Conviction of rape of a female in her home,
false imprisonment, oral copulation and burglary. License revoked. Effective
Nov. 17, 1988.
On January 21, 1986, following a jury trial, respondent was found guilty on all counts including the enhancements. On February 28, 1986, the Court sentenced respondent to State Prison for a period of thirty-six (36) years. Fifteen (15) years of said sentence were stayed pending successful completion of twenty-one (21) years of incarceration.
Orange doctor’s rape trial begins with accuser on stand
If a Superior Court jury believes Dr. Ernest Leroy Hales’ version of events, he and his former girlfriend spent an afternoon making ardent, passionate love at his home last January.
But if the jury believes his former girlfriend, the Orange doctor held her captive and sexually assaulted her at gunpoint during a two-hour ordeal that left her fearful for her life.
Hales, the former emergency room director at Lakewood Doctors Hospital and currently an emergency room physician at White Memorial Hospital in Los Angeles, faces criminal charges of forcible rape, oral copulation and false imprisonment for the alleged attack on a Newport Beach physical therapist.
Testimony in his rape trial began Monday. And what emerged from the defense and prosecution was two versions of what occurred the afternoon of Jan. 21, 1985.
Deputy District Attorney James Marion told a Superior Court jury on Monday that the 40-year-old doctor lured the woman to his home, terrorized her with two guns and repeatedly raped her.
But defense attorney William Dougherty gave the jury a different version of the events that occurred that afternoon.
“This is not the story of a rape. It’s the story of two ardent, wildly passionate lovers,” Dougherty said in his opening statements.
The couple had an “ardent, but tempestuous” two-year love affair, the defense attorney said.
But the romance eventually crumbled and she left him for another man. The day of the alleged attack, she really had gone to Hales’ house voluntarily and spend the afternoon making love, Dougherty said.
The defense attorney said he will present evidence that will show the sex the couple had that day was consensual and that when Hales’ revolver went off, it was because the alleged victim, not the defendant, had grabbed the gun.
But the 40-year-old woman testified Monday that she was terrified of the doctor.
The attack, she testified, culminated days of telephone threats from Hales and an incident in which he is accused of breaking into her home.
The woman told the jury that she was attempting to retrieve her stolen belongings the day she agreed to meet Hales at his home.
When she arrived at his home, she said, he pulled a gun, pressed it against her neck and her thigh and threatened to “blow her leg off.”
She said he forced her into his house, ordered her to disrobe and then raped her twice at gunpoint.
She had told a friend she was going to Hales’ house and to call the police if she did not return after 45 minutes. The woman called the Orange police and officers arrived at the doctor’s home.
The woman answered the door and told police Hales was inside, armed with two guns. She told officers she had been sexually assaulted. When police demanded to talk to the doctor, Hales came out of the house covered only in a satin comforter, according to court documents. (LINK) — 01/25/1986
Orange doctor convicted of rape
Ex-girlfriend was attacked at gunpoint
Santa Ana—A Superior Court jury Friday found an Orange doctor guilty of six counts of raping and terrorizing his former girlfriend in January 1985.
The six-man, six-woman jury, after deliberating a day and a half, found Dr. Ernest Leroy Hales guilty of raping the 40-year-old woman and forcing her to perform sexual acts at gunpoint when she visited his Orange home. The jury also found him guilty of burglarizing the woman’s Corona del Mar home before the attack.
Judge Robert R. Fitzgerald set sentencing for Feb. 21. The doctor faces a maximum of 41 years in prison.
Hales, 40, is a former director of the emergency room at Lakewood Doctors Hospital. He stood impassively in the courtroom as a clerk read the list of guilty verdicts. Hales reacted visibly only after he was found guilty of all counts.
“He took it pretty hard,” said Hales’ attorney, William A. Dougherty. “Obviously, we’re going to appeal.”
The prosecutor, Deputy District Attorney Jim Marion, could not be reached for comment.
The prosecution had contended that the doctor lured his former girlfriend to his home on Jan. 21, 1985, terrorized her with two guns and then raped her.
The woman testified the attack culminated days of telephone threats and an incident in which Hales broke into her home. She said she went to his home to retrieve her stolen belongings.
Dougherty contended during the trial that the couple recently had ended a two-year romance and had gotten back together Jan. 21 to spend the afternoon making love.
Dougherty said the case boiled down to whom to believe.
“It was a one-on-one trial, and the jury believed the girlfriend and not the doctor,” Dougherty said. (LINK) — 02/01/1986
Chiropractor Accused of Sexually Assaulting Patients
INDIO, Calif. – A chiropractor who practices in Indio was arrested Wednesday on suspicion of sexually assaulting patients while performing medical examinations, authorities said.
Stuart Greenwood, 58, of Apple Valley, was arrested without incident at 9:15 a.m. at his office at 81557 Doctor Carreon Blvd., said Ben Guitron of the Indio Police Department.
Greenwood was being held in lieu of $100,000 bail, with arraignment expected on Friday.
His arrest followed an investigation by Indio police and the California State Board of Chiropractic Examiners into four reports of sexual assaults allegedly committed by Greenwood, Guitron said.
According to a declaration filed in support of an arrest warrant, the alleged assaults date from June 2006 to April 2008. Indio police Detective Eric Longoria, who prepared the declaration, said the first alleged victim reported she had seen Greenwood at his Indio office for a neck injury on June 7, 2006.
Greenwood allegedly told the woman she may “have another problem aside from the neck injury, and walked outside of the room, as if seeing if anybody was watching.” He then allegedly touched the patient’s vaginal area, but she stopped him and asked what he was doing, Longoria wrote.
The second report involved a June 27, 2006, incident involving an employee who worked at Greenwood’s office, according to the detective. The employee she was feeling pain in her back and asked the chiropractor to examine her, Longoria said.
The woman told the detective that Greenwood asked her to take off her clothes and put on a robe. During the examination, Greenwood allegedly told the woman he was going to check her for a yeast infection and placed his “un-gloved hand under her vagina” and touched the skin near her underwear, Longoria wrote.
The woman said she asked him to stop, but Greenwood allegedly told her it was part of the examination and began to feel her breasts over the robe.
When she asked what he was doing, Greenwood allegedly told her, “I need to touch your breasts to make energy and make your back problems go away.”
Greenwood also asked the employee out on a date and made numerous comments about having sex with him, which she declined, according to Longoria.
Another report was made in November 2007 by a woman who also claimed Greenwood touched her vagina over her clothes, according to City News Service. The most recent incident was reported last April 8, when a woman went to Greenwood’s office for treatment of a shoulder problem, CNS reported.
She told the detective that Greenwood massaged her left leg and used his finger to penetrate her, leaving her feeling “violated and confused.” (LINK) — 07/17/2009
Coachella chiropractor sentenced for sexually assaulting dozens of women
PALM SPRINGS - A 61-year-old Coachella Valley chiropractor was sentenced to eight years in prison today for sexually assaulting dozens of women.
Stuart Greenwood was convicted in June of two felony counts of sexual penetration by fraudulent representation, three felony counts of sexual battery under unlawful restraint and three misdemeanors counts of sexual battery.
Prosecutors said Greenwood molested as many as 67 women – who came to his Indio office seeking treatment for back, shoulder and neck problems – under the guise of providing a gynecological examination after telling them a yeast infection was the source of their pain.
Greenwood sexually assaulted as many as 67 women, ranging from their 20s to their 60s, between February 2005 and November 2008, according to the prosecution.
One woman told Riverside Superior Court Judge Graham A. Cribbs at today’s sentencing that Greenwood violated her trust and respect for medical professionals.
“We never expected him to hurt us, violate us, betray us,” the woman said. She said she went to him in September 2006 based on an ad for a massage.
“It makes me more cautious when I meet a doctor for the first time, I’m never alone with a male doctor,” she said.
Deputy District Attorney Bridget Rodarte said victims wanted the maximum prison time – 12 years – and the proposed sentence was appropriate because of Greenwood’s “predatory behavior.”
He used his postiion to “to sexually gratify himself,” she said.
Greenwood’s attorney, Michael Khouri, said a probation report said Greenwood was unlikely to “repeat the kind of conduct we heard about in the trial” and asked he be put on probation instead of being sent to prison.
Greenwood’s wife, a few former patients and another chiropractor attended the sentencing, and Cribbs allowed a few of them to speak.
Jeffrey Benton, a chiropracter friend of Greenwood’s, apologized to the victim “on behalf of chiropractors.” Putting Greenwood in prison would be a hardship on his wife and four children, Benton said.
Benton suggested Greenwould would be unable to defend himself in prison. Greenwood was using a walker at today’s sentencing.
Cribbs had little sympathy for Greenwood. He said he was a grown man and should have know what he was doing was wrong.
“All he had to do was look to the left or right and see his conscience there,” he said.
Greenwood was arrested on Feb. 18, 2009, at his office at 81557 Doctor Carreon Blvd. in Indio. According to the state chiropractic board, Greenwood had moved his practice to 791158 Diane Drive in La Quinta and also had a practice in Apple Valley, at 10798 Nandina Road. (LINK) — 10/25/2011
Regulator: Chiropractor has history of misconduct
A Coachella Valley chiropractor who was convicted of sexually assaulting patients committed sexual misconduct in his practice more than two decades ago, a state official said Friday.
Stuart Greenwood, 61, had his chiropractic license suspended because of sexual misconduct violations in 1988.
