People v. Dayan

• Decision Date: 28 April 1995
• Docket Number: No. H012265,H012265
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. H. Joshua DAYAN, Defendant and Appellant.

Page 391

40 Cal.Rptr.2d 391

34 Cal.App.4th 707

The PEOPLE, Plaintiff and Respondent, v. H. Joshua DAYAN, Defendant and Appellant.

No. H012265.

Court of Appeal, Sixth District, California.

April 28, 1995.

Certified for Partial Publication ^*

Philip H. Pennypacker, Law Offices of Philip H. Pennypacker, San Jose, for defendant/appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Joanne S. Abelson, Supervising Deputy Atty. Gen., Richard Rochman, Deputy Atty. Gen., for plaintiff/respondent.

WUNDERLICH, Associate Justice.

I. Statement of the Case

Defendant Dr. H. Joshua Dayan appeals from a judgment entered after a jury found him guilty of felony and misdemeanor false imprisonment (Pen.Code, §§ 236, 237), five counts of misdemeanor sexual battery (Pen.Code, § 243.4, subd. (d)), and solicitation for prostitution (Pen.Code, § 647, subd. (b). ¹ He claims there is insufficient evidence of solicitation, felony false imprisonment, and three misdemeanor sexual battery offenses. He further claims the court erred in admitting the prior testimony of a witness and evidence of uncharged acts, excluding evidence designed to impeach one of the victim/witnesses, and allowing a police officer to make a statement at the sentencing hearing.

We affirm the judgment.

II. Facts

Viewing all of the evidence in the light most favorable to the judgment, we summarize the essential facts as follows. (See People v. Mosher (1969) 1 Cal.3d 379, 395, 82 Cal.Rptr. 379, 461 P.2d 659.)

A. The Prosecution

On the afternoon of September 1, 1992, Barbara O. called defendant, her dentist, and said she was experiencing intolerable pain and unable to bite or chew. Defendant said she needed a root canal and asked her to come in right away. Barbara could not leave work at that time, and they arranged a late appointment at 5:30 p.m.

At defendant's office, he examined her and said he needed to perform a root canal. Barbara was surprised he said this because he had already told her. She also noticed that an instrument tray had already been prepared. Defendant said his assistants had left but that he could do the work without one.

Defendant put an anesthetic mask over her nose and gave her a painful injection. Suddenly, Barbara felt defendant's lips on the corner of her mouth, as though he were kissing her. She pulled off the mask and gave defendant a surprised look. She did not know whether defendant had meant to do anything and did not mention it. Defendant acted as if nothing had happened.

During the procedure, defendant asked if she wanted a glass of wine or champagne. She joked that she probably needed it. But when defendant asked where her husband and child were and if she wanted to stay a while and have some wine, she knew he was serious and declined.

Defendant took an x-ray and asked if she would help develop it. Barbara, who had some training as a dental assistant, agreed, and defendant led her to a small developing room. She proceeded to a corner, and defendant entered and closed the door behind him. He put the film into a machine and explained that it would be developed in seconds. She wondered why he asked for her help and began to feel that something was wrong, especially because the room was small and there was almost no room to move.

Defendant said he liked her and asked her to stay and have some wine with him. When she refused, he grabbed her shoulders and tried to kiss her, partially inserting his tongue in her mouth. He also reached underneath her shirt and touched her breast. She testified that he was trying to get her to fall into his arms. She pushed him away, jerked his hand from under her shirt, and said she was married. Defendant persisted. He reminded her he had waited for her but then backed away. This enabled her to get by him and leave the room.

Since the root canal was not yet completed, Barbara went back to the examination room, hoping defendant had understood her refusal. Some time later, defendant returned with the x-ray. He acted as if nothing had happened. He invited her to stay one more time, but she refused.

When the procedure was over, Barbara collected her things and turned to leave but found defendant in the doorway with an arm outstretched. She thought, "[G]reat, now I have got to try and get by him again." As she attempted to walk by him, he grabbed her and asked her to stay a while. She said no. He became angry and said he had waited for her. He attempted to kiss her, pressed himself against her and then up against the wall. She resisted. He finally relented and let her pass.

