People v. Icke , 214 Cal. Rptr. 3d 755 ( 2017 )


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  • Filed 2/28/17
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION FIVE
    THE PEOPLE,
    Plaintiff and Respondent,
    A141917
    v.
    BRIAN STEVEN ICKE,                                 (Sonoma County
    Super. Ct. No. SCR-615907)
    Defendant and Appellant.
    Brian Steven Icke, a chiropractor, was convicted by jury of sexual penetration by
    fraudulent misrepresentation of professional purpose. (Pen. Code, § 289, subd. (d)(4);
    hereafter section 289(d)(4).)1 The jury found that Icke digitally penetrated a client for a
    sexual purpose during a chiropractic massage. Icke argues the trial court erred in
    rejecting a proposed jury instruction that would have stated he was not guilty of violating
    section 289(d)(4) if he penetrated the client against her will. We conclude this argument
    is foreclosed by People v. Robinson (2016) 
    63 Cal. 4th 200
    (Robinson), which recently
    held the “unconsciousness” requirement of fraudulent misrepresentation of professional
    purpose crimes is the equivalent of a lack of consent.2 Icke also argues his conviction is
    not supported by sufficient evidence because the victim protested and did not actually
    believe he was acting for professional purposes at the time of the act. We conclude that a
    victim’s misgivings do not exonerate a defendant under section 289(d)(4) if the evidence
    1
    Undesignated statutory references are to the Penal Code.
    2
    Robinson dealt with charges of sexual battery by misrepresentation of
    professional purpose. (§ 243.4, subd. (c); see 
    Robinson, supra
    , 63 Cal.4th at pp. 204,
    206.)
    1
    establishes that the victim allowed a sexual touching to occur because of a representation
    of professional purpose.
    I.     BACKGROUND
    Icke was charged with sexual battery by fraudulent misrepresentation of
    professional purpose (§ 243.4, subd. (c); count 1) and sexual penetration by fraudulent
    misrepresentation of professional purpose (§ 289(d)(4); count 2). The following evidence
    was presented at trial.
    Jane Doe was a client of Icke’s chiropractic practice from April to August 2011
    for treatment of injuries caused by a car accident. She received treatment from both Icke
    and his wife (also a chiropractor), and Doe’s treatment included massage. Icke
    sometimes performed the massages in a back room of the chiropractic office, but he
    would leave the door partially open and other people would be in the office. Doe’s last
    session was on November 10, 2011.3 When Doe arrived at the office, Icke told her he
    was ready to do her final exam. He locked the front door, led her to the back room, and
    closed the door to the back room. Doe was not concerned about this conduct because “I
    was with my doctor. I was safe.” After performing stress, strength and mobility tests
    that were usual parts of Doe’s treatment, Icke had Doe lie face down on a treatment table
    and pulled both her pants and underwear down to her knees. Icke never before pulled her
    underwear down that far, but Doe was not concerned because he never previously
    touched her in a sexual manner.4 Icke massaged Doe’s thighs with Benzocaine for pain
    relief. He seemed to linger in a sexual manner, but Doe “was trying to believe that it
    wasn’t that.” Icke then “started massaging in an upward motion. And as he got up
    3
    Doe’s last scheduled treatment session was in August 2011, and her injury was
    declared permanent and stationary in September. Doe, however, continued to experience
    pain. She e-mailed Icke, who initially said he would wrap up her case without an
    additional examination, but then arranged an office visit for November 10.
    4
    Doe testified it was not Icke’s normal practice to pull her underwear down to her
    knees. A November 11, 2011 police report of the incident stated that Doe said Icke’s
    common practice was to pull her pants and underwear down below her knees. Doe said
    she actually told police it was common for him to pull only her pants, not her underwear,
    down to her knees. She never reviewed the police report for accuracy.
