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 20531 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.
*940Sections 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 risk of great bodily harm, serious physical or mental illness, or death” to the language of section 2053, making section 2053 a “wobbler,” either a misdemeanor or a felony depending on the sentence imposed. This legislative intent is reflected in the reports submitted to then Governor Reagan in August 1967. Reports from the chairman of the Senate Standing Committee on Legislative Representation and from the Department of Professional and Vocational Standards both stressed the bill “would increase [the] penalty from simple misdemeanor to possible felony ... in aggravated circumstances.” (Italics added.) (Cal. Dept. Prof, and Vocational Stds., Enrolled Bill Rep. for Sen. Bill No. 225 (1967 Reg. Sess.) prepared for Governor Reagan (Aug. 9,1967) [available at Cal. State Archives]; see letter from Sen. Tom Carrell to Governor Reagan (Aug. 4, 1967) regarding Sen. Bill No. 225 (1967 Reg. Sess.) [available at Cal. State Archives].) This legislative history makes equally clear, however, that the Legislature did not intend conduct which did not create “risk of great bodily harm, serious physical or mental illness, or death” to be treated as a felony. Implicit in its actions retaining section 2052 the Legislature determined conduct not creating an imminent risk of physical or mental harm was properly punishable as a misdemeanor.
The language of section 2053 clearly and unambiguously reflects the underlying purpose of the statute. In order for the conduct to be a felony the unlicensed person must willfully act “under circumstances or conditions which cause or create risk of great bodily harm, serious physical. . . illness, or death.” (Italics supplied.) In other words the risk of harm must be present in the circumstances or conditions caused by the offender rather than merely having created a potential for harm at some indefinite time in the future. Had the Legislature intended that future risk of harm be treated as a felony it would have so provided.
The temporal significance of the language of section 2053 was not lost on the district attorney in this case. The charging allegations of counts two and four covered the arrangement of the first and second “Juri Flap” operations *941and Lugo’s postoperative care specifically referring to the periods between January 1 and January 28, 1989, and January 29 and February 11, 1989, respectively. Count six covering the period between February 12 and March 5, 1989, involved the arrangement of the breast implant and facelift operations and postoperative care. There should be no serious question that during these three relatively lengthy periods Brown placed Lugo in circumstances where Lugo faced the risk of serious physical injury.
Unlike the other charges, count I is limited to one day, December 31, 1988. Because it is charged separately we must consider Brown’s conduct on that day alone to determine whether it constitutes a felony.
Limited to that day alone the evidence established Brown briefly examined Lugo’s scalp, pinched his upper thighs and opined that Lugo would be a good candidate for the “Juri Flap” and liposuction procedures. Although this advice may have created the potential for later risk to Lugo if he elected to proceed with the surgeries there was nothing in the conference itself which subjected him to the present risk of bodily harm. Lugo was physically unaffected by this consultation. And after the consultation Lugo’s ability to make further decisions on his medical care was neither better nor worse. Because nothing inherent in the conference itself placed Lugo in either physical or mental jeopardy I believe Brown’s conduct on that day did not amount to a felony.
My view of the statute seems to be consistent with decisions in other cases. I have been unable to find any case in which a defendant was convicted of violating section 2053 where the defendant conducted himself as Brown did on December 31, 1988. To the contrary, convictions of section 2053 cases rest on substantially more invasive procedures or where the patient was placed in imminent danger. For example in People v. Morgan (1985) 177 Cal.App.3d 466 [225 Cal.Rptr. 673] the defendant injected a controlled substance into the victim and then failed to take her to the hospital. In People v. Burroughs (1984) 35 Cal.3d 824 [678 P.2d 894] the unlicensed person attempted to treat a patient suffering from leukemia.
Dr. Gleason’s testimony does not cause me to reach a contrary decision. Regardless of the factual correctness of his testimony the construction and application of statutes remain questions of law to be determined by the court. (Dean W. Knight & Sons, Inc. v. State of California ex rel. Dept. of Transportation (1984) 155 Cal.App.3d 300, 305 [202 Cal.Rptr. 44].) There is nothing in the language of section 2053 which requires us to resort to the opinion of a medical expert. While there may be statutes couched in ambiguous or confusing terms necessitating such testimony, section 2053 is not one of them.
A petition for a rehearing was denied October 10, 1991, and appellant’s petition for review by the Supreme Court was denied January 8,1992. Mosk, J., was of the opinion that the petition should be granted.
Unless otherwise specified, all statutory references are to the Business and Professions Code.