People v. Rabiee CA3 ( 2024 )

Filed 10/30/24 P. v. Rabiee CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C096779
Plaintiff and Respondent, (Super. Ct. No.
CRF180000729)
v.
HAMID RABIEE,
Defendant and Appellant.
A jury found defendant Hamid Rabiee, a neurologist, guilty of multiple counts of
criminal sexual misconduct with his patients, including sexual exploitation of a patient
under Business and Professions Code section 729. During the trial, 19 patients testified
to the charged offenses and 5 others testified to similar uncharged offenses.
Defendant contends the trial court prejudicially erred in two ways: (1) by reading
a pattern jury instruction on the uncharged evidence and (2) by refusing to modify the
instruction on the sexual exploitation charges. Defendant also contends his court-
appointed counsel (counsel) rendered ineffective assistance in two ways: (1) by failing to
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adequately impeach the patients and (2) by having a conflict of interest with defendant.
We find no merit in these contentions and affirm. We order the trial court to correct six
clerical errors in the abstract of judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2022, defendant was tried on 63 counts of sexual misconduct with his patients.
The counts included sexual battery (Pen. Code, § 243.4), sexual exploitation of a patient
(Bus. & Prof. Code, § 729), false imprisonment (Pen. Code, § 236), genital penetration
(Pen. Code, § 289, subd. (a)(1)), and elder abuse (Pen. Code, § 368). Nineteen patients
testified that defendant committed one or more of the charged offenses with them.
Specifically, they testified that defendant: (1) touched, pressed, rubbed, or brushed his
groin against their buttocks; (2) touched their breasts or stomach; (3) embraced them or
pressed his body against theirs; or (4) touched, squeezed, or penetrated their vaginal area
with his hand or fingers.
Five other patients testified that defendant committed similar uncharged sexual
offenses with them. Before each of these five testimonies, the prosecutor noted their
uncharged nature.
Counsel cross-examined each patient. He established that some of them filed civil
lawsuits against defendant based on the same conduct and that many of them did not
report defendant’s conduct until they heard media coverage of complaints against him.
He questioned the accuracy of the patients’ memories and testimonies and their certainty
that something improper or unlawful had occurred. He confirmed that the door to his
exam room, where the misconduct purportedly occurred, was unlocked and unobstructed
and questioned whether the patients saw defendant wearing a stethoscope or carrying a
reflex hammer in his pockets. And he established that some of the patients returned to
defendant for additional appointments after the alleged misconduct.
Defendant also took the stand and denied touching any patient with the intent of
sexual arousal. He described why each testifying patient came to him, how many visits
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they had, and whether they started seeing another neurologist besides him. He also
testified that he typically kept a reflex hammer in one pocket and a stethoscope in the
other and affirmed that “[i]f someone were to come in contact with [his] body,” they
might feel those objects. And he explained that people with a psychiatric disorder, a
stroke in the frontal lobe, or multiple sclerosis might confabulate, or fill in missing
memories, with what they hear in the news.
The trial court read several instructions to the jury, including CALCRIM No.
1191A (the 1191A instruction) and a special instruction on the sexual exploitation
charges (the exploitation instruction). The court denied defendant’s request to modify the
exploitation instruction.
The jury found defendant guilty on all 63 counts,1 and the court sentenced
defendant to 27 years, 8 months in prison.
Defendant timely appealed. He challenges the 1191A instruction, the exploitation
instruction, and two aspects of counsel’s performance. We address his jury instruction
challenges first.
DISCUSSION
I
Jury Instructions
A. The 1191A Instruction
The 1191A instruction is a pattern jury instruction that explains the proper use of
uncharged evidence admitted under Evidence Code section 1108. Evidence Code section
1108 allows the prosecution in a sexual offense case to admit evidence of the defendant’s
prior uncharged sexual offenses. (Evid. Code, § 1108, subd. (a).) Such evidence is
“admitted only as circumstantial evidence supporting an inference that the defendant
1 The jury acquitted defendant of one count of false imprisonment by violence but found
him guilty of the lesser included offense of misdemeanor false imprisonment.
