Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS121023. David P. Jaffe, Judge.
Fenton & Nelson, Henry R. Fenton, Dennis E. Lee, Abbie Malinak for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Douglas M. Press, Assistant Attorney General, Jennifer M. Kim and Karen L. Fried, Deputy Attorneys General, for Defendant and Respondent.
BOREN, P.J.
Appellant Julio Gonzales is a physician’s assistant who was charged with two Medi-Cal-related felonies and a misdemeanor. Pursuant to a plea agreement, Gonzales pled nolo contendere to the charged misdemeanor of the failure to maintain adequate records of patient services (Bus. & Prof. Code, § 2266), and the court dismissed the felony charges of receiving unlawful remuneration for referring Medi-Cal patients (Welf. & Inst. Code, § 14107.2, subd. (a)), and participating in the unlawful payment of rebates for referring patients (§ 650, subd. (a)). After receiving notice of Gonzales’s conviction, respondent Department of Health Care Services (Department) advised him that because of that conviction it had mandatorily suspended him as a provider of services in the Medi-Cal program. (See Welf. & Inst. Code, § 14123, subd. (a).)
Unless otherwise indicated, all further statutory references are to the Business and Professions Code.
Gonzales was placed on summary probation for 24 months on the condition, among others, that he serve one day in the county jail (with credit for one day served), perform 40 hours of community service, pay a restitution fine, and not maintain a Medi-Cal provider billing number, nor bill independently for his services, nor prepare any bills sent to Medi-Cal. However, the terms of probation permitted Gonzales to obtain a Medi-Cal physician’s assistant provider number and to obtain employment where another Medi-Cal provider can bill for his supervised services.
Gonzales filed in the superior court a petition for writ of mandate (Code Civ. Proc., § 1085) against the Department, seeking an order setting aside his automatic suspension. He urged that the misdemeanor of failing to maintain adequate records of patient services was not a valid conviction and, in any event, was not substantially related to his qualifications, functions, or duties. The superior court denied the petition.
On appeal, Gonzales argues by analogy to a Supreme Court case, People v. Superior Court (Douglass) (1979) 24 Cal.3d 428 (Douglass), which addressed a different provision of the State Medical Practices Act of the Business and Professions Code. Douglass held that the provision in question there defined only unprofessional conduct subject to administrative disciplinary action and not criminal conduct. Gonzales analogizes to Douglass and urges that the code section to which he pled nolo contendere is not a crime because he is entitled to the benefit of the reasonable, noncriminal interpretation of a purportedly ambiguous statutory scheme. Gonzales thus contends that his conviction is void on its face and may be collaterally challenged in any proceeding, including his challenge by petition for a writ of mandate to review the administrative suspension by the Department based on that conviction.
We find, however, that under prevailing Supreme Court case law (see Larsen v. Department of Motor Vehicles (1995) 12 Cal.4th 278 (Larsen), and Thomas v. Department of Motor Vehicles (1970) 3 Cal.3d 335 (Thomas)), the Department’s suspension was merely the mandatory execution of its statutory duty, and that Gonzales must first challenge the underlying conviction in the court which rendered the conviction. Thus, without reaching the merits of the challenge to the criminal conviction, we affirm the order denying the petition for writ of mandate.
Additionally, because Gonzales’s conviction was the result of a plea agreement, he is estopped to attack its validity. We also note that even if Gonzales could successfully assert the merits of his claim, the appropriate remedy would be to vacate his plea and reinstate the dismissed felony charges. Finally, contrary to Gonzales’s assertion, the misdemeanor conviction for failure to maintain adequate records was substantially related to the functions or duties of a Medi-Cal service provider, and thus the Department was warranted in suspending Gonzales as a provider.
DISCUSSION
I. Gonzales’s contention that section 2266 purportedly is not a criminal offense as a matter of law, based on his interpretation of Douglass, supra, 24 Cal.3d 428, is unavailing.