That suspension lasted five years, with an additional five years of probation, said Robert Puelo, executive director of the California State Board of Chiropractic Examiners.
On Thursday, the chiropractor was convicted of two felony counts of sexual penetration by fraudulent representation, three felony counts of sexual battery under unlawful restraint, and three misdemeanors counts of sexual battery.
Once the convictions were handed down by a Palm Springs jury, Greenwood was prohibited by Superior Court Judge Graham A. Cribbs from providing chiropractic services while he awaits a Sept. 23 sentencing date.
He remains out of jail, having posted $100,000 bail.
“We were obviously disappointed with the verdict,” said Michael Khouri, Greenwood’s attorney. (LINK) — 06/11/2011
Chiropractor’s License Still Valid After Felony Sexual Assault Charge
Blog note: His license has since been revoked.
CATHEDRAL CITY — An Indio chiropractor accused of sexually assaulting patients during appointments is still legally allowed to practice despite facing eight felony sexual assault charges.
Pretrial motions are set to begin on Thursday ahead of jury selection for Stuart Greenwood, 61, who is out of custody on $100,000 bail.
Greenwood is facing eight felony charges, including two counts of sexual penetration, and three counts each of sexual battery and sexual battery under unlawful restraint.
He also has a practice in Apple Valley at 10798 Nandina Road, according to the state board’s online database.
While the chiropractor’s license remains valid, the accusations against him are noted on his file.
Defense attorney John Jimenez previously proclaimed his client’s innocence, saying, “It will become evident there has been no wrongdoing by my client.”
Greenwood is accused of sexually assaulting as many as six patients between June 2006, when a woman claimed he touched her inappropriately, to April 2008, when another woman alleged the chiropractor penetrated her with his finger, according to a declaration filed in support of an arrest warrant. (LINK) — 05/19/2011
[4b] Green, 49 years old at the time of the administrative hearing, has been a licensed dentist since 1972, and a sole practitioner at his Hollywood Boulevard office since 1974. Two former patients, P.M. and P.B., testified against him at the hearing.
P.M.
P.M. testified she was referred to Green in March 1986 for removal of amalgam fillings after her physician found high mercury levels in her blood. [47 Cal. App. 4th 797] Green advised P.M. she had TMJ and problems with her bite and recommended craniosacral therapy. He told her the treatments were necessary and would relieve her headaches and the pain in the temporomandibular joint. The treatments began in August 1986 and occurred once a week through January 1987, with three treatments in March 1987. They began after Green completed the removal and replacement of her fillings.
P.M. further testified the therapy treatments took place in a far room across the hall from Green’s private office and lasted approximately 30 minutes. The lights in the room were dimmed, the shades were drawn, and “New Age” music played in the background. An attendant was not present during the sessions. P.M. was fully clothed during the treatments. She was positioned on her back in a curved dental chair.
P.M. further testified that during the treatment Green would place his hands on her head and, with his fingers, make subtle movements on her face, back of the neck and shoulders. Green would periodically place his hand on her sternum, between her breasts, and continue the hand movements. As the sessions continued, Green would brush her nipples and breasts with his hands. P.M. further testified that during the treatment Green placed one hand between her legs and under her sacrum, and the other hand on her belly, with his thumb on her pubic bone. Green then moved the palm and fingers of his hands in slow, rotating movements. This portion of the treatment lasted five to ten minutes.
P.M. further testified she felt uncomfortable after the first treatment and asked Green to treat her without these manipulations. Green, P.M. testified, laughed and said the treatments were anatomically necessary to free up tissue adhesions along the body. Green also told her this particular type of healing was necessary because of her history of childhood sexual abuse. P.M. agreed to further treatment because she trusted Green. She trusted Green because he was so patient with her during the removal of her amalgam fillings. During the second treatment, P.M. testified, Green placed his hands as he had in the first session, but it was more comfortable and she began to relax and trust him. The session relieved her headache.
P.M. further testified that after three or four therapy sessions she invited Green to lunch at the City Cafe and told him about the childhood molestations by her father, that she was in therapy, and then requested he separate out any sexual innuendoes from the treatment. He took her hand and said she could trust him, saying “sexual trauma, sexual healing.” Green also talked of getting together in the future. P.M. also told Green about her father’s death in January 1986 and how it was affecting her. [47 Cal. App. 4th 798]
P.M. continued the therapy treatments. In one session, she testified, she lost consciousness and fell out of the chair. She awoke to discover Green holding her, kissing her face, and saying he loved her and that only he could heal her. A few months later, she again lost consciousness in a session and awoke to find Green, with an erection, moving his pelvis against her face. P.M. further testified Green often hugged her in the course of the treatments. She told Green the hugs made her uncomfortable as they were making the therapy sessions too personal and she had trouble separating the personal from the professional. Green laughed and said, “Don’t worry.”
P.M. further testified she met with Green on two occasions at Veterans Park to discuss what was going on and ask him to separate out the sexual component of the therapy. Green encouraged her not to be frightened, to allow “those kinds of things” to happen, that it was part of the healing and necessary for treatment of her TMJ problem. Green told her she needed to continue to trust him. Green also suggested she meet him later in Pomona as they could be alone.
Her sessions continued, P.M. testified. In November 1986, P.M. asked to be referred to another dentist. Green said no. Most of the sessions in December 1986 and January 1987 were emotional and P.M. cried. Green told her crying was good. In December 1986, Green called P.M. and asked her to the office on a day it was closed. P.M., instead, asked him to come to her house. When Green arrived, he came up behind P.M., took off his shirt, removed her clothes and kissed her body. P.M. testified she was frozen in fear and told him to stop, which he did, and then left.
P.M. further testified that in January 1987, at Green’s suggestion, she met him in Pomona where he was teaching a dental course. Prior to this meeting, P.M. again, unsuccessfully requested a referral to another dentist. She was now dependent on Green and did what he said. They had sexual intercourse, he handed her roses, and then asked her to leave. P.M. did not immediately return to Green for treatment. He repeatedly called her at home. She returned to the office after he agreed not to touch or hug her anymore. P.M. had three more therapy sessions only because Green said her TMJ treatment could not progress without them. In July 1987, P.M. told Green she would not be returning to his office, the treatments were too confusing and the sexual part of the relationship had progressed too far. She lost 20 pounds and was distraught. P.M. subsequently filed a complaint with the Board.
P.B.
P.B. testified she was referred to Green in 1981 for dental treatment of a TMJ problem after an automobile accident. Almost immediately, Green gave [47 Cal. App. 4th 799] her craniosacral treatments. The sessions, P.B. testified, took place in a darkened treatment room in which soft meditation music was playing. She was positioned on her back in a curved dental chair. The first series of therapy sessions lasted approximately one and one-half years. In the course of the treatment, which usually lasted one hour, Green would give her a “pelvic lift” by putting his hand between her legs and around her sacrum and back. He also moved his fingers around her mouth and under her tongue. Green, P.B. testified, “worked [her] shoulders,” but he neither touched her breast, put his hand over her pelvic or pubic area, nor hugged her. The treatments stopped when her TMJ improved.
In 1985, P.B. testified, she began a second series of craniosacral treatments as a result of two accidents. The treatments lasted until February 1986. During this time, she was coping with her mother’s illness and her subsequent death. P.B. discussed with Green how her mother suffered and the toll her death took on her. P.B. noticed a difference in the treatments. Green started to make personal comments about her hair or jewelry. Toward the latter part of the sessions, P.B. testified, Green would stroke her forehead and arm. In addition to the hand Green placed between her legs and on her sacrum, he would now slowly move the other hand over her pelvic area. He kissed her forehead at the end of the sessions, and encouraged her to stay longer after treatments. The sessions, P.B. testified, took on sexual overtones and left her lightheaded at their conclusion. She trusted Green because he had helped her before, and he was a doctor and a professional. She began a personal relationship with him.
The first sexual contact with Green took place after a cranial treatment, late in the afternoon, and in his outer office. No one else was there. She and Green talked, and then they hugged and kissed. Green removed his clothes and P.B. removed her top. P.B. recalls Green staring at her breasts and telling her she was beautiful. Then she and Green left the office. After this incident, Green called her at home during the lunch hour, but did not discuss dental care. P.B. further testified she told Green his calls were making her life difficult because her husband was often home during these times. Green continued to call.
In another incident, P.B. testified that a few hours after another cranial treatment, Green took her to the Hollywood Roosevelt Hotel, a block from his office, and they had sexual intercourse. In a third incident, Green called P.B. at home and they arranged to meet at Charmer’s Market in Santa Monica. When she arrived, P.B. testified, he handed her roses and they had dinner. Afterwards, they went to the Holiday Inn and engaged in sexual [47 Cal. App. 4th 800] activities. P.B. testified she then realized her personal involvement with Green was wrong and discontinued the sexual contact.
P.B. still considered Green her dentist. He also treated her son. When she returned for a teeth cleaning, Green handed her a greeting card that read “We can’t go on not meeting like this … I miss you! … Love, E.” She never discussed the card with Green. In 1988, P.B. testified, she had three additional craniosacral treatments because of a neck problem. She stopped seeing Green after expressing dissatisfaction with some of his dental work.
Green
Green testified to a sexual relationship with P.M., but denied any sexual encounters with P.B. He acknowledged giving P.B. compliments and a friendly hug and “peck” on the cheek, but did not think he stroked or kissed her forehead. He was equivocal about identifying the handwriting as his on the greeting card P.B. claimed he gave to her. In treating the two women, Green testified, he never pressed against or manipulated their breasts.
