People v. Sommer

Filed 3/8/21
CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent, A158234
v.
HEATH JACOB SOMMER (Solano County
Defendant and Appellant. Super. Ct. No. FCR337362)

Heath Jacob Sommer—a psychologist at a mental health clinic on a
military base—sexually assaulted three patients under the guise of using
“exposure therapy.” A jury convicted Sommer of several felonies, including
sexual battery by fraudulent representation (Pen. Code, § 243.4, subd. (c)), 1
and the trial court sentenced him to state prison.
Sommer appeals. He contends: (1) insufficient evidence supports the
sexual battery by fraud conviction; (2) the prosecutor misstated the law
during closing argument; (3) the court erred by instructing the jury with

*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of the following portions
of the Discussion: Section II (No Prosecutorial Error During Closing
Argument); Section III (No Error in Instructing the Jury with CALCRIM No.
1191B); and Section IV (No Error in Declining to Release Portions of the
Victims’ Medical Records).
1 Undesignated statutory references are to the Penal Code.

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CALCRIM No. 1191B, regarding consideration of charged sex offenses; and
(4) the court erred by refusing to release portions of the victims’ sealed
mental health records.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged Sommer with oral copulation by fraudulent
representation (former § 288a, subd. (f), count 1); rape by fraudulent
representation (§ 261, subd. (a)(4)(D), counts 2 and 3); sexual battery by
fraudulent representation (§ 243.4, subd. (c), count 4); and sexual battery (§
243.4, subd. (e)(1), counts 5 through 7).
A. Sommer Sexually Assaults Three Patients
Sommer worked as a psychologist at a mental health clinic on a
military base in Fairfield (base). From 2014 to 2016, he treated numerous
patients at the clinic, including three female service members: I.P., Jeanne
M., and Tiffany S.
1. I.P.
When I.P. told Sommer she had been sexually assaulted twice, Sommer
suggested “exposure therapy” to desensitize I.P. from the trauma associated
with the assaults. During one session, Sommer asked I.P. to “perform fellatio
on him . . . [as] part of [the] exposure therapy.” Afterward, I.P. wondered
why Sommer asked her to perform oral sex, as neither of her prior sexual
assaults involved that act. I.P. realized the sex act was not therapy, but
instead was for Sommer’s “gratification.”
At another session, Sommer offered to perform oral sex on I.P., but she
declined. Soon after, Sommer stopped treating I.P. as there was “nothing
more that he could do” for her. I.P. felt grateful to Sommer because he helped

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her obtain a medical retirement from the military, but she also felt “deceived”
by him.
2. Jeanne M.
During a therapy session, Jeanne told Sommer she had been raped
while serving abroad; in response Sommer suggested Jeanne spend time with
his family, to foster human connection. Jeanne agreed and visited Sommer’s
residence on several occasions for “home sessions.” During these sessions,
Sommer used “exposure therapy” to help Jeanne process the “traumatic
experience” of being raped.
At one home session, Sommer told Jeanne she needed to understand
that “not all . . . sexual contact is bad.” He discussed having sex with Jeanne
“in terms of exposure therapy,” to help her learn to feel “safe.” Jeanne agreed
and had sexual intercourse with Sommer; she trusted Sommer and believed
the therapeutic exercise would be effective. Afterward, however, Jeanne was
“[s]uper confused.” Jeanne continued having home sessions with Sommer
until she was transferred to another base.
3. Tiffany S.
Tiffany attended about 30 therapy sessions with Sommer. At their first
session, Tiffany told Sommer she had been sexually assaulted as a teenager.
In response, Sommer said another patient had “ ‘come into his office and
taken off her shirt and rubbed her breasts on him.’ ” Tiffany thought
Sommer’s comment was “strange” and wondered what it “had to do with
[her].” At the end of the session, Sommer forced Tiffany to hug him goodbye.
This made Tiffany uncomfortable because she did not like to be touched, and
Sommer knew it.
Sommer suggested exposure therapy as a way to “ ‘work through’ ” the
trauma of the sexual assault. As Sommer explained it, by “reliving” the prior

