The PEOPLE, Plaintiff and Respondent, v. Abdolvahab PIRNIA, Defendant and Appellant.
Following a jury trial, defendant Abdolvahab Pirnia, M.D. was convicted of one count of mayhem (Pen.Code, §§ 203 & 1192.7 1) and eight counts of unauthorized practice of medicine causing risk of harm to a patient (Bus. & Prof.Code, § 2053). The jury also found true the allegation that defendant inflicted great bodily injury within the meaning of sections 12022.7, subdivision (a) and 1192.7, subdivision (c)(8). He was sentenced to a state prison term of 14 years 4 months.
On appeal, defendant contends (1) the evidence was insufficient to support his conviction of mayhem, (2) he was denied effective assistance of counsel, and (3) the trial court erred in not continuing the trial.
Defendant is a medical doctor who performed cosmetic surgeries in Temecula, California. In June 1999, a California administrative law judge issued an interim suspension order restricting defendant's medical license and prohibiting him from performing surgery and being alone with female patients. During the time that defendant's medical license was suspended, he continued to perform breast augmentations and liposuction without informing his patients that he was facing disciplinary proceedings. Effective August 18, 2000, defendant's license to practice medicine was permanently revoked.
Defendant admitted that he knew that the interim suspension order he had received in June 1999 restricted him from performing surgeries. He also admitted that, despite the suspension order, he did perform surgeries on eight female patients.
Because defendant has only challenged the sufficiency of the evidence supporting his conviction of mayhem, we will limit our discussion of the facts to the circumstances underlying the mayhem conviction which involved Danielle Dombrowsky.2
Danielle was 17 years old when she decided to get a breast augmentation. In March 2000, she met defendant at his office in Temecula, the same place where she would later undergo the surgery. Defendant told her the surgery would cost $3,995 in cash, or $4,495 if she financed it. In May, she gave defendant $1,000 cash down payment and paid the rest when she underwent surgery in July. At their second meeting in May, defendant discussed the surgery procedures with Danielle and told her the surgery would take about two and one-half hours to perform. He also told her the incision would be made in the areola of the breast. He took her measurements and told her that she was a good candidate for a size 34D breast augmentation.
A few weeks before the surgery defendant spoke with Danielle and advised her to get a prescription and a lab test for her blood from Kaiser, her regular insurer. She obtained a prescription for Keflex, an antibiotic, and ingested it prior to the surgery. She also signed a consent form prior to the surgery. She read about the risks; however, defendant never discussed those risks with her.
On July 8, 2000, Danielle's breast augmentation surgery took place at defendant's office. It lasted seven to eight hours. During the surgery, one of the implants popped and defendant had to replace it with a smaller size. When Danielle asked defendant why the surgery took so long, he was not able to give her a satisfactory explanation.
The day after the surgery, defendant seemed worried and he called Danielle to see how she was doing. He requested that she return for a follow-up visit the next day. She did not receive any instructions from defendant as to how to take care of her stitches or incision. At the follow-up visit, defendant told Danielle that everything was all right.
Later, Danielle began experiencing difficulties as a result of the surgery. She experienced a throbbing, sharp pain through her breasts and around the incisions. She attempted to contact defendant at his office, but for one to two weeks she was told that he was on vacation. Her incision had opened up about a quarter of an inch wide at the point where stitches were supposed to have been made. She could see red skin pushing out from the incision. She did not know whether the incision had to be restitched so she tried calling defendant's office numerous times but was unsuccessful in contacting him.
Danielle went to Urgent Care at Kaiser. She was immediately examined by Dr. West who told her to go back to the surgeon who had done the implants. She eventually got in touch with defendant and made an appointment to see him. She saw him about two to three weeks after her surgery. He said that her right breast was infected and that the implant may have to come out. He instructed her to open a Keflex capsule and pour it on the open wound. She followed his instructions, but the infection got worse. By this time, the site of the incision wound was crusted and green in color. In addition to pouring the Keflex on the open wound, defendant told Danielle to flush it out with a saline solution. He then injected her with antibiotics. He also took a swab culture of the wound, put it in a container, gave it to her, and instructed her to take it to Kaiser for testing. Defendant told Danielle that one of the implants would have to be removed; however, he did not want to remove it in his office and instructed her to go see her doctor at Kaiser. When she asked him why he was not going to remove it since he had done the surgery, he did not respond other than to tell her to go to her personal physician.
