeopardy has attached leaving the People with no opportunity to appeal an adverse ruling and hence no method of correcting an improper order of suppression. The statutory scheme is not and was not conceived as an omnibus procedure to determine, pretrial, the admissibility of all categories of evidence. (See People v. Manning (1973) 33 Cal.App.3d 586 [109 Cal.Rptr. 531].)