3
trauma, Tiffany would “become desensitized” to it. Sommer diagnosed
Tiffany with personality disorder and predicted she “would commit suicide” if
she did not accept the help he offered. This information—which came from a
medical professional—convinced Tiffany she needed to participate in
exposure therapy. Sommer began the “therapy” by touching Tiffany’s
shoulder or leg. When Tiffany expressed discomfort, Sommer told her to
“ ‘work through it as part of the therapy.’ ”
Tiffany had previously been in therapy. She had never “questioned” a
therapist’s behavior—she assumed the therapist was providing appropriate
treatment. Although Tiffany thought Sommer’s techniques were
“unorthodox,” she continued the sessions because she believed she might be
at risk of suicide without the therapy, and because she worried her
personality disorder diagnosis could harm her career. Tiffany was “confused”
about the physical aspect of the therapy: she did not think it was “normal”
but Sommer represented that it was exposure therapy. Tiffany felt
manipulated by Sommer.
At one session, Sommer asked Tiffany to show him something
“personal” on her body. She resisted, but eventually showed Sommer part of
her tattoo. At other sessions, Sommer touched Tiffany’s breasts “down
through [her] shirt,” touched her vagina through her clothes, and put his lips
close to her neck. Sommer also tried to bite Tiffany’s nipples through her
shirt. Another time, Sommer held Tiffany’s hips and pulled her body into his.
Tiffany was uncomfortable, but she believed the touching was “part of the
exposure therapy.”
During other sessions, Sommer “rubbed himself” against Tiffany and
made her touch his erect penis. She tried to pull her hand away, but he
forced it to remain there, reassuring her it was “ ‘okay’ ” and that he was

4
“ ‘safe,’ ” and urging her to “ ‘work through it.’ ” Tiffany interpreted these
comments to mean the touching was an aspect of exposure therapy, but she
felt uncomfortable and confused. It was not until Tiffany saw Sommer
getting an erection that she fully realized the touching was for Sommer’s
sexual gratification.
Tiffany eventually reduced the frequency of her sessions with Sommer.
Later, Sommer moved to a different job within the clinic.
B. Additional Prosecution Evidence
Psychologist Dr. William Brim described exposure therapy, a method of
treatment where patients discuss a traumatic event or perform an anxiety-
provoking action until the memory or action no longer upsets them. Dr. Brim
also described the therapist-patient relationship and testified sexual activity
between a therapist and patient harms the patient, never serves a
professional purpose, and is “inconsistent” with a therapist’s code of conduct.
“[S]exual contacts” between a patient and therapist leave the patient feeling
“conflicted.” As Dr. Brim explained: “[o]n the one hand, [patients] want to
report it; on the other hand, they don’t want to harm the therapist. Or
maybe the therapist told them that this is a part of the treatment, and so
they’re not sure if it was wrong.”
Two former patients testified Sommer touched them in a sexual
manner and spoke to them using romantic language during therapy. 2
Sommer suggested the touching was a therapeutic exercise designed to help

2The testimony was admitted pursuant to Evidence Code section 1101,
subdivision (b) after the court considered—and rejected—defense counsel’s
Evidence Code section 352 argument. The court excluded other uncharged
acts as “cumulative . . . given that there are three complaining witnesses who
have testified about specific acts that are actually charged.”