Barbara made her way toward the exit, but defendant told her she needed another appointment and gave her a prescription. As she reached for the appointment card and prescription, defendant held her by the hand. He then grabbed her hair and jerked her head back. He yelled that he had stayed late waiting for her and implored her to stay a while longer. He then tried to kiss her and licked her lips. He said she was attractive and that he liked her. Barbara slugged him in the chest, cried, and said she had to go get her son. Defendant let go, and she left.

When Barbara met her husband and son, she was pale and crying. When her husband asked what was wrong, she said it was hard to believe but that defendant had grabbed her, held her against her will, tried to kiss her, and put his hand under her shirt. Her husband urged her to call the police. She was reticent because there was more work to be done on her teeth. Later, her husband called "911." Officer Stephen Gallagher of the San Jose Police Department responded and took a report.

The next day, Officer Charles Gould had Barbara come to the police station and call defendant. He recorded the call and a tape was played to the jury. Barbara told defendant she was canceling her appointment, felt uncomfortable about what had happened, and said she did not understand why he had kissed her, tried to "make out" with her, touched her breasts, and refused to let her go. Defendant initially deflected her questions, saying she was a very nice person but eventually apologized. He explained it was "not [his] nature" but then said, "We're all human." He promised not to do it again.

Later that day, Officer Gould called defendant, told him about Barbara's allegations, and asked him to give a statement. Defendant did so the next day. The interview was recorded and a tape played for the jury. Gould testified that when he told defendant that the previous conversation with Barbara had been taped, he swallowed constantly, perspired, avoided eye contact, and appeared very anxious. Defendant apologized for not having an assistant at his office and for taking Barbara to the x-ray room.

On September 23, 1992, the San Jose Mercury News published a report, describing the charges against defendant and asked those who might have had similar experiences to call the police. The report was also broadcast on television. In response to the notice, several other women came forward.

Krystal M. testified that she had been defendant's patient since 1989. He had always acted professionally until July 1991. During a visit, he twice brushed his arm against her breasts. Her boyfriend told her to pay closer attention to him, and on her next visit, defendant brushed her breast. Later, while reaching toward the instrument tray, he did it again, and she brought it to his attention. He promised not to do it again. However, he did it one more time.

At a visit the next month, defendant brushed against her breasts again. She told him to stop it. He was behind her. He had placed the tool tray on her chest, and whenever he picked up an instrument, he would brush his hand across her chest. Later, when the dental assistant left the room, defendant took off his glove and attempted to put his hand in Krystal's mouth. She stopped him, and he responded saying, "Why[,] don't you like the feeling of flesh against your tongue?"

When Krystal was at the reception desk with her daughter, her son, and Annette G., who worked at defendant's office, defendant offered her a deal, saying, "[I]f you like you can come into my office and do some favors for me, I'll take care of your bill for you." He also asked what she was doing with her boyfriend and said, "[Y]ou're much too pretty to be with that man." Annette G. testified that defendant said he "could give it to her better."

Several months later, Krystal returned to defendant's office because he promised to repair his previous work for free. This time when he brushed against her breasts, she became upset and left.

Patricia S. testified that she began working for defendant as a dental assistant in January 1992. After one month, he told her she was going to "work out" and asked her to approach him. As she did, he grabbed her and tried to kiss her. She turned her head, and he caught her cheek. She pushed him away.

About a week later, he asked if they could go to her house, which was only a couple of blocks away, and during the course of her employment he repeated this request several times. He asked whether she was going to "let" him "have" her.

Patricia testified that defendant would often touch her breasts and buttocks and press himself against her while she was scrubbing instruments. She would tell him to get away and remind him he was married. He would complain that he did not sleep with his wife. Patricia quit because she could not tolerate his behavior. She admitted, however, that she did not cite his sexual advances as the reason she quit when she applied for unemployment insurance. She testified that she thought the problem was solved by leaving. Later, however, she did make defendant's advances known.

Patricia testified that when she was working for defendant, she and Annette G. would often converse about defendant's behavior. She said she signed a reprimand for talking too much because defendant threatened to...