A. Gonzales’s interpretation of Douglass, supra, 24 Cal.3d 428.
Gonzales contends that his misdemeanor conviction, upon his plea of nolo contendere, is facially void for lack of jurisdiction because the provision he admitted violating was not a crime, but merely defined unprofessional conduct. This notion is based on Douglass, supra, 24 Cal.3d 428, which held that a Business and Professions Code section describing unprofessional conduct without specifying a criminal punishment (i.e., improperly proscribing drugs), did not constitute a misdemeanor made punishable by an omnibus penalty section applying to other sections which did not specify a penalty. The majority in Douglass concluded that the omnibus penalty section (former § 2426 [now § 2314]) was “reasonably susceptible of a construction that would exclude from its reach an act or omission which is declared only to be ‘unprofessional conduct’ and is not expressly described as a violation or crime.... [T]he construction urged by the People, whereby [the omnibus penalty section] would make criminal acts or omissions specified as ‘unprofessional conduct, ’ would render superfluous those provisions previously noted which expressly state that such conduct is criminal.” (24 Cal.3d at p. 434.)
The Department, however, points to several amendments and additions to the legislative scheme after Douglass, and emphasizes, in pertinent part, that “acts or omissions which the Legislature wanted to exclude from the revised omnibus statutes were expressly exempted [by adding into various code sections] the phrase, ‘[s]ection 2314 [making unspecified violations of the act a misdemeanor] shall not apply to this section.’ (See Bus. & Prof. Code, §§ 2234, subd. (g), 2248, subd. (b), 2249, subd. (b), 2259, subd. (h), 2259.5, subd. (h), 2259.8, subd. (e), 2260, subd. (d), and 2290.5, subd. (f).)”
“It is a generally accepted principle that in adopting legislation the Legislature is presumed to have had knowledge of existing domestic judicial decisions and to have enacted and amended statutes in the light of such decisions as have a direct bearing upon them.” (Buckley v. Chadwick (1955) 45 Cal.2d 183, 200, fn. omitted; see Estate of McDill (1975) 14 Cal.3d 831, 839.) Also, where exceptions to a general rule are specified by statute, other exceptions will not be applied or presumed. (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195-196.) Thus, the Department reasons that because after Douglass the Legislature did not expressly exempt section 2266 from section 2314, as it did with numerous other provisions, it intended the section to which Gonzales pled nolo contendere (§ 2266) to be controlled by the omnibus statute (§ 2314) and to remain a misdemeanor.
However, we need not further analyze Douglass and the statutory scheme, nor resolve whether a violation of section 2266 can support a criminal prosecution. That is because, as discussed below, even if section 2266 cannot not be treated as a misdemeanor, Gonzales’s petition for writ of mandate was properly denied for two other reasons. First, the California Supreme Court has repeatedly held that a challenge to an administrative suspension, on the ground that a conviction on which it is premised is invalid, must first be successfully challenged in the court in which the conviction was rendered, rather than by a collateral petition for a writ of mandate against the agency to overturn its decision. (Larsen, supra, 12 Cal.4th 278; Thomas, supra, 3 Cal.3d 335.) Second, Gonzales is estopped from challenging the validity of his conviction because it was the result of a plea agreement.
B. Gonzales may not initially seek a writ of mandate to challenge section 2266, but must first successfully challenge the misdemeanor conviction in the court in which it was rendered.
Two Supreme Court cases, Larsen, supra, 12 Cal.4th 278, and Thomas, supra, 3 Cal.3d 335, compel the conclusion that Gonzales’s present petition for writ of mandate was as an inappropriate vehicle for the remedy he seeks. His attempt to meaningfully distinguish those two cases is unavailing.