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the women learn to be comfortable with intimacy and closeness. Both women
felt uncomfortable with—and confused by—Sommer’s behavior.
C. Verdict and Sentence
The jury convicted Sommer of all charges except count 3. The court
sentenced Sommer to 11 years in state prison.
DISCUSSION
I. Sufficient Evidence of Sexual Battery by Fraud
Sommer contends the conviction for count 4, sexual battery by
fraudulent representation, must be reversed because there is insufficient
evidence Tiffany was “unconscious” of the sexual nature of Sommer’s act of
touching her breast. We disagree.
A conviction for sexual battery by fraud in violation of section 243.4,
subdivision (c) requires the prosecution to prove the victim is “ ‘unconscious of
the nature of the act because the perpetrator fraudulently represented that
the touching served a professional purpose.’ ” (People v. Pham (2009) 180
Cal.App.4th 919, 924 (Pham).) The prosecution must establish “the
defendant tricked the victim into submitting to the touching on the pretext it
served a professional purpose. [Citation.] This can be accomplished even
when the victim has agreed to the act in question. [Citation.] So long as the
victim was unaware of the ‘essential characteristics of the act,’ i.e., the sexual
nature of the act itself, the unconsciousness requirement will be satisfied.”
(Id. at p. 928.)
The “unconsciousness of the sexual nature of the act” need not
“be absolute. Confusion, rather than clarity, is not surprising when a
professional unexpectedly touches the sexual parts of the victim’s body
during purported professional treatment. Confusion or doubt about the
purpose of the touching does not preclude a conviction as long as the jury

6
finds beyond a reasonable doubt that the victim allowed the touching to occur
because of the defendant’s fraudulent misrepresentation of a professional
purpose.” (People v. Icke (2017) 9 Cal.App.5th 138, 149 (Icke).)
“In reviewing the sufficiency of the evidence to support a criminal
conviction, we review the record ‘ “in the light most favorable to the judgment
to determine whether it discloses substantial evidence—that is, evidence that
is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” [Citations.]’
We do not reweigh the evidence or revisit credibility issues, but rather
presume in support of the judgment the existence of every fact that could
reasonably be deduced from the evidence.” (Pham, supra, 180 Cal.App.4th at
pp. 924–925.)
Here, substantial evidence supports the jury’s finding that Sommer
tricked Tiffany into allowing him to touch her breasts on the pretext it served
a professional purpose, e.g., that it was part of her exposure therapy. Using
his position as a medical professional, and leveraging Tiffany’s trust of
psychologists, Sommer convinced Tiffany that her life—and her career—
would be at risk if she did not agree to the exposure therapy. Tiffany thought
Sommer’s techniques were unorthodox and she questioned whether the
touching was appropriate, but she allowed it because Sommer manipulated
her into thinking it was therapeutic. (Pham, supra, 180 Cal.App.4th at p.
927 [defendant’s conduct signaled that his techniques, while “unsettling and
anxiety producing, were a necessary part of . . . treatment”].) It was not until
several months into the therapy—when Tiffany noticed Sommer’s erect
penis—that she fully realized he was achieving sexual gratification.
From this evidence, the jury could easily conclude Sommer’s fraudulent
representations rendered Tiffany unconscious of the sexual nature of his act

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of touching her breast. (Pham, supra, 180 Cal.App.4th at pp. 922, 924
[substantial evidence victims were unconscious of the sexual nature of the
defendant’s touching]; Icke, supra, 9 Cal.App.5th at p. 149 [evidence
supported jury’s finding that the defendant touched victim “with a sexual
purpose, but falsely led her to believe he did so accidentally while acting with
a professional purpose”]; People v. Bautista (2008) 163 Cal.App.4th 762, 779–
781 [sufficient evidence supported finding that victim was misled about the
purpose of the defendant’s actions].)
Sommer’s attempt to reconstruct the timeline to suggest Tiffany “knew”
he “was not practicing true exposure therapy” is not persuasive. In finding
Sommer guilty, the jury concluded Sommer tricked Tiffany into allowing him
to touch her breast on the pretext it served a professional purpose. As this
finding has ample evidentiary support, “it is not the province of this court to
question it.” (People v. Bautista, supra, 163 Cal.App.4th at p. 781; Pham,
supra, 180 Cal.App.4th at p. 925.)
II. No Prosecutorial Error During Closing Argument
Sommer contends the prosecutor misstated the law during rebuttal
argument when he told the jury “ ‘confusion is unconsciousness.’ ” We use the
term “prosecutorial error” rather than “prosecutorial misconduct” (People v.
Centeno (2014) 60 Cal.4th 659, 667, 674 (Centeno)) and conclude the
prosecutor did not err.
A. Background
During closing argument, the prosecutor defined “unconscious” as “not
aware of the essential characteristics of the act because the perpetrator
fraudulently represented that the [sex act] served a professional purpose and
it served no . . . purpose.” The prosecutor explained the unconsciousness does
“not have to be absolute” and that the victims did not “have to be one