Danielle was treated by Dr. Virginia Huang, a plastic surgeon, who told her that both implants would have to be removed because of infection. Danielle again tried to contact defendant. When she finally reached him, he said that he was unavailable and was going out of town on vacation. When defendant told her that he was not able to help her, she called the medical board. She was upset that he had not tried to fix the problem because he had performed the surgery. The medical board told Danielle that defendant had “lost his license” and that “he molested people [who were] under anesthesia.” Defendant had never told her that he was not allowed to perform surgeries or that he was not supposed to be alone with any female patient. Danielle reported the incident to the Riverside Police Department in August 2000, about one month following her surgery.
Dr. Huang removed both of Danielle's implants on August 20, 2000. She did not have the implants replaced because she felt traumatized by what had happened to her. According to Dr. Huang, when she first saw Danielle, she had open wounds on her breast in the inferior portion of the areola. Danielle had told Dr. Huang that the surgeon who did the implants told her that they had to come out and that the wounds would not heal unless they were removed. Dr. Huang agreed that the implants should be removed. She was concerned that if they were not removed they would eventually become exposed and infected.
Dr. Huang took preoperative photographs of Danielle's wounds which were introduced into evidence at trial. One photo depicted a red background and the interior portion had whitish, grayish tissue, which Dr. Huang opined was dead. There was also granulation tissue around the wounds. Granulation tissue forms in response to a chronic open wound.
In removing the implants, Dr. Huang had to cut out healthy tissue because she did not want to risk leaving any infected tissue. Because there was a potential that the cavity had gotten infected, Dr. Huang did not recommend putting implants in for at least a year to avoid the possibility of hardening of the breast tissue.
Dr. Huang testified that she had never heard of pouring antibiotics directly on an open wound as a method of treating an infection. She also stated that any surgery involved common risks such as infection, scarring, and bleeding. She opined that any person undergoing surgery would be under a risk of great bodily harm because of the potential for an infection which could result in a life-threatening risk if it got out of control. Other life threatening risks include uncontrolled bleeding or pulmonary embolism; both can cause blood clots in the lungs. Dr. Huang further testified that there were cases where people have died from a blood clot after undergoing liposuction.
At trial, defendant admitted that he was not a board certified plastic surgeon. He opened his cosmetic surgery practice in 1987. He obtained his medical degree from Tehran Medical School in 1962. He took a one-week training course for cosmetic surgery. Defendant was aware that his license had been restricted and that he was prohibited from doing surgery; however he continued to do surgery on patients.
Regarding Danielle's breast augmentation, defendant claimed that she had failed to return for postoperative care and she infected the incisions when she removed the stitches herself. He stated that she did not come to see him until after she had pulled out the stitches. However, by that time, the wound was “wide open and the implant was extruding ․ coming out from the incision.” Once the implant is infected, there is nothing that can be done to correct it except to remove it. Defendant admitted that Danielle had a serious infection and that the only recourse was to remove the implant and replace it with a new one after the infection cleared up.
SUFFICIENCY OF EVIDENCE
Defendant challenges his conviction of mayhem on the grounds of insufficient evidence. Specifically, he argues that (1) “[t]here can be no mayhem where a patient voluntarily consents to a surgical procedure,” (2) “[t]he unlicensed practice of medicine [cannot] satisfy the ‘wrongful act’ element of mayhem,” (3) “[t]hird[-]party actions of a non-participant are insufficient to establish the elements of mayhem,” and (4) “[n]ot every visible [scarring] can be said to constitute the felony crime of mayhem.”
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331, 75 Cal.Rptr.2d 412, 956 P.2d 374.)
