People v. Gandotra

• Decision Date: 23 December 1992
• Docket Number: No. B051942,B051942
• Citation: 11 Cal.App.4th 1355,14 Cal.Rptr.2d 896
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Suresh GANDOTRA, et al., Defendants and Appellants.

Page 896

14 Cal.Rptr.2d 896

11 Cal.App.4th 1355

The PEOPLE, Plaintiff and Respondent, v. Suresh GANDOTRA, et al., Defendants and Appellants.

No. B051942.

Court of Appeal, Second District, Division 1, California.

Dec. 23, 1992.

Certified for Partial Publication ^*

Review Denied April 21, 1993.

Dennis A. Fischer, Santa Monica, and Alan S. Yockelson, San Diego, for defendants and appellants.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Asst. Atty. Gen., William T. Harter and Zaven V. Sinanian, Deputy Attys. Gen., for plaintiff and respondent.

ORTEGA, Associate Justice.

Defendant Suresh Gandotra, M.D., operated a medical clinic in Los Angeles County. An undercover investigation by the Bureau of Medi-Cal Fraud and Patient Abuse of the California Department of Justice revealed Dr. Gandotra had falsely billed Medi-Cal for patients who either were not treated or were treated by unlicensed medical assistants in violation of Medi-Cal regulations and state licensing laws.

In the published portion of the opinion, we discuss Dr. Gandotra's convictions of aiding and abetting his unlicensed assistant in the prescribing and furnishing of controlled substances (Health & Saf.Code, §§ 11153, subd. (a), (counts 6, 10), 11352 subd. (a), (count 8)). Dr. Gandotra contends these counts must be reversed because there was no evidence at trial that the challenged prescriptions and medications were medically inappropriate treatments of the symptoms described by the undercover agents to the unlicensed assistant. Dr. Gandotra argues that, on this record, had he personally prescribed and furnished the medications, he could not have been charged under these statutes. We uphold the convictions on these counts.

In the unpublished portion of the opinion, we modify the judgment against Dr. Gandotra by striking some fines imposed in violation of Penal Code section 654. We affirm the judgments as modified. ¹

BACKGROUND

It is undisputed that Dr. Gandotra hired three unlicensed medical assistants (Carlos Cuellar, Ricardo Santos, and Winston Saunders) to provide medical care to Medi-Cal patients at Dr. Gandotra's clinic. The assistants were not licensed in California to practice medicine or write prescriptions, and they were not authorized Medi-Cal providers.

Based on the medical services provided by the unlicensed assistants, Dr. Gandotra billed Medi-Cal under his own provider number for their unauthorized services. Substantial evidence established that Dr. Gandotra also presented Medi-Cal claims for services that were never rendered. Rita Gandotra, Dr. Gandotra's wife, processed some of the clinic's false Medi-Cal claims.

As a result of their fraudulent Medi-Cal billing, Dr. Gandotra and his wife were charged with and convicted of the following felonies: Medi-Cal fraud (Welf. & Inst.Code, § 14107 (counts 11-15)), grand theft (Pen.Code, § 487, subd. (1) (count 16)), and conspiracy to defraud (Pen.Code, § 182, subd. (a)(4) (count 17)). They do not challenge the sufficiency of the evidence to support their convictions on these counts.

During the investigation which led to this prosecution, five undercover agents posing as Medi-Cal patients received either forged controlled substance prescriptions (signed with Dr. Gandotra's name) or small quantities of controlled substances from Dr. Gandotra's unlicensed medical assistants. As a result of the medical treatments, prescriptions, and medications provided to the agents by the unlicensed assistants, Dr. Gandotra was charged with and convicted of aiding and abetting the unlicensed assistants in: (1) practicing medicine without a license (Bus. & Prof.Code, § 2052 (counts 2, 9, misdemeanors)); (2) forging prescriptions (Bus. & Prof.Code, § 4390 (counts 1, 3, 5, 7, felonies)); and (3) distributing and prescribing controlled substances in violation of state law (Bus. & Prof.Code, § 4227 (count 4, a misdemeanor); Health & Saf.Code, § 11153, subd. (a) (counts 6, 10, felonies); Health & Saf.Code, § 11352 (count 8, a felony)).

ISSUES

Dr. Gandotra contends his convictions of aiding and abetting an unlicensed assistant to (I) prescribe (counts 6, 10) and (II) dispense (count 8) controlled substances must be reversed.

Both defendants contend: (III) the trial court abused its discretion by failing to discharge a juror who became unable to perform his duty during deliberations; (IV) counts 11 through 15 (Medi-Cal fraud) must be reversed due to instructional errors; and (V) the trial court erred in imposing fines against Dr. Gandotra.