Green further testified he discussed with P.M. the use of craniosacral therapy as part of her treatment, but had no intentions of using the procedure as part of any romantic involvement with her. P.M. never told him she was troubled by his use of the therapy. He met P.M. outside the office. At City Cafe, P.M. told him she was in therapy but not that her father had died. Green further testified P.M. asked to meet him at Veterans Park only to discuss craniosacral therapy concepts. Furthermore, P.M. asked Green to meet her at her home. She wanted to discuss various craniosacral therapy and medical techniques. P.M., Green testified, initiated sexual contact, and with her help, he removed her clothes. He had sexual relations with P.M. in the hotel in Pomona, but when he told her he would not leave his family, she left. They had no further romantic involvement.
Green further testified P.M. never lost consciousness in the office during a therapy session, and it was common practice for his dental assistant to remain in the room during the therapy. He further testified his romantic involvement with P.M. had nothing to do with dentistry.
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE ISSUED AN ORDER IN CASE NO. 13NF3503, THE PEOPLE OF CALIFORNIA VS. ROCAEL GOMEZ. ROCAEL GOMEZ IS ORDERED NOT TO ENGAGE IN THE PRACTICE AS A PHYSICIAN ASSISTANT. 12/18/2013
Physician assistant who worked in El Monte, Anaheim accused of molesting patient
Officials sought the public’s help this week in finding potential additional victims of a physician’s assistant who worked in El Monte and Anaheim and is accused of molesting a patient under the guise of a medical examination.
Rocael Gomez, 48, of La Mirada was arrested Oct. 8 and charged the same day with sexual penetration by a foreign object of an unconscious victim and sexual battery by fraud, Orange County District Attorney’s officials said.
The alleged crime took place Jan. 4 at the Anaheim Market Clinic in Anaheim, district attorney’s officials said in a written statement issued Tuesday. At the time, he was also working at the Bansuan Medical Clinic in El Monte.
The victim, a 51-year-old woman, was being examined for back pain when Gomez allegedly molested her, prosecutors said.
“He is accused of sexually touching the victim under the guise that his actions served a legitimate professional purpose,” according to the district attorney’s office statement.
Officials said the victim reported the incident the same day it occurred.
Gomez, who was out of custody on $250,000 bail, was scheduled to be arraigned Nov. 12 in Orange County Superior Court.
If convicted as charged, Gomez faces up to nine years in prison and would be required to register as a sex offender for life, officials said.
Anyone with information, or anyone who believed they may have been victimized by the defendant is asked to contact Supervising District Attorney Investigator Paul Carvo at 714-347-8794. (LINK) — 10/23/2013
MEDICAL BOARD RECORD—13461 DISCIPLINARY ACTIONS—License Active; no actions listed as of 02/28/2016
Hettinger surgeon’s sexual assault case compounded by recent DUI charge
A Hettinger surgeon currently waiting to stand trial in Oregon for multiple felony counts of sexual assault recently violated terms of his release after being cited for driving under intoxication, according to court records.
Robert John Gustafson, a practicing physician at West River Health Services in Hettinger, pleaded not guilty last month to a Class-B misdemeanor count of driving while under the influence.
Gustafson waived his right to appear in a Morton County courtroom for an initial appearance, according to a waiver filed with the court on Jan. 11 by which he also entered his plea.
Gustafson, 46, was taken to a local hospital after he sustained injuries Dec. 13 when he struck a vehicle in Morton County.
In a citation issued by the North Dakota Highway Patrol, it was stated that Gustafson being under the influence “contributed materially” to the crash.
He was also charged with a Class-B misdemeanor charge of reckless driving.
As a result of his charges in North Dakota, a status conference has been scheduled for next week in Clatsop County, Ore., where Gustafson is waiting to stand trial on 12 counts of sexual assault of a minor.
In a Jan. 18 memorandum from the Clatsop County Circuit Court, it was stated that Gustafson had violated his conditions of release by receiving a DUI citation. The court maintains the current level of security so long as he reported to the scheduled treatment program and remained there until his successful discharge, the memorandum stated.
Due to the violation, according to the document, the court reserves the right to modify or revoke his release at any time it becomes aware of further violations.
The felony jury trial for Gustafson’s Oregon case has been scheduled for Aug. 2, after the state successful sought a continuance due to additional aspects of the case that were discovered.
According to court records, the investigation into Gustafson’s offenses now involves additional events that allegedly occurred in South Dakota, where the complaining witness once resided with Gustafson.
A video was discovered where the complaining witness was interviewed by a professional child interviewer at a child safety center in Rapid City, S.D. During that interview, the complaining witness indicated she had not been sexually abused by Gustafson.
Gustafson pleaded not guilty last July to 12 total counts related to the alleged sexual abuse of a teenage girl in Oregon.
Gustafson began working in November 2014 as a surgeon specializing in laparoscopic surgery at the West River Health Services hospital in Hettinger. He had relocated to the area from South Dakota and had previously worked at a hospital in Spearfish, S.D.
According to court records filed in Clatsop County Circuit Court in Oregon, Gustafson was charged with 10 counts of first-degree sexual abuse and two counts of first-degree encouraging child sexual abuse related to the alleged 2-year sexual abuse of a girl in Clatsop County, Ore. The abuse was said to have begun in 2009 when she was “not yet 14 years old,” according to a court complaint.
Bail for Gustafson was set at $250,000. He was ordered to avoid contact with minors unless it was necessary to his occupation but was allowed to leave the state.
West River Health Services operates facilities in Bowman and Scranton in addition to its central facility in Hettinger. (LINK) — 02/26/2016
An Irondequoit internist has been disciplined by the state Department of Health after being convicted of driving while intoxicated in 2013.
Dr. Jose Enrique Lopez, 1146 Titus Ave., received censure and reprimand, was fined $1,500 and placed on probation for five years, according to the department’s Board for Professional Medical Conduct. During probation, Lopez’s practice must be monitored.
The sanction takes effect Feb. 29.
In October 2013, Lopez pleaded guilty in Rochester City Court and was fined $500, had his license revoked for one year and was required to install an ignition interlock device on his vehicle.
It is not uncommon for delays between action by courts and when the health department takes or announces any of its own sanctions.
Lopez is on the staff of Rochester Regional Health but is not an employee, according to a spokeswoman with the health system.
Lopez’s attorney, Andrew Knoll of Syracuse, said the state’s discipline is standard in such cases. He said the state found no issues with patient care. (LINK) — 02/25/2016
Chiropractor arrested on accusations of raping young girl
SEMINOLE COUNTY, Fla. — A local chiropractor was arrested Thursday on accusations of raping a young girl 20 years ago.
The victim came forward in 2013 and said Stephen Somerville, who she said knows her, raped her, investigators said. Investigators said she went back and forth about moving forward with the case and finally decided to press charges.
Yvonne Bell, Somerville’s neighbor, said she couldn’t believe the allegations against him.
Seminole County deputies said Somerville raped a girl younger than 12 over the course of several years in their jurisdiction in 1995. He is also accused of giving her alcohol and pills.
“Had this young lady not come forward, the state had nothing on which to base a prosecution,” WFTV legal analyst Bill Sheaffer said.
Sheaffer said Florida does not have a statute of limitations for first-degree felony sexual battery when the victim is a child.
"They want to make sure that if a young person was the victim of sexual battery that they get their day in court once they become an adult and can report it,” Sheaffer said.
Investigators said they don’t have evidence to suggest Somerville has other victims, but urge them, if any, to come forward.
A judge gave Somerville a $30,000 bond. His arraignment is on April 12. (LINK) — 02/18/2016
Jacksonville eye doctor accused of doing surgery on wrong eye
A local eye doctor is accused of doing surgery on the wrong eye of a patient and Action News Jax found that same doctor has a separate lawsuit still pending that claims he performed surgeries without proper consent from a different patient.
Dr. Frank Bowden III entered into a settlement agreement with the Florida Department of Health Feb. 16 after he was accused of starting to perform a surgery on the wrong eye of a patient in 2014 at the Orange Park Surgery Center.
Bowden did not admit to any wrongdoing as part of the settlement agreement, but he will pay fines totaling roughly $3,400.
The settlement also said Bowden will take part in continuing medical education.
Records with the DOH said in 2014, Bowden was supposed to perform surgery on a patient’s left eye, which included placement of a tube shunt, scleral reinforcement grafting and severing of conjunctival scar adhesions.
The complaint said Bowden started to perform surgery on the patient’s right eye before he realized his mistake and halted the procedure on the incorrect eye.
Attorney F. Duke Ragan spoke with Action News Jax on Bowden’s behalf and in a statement said: “Dr. Bowden entered into an agreement with the Department of Health without admitting any allegations of wrongdoing. There were allegations concerning a procedure which did not occur at Dr. Bowden’s office.”
Court records revealed Bowden was also named in a 2010 lawsuit which is still pending.
In that case, Bowden is accused of performing “several unwarranted and unauthorized surgical procedures” on a patient in 2007 and 2008.
The patient was legally blind.
“The patient was referred by the Florida Division of Blind Services,” Ragan said in a statement. “We have actively contested the allegations of that lawsuit. We deny the allegations of negligence and expect to call multiple experts in support of Dr. Bowden. We have no further comment at this time.”