Section 203 provides that “[e]very person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.” “ ‘Mayhem, unlike murder, is a general intent crime. [Citations.] The necessary intent for mayhem is inferable from the types of injuries resulting from intentional acts. [Citations.] ․’ ” (People v. Villegas (2001) 92 Cal.App.4th 1217, 1226, 113 Cal.Rptr.2d 1.) Thus, a specific intent to maim or disfigure is not required.
To determine whether an injury is disfiguring, a court must decide the effect of the injury on the victim's appearance. (See People v. Newble (1981) 120 Cal.App.3d 444, 452, 174 Cal.Rptr. 637 [to disfigure is “to make less complete, perfect, or beautiful in appearance or character”].) While duration is an important factor in assessing whether an injury is disfiguring, it is not the only one. If an injury severely affects the appearance for an appreciable length of time, the fact that it might eventually heal does not save it from being disfiguring. (People v. Keenan (1991) 227 Cal.App.3d 26, 36, 277 Cal.Rptr. 687 [burning both breasts with cigarette, resulting in scars still visible three and one-half months later]; Goodman v. Superior Court (1978) 84 Cal.App.3d 621, 625, 148 Cal.Rptr. 799; People v. Thomas (1979) 96 Cal.App.3d 507, 512, 158 Cal.Rptr. 120 [rape victim who suffered broken ankle and was seriously disabled for over six months suffered disability sufficient to support charge of mayhem], overruled on other grounds in People v. Kimble (1988) 44 Cal.3d 480, 498, 244 Cal.Rptr. 148, 749 P.2d 803.) Likewise, an injury that is severe when it is inflicted constitutes mayhem even if reconstructive surgery saves the victim from permanent injury. (People v. Williams (1996) 46 Cal.App.4th 1767, 1774, 54 Cal.Rptr.2d 521; People v. Hill (1994) 23 Cal.App.4th 1566, 1572-1574, 28 Cal.Rptr.2d 783; People v. Keenan, supra, 227 Cal.App.3d 26, 36, fn. 6, 277 Cal.Rptr. 687.)
Here, because of defendant's actions, an amount of Danielle's healthy tissue had to be removed. As Dr. Huang testified, the severity of the infection in Danielle's breasts required Dr. Huang to cut away a “full thickness of the skin.” The skin removed included normal breast tissue in order to ensure that all of the infected tissue and surrounding tissue was removed. This evidence supports a finding that the injuries which Danielle suffered were disfiguring because they were both long lasting, if not permanent, and severe. Also, it was reasonable to infer that scars would remain from the incisions on the breasts. (People v. Keenan, supra, 227 Cal.App.3d 26, 36, 277 Cal.Rptr. 687.) Despite defendant's argument that Dr. Huang's actions are insufficient to establish the elements of mayhem, the fact remains that medical alleviation of an injury does not defeat a mayhem conviction. (People v. Hill, supra, 23 Cal.App.4th 1566, 1573, 28 Cal.Rptr.2d 783.) It was defendant's actions which caused the need for Danielle to have the implants removed, regardless of who would remove them. Here, defendant refused to perform the surgery, thus necessitating the need for Dr. Huang's intervention.
Whether or not defendant's claim that “[n]ot every visible [scarring] can be said to constitute the felony crime of mayhem[,]” the scarring in this case does. As the People point out, in today's society, a woman's appearance is judged by her face and her breasts. We need only turn on the television, open a magazine, or walk to the local beach to see the value which many people place on the appearance of a woman's chest. Also, breasts are extremely sensitive. They are an erogenous zone. Injuries to a woman's breasts not only dramatically affect a woman's appearance but they invade a woman's self-image as much as injuries to her face. (See People v. Page (1980) 104 Cal.App.3d 569, 578, 163 Cal.Rptr. 839 [tattooing of the breasts treatable only by skin grafts that would leave permanent scarring means the jury was not reasonably likely to fail to find disfigurement].)
