People v. Kramer

• Citation: 66 Cal.Rptr. 638,259 Cal.App.2d 452
• Decision Date: 26 February 1968
• Docket Number: Cr. 2775
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph William KRAMER, Defendant and Appellant.

Page 638

66 Cal.Rptr. 638

259 Cal.App.2d 452

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph William KRAMER, Defendant and Appellant.

Cr. 2775.

Court of Appeal, Fourth District, Division 2, California.

Feb. 26, 1968.

Rehearing Denied March 14, 1968.

Hearing Denied April 24, 1968.

[259 Cal.App.2d 456] Arthur R. Seidler, Corona, Hennigan & Butterwick and J. David Hennigan, Riverside, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Thomas Kerrigan, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

TAMURA, Associate Justice.

Following a jury trial defendant was found guilty of abortion, his motion for a new trial was denied, proceedings were suspended and he was granted probation. ¹ Defendant appeals from the order granting probation and also purports to appeal from a 'judgment of conviction' and an order denying a new trial. A judgment of conviction not having been entered and an order denying a new trial being nonappealable in the present case, the purported appeals therefrom must be dismissed. (People v. King, 60 Cal.2d 308, 309, 32 Cal.Rptr. 825, 384 P.2d 153; People v. Jones, 36 Cal.2d 373, 375, 224 P.2d353o.)

One of defendant's contentions on this appeal being insufficiency of the evidence to support the conviction, including a claimed absence of sufficient evidence corroborating the testimony of the prosecutrix, we shall review the evidence in some detail, viewing it, as we must, in the light most favorable to respondent.

In the latter part of 1964 and early 1965 the prosecutrix, who on the date of the alleged offense had just turned 18 and was separated from her husband, resided in Garden Grove in Orange County with one Mary Jean Stark. In early January 1965 prosecutrix missed her menstrual period so she visited Dr. Campbell in Garden Grove who referred her to a laboratory for a pregnancy test. She was informed that the result of the test was positive. Thereafter she and her roommate discussed her condition and the possibility of obtaining an abortion. Her roommate learned of defendant's name from some unknown individual in a bar in Garden Grove and conveyed the information to the prosecutrix.

Defendant is a licensed medical doctor engaged in general practice in Corona, Riverside County. Prosecutrix had had no previous contact with him.

On or about January 28 prosecutrix telephoned defendant, told him that she was pregnant and did not want to carry the child. Defendant declined to discuss the matter on the telephone but made an appointment to see her at his office on a Friday night at 8:00 p.m.

On the appointed night prosecutrix arrived at defendant's office between 7:30 and 8:30 p.m. Defendant asked if she were sure she was pregnant. She told him, 'Yes,' that she had just had a laboratory test which proved positive. When he inquired about the duration of her pregnancy, indicating that if she were more than two months along he would not 'touch' her, she told him that she was not more than a month and a half along. He replied, 'Fine,' told her the fee would be $200 which she should bring in cash and, without a prior examination, wrote out two prescriptions--one for Darvon, a pain killer and one for Lincocen, an antibiotic--directing her to have them filled and to bring them back on her next visit. He then made an appointment for her for the following Monday evening at 8:00 p.m., telling her to come to the back door of the office.

On the following Monday evening prosecutrix' roommate drove her to defendant's office arriving at about 8:00 p.m. The prosecutrix knocked at the back door of the office and receiving no answer went to a nearby phone booth where she called defendant's office and was informed by an answering service that he had just left for the office. Shortly, defendant appeared at the back door of the office and upon observing prosecutrix' roommate, told the latter that she must wait outside for 30--45 minutes until he was finished. Prosecutrix entered the office and defendant asked for and she paid him $200 in cash. He then explained how she should take the two prescriptions which she had had filled, led her to a small room, instructed her to undress, handed her a white gown to put on and left. When he returned, he washed his hands, placed her on a table with newspapers under her and gave her two injections in the hip. He then took a long instrument which was curved at the end and used it to wash her vagina with a red solution. Thereafter he inserted the instrument inside her vagina and after about an hour helped her off the table.