    2
    higher, he was going faster and he bumped my vagina, my labia, a couple times.” Three
    or four times, Icke’s fingers brushed up against Doe’s labia majora and minora and
    Benzocaine got on the inside and outside of the labia minora.5 Doe was sure Icke’s
    fingers went inside her labia. However, she “thought I was still being treated,” and was
    not sure whether the contact was purposeful or accidental. When the cream started to
    burn inside and outside her vagina, she told Icke, “You’re getting a little too close down
    there,” and, “It’s starting to burn down there.” Icke stopped and apologized. He asked if
    Doe wanted him to wipe her off and she said, “No. That’s fine.” Doe believed she was
    still under treatment and just wanted to complete the session.
    Icke continued the massage on her lower and upper back and unfastened her bra,
    which was typical during massages if she wore a bra. He asked Doe to turn over, and he
    massaged an area near her hip that was bothering her. “And then he hesitated and looked
    down at me and said, ‘I love the way you shave your—yourself down there. It must drive
    the guys crazy.’ ” She responded, “Actually, I don’t do that for anybody else but
    myself.” Icke massaged “back and forth across [Doe’s] body on top of [her] pubic bone,
    pushing really hard back and forth.” “It didn’t . . . feel like a massage” because of “the
    way that he was pushing me and pulling.” It felt “[l]ike he was just rocking me back and
    forth.” He “then pushed my top up, because my bra was undone, and started really
    tugging and pushing back and forth” on Doe’s breasts. She knew that touching her
    breasts was not part of her treatment. Icke said, “ ‘You have the most beautiful
    nipples,’ ” and he had “a very odd look in his eyes.” Doe became scared, and said, “Are
    you okay? . . . You went a little too far.” Icke apologized and said “he had gone a little
    further than he should have.” Doe said, “Yes, you had.” Icke then explained he was
    having a hard time with his marriage and his kids. He had never previously talked to Doe
    5
    The November 11, 2011 police report stated that Doe said Icke touched the
    outside of her vagina. Doe testified that she knew by the time of trial she needed to be
    more specific. On redirect, she testified that when she referred to the inside of her
    vagina, she meant her labia; outside her vagina meant the sides of her leg. She then
    testified that the outside of her vagina was her labia and the inside of her vagina was the
    area where women insert a tampon.
    3
    about his marital problems. Doe felt very scared and told Icke she had to leave for a
    lunch appointment. When she got off the table, she noticed that Icke appeared to have an
    erection.
    Doe’s daughter spoke to Doe shortly after the November 10, 2011 office visit.
    Doe appeared upset and told her what had occurred. After this conversation, Doe
    concluded she had been sexually assaulted, and she reported the incident to police the
    following day. Law enforcement officials testified about discrepancies in statements Doe
    and her daughter made about the incident and its immediate aftermath. Doe was also
    impeached with evidence she had filed a civil lawsuit against Icke. Doe disclaimed
    knowledge of the lawsuit, and her attorney testified she filed the suit without informing
    Doe. Another woman testified that in 1999, when she was 19 years old, she was
    molested by Icke during treatment: Icke had massaged her breasts, touched her vaginal
    area, made sexual comments, and apologized after she objected.
    The court instructed the jury on the sexual penetration charge consistent with
    CALCRIM No. 1048: “The defendant is charged in Count II with the sexual penetration
    of a person who was unconscious of the nature of the act. To prove the defendant is
    guilty of this crime the People must prove that, one, the defendant committed an act of
    sexual penetration with another; two, the penetration was accomplished by using a
    foreign object [such as a finger]; three, the other person was unable to resist because she
    was unconscious of the sexual nature of the act because the defendant fraudulently
    represented that the touching served a professional purpose; and, four, the defendant
    knew that the other person was unable to resist because she was unconscious of the
    nature of the act. [¶] . . . [¶] A person is unconscious of the nature of the act if he or she is
    not aware of the essential characteristics of the act because the perpetrator fraudulently
    represented that the sexual penetration served a professional purpose when it served no
    professional purpose.”
