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Dismissal of Charge After Guilty Plea Doesn’t Shield Doctor From Consequences—C.A.
Opinion Says Physician Who Accepted Kickbacks Is Subject to Suspension From State Workers’ Compensation System
By a MetNews Staff Writer
An Orange County sports-medicine doctor who pled guilty in 2019 to a misdemeanor charge of accepting kickbacks for making medical referrals cannot, despite a dismissal of the action pursuant to Penal Code §1385 in the interests of justice, escape the statutory consequence of being barred from participating in the workers’ compensation system, Div. Four of the Court of Appeal for this district has held.
Dismissal of the charge came at the end of a three-year period of probation after the defendant, Duke Ahn, had paid $80,114 in restitution and $8,000 to the victim witness.
The unpublished opinion, filed Friday, affirms a judgment by then-Los Angeles Superior Court Judge Mitchell L. Beckloff (now an arbitrator/mediator) denying a petition for a writ of administrative mandamus challenging Ahn’s suspension.
At issue is the applicability of Labor Code section 139.21. It provides that the administrative director of the Department of Industrial Relations’s Division of Workers’ Compensation “shall promptly suspend…any physician…from participating in the workers’ compensation system as a physician…” if any of the enumerated criteria is met.
One of those circumstances is a conviction for fraud within the workers’ compensation system. It is specified in subd. (a)(4)(C) that a conviction takes place where there is “[a] plea of guilty has been accepted by a federal, state, or local court.”
Argument on Appeal
Ahn argued on appeal:
“Labor Code section 139.21 does not apply to Mr. Ahn, because the dismissal of his case under Penal Code section 1385 operates as if he was never convicted. The specific legal effect of section 1385 prevents the application of section 139.21, and there is no evidence of any legislative intent to override the sweeping effect of a section 1385 dismissal. It is clear that Penal Code section 1385’s purpose is to wipe Mr. Ahn clean slate.”
He cited the 2016 decision of the Third District Court of Appeal in People v. Chavez (affirmed by the California Supreme Court on other grounds) which quotes a 1944 opinion from this district as saying:
“[T]he effect of a dismissal under section 1385 is to wipe the slate clean as if the defendant never suffered the prior conviction in the initial instance. In other words, ‘[t]he defendant stands as if he had never been prosecuted for the charged offense.’ ”
Collins’s Opinion
The appellant’s contentions were rejected in an opinion by Justice Audrey B. Collins who wrote:
“The plain language of Labor Code section 139.21, subdivision (a)(4)(C) defines ‘convicted’ to include any circumstance in which a guilty plea has been accepted by a court. The statute does not include an exception for cases that are later dismissed. Ahn’s suspension was therefore supported by law.”
The jurist went on to say:
“Notably, Labor Code section 139.21, subdivision (a)(4)(C) requires only a guilty plea—not a judgment….In a case such as Ahn’s, when a defendant pleads guilty and is placed on probation, a judgment of conviction may never be entered.”
Collins dismissed the significance of Chavez, saying that “we are not addressing criminal sentencing” which was at issue there.
She added:
“….Labor Code section 139.21, enacted in 2016, is a later statute specific to the issue in question (whether Ahn’s suspension was supported by his guilty plea), while Penal Code section 1385, enacted in 1872, is an older, more general statute. Thus, even if there were a conflict between the two statutes. Labor Code section 139.21 would control.”
The case is Ahn v. Parisotto, B337936.
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