She dressed and went into his office. There he wrote and handed her a prescription for ergotrate made out for a Jean Allen of 1078 West 9th Street in Corona, telling her that he was using an alias name and address and that she was to get the prescription filled in Corona rather than Garden Grove where questions might be asked. She then went outside, met her roommate, got into the automobile, and was driven to a drugstore in Corona where her roommate had the prescription filled.

The prosecutrix bled for approximately two weeks. She called defendant who arranged an evening appointment and again told her to come to the back door. At the appointed time defendant examined her and gave her some pills 'to build up her blood.' Thereafter the hemorrhaging ceased.

On March 3, 1965, the prosecutrix accompanied a friend who had an appointment with a Dr. Holmes in Burbank and while in the latter's office fainted. She complained of having been ill for about two weeks. Dr. Holmes examined her, found that she had abdominal pains, decreased respiration of the right lower lung, and a slight elevation of temperature. He conducted a pelvic examination and when he inserted a speculum, it caused her extreme pain. Dr. Holmes treated her with penicillin and when after two or three days she failed to respond, directed her to the Los Angeles County Hospital. While she was in the hospital she was contacted by law enforcement officers.

Medical experts testified to the customary medical practice in the community, the possibility of performing an abortion in a physician's office, and the effect of the various drugs prescribed by defendant for prosecutrix. Taking the evidence most favorable to the prosecution, the testimony shows that it was not customary practice in the community to arrange evening appointments for patients with female disorders or to examine them without having a nurse or a member of the patient's family present; the drug ergotrate is commonly associated with an abortion because it contracts the uterus, reduces bleeding and forces out any product of conception not removed by curettement; most germicidal solutions are red in color; the washing of the vagina with such a solution is consistent with an abortion and inconsistent with a normal pelvic examination or the taking of a Pap smear; though not the normal procedure, a local anesthetic could be used for such an operation and would allow the patient to walk immediately following the operation; and the events testified to by the prosecutrix were consistent with the performance of an abortion.

Defendant conceded that a therapeutic abortion was not indicated.

Defense testimony from doctors revealed that the prosecutrix had a history of recurrent pelvic infections and had been receiving treatments for that condition over a considerable period of time both before and after her visit to defendant.

Between March 1964 and January 1965 she was under the care of a Dr. Vietz. She last saw him on January 19, 1965, when she complained of missing her menstrual period. He testified that he examined her and found nothing which would have indicated pregnancy beyond six weeks, but made an appointment for her for January 27 because she felt that she was pregnant. Dr. Vietz admitted that his finding on January 19 was consistent with a laboratory finding on January 26 that she was pregnant.

Dr. Carter testified that he examined prosecutrix on May 13, 1965. She told him that she was pregnant, had had her last period on March 27, and had had two miscarriages, but she made no mention of an abortion. He further testified that when he saw her on July 7, 1965, she complained of a peculiar feeling in her heart, cramps in her abdomen, and of gaining weight; that on July 13 she reported that she was bleeding; and that on her July 21 visit he determined that she had miscarried.

Dr. Lansing, a specialist in obstetrics and gynecology, testified that it would not be normal for a 17 or 18 year old woman to have a normal menstrual flow a week following termination of pregnancy. In his opinion, the fact that a woman of prosecutrix' age with an irregular menstrual history was several days late in her current period would be very slight evidence of pregnancy.

Mrs. Shirley Allen, one of defendant's patients, testified that on the evening of February 1, 1965, the date of the alleged offense, she complained to defendant by telephone that she had begun to hemorrhage and he told her that he would leave her a prescription but that she did not bother to pick it up because her condition had improved by morning. She testified that he sometimes jokingly referred to her as 'Calamity Jane' but that she never resided at 1078 West 9th Street, Corona, the address shown on the prescription made out to Jean Allen which defendant handed the prosecutrix.

Defendant's receptionist testified that he frequently worked at night; that she had never seen a speculum, dilator, probe, curette, etc., in the office; that in writing out prescriptions defendant often made mistakes in the name of the patient and that she had to make corrections.

Defendant testified in substance as follows: When prosecutrix called him she stated she was 10 days past her period and wanted to find out if she was pregnant. On her first visit he thought that she was merely late and, hence, did not conduct a...