104 Cal. App. Supp. 3d 1 | Cal. App. Dep’t Super. Ct. | 1980
Lead Opinion
Opinion
Appellant appeals his conviction of two counts of violating sections of the Business and Professions Code,
On appeal from a judgment of conviction, we view the evidence, as we must, in the light most favorable to the prosecution. The People’s sole witness was an undercover investigator who testified that he called at appellant’s office pursuant to a conversation that he had previously had with the receptionist, waited in a reception room, and that appellant entered the room and said “Hello. I’m Dr. Sapse.” The investigator identified himself under an alias and told appellant that his aunt had
Appellant testified without contradiction that he obtained an M.D. degree from the University of Bucharest, Romania, that he practiced in the field of geriatrics for about 10 years, that he then trained in opthalmology in Romania, Israel and Switzerland and practiced in that field in Israel and Switzerland. He further testified that he had engaged in research at various institutions in the United States, had received diplomas and certificates made out to “Alfred Sapse, M.D.” and had published articles in medical and scientific journals. He stated that he had rendered no services as a private physician since 1976, that he formed GeroTours as a company to help people who needed Gerovital H-3 to take it in Mexico, and that he is president of International Health Resorts, a publicly held company which is the successor of GeroTours. Appellant and other witnesses testified as to other persons with medical training who use the designation “M.D.” and are described by themselves and others as physicians, although they are not licensed to practice medicine in California. Appellant also testified that he did not use the word “physician” in referring to himself in his conversation with the investigator and that he had not used the present tense in describing himself as an ophthalmologist, but, as indicated above, on appeal we are bound by the conflicting testimony of the investigator. Appellant acknowledges that he is not licensed to practice medicine in California.
Appellant assigns numerous grounds upon which he contends his conviction should be reversed: he (1) attacks the constitutionality of the statutes he is accused of violating and challenges the sufficiency of the
I.
Challenge to the Constitutionality of the Statutes and Sufficiency of Evidence
A. Section 2142 (count I).
Section 2142 provides in pertinent part: “Any person who uses in any sign, business card, letterhead or in an advertisement the word ‘doctor,’ the letters or prefix ‘Dr.’, the letters ‘M.D.’, or any other term or letters indicating or implying that he is a physician and surgeon, physician, surgeon, or practitioner under the terms of this or any other law, or that he is entitled to practice hereunder, or under any other law, without having at the time of so doing a valid, unrevoked certificate... is guilty of a misdemeanor.”
Appellant challenges the constitutionality of the statute on grounds it is vague and overbroad. In Lawton v. Board of Medical Examiners (1956) 143 Cal.App.2d 256 [299 P.2d 362] appellant, a graduate of an Ohio medical school formed a training school for medical assistants in California. Charged with violating this section by using the letters “M.D.” in the school’s advertising matter, the court upheld the statute against an identical constitutional attack, reasoning as follows: “Contending that because he was not engaged in the practice of medicine section 2142 could not in reason apply to him, he argues that it is unconstitutional as to him inasmuch as it deprives him of a valuable property right, to wit, the right to the use of the letters ‘M.D.’ to indicate the area of his professional training. Conceding, arguendo, that appellant has a property right in the significant letters, yet it must be acknowledged that such right does not take precedence over the public welfare which the section seeks to conserve. It is plainly apparent that the Legislature may well have deemed it wise that those who instruct in the science of medicine should be forced to disclose their educational backgrounds and that they should not be allowed to mislead students
“Whether or not they actually practice here is immaterial. The intent of the Legislature was to shield the public against those who for any reason have not been duly licensed. A similar situation was involved in Garfield v. Board of Medical Examiners, 99 Cal.App.2d 219, 223 [221 P.2d 705]. There the doctors in question had each been licensed to practice medicine in another state. Question arose as to whether they were mere interns or residents, but the court ruled their exact status was immaterial. So long as they did not possess current, valid licenses, they were not entitled to use the letters ‘M.D.’ Appellant herein attempts to distinguish this case by contending that those convicted in the Garfield case were ‘practicing’ medicine whereas he, appellant, had made no attempt to do so. The purpose of section 2142, supra, is to protect the public; it is not primarily concerned with what the doctor does with his time. There is no contention on the part of the state that Law-ton was practicing medicine. His offense lay in holding himself out as a physician in this state although he does not possess a valid license to do so. The enactment of measures for the protection of society is the exclusive prerogative of the Legislature. Courts are not to be concerned with such statutes unless it is made to appear that the litigant’s constitutional right is clearly violated. If it does not so appear, the statute will be regarded as one intended by the lawmakers to promote the general good. It is beyond the scope of appellate review to penetrate the findings of the Legislature to determine that there did not exist such conditions as would justify the enactment. (People v. George, 42 Cal.App.2d 568, 573 [109 P.2d 404].)” (Id. at pp. 259-260.)