DISCUSSION

I

We find the jury properly convicted Dr. Gandotra of aiding and abetting Ricardo Santos, an unlicensed medical assistant, in prescribing controlled substances to Agents Milne (count 6, Diazepam) and Blair (count 10, Fiorinal with codeine # 3) in violation of Health and Safety Code section 11153, subdivision (a). ² We conclude there was sufficient evidence to support these verdicts and find no instructional error.

A. Count 6

Agent Milne, posing as patient Scott, went to the clinic and complained of sleeplessness and itching. Santos examined Milne and forged Dr. Gandotra's signature on a prescription for Diazepam, or Valium, a Schedule IV controlled substance ( § 11057, subd. (d)(7)). As a result of Santos' unlicensed treatment of Agent Milne, Dr. Gandotra was convicted of aiding and abetting Santos in (1) forging a prescription (Bus. & Prof.Code, § 4390, (count 5)), and (2) issuing an unlawful prescription for a controlled substance ( § 11153, (count 6)).

The trial court fined Dr. Gandotra $10,000 on count 5 and $20,000 on count 6. In the unpublished portion of the opinion, we stay the fine imposed on count 5 in violation of Penal Code section 654.

B. Count 10

Agent Blair went to the clinic posing as patient West and complained of a headache. Santos examined West and forged Dr. Gandotra's signature on a prescription for Fiorinal with codeine # 3, a Schedule III controlled substance ( § 11056, subd. (e)). As a result of Santos' unlicensed treatment of Agent Blair, Dr. Gandotra was convicted of aiding and abetting Santos in unlawfully prescribing a controlled substance ( § 11153, subd. (a), (count 10)), and was fined $20,000.

C. Section 11153 Bars Unlicensed Assistants From Writing Controlled Substance Prescriptions

Section 11153, subdivision (a) states: "A prescription for a controlled substance shall only be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription. Except as authorized by this division, the following are not legal prescriptions: (1) an order purporting to be a prescription which is issued not in the usual course of professional treatment or in legitimate and authorized research; or (2) an order for an addict or habitual user of controlled substances, which is issued not in the course of professional treatment or as part of an authorized methadone maintenance program, for the purpose of providing the user with controlled substances, sufficient to keep him or her comfortable by maintaining customary use."

Section 11153, subdivision (b) states: "Any person who knowingly violates this section shall be punished by imprisonment in the state prison or in the county jail not exceeding one year, or by a fine not exceeding twenty thousand dollars ($20,000), or by both a fine and imprisonment."

Section 11153 is part of the 1972 Uniform Controlled Substances Act ( § 11000 et seq., (the Act)) which is division 10 of the Health and Safety Code. Subdivision (a) of section 11153 states that only "practitioners" may issue prescriptions for controlled substances. "Practitioner," as defined elsewhere in the Act, includes doctors, dentists, veterinarians, podiatrists, and, in specified instances, pharmacists, registered nurses, and physician's assistants acting within the scope of authorized projects. ( § 11026.)

Subdivision (b) of section 11153 describes the punishment that may be imposed against any "person" who violates subdivision (a). "Person," as defined elsewhere in the Act, "means individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, or association, or any other legal entity." ( § 11022.)

According to the prosecution's trial theory, Santos was the unlicensed "person" who violated section 11153 by knowingly issuing forged prescriptions for controlled substances. Dr. Gandotra, who gave Santos the prescription blanks bearing Dr. Gandotra's name and registry number, was the "person" who aided and abetted Santos in writing the illegal prescriptions.

On appeal, Dr. Gandotra contends neither he nor Santos may be convicted under section 11153. According to Dr. Gandotra, Santos is immune from prosecution because "section 11153 has been 'limited to physicians and pharmacists' (People v. Anderson [ (1972) ] 29 Cal.App.3d 551, 561, 105 Cal.Rptr. 664)." And since Santos could not have violated the statute, Dr. Gandotra contends he cannot be guilty of having aided and abetted Santos.

The referenced passage in People v. Anderson (1972) 29 Cal.App.3d 551, 561, 105 Cal.Rptr. 664, however, concerned a different statute, former section 11162.5, which was repealed by the Act. Former section 11162.5 provided: " 'A prescription, in order to be effective in legalizing the possession of unstamped narcotic drugs and eliminating the necessity for use of order forms, must be issued for legitimate medical purposes. The responsibility for the proper prescribing and dispensing of narcotic drugs is upon the practitioner, but a corresponding liability rests with the pharmacist who fills the prescription. An order purporting to be a prescription issued to an addict...