We reject defendant's argument that Danielle's consent to the surgical procedure vitiates the charge of mayhem. At the time of Danielle's surgery, defendant's medical license was restricted, namely, he was prohibited from performing surgery. Nonetheless, he failed to disclose this information to Danielle. Thus, her consent to the surgery was invalid. As Danielle testified, if she had known that defendant's license had been suspended, she would not have authorized him to do the surgery on her body. “[T]he patient's right of self-decision is the measure of the physician's duty to reveal. That right can be effectively exercised only if the patient possesses adequate information to enable an intelligent choice. The scope of the physician's communications to the patient, then, must be measured by the patient's need, and that need is whatever information is material to the decision. Thus the test for determining whether a potential peril must be divulged is its materiality to the patient's decision. [Citation.]” (Cobbs v. Grant (1972) 8 Cal.3d 229, 245, 104 Cal.Rptr. 505, 502 P.2d 1.) In assessing materiality, “an objective test is preferable: i.e., what would a prudent person in the patient's position have decided if adequately informed․” (Ibid.) In this case, a prudent person would not authorize an unlicensed doctor to perform surgery on her body.
Finally, we reject defendant's claim that there was no showing of an intent to vex, injure or annoy to establish the mental element of mayhem.3 Whatever defendant initially intended when he placed the implants in Danielle's breasts, it is clear that his failure to act to remedy the situation showed the necessary intent to vex, injure or annoy. Contrary to defendant's view, the unlicensed practice of medicine can satisfy the wrongful act element of mayhem when it results in a case such as this. He wrongfully performed surgery on Danielle despite the fact that he was not licensed to do so. Moreover, when complications arose, he refused to correct them.
THE WRONGFUL ACT ELEMENT OF MAYHEM
Defendant contends that the wrongful act element of mayhem is constitutionally vague because “a double meaning of ‘wrongful’ is found in that an act may be morally wrongful while not necessarily being an illegal act.” According to defendant, “[h]ad the pertinent element of mayhem been written as an ‘intent to commit an illegal act’ instead of an ‘intent to commit a wrongful act,’ then no such vagueness could be found.” We disagree. The flaw in defendant's argument is his failure to recognize that his practice of surgery was not only wrongful, but it was also illegal. At the time of Danielle's operation, defendant was not licensed to perform surgery on anyone.
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant raises two claims of ineffective assistance. First, he asserts that his pretrial counsel was incompetent because he lost a box of discovery. Next, he contends that his pro. per. representation was ineffective and reduced the trial to a sham.
In order to establish a claim of ineffective assistance of counsel, defendant must demonstrate “(1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel's failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, 71 Cal.Rptr.2d 680, 950 P.2d 1035, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674].) In evaluating trial counsel's actions, “A court must indulge a strong presumption that counsel's acts were within the wide range of reasonable professional assistance. [Citation.] Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. [Citation.]” (People v. Dennis, supra, 17 Cal.4th 468, 541, 71 Cal.Rptr.2d 680, 950 P.2d 1035.) “Where the record on appeal sheds no light on why counsel acted in the manner challenged, we will affirm unless counsel was asked for an explanation and failed to provide one or unless there simply could be no satisfactory explanation for the action.” (People v. Jimenez (1992) 8 Cal.App.4th 391, 397, 10 Cal.Rptr.2d 281, citing People v. Lewis (1990) 50 Cal.3d 262, 288, 266 Cal.Rptr. 834, 786 P.2d 892.)
A. Representation by Pretrial Counsel.
Defendant claims that his pretrial counsel, Charles Ver Hoeve, lost some of the prosecution discovery material when he transferred it to Steven Dobbs. The lost items included photographs depicting Danielle's surgical injuries which the prosecution used at trial to prove the mayhem count.
According to the record, Mr. Ver Hoeve represented defendant from July 17, 2001, to October 2001. Defendant fired Mr. Ver Hoeve and asked that he send the discovery (two boxes) to the newly designated attorney, Mr. Dobbs. Pursuant to defendant's request, Mr. Ver Hoeve sent the two boxes of discovery to Mr. Dobbs's office via a messenger service. Subsequently, defendant decided not to retain Mr. Dobbs.