    In closing argument, the prosecutor explained that the sexual battery charge
    (count 1) was based on Icke’s massage of Doe’s breasts and the sexual penetration charge
    (count 2) was based on Icke’s insertion of his fingers inside Doe’s labia. On count 2, the
    4
    prosecutor argued, “[Doe] testified that [Icke] pierced or penetrated her labia majora and
    minora somewhere around three or four times. And she testified that she still believed
    that the defendant was treating her. . . . [¶] . . . [Icke] used therapy massage techniques
    used before during treatments to make the victim feel on November 10th that this was all
    part of treatment. . . . [¶] . . . [¶] . . . [Doe] had no idea that his acts were intentional and
    sexual in nature when he was massaging her and penetrated her.” Therefore, the
    prosecutor argued, Icke was guilty of sexual penetration by fraudulent misrepresentation
    of professional purpose.
    Defense counsel argued in closing that fraudulent misrepresentation of
    professional purpose was inapplicable to this case. Instead, it applied to the case of a
    “Dr. Feelgood [who] was telling women, I can cure your cancer by having intercourse
    with you. . . . [¶] That’s what this statute is about[,] . . . that somehow you’re convincing
    or pretending this person that the touching you’re going to do is going to help you get
    better. . . . I need to rub your breasts because it’s going to make your back feel better. I
    need to put my hands there because it’s going to make your hip feel better. [¶] There’s no
    assertion [here], even by Jane Doe, that that was the case. In fact, she said, well, when he
    started lingering there, I was thinking it was getting more sexual than not. And by the
    time he rolled me over, I was convinced it wasn’t treatment anymore.”
    In rebuttal, the prosecutor argued, “The law doesn’t require an express, verbal
    statement from the defendant to the victim. . . . What the law says is you can look at the
    defendant’s conduct to see if, without words, if his actions somehow fraudulently
    represented to the victim that the touching was done for . . . some sort of professional
    purpose when, in fact, it wasn’t. It doesn’t have to be by words. [¶] . . . [Here,] he
    represented to the victim that the movements and the touching that he was doing were all
    part of the treatment.”
    During deliberations, the jury asked, “Is the chiropractor required to ask
    permission prior to touching the intimate parts of the patient’s body?” The court
    responded that this question was “not directly related to an issue that you must decide”
    5
    and directed the jury’s attention to the previously-provided jury instructions on fraudulent
    misrepresentation of professional purpose.
    The jury found Icke not guilty of count 1 (§ 243.4, subd. (c)), but guilty of the
    lesser-included offense of assault (§ 240). The jury found him guilty of count 2,
    penetration by fraudulent misrepresentation of professional purpose (§ 289(d)(4)). The
    court sentenced Icke to six years for the sexual penetration and a concurrent one-year
    term for the assault.
    II.   DISCUSSION
    Icke challenges only his conviction for sexual penetration. We first review the
    requisite elements of this offense.
    Section 289(d)(4) is violated if a defendant “commits an act of sexual penetration,
    and the victim is at the time unconscious of the nature of the act and this is known to the
    person committing the act or causing the act to be committed . . . .” (§ 289, subd. (d).)
    “ ‘Sexual penetration’ is the act of causing the penetration, however slight, of the genital
    or anal opening . . . for the purpose of sexual arousal, gratification, or abuse by any
    foreign object, substance, instrument, or device,” which includes “any part of the body,
    except a sexual organ.” (§ 289, subd. (k)(1), (2).) “[U]nconscious of the nature of the
    act” for a violation of section 289(d)(4) means the victim “[w]as not aware, knowing,
    perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s
    fraudulent representation that the sexual penetration served a professional purpose when
    it served no professional purpose.” (§ 289(d)(4).)