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committed the charged offense, by demonstrating the defendant’s propensity and
bolstering the victim’s credibility.” (People v. Cottone (2013) 57 Cal.4th 269, 287.)
The 1191A instruction tells the jury, as it did here, that it can consider the
uncharged sexual evidence only if the prosecution has proven the uncharged crimes by a
preponderance of the evidence. If so proven, the jury can conclude that the defendant
was disposed or inclined to commit sexual offenses and that the defendant was likely to
commit and did commit the charged sexual offenses. The conclusion that the defendant
committed an uncharged offense is only one factor for the jury to consider and is
insufficient by itself to prove the charged offenses, which must be proven beyond a
reasonable doubt.
Relying on certain concurring and dissenting opinions discussed below, defendant
contends the trial court committed prejudicial error, and violated his due process rights,
when it read the 1191A instruction because the instruction confused the jury, causing it to
find defendant guilty under a lesser standard of proof than reasonable doubt.2 We
disagree.
Our Supreme Court rejected this argument in the context of a materially similar
jury instruction in People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016, and defendant
provides no basis for us to depart from that holding. (People v. Panighetti (2023)
95 Cal.App.5th 978, 998-999.) Nothing in the 1191A instruction authorizes a jury to use
the preponderance-of-the-evidence standard for anything other than the preliminary
determination of whether the defendant committed an uncharged sex crime. (Reliford, at
p. 1016.) And defendant fails to convince us that the jury must have been confused by
2 The headings in defendant’s briefs challenge only the 1191A instruction. To the extent
defendant also seeks to challenge the court’s reading of CALCRIM No. 375, we consider
that challenge forfeited for failure to clearly identify it in a heading. (Pizarro v. Reynoso
(2017) 10 Cal.App.5th 172, 179.)
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the instruction either as a general matter or because of the sheer number of witnesses in
this case. Absent evidence to the contrary, we presume that “jurors can grasp their duty
[stated in the instructions] to apply the preponderance-of-the-evidence standard to the
preliminary fact identified in the instruction and to apply the reasonable-doubt standard
for all other determinations.” (Reliford, at p. 1016; People v. Forrest (2017)
7 Cal.App.5th 1074, 1083.) Defendant provides no evidence suggesting that the jury
misunderstood or failed to follow the 1191A instruction.
Defendant’s reliance on Justice Corrigan’s concurring and dissenting opinion in
People v. Villatoro (2012) 54 Cal.4th 1152 and Justice Perren’s concurring opinion in
People v. Gonzales (2017) 16 Cal.App.5th 494 is unpersuasive. Those opinions do not
undermine the binding effect of Reliford. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.) Nor do they apply here. Justice Corrigan’s opinion
concerned the use of charged crimes to prove propensity, not uncharged crimes like the
evidence here. (Villatoro, at pp. 1169, 1172 [conc. & dis. opn. of Corrigan, J.].) And
Justice Perren’s opinion concerned a victim’s testimony as to both charged and uncharged
offenses. (Gonzales, at p. 506 [conc. opn. of Perren, J.].) Defendant’s contention that
“some of the uncharged conduct testimony came from the very witnesses who testified
regarding the charged conduct” is forfeited due to lack of record citations. (McOwen v.
Grossman (2007) 153 Cal.App.4th 937, 947 [“Statements of fact that are not supported
by references to the record are disregarded by the reviewing court”].) For these reasons,
we find no merit in defendant’s challenge to the 1191A instruction.
B. The Exploitation Instruction
Business and Professions Code section 729 (section 729) makes it a crime for a
doctor to sexually exploit a patient. Such exploitation occurs when the doctor engages in
an act of sexual intercourse, sodomy, oral copulation, or sexual contact with a patient.
(§ 729, subd. (a).) There is no crime, though, if the touching is within the scope of
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medical examination and treatment unless it is done for sexual gratification purposes.