The DOH said the agency typically only considers final judgments when pursuing disciplinary action and not pending lawsuits.
The agency said disciplinary action is usually not taken before a case is proven in court unless it is an extraordinary circumstance involving the public good.
If you want to find out if your doctor has had any complaints filed with the DOH, click this link. (LINK) — 02/20/2016
Chilling details emerge in Antioch chiropractor date rape drug case
It was supposed to be a fun day trying on wedding gowns. One 27-year-old woman was getting married, and her cousin, the same age, joined her for the fittings.
The pair, from Antioch and Pittsburg, finished the Feb. 21 outing at an Antioch restaurant, police said. One of the cousins recognized her chiropractor, Jason Phillip Goettsch, at the bar. Later that night, Goettsch, 37, allegedly drugged the women, brought them back to his chiropractic office, videotaped his assault on one of the women, and returned to a nearby bar to show the cell phone video to his bar buddies.
An arrest warrant was issued Monday charging Goettsch with two counts of drugging a victim with the intent to rape and one count each of oral copulation of a drugged victim, digital penetration of a drugged victim, and possession of GHB, also known as the date rape drug. The suspect has fled, Antioch police Sgt. Diane Aguinaga said, and may be in the San Francisco area.
“He needs to get caught,” she said, calling this case a “tragedy with two innocent victims.”
Goettsch’s Advanced Chiropractic office, 3720 Sunset Lane, Suite D, was closed Wednesday. The office voicemail box was full.
Goettsch, according to police, had been on a downward spiral since he shot and killed a prowler in his Antioch backyard on March 18, 2006. The shooting was ruled a justifiable homicide, but Goettsch, a nephew of recently retired Antioch Unified School District Superintendent Dennis Goettsch, soon found himself in trouble with the law.
In September 2007, Goettsch was convicted of a misdemeanor driving under the influence of alcohol with two prior DUI convictions and sentenced to 120 days in jail and five years probation, according to a California Board of Chiropractic Examiners complaint issued Wednesday.
Meanwhile, the state chiropractic oversight agency is working with the California Attorney General’s Office to revoke Goettsch’s license to practice. On Wednesday, they levied a complaint against Goettsch, citing six causes for discipline, including his DUI convictions and the February assault charges. They also filed an interim suspension order to “get him out of this profession as quickly as we can,” said Brian Stiger, executive officer of the California Board of Chiropractic Examiners.
“We are aware of the allegations against him,” he said. “We have a pending investigation, and we’re moving forward as quickly as possible to revoke his license.”
Prior to Wednesday, Goettsch had an active license to practice with no citations or complaints.
Trinka Porrata, president of Project GHB, a group that advocates against the drug, says she’s seen “a disproportionate number of chiropractors as users and abusers.”
She said members of the profession, along with alternative medicine facilities, touted the drug in the 1980s as a dietary supplement. Recently, two chiropractors actually contacted Porrata’s anti-GHB Web site hoping to buy some of the drug.
Stiger, with the state agency, said chiropractors would have no special access to the drug, and he hasn’t seen a single GHB complaint come to his office.
“It’s a drugless profession,” he said.
GHB, or the chemical gamma hydroxy butyrate, is only slightly different from nail polish remover, Porrata said. The clear liquid is readily available on the Internet, especially from the United Kingdom and China, she said. Often used to incapacitate women, the drug leaves rape victims with partial or complete amnesia.
“Nobody will remember everything,” Porrata said.
Police believe that Goettsch began drugging the women at the restaurant, as one of the victims remembered returning a drink to the bartender, saying it “tasted funny,” Aguinaga said.
The pair ended up going with Goettsch and an unidentified man to the Nineteenth Hole Bar on West Tregallas Road, and then back to his office about a mile away for massages, the sergeant said. After assaulting one of the women, Goettsch later returned with his male companion and one of the women to the bar where he showed bar patrons the cell phone clip, Aguinaga said. Investigators, who have Goettsch’s cell phone, have identified the second man, who was not seen in the video, and are still researching his role, Aguinaga said.
As Goettsch left the bar, an Antioch police officer on routine patrol saw him dragging a limp woman to his car. The woman was taken to the hospital, and Goettsch was arrested on an outstanding warrant and found to be in possession of GHB, police said.
The woman left at his office later woke up, panicked, and ran down Lone Tree Way, calling for help on her cell phone, Aguinaga said.
Goettsch’s patient, who was assaulted, remembered nothing of the attack until police showed her the cell phone video, the sergeant said.
Goettsch spent a couple of weeks in jail after his arrest, but police could not file date rape charges until the woman’s test results returned, so he was released, Aguinaga said. Only certain labs test for GHB, so investigators had to send specimens to a Philadelphia laboratory. The results came back positive.
To find GHB in a person’s system, a test must be performed within 12 hours.
“That’s why a lot of people don’t get caught because it’s out of your system so quickly,” Aguinaga said. (LINK)—4/23/2008
Jason Goettsch Antioch Chiropractor Sentenced In Drugging And Sexual Assault Case
A former Antioch chiropractor who pleaded no contest to drugging two women and sexually assaulting one of them in February 2008 was sentenced today to four years in state prison. Jason Goettsch, 38, will also be required to register as a sex offender for the rest of his life and has had his chiropractor’s license revoked.
Goettsch was originally charged with eight felonies for allegedly drugging the two women with the intent to sexually assault them, oral copulation with a drugged victim, digital penetration of a drugged victim and possession of gamma hydroxy butyrate, or GHB, also known as the date rape drug, on Feb. 21, 2008, in Antioch.
He pleaded no contest in Contra Costa County Superior Court in Martinez last week to one count of oral copulation on a drugged person, administering a drug with the intent to commit a sexual offense and furnishing a drug.
In exchange for his plea, the district attorney’s office dismissed the remaining charges.”What he did was absolutely reprehensible and he should, in my opinion, be in prison for the rest of his life,” Deputy District Attorney Andrea Tavenier said after the hearing last week.
But, she said, if the case had gone to trial, it would have been a difficult process for the victims, who would have had to testify, Tavenier said.
Dirk Manoukian, Goettsch’s attorney, said that the woman Goettsch was accused of assaulting was not unconscious, had not been drugged and that the sexual contact was consensual. He said that Goettsch was not admitting guilt by entering his no-contest plea, but believed it was in his best interest to take the plea deal.
If convicted of all the charges, Goettsch could have been sentenced to more than 18 years in prison and he didn’t want to risk going to trial, Manoukian said.By taking the plea deal, Goettsch will be out of prison in a few months, since he will get credit for the time he has already spent in county jail. Because the crimes to which he pleaded are considered non-violent, he will only have to serve half of his sentence, Manoukian said “The most difficult thing for Mr. Goettsch was not having the truth come out, not having his day in court,” Manoukian said. He said that while Goettsch was not proud of his actions during the time of the incident, the facts of the case didn’t support the original charges.
On the day of the alleged assault, the two victims, who are cousins, had gone shopping for a wedding dress for the victim Goettsch allegedly assaulted. After shopping, they went out to dinner and then to a bar called the 19th Hole in Antioch, where they bumped into Goettsch.
Goettsch knew one of the women from his chiropractor practice and allegedly bought the women drinks.
The women later told investigators the drinks tasted funny and they believed they had been spiked, police said.
A short time later, the two women got into a car with Goettsch and a male friend of his and went to Goettsch’s office, where he was reportedly going to adjust one of the victim’s necks, detectives said.
They returned to the bar about an hour later, and a short time after that Antioch police Officer James Stenger, who was on patrol in the area, saw Goettsch and his friend dragging an extremely intoxicated woman from the bar to a nearby car.
Stenger called an ambulance for the woman and arrested Goettsch on a probation violation stemming from a 2007 drunken driving conviction, Stenger said during a preliminary hearing in the case.
When officers searched Goettsch, they allegedly found a two-ounce bottle of a clear liquid later determined to be GHB. The bottle was three-quarters full, police said.
The intoxicated woman was taken to a local hospital, where tests confirmed that she had alcohol and GHB in her system, police said. Later that night, a bartender from the 19th Hole called police and told a dispatcher she believed the woman had been sexually assaulted. She told police to check Goettsch’s friend’s cell phone, which she had seen the men showing to the security guard at the bar.Police found several photos and eight videos on the phone. The videos allegedly showed Goettsch sexually assaulting an unconscious woman as she lay face down on what looked like a massage table, police said. The woman was later identified as the cousin of the woman who had been taken to the hospital.”It is absolutely false to say that she was unconscious,” Manoukian said.
He said the woman was talking during the incident and at one point Goettsch allegedly asked her if she liked what he was doing to her and she said yes, Manoukian said.
Within five or 10 minutes of the incident, the woman was up and called a friend to come get her. A short time later, she was able to drive, which would be impossible if she had just been unconscious from GHB, Manoukian said.
She was never tested for the presence of GHB in her system, which is untraceable within 12 hours of ingestion.
Four days after the alleged assault, police met with the victim depicted in the video and showed her the footage.
The woman gasped and started crying when she saw what had allegedly been done to her. Until she saw the video, she had no idea she had been sexually assaulted, Antioch police Detective Diane Freier said. (LINK) — 10/08/2009
State Seeks to Revoke Gionis’ Medical License : Charges: New allegation of sexual misconduct with a patient is brought against physician convicted of masterminding an assault on ex-wife Aissa Wayne.
