The People v. McCall
214 Cal. App. 4th 1006
| Cal. Ct. App. | 2013Background
- McCall, an unlicensed, unsupervised student midwife, provided prenatal, labor, and postpartum care to Ms. Tienzo.
- She was not supervised by a licensed midwife or physician, which the Midwifery Act requires for student midwives practicing midwifery.
- She was charged with felony practicing medicine without certification under Bus. & Prof. Code § 2052(a) for acts during prenatal care, labor and delivery, and postpartum care.
- Two theories were pursued at trial: prenatal/postpartum care as illegal practice and delivery-related acts as illegal practice; defense argued an emergency justified conduct.
- The information was amended to broaden dates from November 23–24, 2007 to September 24, 2007 to January 31, 2008.
- The jury returned a general guilty verdict for practicing medicine without certification; the court affirmed the conviction on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether felony prosecution under § 2052(a) is proper given the Midwifery Act. | McCall violated general uncertified practice statute; overlap should not bar felony charge. | Midwifery Act governs; should restrict to misdemeanor; Williamson rule applies to preferring the specific statute. | Felony prosecution proper; no Williamson overlap; general statute applicable. |
| Whether the prenatal/postpartum theory was a valid theory of guilt under § 2052(a). | Actions during prenatal and postpartum care fall within diagnosing/treating a physical condition. | Prenatal/postpartum care did not constitute diagnosing or treating under § 2052(a). | Prenatal/postpartum acts can constitute uncertified practice under § 2052(a); theory sustained. |
| Whether amendment of the information to include a broader time period was harmless error. | Amendment correctly aligned with evidence and did not prejudice defendant. | Amendment changed the charging theory and violated notice and fair trial rights. | Amendment harmless; substantial evidence showed unlawful practice on the charged dates. |
| Whether the conviction rested on a legally invalid theory not shown by the preliminary hearing. | Evidence supported the theory of unlawful practice during labor and delivery. | There was risk conviction rested on an invalid prenatal/postpartum theory not in evidence. | No reversible error; record shows substantial evidence of unlawful practice during delivery and related acts. |
| Whether pregnancy constitutes a 'physical condition' for purposes of § 2052(a). | Pregnancy is a physical condition; diagnosing/treating it violates § 2052(a). | Unclear application to prenatal care; charged acts were outside the statutory scope. | Pregnancy falls within 'physical condition'; diagnosis/treatment during prenatal care can violate § 2052(a). |
Key Cases Cited
- Bowland v. Municipal Court, 18 Cal.3d 479 (Cal. Supreme 1976) (two-part unlawful practice: self-treatment and diagnosing/treating a condition)
- Hageseth v. Superior Court, 150 Cal.App.4th 1399 (Cal.App. 4th Dist. 2007) (applies Bowland to clarify scope of section 2052(a))
- People v. Perez, 35 Cal.4th 1219 (Cal. Supreme 2005) (remedies when jury verdict rests on legally invalid theory)
- People v. Guiton, 4 Cal.4th 1116 (Cal. Supreme 1993) (instructions must reflect valid theories of guilt; avoid invalid theories)
- People v. Murphy, 52 Cal.4th 81 (Cal. Supreme 2011) ( Williamson rule: special statute may preclude general statute prosecutions)
- In re Williamson, 43 Cal.2d 651 (Cal. Supreme 1954) (specific statute creates exception to general statute when overlapping conduct exists)
- People v. Licas, 41 Cal.4th 362 (Cal. Supreme 2007) (interpretation of statute defining 'diagnose' and scope of medical practice)