8
hundred percent tricked or fooled into thinking that it’s for a professional
purpose. If they’re confused, if they’re not sure, to deal with that confusion,
that uncertainty that this is for a professional purpose that [ ] is represented
to them, that they submit to these acts, that’s enough. They don’t have to be
absolutely one hundred percent sure that this was for their therapy.”
In his closing, defense counsel argued that, as to I.P., “[t]here was no
confusion.” Regarding the other victims, counsel argued the sex acts did not
occur, were consensual, or were performed knowing they were for Sommer’s
sexual gratification. Counsel also suggested the victims were not credible.
In rebuttal, the prosecutor countered that Tiffany did not fabricate her
testimony. The prosecutor reminded the jury that Tiffany was “confused”
because Sommer convinced her the “touching was for her therapy. And she
was confused about it. [¶] And . . . remember from the jury instructions, you
do not have to be one hundred percent unconscious, one hundred percent
certain that you were unaware of the nature of the sexual act. Confusion is
unconsciousness.”
Defense counsel objected that the prosecutor misstated the law. The
court overruled the objection. It concluded the prosecutor had “fairly
commented on the evidence, not the law.” Later, outside the presence of the
jury, defense counsel requested permission to make surrebuttal closing to
address the prosecutor’s statement that “confusion or doubt is sufficient.”
The court denied the request. It determined the statement was a “fair
comment on the evidence” and noted a victim’s awareness of the sexual
nature of the act was a factual issue for the jury.
B. The Prosecutor Did Not Misstate the Law During Rebuttal
Argument
“[P]rosecutors have wide latitude to present vigorous arguments so long
as they are a fair comment on the evidence, including reasonable inferences

9
and deductions from it.” (People v. Leon (2015) 61 Cal.4th 569, 606.) But “ ‘it
is improper for the prosecutor to misstate the law generally, and particularly
to attempt to absolve the prosecution from its . . . obligation to overcome
reasonable doubt on all elements.’ ” (Centeno, supra, 60 Cal.4th at p. 666.) A
prosecutor’s behavior violates the federal Constitution “ ‘when it infects the
trial with such unfairness as to make the conviction a denial of due process.
Conduct by a prosecutor that does not render a criminal trial fundamentally
unfair is prosecutorial [error] under state law only if it involves the use of
deceptive or reprehensible methods to attempt to persuade . . . the jury.’ ”
(People v. Linton (2013) 56 Cal.4th 1146, 1205.)
“When attacking the prosecutor’s remarks to the jury, the defendant
must show that, ‘[i]n the context of the whole argument and the instructions,’
[citation] there was ‘a reasonable likelihood the jury understood or applied
the complained-of comments in an improper or erroneous manner.
[Citations.] In conducting this inquiry, we “do not lightly infer” that the jury
drew the most damaging rather than the least damaging meaning from the
prosecutor’s statements.’ ” (Centeno, supra, 60 Cal.4th at p. 667.)
A victim’s lack of awareness of the sexual nature of the act is an
element of the crimes at issue. (Pham, supra, 180 Cal.App.4th at p. 928;
People v. Robinson (2016) 63 Cal.4th 200, 208.) As stated above, the lack of
awareness need not be absolute: “Confusion or doubt about the purpose of
the touching does not preclude a conviction as long as the jury finds beyond a
reasonable doubt that the victim allowed the touching to occur because of the
defendant’s fraudulent misrepresentation of a professional purpose.” (Icke,
supra, 9 Cal.App.5th at p. 149.)
In rebuttal, the prosecution responded to defense counsel’s argument
that “there was no confusion” by reminding the jury that Tiffany testified she