In Larsen, the California Department of Motor Vehicles (DMV) suspended the petitioner’s driver’s license, as it was required to do by statute, after learning he had been convicted (in New York State) of driving a vehicle while impaired by the consumption of alcohol. (12 Cal.4th at pp. 281-282.) Thereafter, the petitioner filed in the superior court a petition for a writ of mandate (Code Civ. Proc., § 1085), requesting that the court order the DMV to set aside the suspension of his driving privilege on the ground that his New York conviction was invalid because he had not been advised of his constitutional rights (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122) prior to entering his guilty plea. The California Supreme Court in Larsen determined that the superior court had properly denied the petition. The court held that the petitioner could not initially seek a writ of mandate against the DMV, but must first successfully challenge the conviction in the court in which it was rendered, or in a mandate proceeding directed at the rendering court. (Larsen, supra, 12 Cal.4th at pp. 287-288.)
The rationale behind Larsen is that an administrative agency should not be placed in the position of determining the validity or constitutionality of a criminal conviction. That is a responsibility of the criminal courts. In suspending the petitioner’s driving privilege, the DMV merely performed a statutorily mandated administrative function. (12 Cal.4th at p. 284.) An administrative agency “is not authorized to determine the validity of a prior conviction, when that agency is under a statutory duty to suspend a license upon the basis of the conviction.” (Id. at p. 281.)
The Supreme Court’s opinion in Larsen thus extended to situations involving an out-of-state prior conviction the rationale it had previously expressed in Thomas, supra, 3 Cal.3d 335, involving a challenge to a California prior conviction. In Thomas, the petitioner had pled guilty in California to two charges of driving under the influence of alcohol and sought a writ of mandate to set aside the DMV’s license suspension based one those two convictions. (Id. at p. 337.) The petitioner in Thomas asserted that one of his prior California convictions was an invalid predicate for suspending his license because he had not been advised of his right to counsel. (Ibid.)
The court in Thomas explained that when a statute commands an administrative agency to suspend an individual’s licensing privilege in response to a conviction, the agency is merely “performing a mandatory function.” (Thomas, supra, 3 Cal.3d at p. 338.) Accordingly, no basis exists for permitting a collateral attack on the judgment of conviction in [a] mandate proceeding against the [DMV].” (Ibid.) As Larsen explained in describing the situation in Thomas, “the act of the DMV in suspending a driver’s license pursuant to [statutory provision, ]... is merely an ‘administrative act in performing a mandatory function’ [citation], ” and after the DMV received documentary proof of the two prior convictions of driving under the influence, it “simply was required to suspend his driving privilege, without possessing any corresponding duty to decide the validity of the prior convictions.” (Larsen, supra, 12 Cal.4th at p. 284.) Rather than initially seeking writ of mandate against the DMV, the petitioner should have brought a motion to set aside the judgment in the court where the conviction was rendered, or sought a writ against that court, but not a writ against the DMV. (Thomas, supra, 3 Cal.3d at pp. 338-339.)
“Under Code of Civil Procedure section 1085, a writ can be granted only where the administrative agency has a clear, present, and usually ministerial duty to perform, and the petitioner has a clear, present, and beneficial right to the performance of that duty.” (Marvin Lieblein, Inc. v. Shewry (2006) 137 Cal.App.4th 700, 713.) A petition for writ of mandate against an administrative agency is generally limited to determining whether the agency acted arbitrarily or capriciously. If the agency’s decision was reasonable, writ relief is unavailable. (Ibid.) Because, as the court in Larson and Thomas explained, the DMV merely performed mandatory actions required by statute in suspending the petitioners, the agency’s conduct was reasonable and thus justified.
Similarly, in the present case, Gonzales may not seek a writ of mandate against the Department without first initiating a successful challenge to his conviction in the court that rendered the conviction. Like the DMV in the Larson and Thomas cases, the Department here was statutorily required to suspend a license upon notification of a criminal conviction. (See Welf. & Inst. Code, § 14123, subd. (a).) As the trial court here aptly concluded, Gonzales’s claim that his conviction was unlawful because his failure to maintain proper records purportedly was not a crime has no merit because he has no right to raise the issue in this type of proceeding against the DMV.
Gonzales attempts to distinguish the facts involving the prior convictions in Larson (a guilty plea without advisement of constitutional rights) and Thomas (no advisement of the right to counsel) by urging that the present case involves a prior conviction that is purportedly void on its face due to a fundamental lack of jurisdiction. That difference, however, is not a meaningful distinction.