On December 7, 2001, Mr. Ver Hoeve met defendant's newly retained counsel, Stan Stern, and observed that Mr. Stern did not have the entire file. Mr. Ver Hoeve opined that Mr. Dobbs had not forwarded the entire case file to Mr. Stern. On December 13, Mr. Ver Hoeve represented to the court that he had sent two boxes of discovery to Mr. Dobbs. He had verified that the office to which he sent the boxes was Mr. Dobbs's office. At the court's direction, Mr. Ver Hoeve had also mailed a subpoena duces tecum for Mr. Dobbs to produce the discovery that had been sent to him. Mr. Ver Hoeve further stated that he had unsuccessfully tried to contact Mr. Dobbs to ask whether he had the two boxes of discovery. Mr. Ver Hoeve left several messages, but Mr. Dobbs had not returned Mr. Ver Hoeve's calls.
On December 21, 2001, Mr. Dobbs told the court that only one box of discovery had been found in his office. The court ordered Mr. Dobbs to return to his office to search for the other box. Subsequently, on December 28, it was determined that Mr. Dobbs had one box of discovery that he turned over to the court which, in turn, provided it to defendant's investigator. The trial court found that the missing box contained photographs and the tape-recorded police statement of defendant on the day of his arrest. The court ordered the prosecutor to provide copies of photographs and tapes in her possession to defendant's investigator, Michael Robitzer. However, the prosecutor was asked to provide only those photographs which were relevant to the charges. Nonetheless, the prosecutor offered to provide defendant with all of the victim's photographs that depicted surgical procedures.
Approximately one month before the trial commenced, the court inquired about the status of the missing discovery. In response, the prosecutor stated: “I can only assume that it's been done. I think he has everything.” Defendant did not object to the prosecutor's representation nor did he tell the court otherwise. The prosecutor also stated she had made photocopies of defendant's patient files and was waiting for an investigator to pick them up. The court directed the prosecutor to deliver that material to defendant.
According to defendant, the loss of a box of discovery by his pretrial counsel constitutes ineffective assistance. We disagree. Regardless of who was responsible for the loss of the box of discovery, the fact remains that defendant was provided with copies of the missing discovery. Although he complains on appeal that he did not see the photographs of Danielle until Dr. Huang's testimony on the third day of trial, the record shows that defendant failed to raise any objection on the grounds that he had not been provided the photographs. As respondent points out, defendant's primary objection to the use of the photographs was based on his view that the jury should see the “sight of injury,” i.e., the witnesses should have to remove their clothing to show the jury the results of their surgeries. Having failed to object to the photographs on the grounds that he had not been provided with copies, he has waived any such complaint on appeal.
Even if we assume that defendant did not see the photographs until the time of Dr. Huang's testimony, defendant is unable to establish prejudice. Defendant cross-examined Dr. Huang about the nature and extent of Danielle's injuries. He elicited testimony from Dr. Huang that she had not noticed any deformity in her visual examination of Danielle's breasts. Thus, defendant has not shown that there is a reasonable probability that, had he been provided with the photographs of Danielle prior to trial, the result would have been more favorable to him.
B. Defendant's Self-representation.
“The general rule is that a defendant cannot raise the inadequacy or ineffectiveness of his representation ‘once he has elected to “shoot craps” in the trial court and appear in propria persona.’ [Citations.]” (People v. Doane (1988) 200 Cal.App.3d 852, 863, 246 Cal.Rptr. 366, fn. omitted.) “However, assuming arguendo a defendant appearing in propria persona at trial could on appeal urge he ineffectively represented himself ‘in order to justify relief on the ground of inadequate representation of counsel it must appear that counsel's lack of diligence reduced the trial to a “farce or a sham.” ’ [Citation.] ‘Moreover, defendant has the burden of establishing his allegation of inadequate representation “ ‘not as a matter of speculation but as a demonstrable reality.’ ” ' [Citations.]” (People v. Harris (1977) 65 Cal.App.3d 978, 988, 135 Cal.Rptr. 668.)