    Section 289(d)(4) was enacted in 2002 “to expand the circumstances under which
    a defendant may be prosecuted for fraudulently inducing a victim to consent to sexual
    conduct.” (People v. Pham (2009) 
    180 Cal. App. 4th 919
    , 925 (Pham).) The statute “was
    part of a comprehensive amendment” to five sex crime statutes. (People v. Bautista
    (2008) 
    163 Cal. App. 4th 762
    , 773; see 
    Robinson, supra
    , 63 Cal.4th at p. 208 [noting
    Sen. Bill No. 1421 (2001–2002 Reg. Sess.) enacted or amended §§ 243.4, subd. (c)
    (sexual battery), 261, subd. (a)(4)(D) (rape), 286, subd. (f)(4) (sodomy), 288a,
    subd. (f)(4) (oral copulation), and 289(d)(4) (sexual penetration)].) The legislative
    6
    history “includes extensive discussion of the common law distinction between fraud in
    fact, which was deemed to vitiate consent, and fraud in the inducement, which was
    deemed not to do so. [Citations.] [¶] At common law, fraud in fact occurs when the
    defendant obtains the victim’s consent to an act but then engages in a different act. Fraud
    in the inducement is committed when the defendant uses misrepresentations to gain the
    victim’s consent to an act, and then performs that same act. [Citation.] In [People v.]
    Ogunmola, a gynecologist who raped his victims during pelvic examinations was guilty
    under a fraud in fact theory. His victims consented to pelvic examinations, not sexual
    intercourse, and did not realize the “nature of the act” [(i.e., that the doctor inserted his
    penis rather than a medical instrument into their vaginas)] until it had already occurred.
    ([People v.] Ogunmola [(1987)] 193 Cal.App.3d [274,] 281, italics omitted.) Conversely,
    in Boro [v. Superior Court] the defendant tricked his victim into having intercourse as a
    treatment for disease. The victim consented to an act of intercourse, accepting Boro’s
    representation that it served a medical purpose. Boro [v. Superior Court (1985)]
    163 Cal.App.3d [1224,] 1226–1227.) The court held that Boro committed only fraud in
    the inducement, and therefore was not guilty of rape. (Id. at p. 1229.)” (Robinson, at
    pp. 208–209.)
    “The proponents of [the new law], motivated by incidents in which patients were
    sexually abused under the guise of medical treatment, wanted to ensure that ‘sex offenses
    committed by fraudulent inducement involving a purported professional purpose can be
    prosecuted,’ even without proof of the victim’s fear.” (
    Robinson, supra
    , 63 Cal.4th at
    p. 209.) In 2016, the Supreme Court held that the new law reflected “the Legislature’s
    intent that this kind of fraud in the inducement would henceforth be deemed to vitiate
    consent. . . . Section 261.6, which defines ‘ “consent” ’ for purposes of sections 261, 286,
    288a, and 289, specifies that the term means ‘positive cooperation in act or attitude
    pursuant to an exercise of free will. The person must act freely and voluntarily and have
    knowledge of the nature of the act or transaction involved.’ (Italics added.) The term
    ‘unconscious of the nature of the act,’ as used in the statutes addressed by Senate Bill
    [No.] 1421, is based on this understanding of the consent requirement. [Citation.]
    7
    [¶] Thus, the Legislature has refined the consent requirements for sex crimes to include
    not only the ordinary circumstance where consent is never given, but also more
    complicated circumstances where it is obtained through deceit.” (Robinson, at pp. 209–
    210, fn. omitted.)
    To establish a sex crime by misrepresentation of professional purpose, the
    government must prove, inter alia, the defendant misrepresented the professional purpose
    of an act and the victim was deceived by this misrepresentation and thus unconscious of
    the sexually-motivated nature of the act. 
    (Pham, supra
    , 180 Cal.App.4th at pp. 926–928.)
    “In keeping with the statute’s intent to criminalize sexual acts committed under the guise
    of professional services, it only makes sense to consider the totality of the defendant’s
    conduct—not just his verbal statements—in determining whether he fraudulently
    represented the nature of his actions. After all, actions often speak louder than words
    . . . . [¶] We must also be mindful of the fact that, when it comes to treating their patients,
    physicians occupy a position of implicit trust. . . . ‘There is an inherent trust and
    confidence which a patient seeking medical care places in the [professional] and upon
    which a patient relies in allowing the [professional] access to the most intimate parts of
    the body.’ ” (Id. at pp. 926–927.)
