People v. Sommer
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Sommer, a psychologist at a mental health clinic on a military base, sexually assaulted three patients under the guise of using “exposure therapy.” A jury convicted Sommer of several felonies, including sexual battery by fraudulent representation (Pen. Code, 243.4(c)). The trial court sentenced him to state prison.
The court of appeal affirmed. Sufficient evidence supports the sexual battery by fraud conviction. Confusion is not surprising when a professional unexpectedly touches the sexual parts of the victim’s body during purported professional treatment. Confusion or doubt about the purpose of the touching does not preclude a conviction as long as the jury finds beyond a reasonable doubt that the victim allowed the touching to occur because of the defendant’s fraudulent misrepresentation of a professional purpose. The prosecutor did not misstate the law during his closing argument by saying: “Confusion is unconsciousness.” The court properly instructed the jury with CALCRIM No. 1191B, regarding consideration of charged sex offenses. The court did not err by refusing to release portions of the victims’ sealed mental health records; the undisclosed information “was not material to the defense.”
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