10
was “confused” by Sommer’s act of touching her breast because Sommer
convinced Tiffany the “touching was for her therapy.” Referencing the jury
instructions the jury would later receive, the prosecutor stated: “you do not
have to be one hundred percent unconscious, one hundred percent certain
that you were unaware of the nature of the sexual act. Confusion is
unconsciousness.” By pointing out Tiffany’s confusion about whether the act
was for her therapy and urging the jury to conclude Tiffany was unaware of
the sexual nature of the act, the prosecutor was not giving the jury an
erroneous definition of unconsciousness but making a factual argument
premised on evidence in the record. (Icke, supra, 9 Cal.App.5th at p. 149.)
There is no indication the jury understood or applied the prosecutor’s
comment in an improper or erroneous manner. (Centeno, supra, 60 Cal.4th at
p. 667.) When the court overruled defense counsel’s objection, it noted the
prosecutor had “commented on the evidence, not the law.” (Italics added.)
Even assuming the jury interpreted the prosecutor’s comment as stating a
legal definition, the court directed the jury to follow the jury instructions, not
the “attorneys’ comments on the law.” 3
Sommer’s reliance on People v. Hill (1998) 17 Cal.4th 800, overruled on
another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069,
fn. 13, is misplaced. There, the prosecutor committed “serious, blatant and
continuous misconduct” by—among other things—misstating the law several
times during closing argument. (Id. at pp. 844, 829–832.) In one instance,
the prosecutor omitted the force or fear element of robbery, which
undermined the “defendant’s primary defense.” (Id. at p. 831.) The
California Supreme Court concluded the prosecutor’s “pervasive campaign to

3 Sommer does not challenge the prosecutor’s reference to the victims’
“confusion” at the outset of closing argument and he does not contend the
instructions on the offenses were incorrect.

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mislead the jury on key legal points,” when combined with numerous other
errors, including instructional error, required reversal. (Id. at pp. 846–847.)
This case bears no resemblance to Hill. There was no “pervasive campaign”
of misinformation here, only a brief comment on the evidence.
As we conclude the prosecutor did not misstate the law during rebuttal
argument, we do not address Sommer’s claims that the court erred by
denying his request for surrebuttal argument, nor his contention that the
errors were prejudicial.
III. No Error in Instructing the Jury with CALCRIM No. 1191B
Sommer claims the court erred by instructing the jury with CALCRIM
No. 1191B.
That instruction provides: “The People presented evidence that
[Sommer] committed the crimes of oral copulation by fraudulent
representation as charged in Count 1, rape by fraudulent representation as
charged in Counts 2 and 3, sexual battery by fraud as charged in Count 4,
and sexual battery as charged in Counts 5 through 7. ¶ If the People have
proved beyond a reasonable doubt that [Sommer] committed one or more of
these crimes, you may, but are not required to, conclude from that evidence
that [Sommer] was disposed or inclined to commit sexual offenses, and based
on that decision, also conclude that [Sommer] was likely to commit and did
commit the other sex offenses charged in this case. ¶ If you find that
[Sommer] committed one or more of these crimes, that conclusion is only one
factor to consider along with all the other evidence. It is not sufficient by
itself to prove that [Sommer] is guilty of another crime. The People must still
prove each charge beyond a reasonable doubt.”
Sommer contends the instruction violates state and federal law by
allowing jurors to rely on a charged offense to find he “had a propensity to

