People v. Pham

103 Cal.Rptr.3d 366 (2009)

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Nature of the Case

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Facts

D was a chiropractor. His patients were Julie, then 13-years-old, 24-year-old Elsa, and 24-year-old Toan. Each went to D to receive treatment for their injuries. As part of Julie’s treatment, D massaged her breasts on numerous occasions and on one 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 this conduct. She had signed a consent form advising her that certain procedures performed on her might make her uncomfortable. For a long time, she believed the touching was simply part of those procedures. When Julie was a volunteer in D's office, he kissed her and came on to her while they were alone in the X-ray room. Julie spoke with the police, and they convinced her to call D and confront him about his conduct. While denying any wrongdoing, Dold 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. As part of Elsa’s treatment, he massaged her breasts. She reported D to the police. D informed Toan her collarbone was out of place, and she signed a consent form permitting him to touch her chest for treatment purposes. On one session he slid his hands under her pants and underwear, so he was touching her bare buttocks. During this time, he was patting Toan's buttocks and applying pressure to them. The touching felt strange to Toan, but she thought Pham was just making adjustments to her body. D slide his hands under her shirt and bra. His hands were touching her breasts and nipples for several seconds with what D described as a “tapping rub.” After that, he slid his hands under her pants and underwear. Although he did not touch her vagina, he did pat and touch around her pubic area. Toan contacted her attorney. On a subsequent visit, she confronted D as to why he needed to touch her breasts. D said he was “looking for pain.” Toan began receiving treatment from a different chiropractor, to whom she revealed D's behavior. When this new chiropractor informed Toan she had heard similar things about Pham in the past, Toan went to the police. All three women believed that touching served a medical purpose. A jury convicted D of sexual battery by fraud. D appealed.