SANTA ANA — State officials Monday took the first step toward revoking the medical license of Pomona physician Thomas A. Gionis, leveling new charges that he engaged in “sexual misconduct” with a patient.
Gionis, 38, was convicted last month of masterminding an assault on his estranged wife, Aissa Wayne–daughter of the late film legend John Wayne–and her then-boyfriend in the midst of a 1988 child custody dispute arising from their separation.
Gionis faces up to eight years in prison on the assault conviction and will be sentenced next month.
The state routinely seeks to revoke the licenses of doctors convicted of felonies. But state papers served on Gionis Monday include not only the assault charges raised in his trial, but also the new sexual misconduct allegation as well.
Gionis, who is now free on bail, could not be reached for comment. His criminal attorney, William Kopeny, did not return several phone calls.
Deputy Atty. Gen. Randall B. Christison, who is handling the case, said that Gionis will now have several weeks to respond to the civil accusation.
If he contests the allegations of sexual misconduct, the matter will be tried before an administrative law judge, who will then make a recommendation to the Medical Board of California on whether Gionis should have his license revoked or face less stringent disciplinary action, such as a suspension.
The new charge against Gionis alleges that the Pomona physician “committed an act of sexual abuse and misconduct against a patient in the course of his practice.” It goes on to allege that Gionis had the patient partially disrobe without medical need, massaged her “for purposes of sexual gratification,” and then initiated sexual contact with her.
Christison, the prosecutor, said in an interview that the patient, who was about 20 years old at the time, went to Gionis for back or neck pain after a car accident. But she became alarmed after Gionis had her take her bra off and began massaging her and rubbing against her.
“She said, ‘I’ve had enough of this,’ got up, put on her clothes and scurried out of the office,” Christison said.
Christison said that if the case goes to trial before an administrative law judge, the state will put on evidence concerning both the sexual misconduct allegation and the assault on Aissa Wayne for which Gionis was convicted.
Six weeks ago, a jury in Orange County Superior Court found Gionis guilty on charges of conspiracy to commit assault, conspiracy to commit residential trespass, assault with a deadly weapon and assault with a firearm. It was his second trial on the charges after a jury deadlocked 9 to 3 in 1990.
The charges stemmed from a 1988 attack at the $3-million Newport Beach estate of Roger W. Luby. During the attack, Luby and then-girlfriend Aissa Wayne were assaulted at gunpoint. Wayne’s head was smashed twice against the concrete floor of the garage, while both of Luby’s legs were slashed in the area of his Achilles tendon in an apparent attempt to permanently disable the tennis buff. The couple were warned by the attackers that they were making trouble for “the wrong people.”
Prosecutors maintained that Gionis was “obsessed” with winning custody of his young daughter from Wayne and orchestrated the attack, using a private detective in Beverly Hills to hire the two men who carried it out.
Christison said that with the allegations of both the Wayne assault and sexual misconduct against Gionis, “we’re confident that there’s sufficient grounds for a revocation of his medical license.” (LINK) — 06/30/1992
Gionis Sentenced to 5 Years for Wayne Attack : Court: The judge says the ex-husband of John Wayne’s daughter has a ‘dangerous combination … of no remorse and a need to control.’
SANTA ANA — The ex-husband of John Wayne’s daughter was sentenced Monday to five years in prison for masterminding an attack that a judge said went “way beyond what a normal husband would do in a divorce situation.”
Dr. Thomas Gionis, 38, appeared calm as he was sentenced for soliciting the beating in which two hired thugs bound Aissa Wayne, 36, and slammed her face into a garage floor on Oct. 3, 1988. Gionis and Wayne were locked in a bitter custody battle at the time.
The attackers also bound Wayne’s then-boyfriend, Roger Luby, pistol-whipping him and slashing his Achilles tendon during the attack at Luby’s Newport Beach estate.
In addition to the prison sentence, Superior Court Judge Theodore E. Millard fined the Pomoma physician $10,000 and ordered him to serve three years’ probation after completing his prison sentence. The judge estimated that, with work credits, Gionis could be free in as little as 2 ½ years.
Millard set bail for Gionis at $2 million pending an appeal of his conviction. The judge said he was setting such a high bail because he felt Gionis was a flight risk. In addition, Gionis has demonstrated “no remorse and a need to control,” which the judge called “a dangerous combination.”
Gionis was immediately taken into custody after the unusual, daylong sentencing hearing.
The hearing, in which both sides called witnesses and each of the two victims testified, was a microcosm of the trial. It included a rehashing of the couple’s breakup and bitter custody battle over their daughter. It also included defense jabs at the lifestyles of the rich and famous of Newport Beach, as contrasted with the strivings of Gionis, described by his attorneys as an overachieving son of an immigrant plumber.
Luby, who made an impassioned statement in court, said later that he was disappointed that Gionis did not receive a longer sentence, calling him “a controller.” Gionis is “a scoundrel. He belongs in jail,” Luby said.
Wayne, who was accompanied by her mother, Pilar, said, “I hope that he can learn something from this. I’m kind of stunned right now. I think that the crime was so violent, and I think that Judge Millard had a good handle on a little of what Dr. Gionis truly is.”
Wayne said she expected to return to family court to regain full custody of her daughter, Anastasia, now 5, who has been spending weekdays with Gionis and his family.
In denying a new trial for Gionis, Millard said there was abundant evidence of Gionis’ guilt, including telephone calls made from the scene by a private investigator hired by Gionis to carry out the attack and threats voiced by Gionis to others regarding the custody battle.
“Who else would have a motive to do such a thing?” the judge asked. “It wouldn’t take a rocket scientist to figure out that an orthopedic surgeon might have something to do with Mr. Luby’s injuries to his Achilles tendon.
Speaking as a former family court judge, Millard said that Gionis’ actions went "way beyond what a normal husband would do in a divorce situation.”
A probation report said Gionis “has certainly not come to terms with the degree of his internalized rage and obsessive need to control, which may manifest in a threatening or lethal manner.”
One of Gionis’ three attorneys replied that Gionis expressed no remorse to the probation officer for his role in the attack on legal grounds, to preserve his position for an appeal of the conviction.
But Millard agreed with the probation report, saying “control is what this trial is about.”
“It truly must be a frightening experience to have two completely unknown thugs … come through a gate that’s being closed … and then to be attacked, forced on the floor, head beaten in the ground, all kinds of comments being made… . I really have to have empathy for the victims in the case… . It had to be a traumatizing and brutalizing experience.”
Gionis was tried in 1990 for the attack, but the jury deadlocked. He was represented Monday by two of Orange County’s and one of New York City’s best-known defense attorneys: William J. Kopeny and John D. Barnett, both of whom were involved in defending a Los Angeles police officer in the Rodney G. King beating case; and Bruce Cutler, best known for his defense of mobster John Gotti.
In addition to the probation report, Deputy Dist. Atty. Jeoffrey L. Robinson offered evidence that Gionis was being investigated by the Medical Board of California, which may take his license, for an incident of sexual misconduct with a patient predating the attack on Wayne and Luby. Robinson also cited letters to the judge from Gionis associates alleging financial misconduct and sexual relations with other patients.
“I feel that justice was done,” Robinson said of the sentence. “I think that he is deserving of a state prison sentence, and I only hope that high bail is enough to ensure that he serves his sentence just as any other convicted felon would.”
Last month, Oded Daniel Gal, Gionis’ private investigator, pleaded guilty to four felony counts for his role in the attack. Gal faces up to 5 years and eight months in prison when sentenced July 31.
One of the two men who previously admitted to police that they carried out the attack, Jerrel Hintergardt, is serving an eight-year sentence, which has been upheld by an appeals court. The other, Jeffrey K. Bouey, awaits trial. (LINK) — 07/07/1992
From a Medical Board of California document:
THE DIVISION OF MEDICAL QUALITY OF THE MEDICAL BOARD OF CALIFORNIA HAS DETERMINED, upon review of certified copies of records of the Superior Court, County of Orange, that:
1. On July 6, 1992, in People v. Thomas A. Gionis (Case No. C-73252), you were convicted based on jury verdicts of the following offenses:
a. In count one, conspiracy to commit assault in violation of Penal Code sections 182(a)(1) and 240;
b. In count two, conspiracy to commit trespass of a residence, in violation of Penal Code sections 182(a)(1) and 602.5;
c. In count three, assault with a deadly weapon, in violation of Penal Code section 245(a)(l);
d. In count four, assault with a firearm, in violation of Penal Code section 245(a)(2).
2. As punishment for these crimes, you were sentenced to state prison for five years, with credit for 25 days time served. You were remanded into custody by the Court, but granted bail on appeal thereafter.
3. On May 8, 1995, bail on appeal was revoked by the Superior Court and a no-bail warrant was issued.
4. You are currently serving the five-year state prison term imposed by the Superior Court, County of Orange, in the custody of the Department of Corrections at the Richard J. Donovan Correctional Facility at Rock Mountain, San Diego, California. Your inmate identification number is H 41141.
THE DIVISION OF MEDICAL QUALITY OF THE MEDICAL BOARD OF CALIFORNIA HAS FURTHER DETERMINED THAT, by virtue of your conviction and imprisonment, the Physician’s and Surgeon’s Certificate No. C 39248 issued to Thomas A. Gionis has been automatically suspended by operation of law effective May 8, 1995.
A criminal record is like a fingerprint. It’s like a shadow you can’tshake off. It’s like being bound by invisible shackles.