Gonzales points to the concurring opinion of Justice Mosk in Larson, supra, 12 Cal.4th at page 289, where he opined: “In my view, however, a different result would follow if the conviction were ‘void on its face’-a condition that is not satisfied here. In such a case, mandamus may be directed against the DMV to prevent it from acting on a conviction rendered either in this state or elsewhere.” As authority for such a proposition, Justice Mosk cited two lower court opinions, which asserted that proposition, but did so in dicta only. (Williams v. Department of Motor Vehicles (1969) 2 Cal.App.3d 949, 954, and Houlihan v. Department of Motor Vehicles (1970) 3 Cal.App.3d 915, 919, fn. 4.)
No court has adopted as its holding the proposition described by Justice Mosk, and we decline to do so here. We eschew such an approach because it does not resolve the fundamental inappropriateness of calling on an administrative agency to go behind facially sufficient documentation, which establishes the existence of the prior criminal conviction.
C. Gonzales’s plea of nolo contendere estops him from challenging the validity of that prior conviction.
A plea of nolo contendere, like a plea of guilty, is an admission of every element of the offense charged. (Pen. Code, § 1016, subd. 3; see In re Hawley (1967) 67 Cal.2d 824, 828.) Thus, the scope of issues thereafter reviewable is limited. Generally, only issues going to the jurisdiction of the court or the legality of the proceedings are reviewable. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896; People v. Ribero (1971) 4 Cal.3d 55, 63.)
Moreover, not even all jurisdictional issues are reviewable after a guilty plea because issues that do not implicate jurisdiction in the fundamental sense may be precluded by estoppel. As the court explained in People v. Ellis (1987) 195 Cal.App.3d 334, there is a “difference between an act of a trial court undertaken without ‘jurisdiction in the fundamental sense’ (a complete absence of authority with respect to the subject of the dispute) and an act undertaken ‘in excess of jurisdiction, i.e. beyond statutory authority.’” (Id. at p. 343.) That distinction led the court to conclude that “where fundamental jurisdiction was lacking, it could not be conferred by consent or estoppel, whereas consent or estoppel could supply jurisdiction for an act undertaken by the trial court merely in excess of its statutory power.” (Ibid.)
The court in Ellis focused on the distinction between the two types of jurisdictional issues and then applied the principle of estoppel in the context of a plea agreement. In Ellis, the court held that a defendant who pled guilty and admitted as part of her plea bargain that a federal bank robbery conviction constituted a prior serious felony for enhancement purposes, when in fact it was not a serious felony as a matter of law, was estopped from complaining about the error. (Id. at pp. at 346-347.)
As our Supreme Court has similarly observed: “Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process.” (People v. Hester (2000) 22 Cal.4th 290, 295 [defendant’s plea agreement implicitly gave up his right to challenge imposition of a concurrent sentence, which by law should have been stayed].)
In the present case, Gonzales pled nolo contendere to the now-contested underlying misdemeanor charge, and two felony charges were dismissed pursuant to a plea agreement. Even assuming that the misdemeanor to which he pled was not actually a crime, it is uncontested that the two dismissed felony charges (Welf. & Inst. Code, § 14107.2, subd. (a) [felony receipt of unlawful remuneration for referring Medi-Cal patients]; § 650, subd. (a) [felony payments of unlawful rebates for referring patients]) were valid crimes. Because of the two valid felony charges, it is undeniable that the court had lawful jurisdiction over Gonzales and the criminal proceedings which ensued.
The present case is thus distinguishable from People v. Vasilyan (2009) 174 Cal.App.4th 443, where the defendant was charged with three counts of the same purported offense-a violation of Penal Code section 422.7, which actually was only a penalty provision describing aggravating factors for punishment of a hate crime, and not a criminal offense. In Vasilyan, unlike the present case, none of the charges were criminal offenses. The trial court there did not merely act in excess of jurisdiction, but rather lacked fundamental subject matter jurisdiction because no valid offense at all was charged. The judgment was thus void, subject to collateral attack, and not a matter that could be waived by virtue of a plea agreement. (Vasilyan, at pp. 450-454.) That is not the case here, where valid felonies were charged but dismissed after the plea to the misdemeanor now belatedly challenged in this collateral matter.