(§ 729, subd. (b).)
Here, the jury was instructed that the prosecution needed to prove three elements
to show that defendant violated section 729: (1) defendant was a physician, (2) he
engaged in an act of sexual contact with a patient, and (3) the act was for the purpose of
sexual arousal, sexual gratification, or sexual abuse. The instruction stated an additional
proviso specifying that defendant was not guilty of sexual exploitation “unless the
touching [was] outside the scope of medical examination and treatment.” The court
denied defendant’s request to convert the additional proviso into a fourth element of the
crime. Defendant contends the court erred by rejecting his request, but we conclude that
he fails to demonstrate error.
We disregard defendant’s undeveloped contention that the additional proviso
reflects a fourth element of a section 729 violation. Defendant states that this proviso
“was not merely an affirmative defense, but a requisite element of the charged crimes,”
but he does not support that statement with authority or analysis. (See United Grand
Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 [we disregard
conclusory arguments].) Case law on whether a proviso in a criminal statute is an
element to be proved by the prosecution or an affirmative defense to be proved by the
defendant is plentiful but not cited or analyzed by defendant. (People v. Henley (1999)
72 Cal.App.4th 555, 563 [discussing cases].) We do not conduct such analysis on his
behalf. (Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984-985.)
The remainder of defendant’s argument appears to be that the proviso should have
better pinpointed defendant’s trial theory. But counsel suggested only moving the
proviso, not rewording it. The trial court is not required to provide a pinpoint instruction
that is not requested. (People v. Jones (2014) 223 Cal.App.4th 995, 1001; see, e.g.
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People v. Matthews (1994) 25 Cal.App.4th 89, 98-99 [trial court erred when it refused to
give the defendant’s special instruction].)
II
Ineffective Assistance of Counsel
Defendant contends counsel rendered ineffective assistance by failing to
adequately cross-examine the patients and by having a conflict of interest with defendant
during the trial. To prevail on these claims, defendant must establish two elements:
(1) “counsel’s performance was deficient” and (2) “the deficient performance prejudiced
the defense.” (Strickland v. Washington (1984) 466 U.S. 668, 687.) If he fails to
establish one element, we need not address the other. (Id. at p. 697.) We begin with
defendant’s cross-examination claim.
A. Patient Cross-Examination
Defendant contends counsel provided ineffective assistance by failing to impeach
the credibility of defendant’s patients with two items: their medical records and a
compilation of the media reports related to defendant’s case. As we will explain,
defendant fails to establish that counsel’s performance was deficient.
1. Additional Background
During a break in defendant’s testimony, counsel explained to the court that
defendant had prepared a video showing various media headlines concerning his case.
Counsel asked the court to admit the video during defendant’s testimony because most of
the “complaining witnesses . . . came through the media,” thereby raising questions
regarding their credibility. But counsel admitted that defendant would not be able to say
which headline or article compelled which patient to come forward. The court deemed
the video inadmissible under Evidence Code section 352, finding it to be too misleading
without the foundational piece specifying what a particular patient saw or heard.
During another break in defendant’s testimony, counsel offered several exhibits
containing the medical records of most of the testifying patients. The court rejected
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defendant’s broad characterization of the records as non-hearsay business records and
concluded it would have to go through each record to determine admissibility. Counsel
opted against such an approach, choosing instead to have defendant refer to the records
during his testimony to refresh his recollection.
2. Analysis
When examining an ineffective assistance of counsel claim, a reviewing court
defers to counsel’s reasonable tactical decisions because there is no single right way to
try a case. (People v. Mai (2013) 57 Cal.4th 986, 1009; People v. Riel (2000) 22 Cal.4th
1153, 1177.) Such tactical decisions include cross-examination and impeachment of
witnesses. (People v. Cleveland (2004) 32 Cal.4th 704, 746; People v. Frierson (1979)
25 Cal.3d 142, 158.) The failure to impeach a witness seldom establishes counsel’s
incompetence because a reviewing court is “rarely able to determine in retrospect
whether some different approach, tone, or further line of questions, might have been more
effective.” (Harris v. Superior Court (2014) 225 Cal.App.4th 1129, 1143 (Harris).) In
addition, a reviewing court “cannot evaluate alleged deficiencies in counsel’s
representation solely on [a] defendant’s unsubstantiated speculation.” (People v. Cox
(1991) 53 Cal.3d 618, 622.)
