People v. Abarbanel

McMURRAY, J. pro tem.

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Defendant Abarbanel was tried on an indictment charging in Count I a conspiracy to commit abortion, a violation of Penal Code, section 182, and in Count II with having committed an illegal abortion upon Judy Diane Mitchell, a violation of Penal Code, section 274. Before trial a codefendant with Abarbanel, one Hooker, appears to have obtained a dismissal of the charges under Penal Code, section 995. Trial was commenced against defendants Abarbanel, a medical doctor, Solomon and Wilkins, medical doctors specializing in psychiatry, and Edlin, Diane’s paramour. At the conclusion of the People’s case

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motions to dismiss were granted as to defendants Solomon and Wilkins, under Penal Code, section 1385, but denied as to defendants Abarbanel and Edlin. At the conclusion of the trial Edlin was acquitted on both counts and defendant Abarbanel was found not guilty as to the conspiracy count, but was found guilty of abortion. His motion for new trial was denied and he was fined and granted three years probation. From this judgment he appeals.

After becoming pregnant while separated from her husband, Diane visited two gynecologists who both determined that she was pregnant. One of these doctors noted nothing unusual in her behavior and did not find her despondent; the other found her to be very upset on her first two visits, but on her last visit she stated that she now was married and appeared to be in better spirits.

Diane herself testified that she considered herself to be in good health; that she had been having no difficulty with her pregnancy, and further that she considered her mental outlook to be good, and that she had never attempted any acts of self-destruction nor even pondered such possibilities. It appears that Diane and Edlin had a series of disagreements culminating in discussions of the possibility of abortion and appointments were made for her to see three doctors on September 15, 1962. Accordingly Diane visited Dr. Solomon on that date and after being interviewed by him he wrote a letter addressed to appellant stating that in his opinion an interruption of her pregnancy was indicated as necessary to save her life from the possibility of suicide.

Appellant’s name was first mentioned by Dr. Solomon in this interview and after a telephone call appellant agreed to see Diane later that morning. At that meeting appellant performed a pelvic examination upon Diane and told her she was four to four and a half months pregnant; and questioned her about her reactions to sexual relations. She testified that appellant advised her that the abortion could be performed and explained the particulars of the procedures to be followed and that the charge would be $1,000'unless hospitalization became necessary in which event the charge would be $1,200, payment, cash in advance.