Finally, we note that even if Gonzales were successful in challenging his plea of nolo contendere, the remedy might not be to his liking. If his underlying claim had any merit, the appropriate remedy would be to vacate his plea and permit the prosecution to reinstate the dismissed felony charges. (See People v. Collins (1978) 21 Cal.3d 208 [after amendment to Pen. Code became effective which removed defendant’s conduct from criminal sanction, prosecution was entitled to reinstate counts dismissed pursuant to a plea agreement].)
II. Gonzales’s violation of the record keeping statute (§ 2266) constituted an offense “substantially related” to the qualifications and duties of a physician’s assistant providing Medi-Cal services.
Gonzales also contends that even assuming the validity of his misdemeanor conviction, it was not substantially related to the practice of his profession and thus could not be a predicate for the Department’s sanction. As indicated, Gonzales entered a plea of nolo contendere to a misdemeanor violation of section 2266, in connection with his conduct as a Medi-Cal provider. Upon receiving notice of the misdemeanor conviction, the Department deemed it “substantially related to the qualifications, functions, or duties of a provider of [Medi-Cal] service” (Welf. & Inst. Code, § 14123, subd. (a)), which required that it “shall suspend” (ibid.) the provider of the service.
We acknowledge that “a statute constitutionally can prohibit an individual from practicing a lawful profession only for reasons related to his or her fitness or competence to practice that profession.” (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 788.) Even if a licensing statute “does not require a showing of a nexus between the licensee’s conduct and the licensee’s fitness or competence to practice, the statute must be read to include this ‘nexus’ requirement to ensure its constitutionality.” (Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, 770.)
In the present case, Gonzales’s failure to maintain accurate records entailed more than merely negligent bookkeeping or, as he suggests, having been innocently duped. Rather, his failure to maintain proper records was directly related to his abuse of the Medi-Cal system, as is apparent from the conditions of his probation.
Gonzales notes that the conditions of his probation still permitted him to obtain a Medi-Cal physician’s assistant provider number and to bill for his services in limited circumstances. Nonetheless, his conditions of probation also specifically required that he not maintain a Medi-Cal provider billing number, not bill independently for his services, and not personally prepare any bills sent to Medi-Cal. Gonzales’s activities entailed an “abuse of the Medi-Cal program, or any patient, or otherwise [were] substantially related to the qualifications, functions, or duties of a provider of service.” (Welf. & Inst. Code, § 14123, subd. (a), italics added.)
Also, as the Department aptly explained to Gonzales’s counsel: “Maintenance of medical records is, in fact, substantially related to the qualifications, functions, or duties of a medical provider of service. Proper medical records are important both for patient safety and the fiscal integrity of the Medi-Cal program.”
Hence, the misdemeanor conviction for failure to maintain adequate records was substantially related to the function or duties of a provider of Medi-Cal services. The Department was warranted in suspending Gonzales’s participation as a Medi-Cal provider and properly exercised its statutorily mandated duty.
DISPOSITION
The judgment denying the petition for writ of mandate is affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.
Section 2266 provides as follows: “The failure of a physician and surgeon to maintain adequate and accurate records relating to the provision of services to their patients constitutes unprofessional conduct.” Section 2314, subdivision (a), provides as follows: “[A]ny person, whether licensed under this chapter [the Medical Practice Act, which applies to physicians] or not, who violates any provision of this article is guilty of a misdemeanor.” (Italics added.) This type of penalty provision is referred to as an omnibus penalty provision, because it covers other statutory provisions which do not specify a penalty. (See People v. Gandotra (1992) 11 Cal.App.4th 1355, 1364.)