12
commit sexual offenses and was therefore guilty of all charges.” As Sommer
acknowledges, this claim is foreclosed by People v. Villatoro (2012) 54 Cal.4th
1152 (Villatoro). There, our high court held an instruction similar to the one
at issue here did not violate the defendant’s due process rights or
impermissibly lower the standard of proof. (Id. at pp. 1167–1168.) We are
bound by the Supreme Court’s opinion. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.) We join the other appellate decisions
following Villatoro and conclude the trial court properly instructed the jury
with CALCRIM No. 1191B. (See People v. Meneses (2019) 41 Cal.App.5th 63,
67–68; People v. Phea (2018) 29 Cal.App.5th 583, 608; People v. Miramontes
(2010) 189 Cal.App.4th 1085, 1103–1104.)
Nor are we persuaded by Sommer’s claim that the court failed to
conduct an Evidence Code section 352 analysis before instructing the jury.
Before it admitted evidence of uncharged prior acts, the court considered
defense counsel’s Evidence Code section 352 argument. Thus, the “court
implicitly conducted an [Evidence Code] section 352 analysis” regarding the
charged acts before giving the instruction. (Villatoro, supra, 54 Cal.4th at
p. 1168; People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 829 [rejecting
similar claim].)
IV. No Error in Declining to Release Portions of the Victims’ Medical
Records
Sommer contends the court erred by declining to release portions of the
victims’ sealed medical records because those documents may have “assisted
counsel in cross-examining the witnesses or developing . . . impeaching or
exculpatory evidence.” Sommer does not contend the court’s ruling violated
his federal constitutional rights.
Defense counsel subpoenaed the victims’ medical records and the base

13
sent them to the court for an in camera review. One of the documents
defense counsel requested was Tiffany’s personal health questionnaire
(PHQ). Counsel argued the PHQ was relevant to show Sommer’s therapy
was helping Tiffany. The court conducted an in camera hearing, after which
it ordered the disclosure of numerous documents, but not the PHQ. It noted
“no separate PHQ documents were . . . produced,” that “nothing like that”
was “filled out by [Tiffany],” and that the PHQ was “not yet relevant.” Later,
the court received the PHQ for Tiffany. It asked the parties whether they
“wish[ed] to make any further record” and they declined.
The court held a separate in camera hearing pertaining to medical
records for Jeanne. After the hearing, the court disclosed some, but not all, of
Jeanne’s medical records. It noted that the additional documents requested
by defense counsel “appear[ed] to just mimic what’s already in the records
being disclosed.”
“This court’s function is to review the confidential records that the . . .
court declined to disclose, in order to determine whether they were material
and should have been disclosed. [Citation.] . . . ‘ “[Evidence] is material only
if there is a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different. A
‘reasonable probability’ is a probability sufficient to undermine confidence in
the outcome.” ’ [Citation.] We also consider the effect of nondisclosure on the
investigations conducted by [defense] counsel and on counsel’s trial strategy.”
(People v. Martinez (2009) 47 Cal.4th 399, 453–454.)
We have reviewed the records and the in camera hearing transcripts.
We conclude the undisclosed information “was not material to the defense.”
(People v. Martinez, supra, 47 Cal.4th at p. 454; People v. Abel (2012) 53
Cal.4th 891, 931 [prosecution witness’s psychiatric records were not material

14
and did not implicate “the preparation or presentation of defendant’s case”];
People v. Gurule (2002) 28 Cal.4th 557, 591–592 [no prejudicial error in
declining to provide defendant with “full access” to victim’s psychiatric
records].) The court did not err by declining to disclose the records.
DISPOSITION
The judgment is affirmed.

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 _________________________
Petrou, J.

WE CONCUR:

_________________________
Fujisaki, Acting P.J.

_________________________
Wiseman, J. *

People v. Sommer/A158234

*
Retired Associate Justice of the Court of Appeal, Fifth Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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Trial Court: Solano County Superior Court

Trial Judge: Hon. E. Bradley Nelson

Counsel: Office of Attorney General, Xavier Becerra, Attorney
General, Lance E. Winters, Chief Assistant Attorney
general, Jeffrey M. Laurence, Senior Assistant Attorney
General, Lisa Ashely Ott, Deputy Attorney General, Arthur
P. Beever, Deputy Attorney General, for Plaintiff and
Respondent.

First District Appellate Project, Cliff Gardner and Daniel
Buffington, for Defendant and Appellant.

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