    A.     Instructional Error
    Icke first argues the trial court erred in rejecting a nonstandard jury instruction he
    proposed. We conclude his argument is foreclosed by 
    Robinson, supra
    , 
    63 Cal. 4th 200
    .
    Icke requested what he described as a “pin-point instruction” that would have
    added the following language to CALCRIM No. 1048: “To be guilty of this crime, the
    defendant must make a fraudulent representation that results in the victim’s submitting to
    the sexual penetration. The defendant is not guilty of this crime if he commits a sexual
    penetration against the victim’s will.” The court denied the request.
    The premise underlying Icke’s requested instruction is that section 289(d)(4) is not
    violated unless the victim consents to the sexual conduct. Robinson clearly establishes
    that Icke’s proposed instruction was legally incorrect because a victim’s unawareness of
    the nature of a sexual act is the equivalent of the victim’s lack of consent. 
    (Robinson, 8 supra
    , 63 Cal.4th at pp. 209–210.) Therefore, it would have been error for the trial court
    to instruct that “[t]he defendant is not guilty of this crime if he commits a sexual
    penetration against the victim’s will.” Icke further argues his proposed instruction would
    have clarified the law in response to the jury’s question during deliberations—“Is the
    chiropractor required to ask permission prior to touching the intimate parts of the
    patient’s body?” Icke’s proposed instruction would not have been an appropriate
    response because, again, it was legally incorrect.
    B.     Sufficiency of the Evidence
    Icke’s primary argument on appeal is that his section 289(d)(4) conviction is not
    supported by sufficient evidence. The People persuasively argue to the contrary, and we
    affirm the conviction.
    “In reviewing the sufficiency of the evidence to support a criminal conviction, we
    review the record ‘ “in the light most favorable to the judgment to determine whether it
    discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid
    value—such that a reasonable trier of fact could find the defendant guilty beyond a
    reasonable doubt.” [Citation.]’ [Citation.] We do not reweigh the evidence or revisit
    credibility issues, but rather presume in support of the judgment the existence of every
    fact that could reasonably be deduced from the evidence.”6 
    (Pham, supra
    ,
    180 Cal.App.4th at pp. 924–925.)
    Icke first argues the evidence was insufficient to prove he fraudulently
    misrepresented to Doe that touching her labia was for a professional purpose. He argues
    he never “claim[ed] any medical necessity for touching her ‘too close’ to her vaginal
    area, but stopped and apologized when she told him she felt . . . a burning sensation
    inside her labia. It was undisputed . . . that [he] never claimed that touching that area was
    part of any treatment.” Icke misapprehends the fraudulent misrepresentation element. As
    6
    Although Icke notes he moved for dismissal at the close of the prosecution’s
    case-in-chief, he does not argue on appeal the trial court erred in denying that motion.
    Therefore, we consider all of the trial evidence when considering whether the evidence
    supports the conviction. (See People v. Cole (2004) 
    33 Cal. 4th 1158
    , 1212–1213.)
    9
    noted ante, the representation need not be an express verbal statement; physical
    circumstances and a course of conduct may indirectly communicate a false professional
    purpose. (See 
    Pham, supra
    , 180 Cal.App.4th at pp. 926–927.) In our view, the
    representation also need not be specific as to the sexual touching. Here, Icke never
    specifically told Doe that he touched her labia for a professional purpose, but the context
    in which the touching occurred—an appointment with Icke for the specific purpose of
    providing Doe a final chiropractic treatment session as the culmination of a several-
    month course of such treatment that included regular chiropractic massage—was
    sufficient to communicate a purported professional purpose for all of the touching Icke
    engaged in while Doe lay on a treatment table.7
    Pham is instructive. In that case, the reviewing court found a similar context of
    chiropractic treatment communicated a professional purpose even absent any express
    statements about the defendant’s purpose in touching the sexually-sensitive areas of the
    victims’ bodies: “[I]t readily appears Pham used his position as a medical professional in
    order to disguise his lewd intentions and perpetrate crimes. Julie, Elsa and Toan all came
    to him with the expectation of receiving medical treatment for their various injuries.
