People v. Slocum

• Decision Date: 07 November 1975
• Docket Number: Cr. 6473
• Citation: 52 Cal.App.3d 867,125 Cal.Rptr. 442
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Wesley Gardner SLOCUM, Defendant and Appellant.

Page 442

125 Cal.Rptr. 442

52 Cal.App.3d 867

The PEOPLE of the State of California, Plaintiff and Respondent, v.Wesley Gardner SLOCUM, Defendant and Appellant.

Cr. 6473.

Court of Appeal, Fourth District, Division 2, California.

Nov. 7, 1975.

Hearing Denied Jan. 21, 1976.

Schnider & Schnider and Robert Schnider, Santa Monica, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Alan S. Meth and Steven V. Adler, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

KERRIGAN, Associate Justice.

In August 1972, Nancy Fenno informed state officials that her employer and paramour, Wesley Gardner Slocum, physician and surgeon, was defrauding the State of California of thousands of dollars by presenting false Medi-Cal claims.The government launched an extensive, ongoing investigation into the charges and Slocum became aware of it but apparently never suspected that his girl friend (who worked as a nurse-receptionist in his office) was the informant.

In March 1973, he was indicted.In September, his trial commenced.During the first 6--7 weeks of the trial (October-November) Nancy and the defendant occupied a house in Riverside.But on November 26she was called as a prosecution witness.

Following a six (6) month trial, Slocum was convicted by a jury of one (1) count of grand theft (Pen.Code, §§ 484--487) and twenty-two (22) counts of submitting a false claim (Pen.Code, § 72) and was thereafter sentenced to state prison.

Prior to trial, Slocum made a motion for change of venue and it was denied; his demurrer to the indictment was overruled; his motion to suppress evidence seized at his residence was denied; and his motion to set aside the indictment was likewise denied.

During trial, defendant made several motions for a mistrial.The motions were based on the premise that he could not obtain a fair trial in that 3--4 incidents had occurred in which the empaneled jurors had been apprised of the fact that he had been charged in March 1970 with the murder of his infant daughter.The motions were denied.

Following the rendition of the verdict, Slocum's motion to reduce all counts to misdemeanors (Pen.Code, § 17) was denied.His application for probation and his motion for a new trial were similarly denied.

Slocum raises 10 issues on appeal.Several involve the trial court's rulings on jury instructions, objections and the admission of evidence.Each will be categorically considered.However, his main points follow: (1) His paramour's role in the prosecution worked to his constitutional disadvantage in that she was present at confidential pretrial and trial conferences between him and his attorney; (2) a mistrial should have been granted; (3) illegally seized evidence was improperly admitted; and (4) the grand theft felony conviction cannot stand as the amount of each false claim was less than $200, a misdemeanor at most.

We have determined that the defendant's Fourth, Sixth and Fourteenth Amendment rights were not violated; that he was properly charged and sentenced; and that the court's rulings were correct.

FACTS

Slocum received his medical degree in 1952, moved to California and engaged in a general practice in Santa Ana.Eventually, 80 percent of his practice involved patients who were recipients of some from of government aid such as Medicare or Medi-Cal.

The Medi-Cal program provides medical assistance at state expense for needy persons.The state administers the program through Blue Shield, a private, nonprofit corporation which receives and pays Medi-Cal claims upon behalf of the state.

Each Medi-Cal beneficiary receives an identification card every month for use in the succeeding month.The I.D. card contains the recipient's name and address, I.D. number, date of birth and sex; affixed to each I.D. card is a series of 10 separate 'peel-off' labels or stamps: 2 'MEDI' labels (covering such services as visits to a physician's, optometrist's, psychiatrist's or psychologist's office); 2 'DRUG' labels (prescriptions); and 6 'PROOF OF ELIGIBILITY'(POE) labels (covering major medical care and equipment such as hospitalization, lab services and prostheses; however, Blue Shield must ordinarily be contacted in advance and authorize such care, treatment and equipment before the POE stamps will be honored).Only the person named on the I.D. card may utilize the card or labels; in other words, the card and stamps are non-transferable.¹

In a typical situation where the patient ('Recipient') requires drugs or treatment, he simply visits his doctor or pharmacist ('Provider') and presents the I.D. card with the labels attached.The provider removes a label and furnishes the treatment or prescription required.The provider prepares a claim form containing the following information: His name and address; beneficiary's name and I.D. number; date of service; service rendered; and the amount of the fee.The stamp removed from the recipient's I.D. card is attached to the claim and transmitted to Blue Shield.Through the use of manpower and computers.Blue Shield figures the amount allowed under the program and orders a draft sent to the provider.

