Opinion
Page 308b
215 Cal.App.4th 308b __ Cal.Rptr.3d__ THE PEOPLE, Plaintiff and Respondent, v. KATHARINE LOUISE MCCALL, Defendant and Appellant B236269 California Court of Appeals, Second District, Fifth Division March 20, 2013APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen A. Marcus, Judge.
THE COURT.
IT IS ORDERED that the opinion filed on March 20, 2013 (214 Cal.App.4th 1006; ___Cal.Rptr.3d___), be modified as follows and the petition for rehearing is DENIED:
1. The paragraph following the “INTRODUCTION” headnote [214 Cal.App.4th 1008, advance report, 1st par. of opinion] is deleted and replaced with the following:
A jury convicted defendant, Katharine Louise McCall, of practicing medicine without certification, a felony. (Bus. & Prof. Code, § 2052, subd. (a).) She was placed on three years’ probation. Defendant, an unlicensed, unsupervised student midwife, asserts she could not be prosecuted for a felony as charged. Rather, defendant argues, she could only be convicted of a misdemeanor violation of the Licensed Midwifery Practice Act of 1993 (the Midwifery Act). (§ 2505 et seq.) In the published portion of this opinion, we explain why defendant could properly be convicted as charged. In addition, defendant argues she was convicted of an offense not shown by the evidence at the preliminary hearing and she may have been convicted based on a legally incorrect theory. In the unpublished portion of this opinion, we explain why any error in granting the prosecutor’s motion to amend the information was harmless. We further conclude defendant’s legally invalid theory contention is without merit.
Except where otherwise noted, all further statutory references are to the Business and Professions Code.
2. At the end of part III.A. [214 Cal.App.4th 1016, advance report] delete “[Part III(B) is deleted from publication.]” and replace it with “[Parts III B and C are deleted from publication.]”
3. Add section III C as follows:
Page 308c
C. There Is No Possibility Defendant Was Convicted On A Legally Invalid Theory
Section 2052, subdivision (a) defines the uncertified practice of medicine thusly: “[A]ny person who practices or attempts to practice, or who advertises or holds himself or herself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person, without having at the time of so doing a valid, unrevoked, or unsuspended certificate as provided in this chapter or without being authorized to perform the act pursuant to a certificate obtained in accordance with some other provision of law is guilty of a public offense....” (§ 2052, subd. (a), italics added.) Section 2052, subdivision (a) bans two types of activities. (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 485 [134 Cal.Rptr. 630, 556 P.2d 1081] [construing former section 2141 (repealed by Stats. 1980, ch. 1313, § 1.6, p. 4445), see now section 2052, subdivision (a) (added by Stats. 1980, ch. 1313, § 2, p. 4445)]; Hageseth v. Superior Court (2007) 150 Cal.App.4th 1399, 1418 [59 Cal.Rptr.3d 385].) As our Supreme Court explained in Bowland , “It is unlawful, first, for an unlicensed person to practice or hold himself out as practicing any ‘system or mode of treating the sick or afflicted’; second, the prohibition extends to any actual diagnosis, treatment, surgery or prescription for a ‘mental or physical condition, ’ whether or not such activities comprise a system or mode of treating the sick or afflicted.” (Bowland v. Municipal Court, supra, 18 Cal.3d at p. 485; accord, Hageseth v. Superior Court, supra, 150 Cal.App.4th at p. 1418.) Pregnancy is a physical condition within the meaning of section 2052, subdivision (a). (Bowland v. Municipal Court, supra, 18 Cal.3d at pp. 486, 488-489; Northrup v. Superior Court (1987) 192 Cal.App.3d 276, 280 [237 Cal.Rptr. 255].) "Diagnose” for purposes of section 2052, subdivision (a), is defined in section 2038: “Whenever the words ‘diagnose’ or ‘diagnosis’ are used in this [Medical Practice Act], they include any undertaking by any method, device, or procedure whatsoever, and whether gratuitous or not, to ascertain or establish whether a person is suffering from any physical or mental disorder. Such terms shall also include the taking of a person’s blood pressure and the use of mechanical devices or machines for the purpose of making a diagnosis and representing to such person any conclusion regarding his or her physical or mental condition. Machines or mechanical devices for measuring or ascertaining height or weight are excluded from this section.” Statutory exceptions also exist for pharmacists. A pharmacist does not run afoul of section 2052, subdivision (a), by taking a person’s blood pressure and offering an opinion or advice, (§ 4103), or performing other procedures in a licensed health care facility (§ 4052.1).