    When they arrived at his office, they signed in and had their vital signs checked, as would
    be expected in a medical setting. They understood Pham would be touching and moving
    their bodies in various ways to diagnose and treat their injuries. . . . [¶] With respect to
    Julie, he waited until her third treating session to commence any wrongdoing. That way,
    she had the experience of two normal visits on which to base her trust in Pham as a
    genuinely concerned medical professional. Even on that third occasion, Pham did not
    immediately signal his true intentions. Instead, he began treating Julie by massaging and
    adjusting her neck. Then he worked his way down her chest until he was massaging her
    breasts. And when he finally slid his hands underneath her clothing, his fondling was not
    7
    Ample evidence also supports the finding that the touching was in fact done with
    a sexual purpose, in particular Icke’s later sexually explicit comments to Doe during the
    treatment, his subsequent acknowledgement he had acted inappropriately, and his
    apparent erection.
    10
    overtly sexual. Rather, he felt his way around the breast, as if he were conducting a
    normal breast exam. In so doing, Pham continued to give the appearance his actions
    were medically related. There is no evidence he displayed anything but a professional
    demeanor during this or any of the other exams at issue.” 
    (Pham, supra
    , 180 Cal.App.4th
    at p. 927.)
    Icke next argues the evidence is insufficient to support a conviction because Doe
    “never consented to any touching of her labia as she instantly recognized when the
    touching in her chiropractic treatment became sexual.” Taken literally, this “consent”
    argument is foreclosed by Robinson, which holds legal consent is absent under the
    fraudulent misrepresentation theory. (
    Robinson, supra
    , 63 Cal.4th at pp. 209–210.)
    However, Icke’s argument, as we understand it, appears to be that section 289(d)(4)
    requires proof the victim allowed a sexual act to be performed (rather than immediately
    protesting or resisting the act) because of the defendant’s misrepresentation, even though
    as a matter of law the victim’s submission to the sexual act would not amount to legal
    consent. In other words, the defendant would be guilty only if the victim both acquiesced
    in the sexual acts and did so because the victim actually believed the acts were part of the
    professional treatment.
    We believe Icke overstates what section 289(d)(4) requires,8 but even if we were
    to assume Icke is correct, we would still find the evidence sufficient to support the sexual
    penetration conviction. Doe testified that Icke’s fingers bumped up against and went into
    her labia three or four times while he was massaging her thigh. Before that happened,
    8
    In Robinson, the Supreme Court noted that the Court of Appeal had “accepted
    the Attorney General’s concession that the evidence was insufficient with respect to [two
    of the four victims] because they never believed defendant’s touchings served a
    professional purpose.” (
    Robinson, supra
    , 63 Cal.4th at p. 206.) The defendant offered
    the victims free facials and massages, and touched their breasts and genitalia during the
    treatment. The two victims immediately protested or attempted to leave, and at least one
    apparently testified she never believed the defendant’s conduct had a professional
    purpose. (Id. at pp. 205–206.) The Supreme Court, however, did not discuss the
    propriety of the concession, and did not reach the sufficiency of evidence issue in this
    regard.
    11
    she thought Icke had been lingering during the massage in a sexual manner, but “was
    trying to believe that it wasn’t that” and she “was still being treated.” When Icke touched
    Doe’s labia, she still was not sure whether the contact was purposeful or accidental. She
    told Icke he was getting too close and areas of her labia were burning, and Icke stopped,
    apologized, and offered to wipe her off. The jury could have found that Icke’s conduct
    falsely communicated to Doe that the touching was accidental, during the rendering of
    professional treatment, rather than sexual. As a result, Doe allowed the treatment session
    to continue. These facts support a finding that Doe allowed the touching of her labia to
    occur because she believed Icke had a professional purpose in engaging in this conduct.