Here, defendant points to a few examples of his questions and/or comments during the trial 4 and contends that the record indicates that his “representation of himself reduced the trial to a farce and sham.” We disagree. Defendant is a medical doctor. He made motions, argued points of law, participated in voir dire, voiced objections to evidence, and ably cross-examined the prosecution's witnesses, including the expert, Dr. Huang. Despite defendant's efforts to defend against the charges, the facts remained the facts. Given the facts of this case, we cannot say that defendant's defense was a “farce or a sham.” His contention that he did not adequately represent himself is not sustainable.
DUTY TO CONTINUE TRIAL
Finally, defendant contends that the trial court had a sua sponte duty to continue the trial when it became aware that the photographs of Danielle's surgical injuries had not been provided to defendant. According to defendant, he told the court that he had not seen photos of Danielle's injuries. Furthermore, he claims that “[r]ather than continue the matter [to] insure that [defendant] could have adequate time to prepare for cross-examination regarding Dr. Huang, the court made an uncalled-for mockery of the [defendant's] right to discovery with the comment, ‘What do you want to do, paste them around the jail?’ ”
As previously noted, defendant never objected to proceeding with his trial on the grounds that he had not been provided with all of the relevant discovery. His trial began on March 14, 2002. In the months prior to the start of trial, the court held five hearings 5 to ascertain the status of the missing box of discovery. On December 28, 2001, the prosecution was ordered to provide defendant with copies of the photographs which it intended to use at trial. On February 25 and March 20, 2002, the prosecutor represented that the photographs had been provided to defendant. Defendant did not disagree. Instead, all he said was that he had not seem them. Given the state of this record, there was nothing which would have compelled the court to continue the trial on the grounds that defendant had not received all of the relevant discovery. Accordingly, we reject defendant's contention to the contrary.
The judgment is affirmed.
FN1. All further statutory references are to the Penal Code unless otherwise indicated. Although the Attorney General has chosen to use the modern style of referencing all citations to authority in footnotes, this author prefers the old style.. FN1. All further statutory references are to the Penal Code unless otherwise indicated. Although the Attorney General has chosen to use the modern style of referencing all citations to authority in footnotes, this author prefers the old style.
2. At the time of trial, Danielle was married and her name was Whitley.
3. CALJIC No. 9.30 that defines mayhem was read to jury as follows: “Every person who unlawfully and maliciously deprives a human being of a member of her body, or disables, permanently disfigures or renders it useless, or who cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of the crime of mayhem in violation of Penal Code Section 203.[¶] In order to prove this crime, each of the following elements must be proved: [¶] (1). Person unlawfully by means of physical force deprived a human being of a member of her body or, disabled, permanently disfigured, or rendered it useless; and [¶] (2). The person who committed the act causing the bodily harm, did so maliciously, that is, with an unlawful intent to vex, annoy, or injure another person or an intent to do a wrongful act.” (Italics added.)
4. For example, following the court's denial of defendant's pretrial motion to have the witnesses remove their clothing and show the jury the results of their surgeries, defendant told the judge, “I think you can bring the rope here and hang me right there. I finish up the case.”In questioning one witness whose testimony was offered to support one of the eight counts of unauthorized practice of medicine causing risk of harm to a patient, defendant asked, “Are you satisfied with the size of the implant?”In cross-examining Dr. Huang, defendant asked her: How many of her patients died after the procedure? What percentage were not satisfied? Did she have any unhappy patients? Did she have any malpractice suits against her?In cross-examining Danielle, defendant inquired whether her husband was satisfied with her breasts.During the prosecution's closing argument, defendant interrupted and said, “Doctors have a life too.”
5. December 13, 2001, December 21, 2001, December 28, 2001, January 17, 2002, and February 25, 2002.
HOLLENHORST, Acting P.J.
We concur: McKINSTER and RICHLI, JJ.