Brown

I agree with the majority except for their decision to affirm the trial court’s denial of Brown’s Penal Code section 1118.1 motion to dismiss count one. I believe Brown’s conduct charged in that count does not constitute the aggravated circumstances required by Business and Professions Code section 2053 1 escalating his unlicensed practice of medicine to a felony. I would therefore reduce his felony conviction on that count to a misdemeanor under section 2052.

*940 Sections 2052 and 2053 are identically phrased except for the qualifying language added by the Legislature in 1967 when it enacted section 2141.5, the predecessor to section 2053, in order to make the unlicensed practice of medicine a felony in certain situations.

The history of former section 2141.5 reveals there was legitimate legislative concern with the inadequacy of treating criminal conduct associated with the unlicensed practice of medicine as a misdemeanor in all cases. Where the unlicensed person caused a risk of great bodily harm the Legislature wanted the court to be able to sentence the offender as a felon. It therefore added the phrase “who wilfully, under circumstances or conditions which cause or create…

A jury found John Ronald Brown guilty of four counts of unlawfully practicing medicine causing a risk of great bodily injury. (Bus. & Prof. Code, § 2053.) The trial court sentenced Brown to the upper term of three years in prison on the first count, with equal concurrent terms on the remaining counts. Brown appeals, contending (1) the evidence was insufficient to support the convictions, (2) he engaged in a single course of conduct and therefore should not have been punished for multiple counts of a single offense in violation of Penal Code section 654, (3) the trial court erred by instructing the jury it could use evidence of acts performed legally in Mexico to decide if acts performed in California violated the law, (4) the trial court erred by failing to instruct pursuant to CALJIC No. 17.01, and (5) it was error to admit the opinion testimony of an investigator from the Board of Medical Quality Assurance.

Facts

In the spring of 1988, John Lugo, a resident of Orange County, telephoned Brown in San Diego County to discuss a possible sex change operation. *924 Lugo testified that Brown told him he had many years of experience in doing this type of surgery and explained…

A jury found John Ronald Brown guilty of four counts of unlawfully practicing medicine causing a risk of great bodily injury. (Bus. & Prof. Code, § 2053.) The trial court sentenced Brown to the upper term of three years in prison on the first count, with equal concurrent terms on the remaining counts. Brown appeals, contending (1) the evidence was insufficient to support the convictions, (2) he engaged in a single course of conduct and therefore should not have been punished for multiple counts of a single offense in violation of Penal Code section 654, (3) the trial court erred by instructing the jury it could use evidence of acts performed legally in Mexico to decide if acts performed in California violated the law, (4) the trial court erred by failing to instruct pursuant to CALJIC No. 17.01, and (5) it was error to admit the opinion testimony of an investigator from the Board of Medical Quality Assurance.

In the spring of 1988, John Lugo, a resident of Orange County, telephoned Brown in San Diego County to discuss a possible sex change operation. Lugo testified that Brown told him he had many years of experience in doing this type of surgery and explained…