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People v. Icke

California Court of Appeals, First District, Fifth Division

February 28, 2017

THE PEOPLE, Plaintiff and Respondent,
BRIAN STEVEN ICKE, Defendant and Appellant.

         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.

          BRUINIERS, J.

         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 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 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 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 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” 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 ...

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