    We reject any suggestion that a defendant must represent and persuade the victim
    that the sexual touching itself served a specific professional purpose. Icke repeatedly
    argues there was no evidence he represented or Doe ever believed that his touching her
    labia was an intended part of her chiropractic treatment. Icke argues it would be absurd
    for Doe to so believe because rubbing Benzocaine on the inside of labia is painful and has
    no plausible therapeutic purpose. However, the statute focuses on the defendant’s
    representation of purpose not the defendant’s representation of the scope of treatment: it
    requires proof the defendant in fact acted with a sexual purpose and the victim was
    unaware of that sexual purpose because the defendant falsely represented he was acting
    with a professional purpose. (§ 289(d)(4).) If the defendant represented he had a
    professional purpose in conducting treatment, such as a legitimate chiropractic massage,
    and falsely claimed he negligently or accidentally touched the victim’s genitalia, when in
    fact he did so intentionally with a sexual purpose, the elements of the statute are satisfied.
    The evidence here supported the jury’s finding that Icke in fact touched Doe’s labia with
    a sexual purpose, but falsely led her to believe he did so accidentally while acting with a
    professional purpose.
    We also reject any suggestion that the victim’s unconsciousness of the sexual
    nature of the act must be absolute. Confusion, rather than clarity, is not surprising when
    a professional unexpectedly touches the sexual parts of the victim’s body during
    purported professional treatment. Confusion or doubt about the purpose of the touching
    12
    does not preclude a conviction as long as the jury finds beyond a reasonable doubt that
    the victim allowed the touching to occur because of the defendant’s fraudulent
    misrepresentation of a professional purpose. In Pham, for example, one of the victims
    testified “when Pham touched her breasts, . . . she felt ‘instant shock’ and was
    ‘automatically very scared.’ While this shows she did not expect Pham to touch her
    breasts, it does not necessarily prove she was aware of his sexual intentions at the time.
    In fact, she testified she was not sure what was happening at that moment. She obviously
    became very uncomfortable after the touching, but that could simply have been a visceral
    reaction to the touching itself. . . . [¶] . . . [She] did not try to end the exam after Pham
    touched her breasts . . . [and she] delay[ed] in reporting Pham’s conduct . . . .” 
    (Pham, supra
    , 180 Cal.App.4th at p. 929.) The reviewing court acknowledged “a certain degree
    of uncertainty in [the victim’s] mind as to what Pham’s intentions were,” but nevertheless
    found the evidence sufficient to support the conviction: “Pham’s status as a medical
    provider, his professional demeanor, and the presence of an assistant during [the victim]’s
    exam all created the impression his actions were professionally, not sexually, motivated.
    Given all the circumstances surrounding the incident, the jury could reasonably find [the
    victim] was unconscious of the sexual nature of Pham’s acts at the time they were
    occurring.” (Ibid.)
    Another court similarly upheld a fraudulent misrepresentation conviction despite
    evidence the victim doubted the defendant’s professional purpose. In Bautista, a
    religious leader digitally penetrated the vagina of a teenage religious follower purportedly
    to test her virginity. 
    (Bautista, supra
    , 163 Cal.App.4th at p. 767.) The victim told the
    defendant she did not like what he was doing, sobbed as she exited the room, and
    immediately reported the act to her friend. (Id. at pp. 767–768.) She also complained
    that the defendant, prior to the time of the penetration, “ ‘was always hugging her in a
    morbid way.’ ” (Id. at p. 768.) Nevertheless, the court held there was sufficient evidence
    the victim was unconscious of the sexual nature of the penetration. Although the victim
    testified the penetration was not something the defendant was supposed to do as a pastor,
    she “also explained that she thought defendant touched her only to check her virginity
    13
    and that she thought it was appropriate due to his role in the church community. . . . [Her]
    testimony must be viewed in the context of the entire trial. . . . A jury . . . could conclude
    that [she] was misled regarding the purpose of defendant’s actions and believed that he
    had a legitimate professional reason for confirming her virginity.” (Id. at p. 781.)
