1

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,

v.

HEATH JACOB SOMMER

Defendant and Appellant.

 A158234

 (Solano County

 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.
2

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
3

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 
4

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 
5

“ ‘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 anxietyprovoking 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 

2 The 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.” 
6

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 
7

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 
8

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 
9

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 
10

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 
11

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.
12

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 
13

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 
14

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
15

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. 
16

_________________________

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.
17

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.