Defendant had his own unique method of providing services.Generally, he took all the I.D. cards (with the labels attached) from a family.In return, he provided whatever medical care the family needed that month.The stamps were taken as a matter of regular office practice, not only when treatment was rendered but when it was not.Each month he billed Blue Shield whether treatment was rendered or not.Stated succinctly, the treatment rendered and the bills presented rarely coincided.

Generally, when a patient entered defendant's office, an employee would take the name and other basic information to be recorded on the Medi-Cal claim form.The employee would then affix a stamp to the claim.The form and label were turned over to the defendant.Defendant usually took the forms home with him and wrote out the diagnosis and treatment purportedly rendered.Defendant would use whatever stamps were necessary to complete the form, no matter which member of the family he had treated.The completed claim forms were submitted to Blue Shield and the checks defendant received were either endorsed by him or by one of his staff.Over the years defendant filed a vast number of Medi-Cal claims: for example, in 1972, he filed over 5,000 claims for which he was paid $182,000.

During the course of the long trial, a formidable mass of evidence was presented indicating the between September 1971--July 1972 Slocum filed numerous false claims for services he never rendered and also defrauded the state by billing Blue Shield for services rendered to one member of a family for which he had used another member's stamp.An array of defendant's patients testified that they did not receive the treatments for which defendant billed the state.The physical evidence was also devastating: over 300 false claim forms were introduced reflecting a total theft of state funds ranging between $5,000--$9,000.

Nancy Fenno was deeply involved in the fraud upon the government.Her relationship with defendant was both professional and romantic.By July 1971she had completed much of her training towards becoming a registered nurse and was imployed in the dual capacity of nurse and part-time receptionist.She assisted defendant in preparing and submitting the false claims and endorsed many of Blue Shield's checks.

However, in May 1972she began to doubt the sincerity of his promises to marry her and while their personal relationship deteriorated somewhat thereafter, defendant continued to confide in her.Then in August 1972, Nancy reported defendant to Medi-Cal.

Medi-Cal commenced an investigation.A computer printout was ordered of all of defendant's billings and his patients were interviewed.During the course of the investigation, defendant never dreamed that Nancy had informed on him.In any event, they continued to see each other after the indictment was issued.However, he warned her to 'keep her goodamn mouth shut' and not to give the authorities any handwriting exemplars.

Slocum's defense took the following form: (1)He personally never submitted a claim for which no service was rendered; (2) while he had billed the state for services provided to one member of a family and used another member's stamp, it was customary for Orange County physicians to use the stamps of one member of the family to pay for treatment rendered to another member of the same family; and (3) Nancy was a woman scorned: a lying, vindictive, jealous female who turned on him because he spurned her affections and refused to marry her; the false claims were possibly filed by her and she pocketed the proceeds received by endorsing his name on the checks.

SEIZURE OF RECORDS

Defendant initially maintains that certain records (including Medi-Cal claim forms) that were seized from his person and residence at the time of his arrest should have been suppressed inasmuch as the seizure resulted from an illegal detention and was accomplished without a warrant, probable cause or consent.

Preliminary, it should be noted that defendant's person was not searched at any time and the officers testified they did not search him; the officers' version must therefor be accepted at this level.(People v. Hill,12 Cal.3d 731, 744, 117 Cal.Rptr. 393, 538 P.2d 1.)Consequently, only the residence search need be reviewed.

About 3:30 p.m. on December 15, 1972, two officers were dispatched to defendant's residence after being advised that the district attorney's office was in the process of obtaining a search warrant and there was reason to believe that the records which were the object of the warrant would be removed or destroyed during the time the warrant was being obtained; the officers were instructed they were to maintain surveillance and not allow any...