Dr. Thomas Gionis probably knew that. But he was reminded of that unpleasant truth a couple weeks ago when the John Marshall Law Review –part of the John Marshall Law School in Chicago – canceled his appointment as the incoming editor-in-chief.
Gionis, 47, is currently a second-year student there and was elected to the post in March.
But nine years ago, the then-Irvine orthopedic surgeon was in a different place – he was convicted and sentenced to serve five years in prison for hiring two thugs to attack his estranged wife, Aissa Wayne, daughter of the late actor and local legend John Wayne.
Aissa Wayne and her boyfriend, Roger Luby, were assaulted in Luby’s Newport Beach home in October 1988. According to reports, Wayne was thrown face down on a garage floor while attackers – said to be hired by Gionis – pistol-whipped Luby and severed his Achilles tendon. Gionis’ trial was long and grueling, probably painful for all concerned. It was definitely high-profile. Gionis hired top defense attorneys such as F. Lee Bailey, John Barnett and even Bruce Cutler, a flamboyant attorney who represented New York mob boss John Gotti.
In 1990, Gionis’ first trial ended in a mistrial when the jury deadlocked 9-3. Two years later, his second trial ended in a conviction and Gionis was sentenced to five years in prison. But he remained free on a $2-million bail.
Then, again in 1994, a 4th District Court of Appeal threw out the conviction citing improper testimony by an attorney and misconduct by the prosecutor. But the following year, the California Supreme Court reinstated the conviction, a decision that led to his arrest in May 1995.
The case might have been closed in the courts, but not in the life of the once-convicted Gionis.
When contacted by phone at his Chicago home, Gionis expressed his displeasure with past newspaper coverage, denied comment and hung up. John Marshall Law School officials said the decision to oust Gionis as incoming editor-in-chief was made entirely by the board of the Law Review, which consists of students.
“They may have discussed it with faculty members,” said John Corkery, Associate Dean for Academic Affairs. “But we always try to let the board make its own decisions.”
The position of editor-in-chief at the Law Review is a “very prestigious” one, he said. Gionis continues to be a student and a member of the Law Review and is free to run for other editorial positions as they open up, Corkery said.
It takes a lot even to be a member of the Law Review, said Rory Smith, associate dean for institutional advancement.
“From our perspective,” he said, “our strongest students become members of the Law Review.” (LINK) — 04/18/2001
THE PEOPLE, Plaintiff and Respondent, v. THOMAS GIONIS, Defendant and Appellant. (excerpt)
(Superior Court of Orange County, No. 73252, Theodore E. Millard, Judge.)
(Opinion by Baxter, J., with Lucas, C. J., Arabian, George and Werdegar, JJ., concurring. Separate concurring and dissenting opinion by Kennard, J. Separate dissenting opinion by Mosk, J.)
OPINION
BAXTER, J.
On October 3, 1988, Aissa Marie Wayne and her friend Roger Luby were brutally assaulted by two men. Four men were arrested, including defendant Thomas Gionis, Wayne’s former husband. At defendant’s trial, the prosecutor argued that Wayne and defendant had been locked in a bitter custody battle over their young daughter, Anastasia, and that defendant was behind the assault. John Lueck, an attorney, was permitted to testify for the prosecution that defendant had told him, among other things, that Wayne had no idea how easy it would be for defendant to hire someone to “really take care of her,” and that if defendant were to do something, he [9 Cal. 4th 1202] would wait until an opportune time to act in order to avoid suspicion. The jury convicted defendant of conspiracy to commit an assault (Pen. Code, former § 182, subd. 1, as amended by Stats. 1989, ch. 897, § 15, p. 3062, now Pen. Code, § 182, subd. (a)(1); Pen. Code, § 240), conspiracy to commit a trespass (Pen. Code, former § 182, subd. 1, as amended by Stats. 1989, ch. 897, § 15, p. 3062, now Pen. Code, § 182, subd. (a)(1); Pen. Code, § 602.5), assault with a deadly weapon on Luby (Pen. Code, § 245, subd. (a)(1)), and assault with a firearm on Wayne (Pen. Code, § 245, subd. (a)(2)). Defendant was sentenced to an aggregate term of five years in state prison.
The Court of Appeal reversed defendant’s convictions. It determined that the trial court prejudicially erred in admitting the evidence of defendant’s statements to Lueck in derogation of the attorney-client privilege, even though the statements were made after Lueck had explicitly refused to represent defendant in the legal proceedings involving Wayne. The court also found that defendant was prejudiced by the prosecutor’s misconduct and improper disparagement of defense counsel in closing arguments.
We granted review in this case to determine whether defendant’s communications with Lueck were protected by the attorney-client privilege, and whether the prosecutor’s arguments constituted prejudicial misconduct. On the privilege issue, we hold that the Court of Appeal erred in disturbing the trial court’s determination that the privilege did not apply. In addition, we conclude that defendant’s statements were not inadmissible under Evidence Code section 352. Finally, we find that the Court of Appeal erred in determining that the prosecutor committed prejudicial misconduct. We therefore reverse the judgment of the Court of Appeal, and remand the matter to that court for further proceedings not inconsistent with this opinion.
I. Factual and Procedural Background
Defendant, a doctor, and Aissa Marie Wayne, daughter of the late movie actor John Wayne, were married in 1986. In February 1987, defendant and Wayne had a daughter named Anastasia.
Soon after the baby was born, the marriage began to deteriorate. Defendant twice threatened to kill Wayne if she got in the way of his relationship with Anastasia. He also warned Wayne that if she left him he would flee to Greece with Anastasia and Wayne would never see her daughter again. Despite these threats, Wayne left defendant in June 1987, taking Anastasia with her.
A bitter custody dispute ensued. A few months after Wayne left defendant, she discovered that she was under surveillance by Dan Gal, a private [9 Cal. 4th 1203] investigator hired by defendant. Although Wayne knew she was being watched, she pursued her normal lifestyle.
Christine Foss was an employee of defendant at his clinics in Upland, Corona del Mar and Palm Springs. In July 1987, defendant told Foss of his anger over Wayne’s departure and said he could hire people to physically harm Wayne if she ever “messed with him.” Subsequently, defendant told Foss and a coworker to resign from his clinics after they went to watch Wayne play tennis in Corona del Mar. Foss did not report her conversation with defendant to the police until three months after the assaults on Wayne and Luby in October 1988.
John Lueck was an attorney who referred clients to defendant for medical evaluations. In May or June 1987, Lueck received a telephone call from defendant asking him to come to defendant’s home. Defendant was in tears. He said he had just been served with divorce papers, and he needed somebody to talk to because he was upset. Although Lueck initially declined to go to defendant’s home, he ultimately agreed to meet defendant after making it clear that he would not be willing to have any involvement as a lawyer in defendant’s dissolution case. Lueck refused to represent defendant because he knew both defendant and Wayne.
When Lueck arrived at defendant’s home, defendant said he was upset about the circumstances of the separation and about the fact that Wayne had taken the baby. Defendant displayed very wide mood swings, alternating between tears and anger. At one point during the visit, defendant showed Lueck a declaration by Wayne in support of an order to show cause, and indicated he would like to change venue from Orange County to Los Angeles County because Wayne was the daughter of one of Orange County’s most famous residents; the county airport was his namesake. Lueck, speaking as defendant’s friend, said he thought a change of venue might be appropriate, but did not offer to do it. Lueck also told defendant to quickly retain a good attorney.
While in one of his very angry moods, defendant showed Lueck some holes in a wall, as well as a closet door off its track in the bedroom. Defendant said that the altercation which resulted in the holes in the wall was nothing relative to what he was capable of doing. He also told Lueck that Wayne “had no idea how easy it would be for him to pay somebody to really take care of her.”
After hearing defendant make these statements, Lueck commented that if something were to happen to Wayne during the dissolution or a child [9 Cal. 4th 1204] custody dispute, defendant would certainly be the primary suspect. Defendant replied he “was too smart to do something like that at a time when it would be obvious that it was his responsibility.” Defendant then said that if he were to do something, he “would wait until an opportune time and circumstances [sic] so that suspicion wouldn’t be directed towards him.” Defendant also told Lueck he had friends, family and money in Greece available to him in the event he needed to leave the country. Lueck did not immediately contact the police about defendant’s statements because at the time he believed they were simply expressions of anger.
On a Friday in October 1987, defendant showed up at Lueck’s office, apparently upset with some papers that had been prepared by his counsel in his dissolution case. Defendant appeared desperate. He told Lueck that Wayne was trying to prevent him from having Anastasia at her baptism, that his attorney was unavailable, and that something had to be done immediately because people were leaving Greece that Friday afternoon for the baptism. Defendant pleaded with Lueck to go to court on an ex parte basis. Lueck agreed, but when he went to court, an irate judge told him that arrangements had already been made. The judge then accused Lueck of being part of an effort to harass Wayne. Lueck was paid $750 for the court appearance.
During January and February 1988, Wayne began a romantic relationship with Roger Luby. Wayne had been upset over the breakup of her marriage and the custody dispute, and she leaned heavily on Luby for emotional support. At some point, defendant made sarcastic remarks to Wayne concerning Luby and commented on the considerable amount of time that they spent playing tennis.