The court went on to defeat a challenge to the statute on the grounds of vagueness, determining that the language was sufficiently certain.
B. Section 2142.10 (count II).
Section 2142.10 provides that, “Any person who represents or holds himself out as a ‘physician’... without, at the time of so doing, having a valid, unrevoked and unsuspended certificate as a physician and surgeon. . .is guilty of a misdemeanor.”
As far as we have been able to determine, this section has not been substantively addressed under California law. We begin our analysis with the general principle that a penal statute is presumptively valid (People v. Battin (1978) 77 Cal.App.3d 635, 653 [143 Cal.Rptr. 731, 95 A.L.R.3d 248]) and will not be deemed void for vagueness if any reasonable and practical construction can be given to its language. (Lawton v. Board of Medical Examiners, supra, 143 Cal.App.2d at p. 261.)
Webster’s Third New International Dictionary defines “representing” or “holding oneself out” as “to make out to be, to bring clearly before the mind, to cause to be known, felt or apprehended.” A physician has been defined under California law to be one who “prescribe[s] for and treat[s] the sick and afflicted....” (Millsap v. Alderson (1923) 63 Cal.App. 518, 525 [219 P. 469].) We believe the language of the statute is thus sufficiently clear and certain, conviction requiring proof that appellant made himself out to be one who treats the sick and afflicted. We further deem the statute, reasonably read, to mean that, to fall within its prohibitions, one must hold oneself out as being one who treats the sick and afflicted at the time and place of the representation, i.e., contemporaneously in California. This statute omits the language found in section 2142 that the representation prohibited may be either that he is a physician under the laws of this state “or any other law.” We believe that if the Legislature had intended section 2142.10 to prohibit a statement that one is a physician in another place it would clearly have said so, as it did in section 2142. Construing section 2142.10 in this manner, it is apparent that there is insufficient evidence to support the conviction of count II. The evidence is uncontradicted that appellant stated that he had given up the practice of medicine and that the treatments in connection with the tours he was promoting would be given by others in Mexico. If in so doing he violated any law, it was not section 2142.10.
Prosecutorial Misconduct in Closing Argument
Appellant claims prejudicial error in statements made by the prosecution during closing argument, specifically that appellant had committed criminal acts, was a “flim-flam” man, and that unfair contrasts were drawn between appellant’s advanced education and wealth and the more limited achievements of the jurors. Defense counsel failed to object to these statements at trial and is thus foreclosed from raising the issue on appeal. (People v. Beivelman (1968) 70 Cal.2d 60, 75 [73 Cal.Rptr. 251, 447 P.2d 913].)
Ill
Denial of Effective Counsel
Appellant next contends that counsel’s failure to object to the prosecutor’s statements during closing argument deprived him of effective counsel. The record shows that defense counsel was cognizant of the emphasis of the prosecutor’s argument, as defense counsel expressly responded to each of the claimed offensive statements in his own closing argument. However, the record does not indicate why defense counsel chose to respond to the prosecutor’s statements rather than to object to them.
