Dunn v. Superior Court

• Decision Date: 30 December 1993
• Docket Number: No. G014218,G014218
• Citation: 21 Cal.App.4th 721,26 Cal.Rptr.2d 365
• Parties: Dawn DUNN, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; PEOPLE of the State of California, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

Page 365

26 Cal.Rptr.2d 365

21 Cal.App.4th 721

Dawn DUNN, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent PEOPLE of the State of California, Real Party in Interest.

No. G014218.

Court of Appeal, Fourth District, Division 3, California.

Dec. 30, 1993.

Review Denied March 30, 1994.

[21 Cal.App.4th 722] Stokke and Riddet, Allan H. Stokke and William J. Kopeny, Santa Ana, for petitioner.

No appearance by respondent.

Michael R. Capizzi, Dist. Atty., Maurice L. Evans, Chief Asst. Dist. Atty., and Gregg L. Prickett, Deputy Dist. Atty., for plaintiff and respondent.

OPINION

WALLIN, Associate Justice.

Dawn Dunn petitions for a writ of prohibition/mandate to challenge an order compelling her to testify against her husband in grand jury proceedings, ¹ contending she can invoke the marital privilege against such testimony. We deny the writ.

* * *

Dunn was subpoenaed to testify before the grand jury concerning an investigation as to whether her husband killed foster child Eric Dawson, who resided with the Dunns. She appeared before the superior court and invoked the marital privilege not to testify against her husband. ² The superior court found applicable the marital privilege exception for crimes committed against a child of the husband or wife, contained in section 972, subdivision (e)(1), and ordered Dunn to testify.

Section 972 provides in relevant part: "A married person does not have a privilege under this article in ... [a] criminal proceeding in which one spouse is charged with ... [a] crime against the person or property of the other spouse or of a child, parent, relative or cohabitant of either, whether committed before or during marriage." ³ Dunn contends foster child Eric Dawson was neither a "child" nor a "cohabitant" of either her or her husband.

We have found no California case dealing with whether a foster child is a "child" for purposes of applying the privilege, and the legislative history of the statute is silent on the issue. However, in People v. McGraw (1983) 141 Cal.App.3d 618, 190 Cal.Rptr. 461, the court held the term applied to an adult stepchild of the defendant, in the context of an exemption to the analogous privilege for confidential marital communications contained in Evidence Code section 985. (141 Cal.App.3d at p. 622, 190 Cal.Rptr. 461.) ⁴

In reaching that conclusion the court observed the purpose behind the privilege "is to preserve confidence and marital harmony between the spouses. [Citations.] [The exemption] is grounded on the self-evident premise that marital harmony would be nonexistent in criminal actions where a child of either spouse is the victim of a crime committed by one of the spouses." (141 Cal.App.3d at p. 622, 190 Cal.Rptr. 461.)

The same reasoning applies when the child is a foster child. Many foster parents develop close, loving personal relationships with their charges. (See, e.g., In re Rodrigo S. (1990) 225 Cal.App.3d 1179, 1184-1185, 276 Cal.Rptr. 183.) In those instances, injury to the child caused by the other spouse would be harmful to the marriage. That the child is not biologically related to either parent distinguishes it from the converse situation only as a matter of degree.

A similar analysis applies even if one adopts the rather cynical assumption that foster parents view the relationship as no more than a business deal. Here, for example, the Dunns consented by written agreement to provide good care for 19-month-old Eric Dawson, and to refrain from inflicting "CORPORAL/HUMILIATING PUNISHMENT denying child's rights [sic ]". One spouse's breach of this provision by killing the child certainly would not be conducive to optimum marital harmony. ⁵

Two out-of-state cases interpreting similar marital privilege found that foster children were included as children under the exception. In State v. Michels (1987) 141 Wis.2d 81, 414 N.W.2d 311, the court found the term "child of either" was ambiguous and looked to the legislative intent. The purpose of the exception was to allow prosecution for crimes which occurred within the family unit and might go unprosecuted when the spouse was the only witness. The court found there was no reason to distinguish between biological children and foster children for this purpose, at least where the child had sufficient ties to the family unit. (Id. at p. 94, 414 N.W.2d at p. 316.)