Page 308d
The prosecution asserted defendant violated section 2052, subdivision (a) in two respects. First, the prosecution argued defendant violated section 2052, subdivision (a) during prenatal and postpartum visits. Second, the prosecution argued the statute was violated during Ms. Tienzo’s labor and delivery. Defendant did not dispute she engaged in the unlicensed practice of medicine during the labor and delivery. She argued, however, that she was immune from criminal prosecution under section 2058, subdivision (a) , because she acted in the face of a medical emergency. With respect to prenatal care, the prosecution argued defendant practiced medicine when she took Ms. Tienzo’s blood pressure, examined the fetus’s position within the womb, conducted urine tests, and listened to the baby’s heartbeat with a Doppler. With respect to postpartum care, the prosecution argued defendant practiced medicine without a license when Ms. Tienzo’s sutures were examined. Also, the prosecution cites to defendant’s offer to remove a flap of excess skin. The jury was instructed, “[I]n order to return a verdict of guilty [of practicing medicine without a license], all jurors must agree that [defendant] committed the same act or acts. It is not necessary that the particular act agreed upon be stated in your verdict.”
Section 2058, subdivision (a) provides: “Nothing in this [Medical Practice Act] chapter prohibits service in the case of an emergency....”
Defendant asserts reversible error occurred in that the jury was presented with a legally invalid theory with respect to the prenatal and postpartum care. (See People v. Perez (2005) 35 Cal.4th 1219, 1233 [29 Cal.Rptr.3d 423, 113 P.3d 100]; People v. Morales (2013) 212 Cal.App.4th 583, 595 [150 Cal.Rptr.3d 920].) She asserts her actions during prenatal and postpartum visits did not come within the statutory definition of the crime. As our Supreme Court has explained: “When one of the theories presented to a jury is legally inadequate, such as a theory which ‘“fails to come within the statutory definition of the crime”’ (People v. Guiton [(1993)] 4 Cal.4th [1116,] 1128 [17 Cal.Rptr.2d 365, 847 P.2d 45], quoting Griffin v. United States (1991) 502 U.S. 46, 59 [116 L.Ed.2d 371, 112 S.Ct. 466]), the jury cannot reasonably be expected to divine its legal inadequacy. The jury may render a verdict on the basis of the legally invalid theory without realizing that, as a matter of law, its factual findings are insufficient to constitute the charged crime, In such circumstances, reversal generally is required unless ‘it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.’ ([People v.] Guiton , [supra, 4 Cal.4th] at p. 1130.)” (People v. Perez, supra, 35 Cal.4th at p. 1233; accord, People v. Morales, supra, 212 Cal.App.4th at p. 595.) Defendant further asserts nothing in the record demonstrates the jury convicted her only for practicing medicine without a license during the labor and delivery. (See People v. Perez, supra, 35 Cal.4th at p. 1233.) As the Perez court explained, “‘[W]hen the prosecution presents its case to the jury on alternate theories,
Page 308e
some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.’ (People v. Green (1980) 27 Cal.3d 1, 69 [164 Cal.Rptr. 1, 609 P.2d 468] [overruled on other points by People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3 [226 Cal.Rptr. 112, 718 R2d 99], and People v. Martinez (1999) 20 Cal.4th 225, 239 [83 Cal.Rptr.2d 533, 973 P.2d 512]].)" (People v. Perez, supra, 35 Cal.4th at p. 1233.)