In the summer of 1988, Robert Cornely visited Gal, the private investigator hired by defendant. At Gal’s house were Jerrel (or Jerry) Hintergardt and another man. Cornely had agreed to help Gal by going with Hintergardt and the other man to serve papers regarding a custody dispute at a house in the beach area. Cornely was unaware anything unlawful was planned, but he was uncomfortable and felt the situation was “not right.” Cornely and the others left after the person for whom they were waiting did not come home.
On the morning of October 3, 1988, Wayne and Luby attended an aerobics class in Corona del Mar. At approximately 11:30 a.m., they returned to Luby’s residence in Newport Beach. Hintergardt and a man named Jeffrey Bouey were waiting. They approached Luby and Wayne as Luby and Wayne exited their car in the garage, and asked Luby if his name was Roger Luby. Luby said yes.
Suddenly, the men drew guns. When Luby asked if they were joking, Hintergardt said, “This isn’t no fucking joke,” and struck Luby on the head [9 Cal. 4th 1205] with his gun. Hintergardt threatened to kill Luby if he yelled or screamed. He forced Luby to the ground, holding the gun to his head. After handcuffing Luby’s hands and ankles, Hintergardt repeatedly smashed Luby’s face into the concrete floor, warning him not to move or scream. Hintergardt then severed Luby’s right Achilles tendon with a knife, and attempted to do the same to the left tendon.
Meanwhile, Bouey held a gun to Wayne’s head and forced her to the ground. When Hintergardt finished with Luby, he handcuffed Wayne’s hands and feet. Hintergardt yelled at Wayne, then grabbed her hair and slammed her face into the concrete floor twice. Wayne felt her head split open and blood stream down her face. Hintergardt told her, “You’re fucking with the wrong people.”
After Hintergardt and Bouey left, Wayne and Luby were taken to a hospital for medical treatment. Wayne required more than two dozen stitches for the wound to her head. Luby received stitches on his head and on his severed right Achilles tendon. He had to wear a full hip-to-ankle cast for three weeks, then a knee-to-ankle cast for some time after that. Even after months of therapy, Luby’s right Achilles tendon felt dead and numb.
Gal, Hintergardt, Bouey and defendant were arrested. None of them testified at defendant’s trial. Telephone records, however, showed that more than 1,000 telephone calls were made between numbers connected to Gal and defendant (and calls between telephones connected to Gal and Hintergardt and Hintergardt and Bouey). Although there were never any calls directly between the numbers for defendant and Hintergardt or Bouey, a flurry of calls between the numbers for Gal and defendant occurred on October 3, 1988, just before and after the attack on Wayne and Luby. Several calls were placed between Hintergardt and Gal on that date as well. The records also revealed that, on the day after the attack, Gal called defendant’s number immediately after a police officer told Gal that his car was seen near the scene of an attack the day before, and that a detective would like to speak with him. fn. 1 In addition, bank records showed that defendant paid a considerable amount of money to Gal during the period of the surveillance. By far the largest payment, $40,000, was paid within the two weeks preceding the attacks.
The jury found defendant guilty on all four charged counts: conspiracy to commit an assault, conspiracy to commit a trespass, assault with a deadly [9 Cal. 4th 1206] weapon on Luby, and assault with a firearm on Wayne. fn. 2 After denying defendant’s motion for a new trial, the trial court sentenced him to an aggregate term of five years in state prison. Additionally, the court granted a motion for bail pending appeal, and set bail at $2 million.
The Court of Appeal reversed defendant’s convictions, finding that defendant was prejudiced by a combination of the trial court’s erroneous admission of defendant’s statements to John Lueck in violation of the attorney-client privilege, and the prosecutor’s misconduct and improper disparagement of defense counsel in closing arguments. We granted the People’s petition for review. (More at this LINK) —05/04/1995
Students Claim They Were Misled by University
No records indicate Aristotle University is licensed by the state, according to NBC 7 investigation
Albert Anarwat, 24, worked as a nurse in his home country of Ghana, Africa. His passion was helping others.
“If you look at where we are coming from, we have a lot of problems, health issues,” he said.
Students Claim They Were Misled by University
Albert Anarwat, 24, worked as a nurse in his home country of Ghana, Africa. His passion was helping others. (Published Wednesday, Feb. 6, 2013)
Raised by farmers in a small mud hut, Albert dreamed of a better life.
“I wanted to help my family, put them in a better position.”
Last September, Albert decided to come to the United States to get his Master’s degree in Public Health. A friend told him about Aristotle University in Carlsbad. The program cost $25,000 for a two-year course.
He sold everything, used his entire life savings, about $10,000 to move to the United States. He says he’s paid $3,000 to Aristotle University. But, when Albert arrived in September, it was nothing like he had envisioned. Instead of a large sprawling campus, the entire University was in one room, in an office building.
Albert told NBC7, “It’s just an office. There’s no library. There is nothing. Just a few chairs.”
Albert says the director of admissions said they would help him find a job and assist with housing, while he was a student. But, Albert was dropped off at a motel and the job never came. He was thrust into a classroom with other international students, into a course that was already eight months in progress.
Albert says class is held once a week. He says most of the time they watch educational videos and use old textbooks. At one time there were more than 20 students, Albert says less than a dozen attend now.
“The issue is, if we are paying at the end of the day what am I going to get from it? I am just going to get a mere paper that cannot take me anywhere? And I cannot defend the course because they are not giving me the best and you go home and they say you have Masters in public health and you have nothing.”
On its website, Aristotle University claims it is licensed by the Bureau for Private Post-Secondary and Vocational Education, but a spokesperson from that bureau told us there is no record of it ever being licensed by the state.
The spokesperson also says it has begun a preliminary investigation of Aristotle’s claim, based on our inquiry. The University’s website says Aristotle is also a law school. But the school is not registered with the State Bar of California.
NBC 7 checked to see if Aristotle had a business license in the City of Carlsbad and found none.
Lisa Robinson works for a nursing agency and befriended 8 of the students.
“I went to the police department, who referred me to the city code enforcement, who referred me to business and licensing,“ Robinson said. "It was just this big circle.”
She tried desperately to get them help from nearly 30 different agencies or elected officials. She says no one will help her.
“I just hate injustice and I just can’t believe this is happening , you know I can’t believe this is happening to human beings.”
Albert isn’t the only student who has complaints about Aristotle University. We received e-mails from other Aristotle Students.
One student from Cameroon wrote an email that stated in part, “There are no professors, classes are held once a week on Monday and if Monday is a holiday then no class for that week. The situation is not anything I had anticipated, not even in my country had I seen such meaningless education offered to students.”
This was an email from a student from Ghana: "I claim to be pursuing public health, but unfortunately I cannot speak on public health related issues. This is because I am studying fiction. There is no doubt that, Aristotle University have lured us immigrants into the USA only to use as money making machines at the expense of our future.”
Another email provided to NBC7 by a student shows that if tuition payments are late, the schools’ Dean and co-founder, Xanthi Gionis says they will be stripped of their student Visas and Deported. This is the reason students are scared to speak out.
“So because of that, most of us are paying the fees not because of the school. Because we are just paying to live in the United States. Because we don’t want to get immigration problems,” said Albert.
NBC 7 reached out to the co-founders and deans Dr.Thomas Gionis and Xanthi Gionis, to get reaction to the accusations. NBC 7 called the number listed on Aristotle University’s website, but there was no answer or voicemail. Meantime NBC 7 sent Xanthi Gionis an email asking her to respond, within minutes, the school’s website was taken down.
NBC 7 went to the classroom on Palomar Airport Road. No one was there. We did get a response by email from Xanthi Gionis on Friday. She told us the school had been sold, but she wouldn’t give us the name of the new owner. A public records search didn’t provide any indication it had been sold.
Sunday night, students received an email from Xanthi Gionis stating that classes has been relocated to a new office building on Carlsbad Village Drive. She told one student to bring a tuition check to that location for $1,000 dollars.
Monday morning, NBC 7 went to the school’s new location. Xanthi Gionis was there, but closed and locked the office door when NBC7 asked for a comment. Then Xanthi Gionis called the police. But Carlsbad police officers said NBC 7 crews were acting within their legal rights.
Meanwhile, Albert says all he wants is a real education and to get his Master’s degree in public health.
“I cry every day,“ he said. "I weep every day. I never knew there could be something like this happening in the nation like United States.”
He wants to feel like someone in the U.S. cares about him, just as much as he cares about helping others in his home country.
“Sometimes I look at the world and say it’s very unfair.” (LINK) — 02/06/2013
My new ‘neighbor’ in Sacramento: a fat stem cell clinic
For years I’ve been writing about stem cell clinics that sell non-FDA approved stem cell “treatments” to vulnerable patients right here in America.
These clinics have been sprouting up like mushrooms across the US and their numbers may be above 200 today overall. As a result perhaps it was inevitable that one would arrive in a locale near me.
Tomorrow, July 11, reportedly the Irvine Stem Cell Treatment Center will open a Sacramento, CA branch. The doctor there will apparently be Thomas A. Gionis. This private, for-profit clinic has no affiliation with UC Davis School of Medicine in Sacramento where I’m located.
The stem cell clinic Sacramento branch will sell transplants of fat stem cells in the form of something called stromal vascular fraction or SVF, which I believe is almost certainly a drug. To my knowledge this clinic and the large chain that it belongs to called Cell Surgical Network (CSN), do not have FDA approval to use SVF.