    Icke relies on two inapposite cases. In People v. Stuedemann (2007)
    
    156 Cal. App. 4th 1
    , the court reversed convictions for sexual penetration and oral
    copulation on an unconscious person (§§ 288a, subd. (f)(3), 289, subd. (d)(3)). The
    defendant had touched a client’s breasts, digitally penetrated her vagina, and orally
    copulated her while purporting to provide a massage. (Id. at pp. 4–5.) The court
    explained the convictions could not stand because “[the victim] did not permit
    Stuedemann to orally copulate or digitally penetrate her believing the copulation or
    penetration was something other than a sexual copulation or penetration; instead, she
    immediately recognized the acts for what they were and expressed her nonconsent.” (Id.
    at p. 8, italics added.) Stuedemann is distinguishable. In that case the crimes charged
    were fraud-in-fact offenses, requiring proof that the victim consented to an act different
    from the act that was actually performed on him or her. (Stuedemann, at pp. 4, 7.) As
    explained ante, section 289(d)(4) was added to the Penal Code specifically to provide an
    alternative basis for liability when the victim permitted an act to occur (without legally
    consenting to the act) because of a fraudulent misrepresentation that it was being
    performed for a professional rather than a sexual purpose. (See 
    Robinson, supra
    ,
    63 Cal.4th at pp. 209–210.) Moreover, the facts of Stuedemann would not support a
    conviction under Icke’s view of section 289(d)(4) because the victim immediately
    protested and tried to stop the sexual conduct. (Stuedemann, at p. 5.) Here, the evidence
    supports a finding that Doe allowed Icke to touch her labia, rather than immediately
    protesting and stopping the treatment, because of his fraudulent misrepresentation of
    professional purpose.
    Icke also cites People v. Lyu (2012) 
    203 Cal. App. 4th 1293
    , another case involving
    a masseuse who digitally penetrated and orally copulated a client who promptly
    protested. (Id. at p. 1296.) Like Stuedemann, Lyu involved different charges:
    14
    sections 289, subdivision (d)(2) and 288a, subdivision (f)(2), which require proof the
    victim was “not aware, knowing, perceiving or cognizant that the act occurred,” not a
    sexual crime by fraudulent misrepresentation of professional purpose. (Id. at p. 1299.)
    Again, the client’s immediate protest also distinguishes the case.
    C.     Due Process Claim
    Finally, Icke argues the trial court’s “expanded interpretation” of the crime to
    apply it to the facts of his case was a violation of his due process rights. Again, the
    Supreme Court has held the lack-of-consent element in this context consists of the
    victim’s unawareness of the nature of the sexual act because of fraudulent
    misrepresentation of professional purpose. (
    Robinson, supra
    , 63 Cal.4th at pp. 209–210.)
    The statute was not improperly expanded at Icke’s trial by virtue of either the jury
    instructions or the jury’s application of the law to the facts of Icke’s case.
    III.    DISPOSITION
    The judgment is affirmed.
    15
    _________________________
    BRUINIERS, J.
    WE CONCUR:
    _________________________
    SIMONS, Acting P. J.
    _________________________
    NEEDHAM, J.
    A141917
    16
    Superior Court of Sonoma County, No. SCR615907, Rene A. Chouteau, Judge.
    Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General,
    Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant
    Attorney General, Catherine A. Rivlin and Roni Dina Pomerantz, Deputy Attorneys
    General, for Plaintiff and Respondent.
    17
    

Document Info

Docket Number: A141917

Citation Numbers: 9 Cal. App. 5th 138, 214 Cal. Rptr. 3d 755, 2017 WL 772439, 2017 Cal. App. LEXIS 170

Judges: Bruiniers, Needham, Simons

Filed Date: 2/28/2017

Precedential Status: Precedential

Modified Date: 11/3/2024