These principles defeat counsel’s impeachment-based contentions. Although
defendant claims that the medical records would have shown that some patients were
taking medication that affected their memories, he does not back that claim with
supporting evidence. (People v. Bolin (1998) 18 Cal.4th 297, 334 [such claims must be
supported by declarations establishing the substance of the omitted evidence].) The same
is true of defendant’s media coverage assertion. Defendant does not cite to any examples
of the media coverage in this case, including whether that coverage provided details that
the patients potentially adopted as their own version of the events. In sum, defendant’s
impeachment-based contentions amount to unsubstantiated speculation that we cannot
evaluate.
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Those contentions also fail when we consider the tactical basis for counsel’s cross-
examination choices. Defendant grounds his tactical arguments on counsel’s purported
misunderstanding of hearsay rules during his direct examination of defendant, but his
ineffective assistance claim is not based on counsel’s hearsay expertise or his
examination of defendant. Rather, defendant’s claim is that counsel “failed to use [the
medical records and media reports] to impeach each [patient’s] testimony during cross-
examination.” A review of the record supplies more than one tactical reason for
counsel’s decision not to probe the patients regarding their medical records or the media
they saw or heard before coming forward. For example, counsel may have concluded
that such cross-examination would be counter-productive by making the patients appear
more sympathetic and risking damaging redirect examination. (See People v. Freeman
(1994) 8 Cal.4th 450, 513 [sympathy]; People v. Cleveland, supra, 32 Cal.4th 704, 747
[damaging redirect].) Or he may have concluded that he sufficiently undermined the
patients’ credibility. Through cross-examination, he questioned the accuracy of their
memories and whether they may have been mistaken or confused. And he established
that media coverage prompted most of them to come forward and that some were also
suing defendant in civil cases. Counsel was in the best position to assess the
effectiveness of his lines of questioning before the jury, and defendant does not convince
us that this is one of those rare cases where we should second-guess trial counsel.
(People v. Barnett (1998) 17 Cal.4th 1044, 1140.)
B. Conflict of Interest
1. Additional Background
After seven patients testified, counsel learned he was being investigated by the
State Bar of California (the State Bar) based on a complaint that he worked on
defendant’s case while serving as a certified law student for the Shasta County District
Attorney’s office. After defendant disclosed the complaint to the trial court, the court
asked a county public defender to advise defendant regarding the potential conflict.
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Counsel admitted that he “interned at the DA’s office . . . post-Bar,” but also testified that
he did not “lift[] a finger on [defendant’s] case” in that capacity. Both defendant and the
prosecution orally waived any conflict.
After several other witnesses testified, the county public defender informed the
court of Business and Professions Code section 6131, which prohibits a district attorney
or other public prosecutor who prosecutes, aids, or promotes an action in court from later
assisting in the defense of that action. (Bus. & Prof. Code, § 6131, subd. (b).) Violation
of that statute is a misdemeanor and requires disbarment. (Bus. & Prof. Code, § 6131.)
The county public defender “wanted to make sure that the court was aware of the
statute.”
The prosecution argued that counsel was not in violation of Business and
Professions Code section 6131. After receiving advice from the California Judges
Association’s ethics hotline, the court stated it was comfortable with proceeding with
counsel. Counsel agreed, and the prosecution filed a written waiver of any conflict.
2. Analysis
Defendant contends he was denied the right to effective assistance because his
counsel had an interest in maintaining a cordial relationship with the prosecution due to
counsel’s potential violation of Business and Professions Code section 6131. We
disagree.