The California exceptions to the marital privilege have a similar purpose. Penal Code section 1322, the predecessor to the Evidence Code sections, provided an exception "in cases of criminal violence upon one [spouse] by the other, or upon the child or children of one by the other...." (Stats.1933, ch. 109, § 1, p. 565.) The language connotes an intent to protect society from crimes against family members. In the Evidence Code, the language was expanded to apply the exemption to "a child ... of either." As in Michels, we see no reason to exclude foster children from this definition, as it is consistent with the general legislative intent. (See California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844, 157 Cal.Rptr. 676, 598 P.2d 836.)

The Michels court found the child, who had lived with the family for 10 years, had sufficient ties to the family unit to justify application of the exception. (State v. Michels, supra, 141 Wis.2d at p. 94, 414 N.W.2d at p. 316.) Eric Dawson had lived with the Dunns for five months before his death. No direct evidence of his "ties" to the family is in the record. However, he had lived there three months longer than the written agreement required.

In any event, the child's length of residence should not be the determinative factor. Where the foster parents have entered into a formal agreement to provide a home for the child, they have established a relationship sufficient for invocation of the exception.

In Daniels v. State (Alaska App.1984) 681 P.2d 341 the court also found a foster child was a "child of either" spouse under a statutory scheme similar to California's. In doing so, the court found the policy against child abuse justified construing the marital privilege narrowly. (Id. at p. 345.) ⁶ California law dictates a similar result.

The Legislature has enacted a comprehensive program for foster placement. (Health & Saf.Code, §§ 1500 et seq.) It provides for training for foster parents "to assist them in being effective substitute caregivers and to enhance the safety and growth of children placed with them." (Health & Saf.Code, § 1529.1.) Foster home licensees are subject to a Child Abuse Registry investigation. (Health & Saf.Code, § 1522.1.) In enacting these provisions, the Legislature evidenced an intent to protect children in foster care. Allowing the marital privilege to act as a shield for those foster parents who abuse or kill foster children would be at odds with that intent.

Dunn argues we should not consider the state's interest in protecting children because it is at odds with its interest in preserving a marriage, at least when the spouses are not related to the child. She cites no authority for this proposition, and it is not compelled by logic. We often deal with competing interests which arise from disparate sources. Here, the interest in protecting children, which abounds in the law, is paramount.

Our construction of the exception to include foster children is consistent with the courts' policy to construe privileges narrowly "since they prevent the admission of relevant and otherwise admissible evidence. Professor McCormick points out that, 'all privileges ... are inept and clumsy devices to promote the policies they profess to serve, but are extremely effective as stumbling blocks to obstruct the attainment of justice. Accordingly, the movement should be toward restriction and not toward expansion, of these mechanisms for concealment of relevant facts.' [Citation.]" (People v. McGraw, supra, 141 Cal.App.3d at p. 622, 190 Cal.Rptr. 461; see also People v. Delph (1979) 94 Cal.App.3d 411, 415-416, 156 Cal.Rptr. 422.)

Because we conclude a foster child is a "child" under section 972, we need not determine whether such a child is also a "cohabitant." However, People v. Siravo (1993) 17 Cal.App.4th 555, 21 Cal.Rptr.2d 350 defined the latter term broadly enough to include foster children. (Id. at p. 561, 21 Cal.Rptr.2d 350.) There, the defendant raped his estranged wife's roommate. The Court of Appeal rejected Siravo's argument, the same one Dunn makes here, that "cohabitation" implies sexual relations between cohabitants. It concluded "that a cohabitant is someone who lives together with another," pointing out that this definition is consistent with the meaning given to the term in related contexts and nothing in the legislative history of the Evidence Code sections was contrary to the definition adopted by the court. (Id. at pp. 561-562, 21 Cal.Rptr.2d 350.) ⁷

Dunn launches several attacks on Siravo. He urges: (1) the construction of "cohabitant" is dictum; (2) the court speculated as to what the Legislature intended by the term; (3) the interpretation of the term's "ordinary meaning" is flawed; and (4) the analysis of how "cohabitant" is used in the other statutes is selective. Although our holding is not based upon the meaning of "cohabitant," we make some observations about Dunn's arguments.

In Siravo the construction of "cohabitant" was not dictum. Although the court found the admission of the wife's testimony was harmless, it did so in one paragraph, after devoting three pages to a definition of "cohabitant." The analysis was relevant to the material facts before the court, and does not appear to have been intended merely as a method of passing time until the court reached a one-paragraph tag line on harmless error. (See United Steelworkers of America v. Board of Education (1984) 162 Cal.App.3d 823, 834, 209 Cal.Rptr. 16.)

However, Dunn may have a valid point that the Siravo court erred analytically when it concluded the ordinary...