With respect to the legal invalidity of the prosecution’s prenatal and postpartum care theory, defendant argues Ms. Tienzo was not “sick or afflicted” at those times. As noted above, however, section 2052, subdivision (a), also proscribes diagnosing or treating any physical condition. Pregnancy is a physical condition within the meaning of section 2052, subdivision (a). (Bowland v. Municipal Court, supra, 18 Cal.3dat pp. 486, 488-489; Northrup v. Superior Court, supra, 192 Cal.App.3d at p. 280.) Hence, defendant could be prosecuted for diagnosing or treating a physical condition.
Defendant further asserts: she did not engage in “diagnosis” during prenatal visits; she never attempted to recognize a disease from symptoms; she never provided treatment for any disease; and she never used any machine to ascertain whether a person was suffering from any physical disorder. That contention is without merit. As noted above, to “diagnose” within the meaning of the Medical Practice Act, is to undertake any method to ascertain whether a person is suffering from any physical disorder. As noted, the Medical Practice Act includes the Midwifery Act. Further, section 2038 states, “Such terms shall also include the taking of a person’s blood pressure and the use of mechanical devices or machines for the purpose of making a diagnosis and representing to such person any conclusion regarding his or her physical or mental condition.”
It is undisputed that during prenatal visits, defendant: took Ms. Tienzo’s blood pressure; checked the fetus’s position within the womb; listened to the baby’s heartbeat with a Doppler; and conducted urine tests. The purpose of these procedures was to determine whether Ms. Tienzo’s pregnancy was proceeding as expected. That is, the procedures were designed to determine whether Ms. Tienzo was suffering from any physical disorder indicating a problem with her pregnancy. The potential disorders include high blood pressure, a turned fetus, an irregular fetal heartbeat, or abnormal urine readings. At one point, defendant told Ms. Tienzo the fetus was in a breach position. During a post-delivery examination, defendant offered to remove an excess flap of skin at the site of Ms. Tienzo’s sutures. During their conversations, defendant discussed and made representations concerning Ms. Tienzo’s physical condition and pregnancy.
Page 308f
Defendant argues the jury should never have been instructed that “diagnosis” includes taking a person’s blood pressure or using a mechanical device or machine to make and communicate a diagnosis. Defendant reasons the instruction “gave the jury a legally invalid theory of guilt” in that: “[Defendant] did not engage in diagnosis when she took [Ms.] Tienzo’s blood pressure or used a Doppler.... [S]he never endeavored to establish whether [Ms.] Tienzo was suffering from a physical disorder. She never purported to recognize a disease from its symptoms. She was not engaged in ‘treating the sick or afflicted.’ (§ 2052.)” However, in the trial court, defense counsel’s only objection was that the instruction defining diagnosis in the language of section 2038 was “constitutionally overbroad.” The present legal invalidity objection was not raised. And defendant never requested an instruction excluding the language referencing taking a person’s blood pressure or using a mechanical device. As a result, defendant forfeited this contention. (People v. Valdez (2012) 55 Cal.4th 82, 149 [144 Cal.Rptr.3d 865, 281 P.3d 924]; People v. Geier (2007) 41 Cal.4th 555, 590 [61 Cal.Rptr.3d 580, 161 P.3d 104].) Even if not forfeited, the claim fails on the merits for the reasons discussed in the preceding paragraph.
Finally, defendant argues section 2038, defining “diagnose” or “diagnosis, ” was never intended to apply to well care provided during prenatal visits. She cites legislative history indicating the Board of Medical Examiners sponsored the legislation. The legislation was intended to prevent street corner charlatans from taking advantage of people by purporting to diagnose conditions. We disagree with defendant’s position. Under its plain language, section 2038’s definition of “diagnose” or “diagnosis” clearly applies to an uncertified individual practicing midwifery. (See People v. Licas (2007) 41 Cal.4th 362, 367 [60 Cal.Rptr.3d 31, 159 P.3d 507]; People v. Lopez (2003) 31 Cal.4th 1051, 1056 [6 Cal.Rptr.3d 432, 79 P.3d 548].)
There is no change in the judgment.
Defendant’s rehearing petition is denied.