People v. Van Le

Opinion

McCLOSKY, J. Thuy Tien Van Le appeals from the judgment entered following her plea of guilty to presenting false claims in violation of Welfare and Institutions Code section 14107. She contends that the trial court erred in denying her motion to suppress pursuant to section 1538.5 of the Penal Code.

Appellant, the proprietor of L.A. Central Pharmacy, was charged in a first amended complaint with two counts of conspiracy to cheat and defraud (Pen. Code, § 182, subd. 4), twenty-three counts of presenting false claims (Welf. & Inst. Code, § 14107), and one count of grand theft (Pen. Code, § 487, subd. 1) in connection with Medi-Cal fraud. She brought a motion pursuant to Penal Code section 1538.5 to suppress evidence obtained by undercover investigators using Medi-Cal cards on the ground that the cards were not used in compliance with Welfare and Institutions Code section [847140]26.5. Her motion was denied. Appellant pleaded guilty to one count of presenting false claims. (Welf. & Inst. Code, § 14107.) The remaining counts were dismissed. She was sentenced to one year in county jail, which sentence was suspended, and was granted probation for a period of three years.

Appellant bases her contention that her motion to suppress should have been granted upon the grounds that “Welfare and Institutions Code section 14026.5 authorizes the use of fictitious Medi-Cal cards for undercover operations only under the ‘immediate supervision’ of a peace officer and only upon a prior judicial determination of ‘reasonable suspicion’ that the person who is the subject of the use of the fictitious card has committed or is committing Medi-Cal fraud”; and that “[t]he purpose of section 14026.5 is to provide protection against violations of the doctor-patient privilege, unreasonable search and seizure and the right to privacy to health professionals alleged to be involved in professional misconduct; the numerous violations of the statute must lead to the exclusion of any evidence thereby obtained.” She further contends that “[a]s appellant pleaded guilty in this case on the understanding that she could raise the denial of her Penal Code section 1538.5 motion on appeal, if she cannot appeal on those grounds, she must be allowed to withdraw her guilty plea.”

Appellant’s conviction results from a six-county investigation of MediCal fraud. In July 1983, a task force began an investigation of Dr. Tran. As part of that investigation it obtained a court order pursuant to section 14026.5 of Welfare and Institutions Code for the issuance of Medi-Cal cards. On July 21, 1983, two operatives under the supervision of the Department of Justice’s investigators took the cards to Dr. Tran’s office to determine what type of service the physician would give them. The office was in the same building and adjoining L.A. Central Pharmacy. Dr. Tran gave the operatives prescriptions for noncovered medications and told them to have the prescriptions filled at L.A. Central Pharmacy. The operatives had the prescriptions filled at L.A. Central Pharmacy without first asking permission of the investigators, who were observing from outside the building.