In the context of a conflict-of-interest claim, the deficient performance prong of
the ineffective assistance test “ ‘is satisfied by a showing that defense counsel labored
under an actual conflict of interest.’ ” (People v. Almanza (2015) 233 Cal.App.4th 990,
1001.) An actual conflict exists when defense counsel has been arrested and is facing
prosecution by the same entity prosecuting his client, particularly when the same
arresting officer is an important prosecution witness in both cases. (Harris, supra,225 Cal.App.4th at p. 1142.) An actual conflict also exists when the defendant shows
that the purported conflict adversely affected counsel’s performance. (Almanza, at
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p. 1001.) A defendant demonstrates such an effect when “ ‘the record shows that counsel
“pulled his punches,” ’ ” meaning he “ ‘failed to represent defendant as vigorously as he
might have had there been no conflict.’ ” (People v. Rundle (2008) 43 Cal.4th 76, 169.)
Here, defendant fails to show that counsel labored under an actual conflict of
interest. His attempt to analogize counsel’s situation to that of the defense attorney in
Harris is unpersuasive. There, the attorney representing the defendant at a preliminary
hearing had been arrested and was facing felony charges brought by the same office that
was prosecuting the defendant. (Harris, supra, 225 Cal.App.4th at pp. 1133, 1139.)
Also, the arresting officer was the sole prosecution witness at the defendant’s preliminary
hearing and was a potential witness in proceedings against the attorney. (Id. at p. 1139.)
By contrast, there is no indication that defendant was facing criminal charges under
Business and Professions Code section 6131; in fact, the prosecution rejected that
provision as a valid concern. Nor is there any indication of crossover in the witnesses
between defendant’s case and counsel’s purported conflict.
Defendant’s attempt to show that counsel had an actual conflict because it
adversely affected counsel’s performance fares no better. Defendant contends that
counsel “pulled his punches” by failing to object to the 1191A instruction. But, as
explained above, such an objection would have been meritless, and failure to raise a
meritless objection is not ineffective assistance of counsel. (People v. Bradley (2012)
208 Cal.App.4th 64, 90.)
According to defendant, counsel also “pulled his punches” by failing to adequately
cross-examine the patients. This contention is grounded in the moment that counsel
learned of the State Bar investigation: according to defendant, counsel’s awareness of the
investigation gave counsel an interest in maintaining a cordial and cooperative
relationship with the prosecution. But counsel learned of the investigation after he had
already cross-examined several patients, and defendant does not contend, nor does the
record indicate, that counsel’s cross-examination approach changed after he became
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aware of the investigation. Moreover, defendant’s cross-examination concern is the same
ineffective assistance concern we considered and rejected above. As explained, the
record shows tactical reasons for counsel’s cross-examination choices. (See People v.
Cox (2003) 30 Cal.4th 916, 949 [when the record does not reflect an attorney’s omission,
we examine the record to determine whether there may have been tactical reasons that
might have caused the attorney’s omission].)
III
Errors in the Abstract of Judgment
There are six errors in the abstract of judgment that require correction to reflect the
proper counts and the oral pronouncement of defendant’s sentence. The required
corrections are: (1) the sentence for count 22 is a consecutive eight-month term, not a
stayed two-year term; (2) count 36 must be added to the abstract with a consecutive
eight-month term; (3) the conviction on count 46 is for a violation of Penal Code section
289, subdivision (d)(4), not Business and Professions Code section 729; (4) the sentence
for count 49 is a consecutive one-year term, not eight months; (5) the conviction on count
49 is for a violation of Penal Code section 243.4, subdivision (a), not Penal Code section
243.4, subdivision (c); and (6) the sentence for count 52 is a stayed three-year term, not a
one-year consecutive term. We direct the trial court to prepare a corrected abstract of
judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185, 188.)
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DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an abstract of
judgment correcting the six errors enumerated in section III and forward the corrected
abstract of judgment to the Department of Corrections and Rehabilitation.
/s/
MESIWALA, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
WISEMAN, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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