Both publicly and to me on this blog, CSN continues to argue that it doesn’t need FDA approval (here, here and here), but recent FDA draft guidances sure suggest otherwise in my view. Of course if the FDA never takes action on the use of SVF then how are we all supposed to interpret that? Without FDA action or finalized guidelines, is it formally possible that the FDA could back down on SVF?
This clinic will reportedly sell SVF to treat a dizzying array of conditions having nothing to do with fat:
To me as a scientist the use of SVF to treat all these very different conditions does not make good common sense.
It would also seem arguably to be quite likely be considered “non-homologous use” by the FDA, a standing that would also automatically make this a drug requiring FDA pre-approval. Non-homologous use means using a biological product of a certain kind that is not homologous (not the same or similar in origin) to the tissue being treated. For example, fat is not the same as the brain or other central nervous system tissue that is involved in several of the conditions on the clinic menu. Same goes for cardiac muscle, airways, etc.
The use of a non-FDA approved product in a largely non-homologous manner increases risks for patients. Note that these stem cell transplants are also very expensive with little evidence in the way of published data of benefit.
The CSN stem cell clinic in Sacramento will be located at the New Body MD Surgical Center, just about 10 minutes from my office. I plan on paying them a visit at some point. Let’s see how that goes. Will they let me in? (LINK) — 07/10/2015
Clean Bill for Aristotle University? Suit Says State Dropped Closure Order
School founder Xanthi Gionis was subject to bad press while running for state Senate seat in South Bay.
Two months after suing state agencies and officials for $21 million, the co-founder of Carlsbad’s Aristotle University says private school regulators have dropped their closure order.
Xanthi Gionis, the shuttered school’s former co-owner, filed an amended lawsuit in Sacramento federal court Thursday that declares the California Bureau for Private Postsecondary Education has “withdrawn all disciplinary actions.”
On June 21, the BPPE officially withdrew its action ordering the school to immediately cease operations and pay a $50,000 fine, “which could have increased to a half a million dollars or more,” Gionis said Friday via email.
Russ Heimerich—a spokesman for the agency as well as one of many defendants in the suit—said Friday that “she’s partly right.”
He said the citation and abatement order of May 2, which included the fine for operating without bureau approval, was withdrawn for a “technical reason” he couldn’t immediately specify.
But he said another citation is forthcoming.
“Stay tuned,” he said in a phone interview. “We haven’t dropped anything. There will be more from us.”
Contacted by phone Friday, Gionis said there’s been “zero investigation” of her former school. “If I was in their shoes, I’d be looking for a way out (too).”
Asked later whether the school could reopen, Gionis said: “Unfortunately, I cannot comment on that at this time.”
In a 23-page amended complaint, San Francisco-based attorney Keith Oliver repeated that Gionis’ damages are “substantial and irreparable.”
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“While the actions of the state and its public officials were clearly improper, the bureau has at least taken the first step to repair the damage done to Ms. Gionis and Aristotle University,” Oliver said in a statement. “It would be prudently appropriate for the other parties involved in this case to do the same.”
Gionis is continuing to sue state officials, state Sen. Mark Wyland of Carlsbad (said to have called Aristotle a “diploma mill”) and a nurse who claims to have taught at Aristotle’s School of Public Health.
In fact, Gionis won a three-year civil harassment restraining order against the nurse, Karin Tausan, whose behavior was “beyond outrageous” and included false allegations against her and frightening contacts with her family, Gionis said in a phone interview.
And Tausan never taught at Aristotle, Gionis said.
Now living in San Carlos near the north end of Lake Murray, the former Chula Vistan is fighting to regain her reputation after dealing with bad press while running as a Republican for state Senate seat in the South Bay.
In early February, Gionis held a press conference outside San Diego City Hall to rebut allegations about Aristotle University that she called “horrifically false” and “politically motivated.”
She responded to an NBC San Diego report that found the university—which operated at times at 6185 Paseo Del Norte and 701 Palomar Airport Road—wasn’t certified with the state and lacked a city business license.
She slammed what she called “reckless reporting” by NBC San Diego, which she called “an alleged investigative report that is full of erroneous, easily verifiable information.”
In its May 2 citation, the former chief enforcement official for the state agency, Connie Bouvia, said: “You must also refund all monies (tuition and fees) to all students that were enrolled at Aristotle University after Jan. 1, 2010.”
Bouvia ordered Gionis to provide a list of those students, contact information and tuition they either paid or were refunded.
But Gionis said she had a conversation with Bouvia in which the agency enforcement chief conceded that Aristotle was licensed to operate through April 2015.
“She [Bouvia] admitted it and said she would work something out for me—those were her exact words,” Gionis told Patch.
Bouvia later left the agency and now works for the Contractors State License Board, according to her LinkedIn profile. (LINK) — 07/19/2013
FDA Warning Letter to Irvine Stem Cell Treatment Center Clinics Across US
The FDA has sent a Warning Letter to the Irvine Stem Cell Treatment Center. The leader of Irvine Stem Cell Treatment Center is Dr. Thomas Gionis and the letter was addressed to him. Interestingly, this letter, dated December 30, 2015, contains redactions.
At one time this clinic was part of the larger Cell Surgical Network (CSN) chain of clinics, but it seems it is no longer listed on the CSN website. You can see, however, that Gionis and Irvine are listed on this archived page from the CSN website.
Both publicly and on this blog, CSN in the past argued that it doesn’t need FDA approval for its stem cell product or its use (here, here and here), but recent FDA draft guidances imply otherwise in my opinion. Note that this new Warning Letter does not mention CSN.
This is post number one in a series on the breaking news on this development.
A Warning Letter is a serious form of FDA action. For instance, the Texas stem cell clinic Celltex received one and later moved its clinical operations to Mexico in part as a result. It’s unclear at this time what impact if any the Warning Letter will have on Irvine Stem Cell Treatment Center (note that it has multiple locations in NY, CA, and FL, each mentioned in the letter), but it’s definitely bad news for the clinics in my view.
The Letter outlines three major areas of problems:
(1) the adipose stem cell product being used (stromal vascular fraction or SVF) is an unapproved biological drug
(2) non-homologous use of the product
(3) more than a dozen specific problems related to the production of the stem cell product SVF at the Irvine facility that the FDA termed, “a number of significant objectionable conditions”.
All three general areas of issues are serious.
The first two problems related to the FDA defining the SVF as a drug product and its use in what the FDA calls a nonhomologous fashion probably will have the broadest impact across the US. More than one hundred clinics use SVF in the US without having any FDA approval or licensing, and they use it in similar ways to Irvine that are likely to be deemed nonhomologous use as well.
As a result, this Warning Letter should be a wakeup call to these clinics. Despite the quietness of the FDA in the last two years on stem cell clinics, this could indicate a period of greater activity has begun.
The section defining the SVF as a drug in the letter is this one, emphasis mine:
“Your SVF product is intended to treat a variety of diseases and conditions, including, but not limited to, autism, Parkinson’s disease, pulmonary fibrosis, chronic obstructive pulmonary disease (COPD), multiple sclerosis (MS), cerebral palsy, and amyotrophic lateral sclerosis (ALS), and is therefore a drug under section 201(g) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) [21 U.S.C. 321(g)] and a biological product as defined in section 351(i) of the Public Health Service Act (PHS Act) [42 U.S.C. 262(i)]. It is also a human cell, tissue, or cellular and tissuebased product (HCT/P) as defined in 21 CFR 1271.3(d).”
The relevant section on non-homologous use:
“In addition, your SVF product fails to meet 21 CFR 1271.10(a)(2)’s criterion that the HCT/P be “intended for homologous use only, as reflected by the labeling, advertising, or other indications of the manufacturer’s objective intent.”
The other dozen or so issues with the production and the facility practices of Irvine Stem Cell Treatment Center are quite significant as well in my view and include sterility practices.
The FDA inspected several Irvine Center clinic locations, but apparently not the one that seemed to kinda pop up last year in my neighborhood here in Sacramento. I’m not sure if this local one exists currently.
Irvine has responded to some ongoing issues raised related to the series of inspections, but not sufficiently says the FDA. Notably, the section on responses included this partially redacted phrase:
“you have terminated your relationship with the (b)(4)“.
I wonder if this refers to CSN? Hard to know.
Even though this Warning Letter does not mention CSN, the issues raised therein are in my view likely to be at least somewhat of interest to active CSN clinics too. I’m planning to contact CSN leadership to ask for a reaction to the letter and clarify whether CSN and Irvine are indeed no longer affiliated as would seem to be the case.
Irvine has only a few more days left of the 15 day response period to address the concerns raised by the FDA.
Stay tuned for more on this breaking news in follow up posts. This is a long Warning Letter with much to think about in it. (LINK) — 01/12/2016
Content Wiped on Websites of Stem Cell Clinics Warned by FDA
A couple of months back, the FDA issued a warning letter to three co-owned stem cell clinics selling fat stem cell-based interventions to patients for a variety of ills.
You can read all about the warning letter here. It went to lead clinic, Irvine Stem Cell Treatment Center as well as the two co-owned clinics, which are Manhattan Regenerative Medicine and Miami Stem Cell Center. Dr. Thomas Gionis was the person to whom the letter was addressed.
Many questions have been raised by the FDA warning letter including why this particular set of three clinics were warned, when others seemingly doing just about the exact same thing have not been warned, at least that we know of so far.
Stay tuned for more on Irvine and Miami Stem Cell Centers probably in the next week or so. (LINK) — 03/08/2016
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