People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859] states that the burden of proving a claim of inadequate trial assistance is on the appellant, who must show counsel acted or failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. Where, as here, the record fails to shed light on why counsel acted or failed to act, we are bound under Pope, supra, at page 426, to affirm the matter on appeal. Moreover, we note that in applying the Pope standard to privately retained counsel in People v. Frierson (1979) 25 Cal.3d 142, the Supreme Court commented that counsel’s “. . . failure to. .. object... [is a matter] which usually involve^] tactical decisions on counsel’s part and seldom establishes] a counsel’s incompetence.”
Estoppel
Edward L. English testified in a hearing outside the presence of the jury that in 1972, while employed as an investigator with the Board of Medical Examiners of the State of California he investigated appellant’s professional activities. English’s duties were limited to investigation of complaints made to the board and submission of a written report to the board which included a written recommendation. In the course of this investigation he informed appellant that it was unlawful to use the terms “Dr.” or “M.D.” if representing oneself as available for the practice of medicine. However, as appellant was not then engaged in the treatment of human beings, saw no patients, prescribed no drugs, and was involved solely in the operation of a pharmaceutical company, English recommended that no punitive action be taken by the board. He also advised appellant that he could use the prefix “Dr.” informally among friends and family, but not when advising or consulting with other individuals.
The trial court ruled the evidence was not admissible at trial because Mr. English had no authority to render binding decisions at the time of the investigation, and because appellant’s activities were sufficiently distinguishable in 1978 to vitiate any claim of estoppel arising from the advisement in 1972.
Mistaken reliance upon government officials can be a defense to be considered by the trier of fact. (People v. Norton (1978) 80 Cal.App.3d Supp. 14 [146 Cal.Rptr. 343]; People v. Ferguson (1933) 134 Cal.App. 41, 51-53 [24 P.2d 965].) Equitable estoppel is also available against the government in rare instances; however, the existence of estoppel is a question of fact for the trial judge, whose determination on the factual question is conclusive on appeal. (Pettitt v. City of Fresno (1973) 34 Cal.App.3d 813, 818 [110 Cal.Rptr. 262].) In any event, we agree that the circumstances in 1972 were sufficiently distinguishable from those at the time of the English advisement to justify the judge’s ruling.
Whether the Offenses Charged Were Specific or General Intent Crimes
Appellant contends the trial court should have instructed the jury that sections 2142 and 2142.10 are specific intent crimes. The language of the statutes does not support this contention. Where, as here, the. definition of a crime consists only of the description of a particular act without express reference to intent to do a further act or achieve a future consequence, we need ask only whether the appellant intended to do the act which the law declares a crime. (People v. Daniels (1975) 14 Cal.3d 857, 860 [122 Cal.Rptr. 872, 537 P.2d 1232].) Accordingly, sections 2142 and 2142.10 are general intent crimes and the jury was correctly instructed on the law respecting general criminal intent. We think, however, that on any retrial of count II the jury might well be given more enlightenment as to the proper construction of section 2142.10 in conformity with the views expressed above.
VI.
Disposition
The judgment of conviction on count I, violation of section 2142, is affirmed. The judgment of conviction of count II, violation of section 2142.10, is reversed.
Ibáñez, J., concurred.
Section references in this opinion are to sections of the Business and Professions Code.
Concurrence Opinion
I concur in affirming the conviction under count I, but I do so only under the compulsion of Lawton v. Board of Medical Examiners (1956) 143 Cal.App.2d 256 [299 P.2d 362]. Most of the arguments made in favor of upholding the constitutionality of the statute are, in my mind, cogent reasons for finding it to be overbroad. Of course, it is granted that California has a valid interest in regulating those who practice medicine in this state and in preventing those not licensed to practice medicine from falsely claiming that they can.
But the effect of section 2142 of the Business and Professions Code is to suppress true statements, and thus infringe on First Amendment values, without the need to do so. The drawing of statutory lines is, of
I concur in the balance of the majority opinion for the reasons stated therein.