Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed. (Super. Ct. No. 05NF3637)
The opinion of the court was delivered by: Bedsworth, J.
CERTIFIED FOR PUBLICATION
There appears to be no limit to the ability of our species to devise new and different bad things to do to each other. Here we deal with a criminal hybridization of fraud and molestation first addressed by legislation in 2002. The issues presented appear to be of first impression in California.
Chiropractor Chi Van Pham was convicted of sexual battery by fraud (Pen. Code, § 243.4, subd. (c)) for touching the intimate body parts of his patients while purporting to examine them. He contends there is insufficient evidence to support the convictions because he did not mislead the patients into believing the touching was for professional purposes. However, considering the totality of the circumstances surrounding the examinations, the jury could reasonably conclude the patients were unaware of the sexual nature of the touching due to Pham's fraudulent representations. Therefore, we uphold his convictions and affirm the judgment.
In 2003, Julie, then 13 years old, was involved in a serious car accident which left her with pain in her hip, back and neck. As part of her treatment, she went to Pham's office for chiropractic adjustments and physical therapy. The first two times Pham treated her, nothing remarkable occurred. But on the third occasion, his purported treatment became more intrusive. Pham had her lie down on her back and began massaging and adjusting her neck. He worked his way down her chest until his hands were massaging her breasts over her clothing. Then he slid his hands under her shirt and bra, cupping a breast in his hands. Beginning at the lower portion of the breast, he felt his way upward before circling his hands around the nipple. He also touched Julie's other breast in this fashion.
Pham touched Julie's breasts this way during at least five other treating sessions. He also expanded the scope of the touching on one occasion. This occurred while Pham was examining Julie and making various adjustments to her body. In the process, he unbuttoned her jeans and slid his hand down her pants and inside her underwear. Then he moved his hand between her legs and touched her genitals, working his way around the outside of her vagina. The touching lasted about 30 seconds, during which time both he and Julie remained silent.
Julie was confused by Pham's conduct. Although it made her feel uneasy, she had signed a consent form advising her that certain procedures that Pham performed on her might make her uncomfortable. For a long time, she believed the touching was simply part of those procedures. However, in 2005, she volunteered in Pham's office, and one day Pham kissed her and came on to her while they were alone in the x- ray room. In the wake of this incident, Julie spoke with the police, and they convinced her to call Pham and confront him about his conduct. While denying any wrongdoing, Pham told Julie not to tell anyone he had touched her private areas. He also told her he would like to be her boyfriend and have sex with her.
In 2005, 24-year-old Elsa sought treatment from Pham for back and neck injuries she suffered in a car accident. Upon arriving at his office, Pham checked her blood pressure and reflexes. He then had her lie down on her back on an examination table. Despite the fact she was fully clothed, Pham placed one towel across her lap and another towel across her chest. He then placed his stethoscope on her chest and touched her stomach under her shirt. After that, he directed his attention to her chest, sliding his hand under her bra and touching her left breast. Then he moved to her right breast, working his hands in a circular motion and touching her nipple. While he was touching Elsa in this manner, he asked her a number of questions about her accident.
Elsa was shocked, frightened and confused by Pham's conduct. Although an assistant was in the room at the time, Elsa didn't say anything to her when Pham stepped out. Nor did she say anything to anyone else at Pham's office about the incident. However, when she got home later that day, she told her mother about it, and a few days later, she ...