Burroughs

Business and Professions Code sections 2052 and 2053 (hereafter sections 2052 and 2053) proscribe the unlicensed practice of medicine. Under section 2052 it is a misdemeanor for one without a license to practice, attempt to practice, advertise or hold himself or herself out as practicing medicine, or to diagnose, treat, or prescibe for any physical condition of any person. Section 2053 elevates this same conduct to a felony when done “willfully, under circumstances or conditions which cause or create risk of great bodily harm, severe physical or mental illness, or death . . . ,” In this appeal by the People we shall conclude section 2053 is not violated unless the intended victim is actually threatened with such harm.

Defendant was not licensed to practice medicine. An undercover investigator sought treatment from defendant, representing that he was afflicted with physical ailments from which he was not actually suffering. He received diagnosis and treatment from defendant which, had he been so afflicted, would have created a risk of great bodily harm, serious physical illness or death. The trial court granted defendant’s motion (Pen. Code, § 995) to set aside count I of…