People v. Stritzinger

• Decision Date: 01 September 1983
• Citation: 668 P.2d 738,34 Cal.3d 505,194 Cal.Rptr. 431
• Court: California Supreme Court
• Parties: , 668 P.2d 738 The PEOPLE, Plaintiff and Respondent, v. Carl William STRITZINGER, Defendant and Appellant. Crim. 22924.

Page 431

194 Cal.Rptr. 431

34 Cal.3d 505, 668 P.2d 738

The PEOPLE, Plaintiff and Respondent, v. Carl William STRITZINGER, Defendant and Appellant.

Crim. 22924.

Supreme Court of California In Bank.

Sept. 1, 1983.

Friedman & Warner and Kenneth R. Warner, Thousand Oaks, for defendant and appellant.

Quin Denvir, State Public Defender, and Marjorie C. Swartz, Deputy State Public Defender, as amici curiae on behalf of defendant and appellant.

George Deukmejian and John K. Van de Kamp, Attys. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Otis D. Wright, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant appeals from a judgment convicting him of multiple counts of child molestation. He contends that certain evidentiary rulings at his trial violated his psychotherapist-patient privilege and his right to confrontation. As will appear, we conclude that both points are well taken and compel reversal of the judgment.

During a 15-month period ending May 1981 defendant allegedly engaged in various acts of fondling, mutual masturbation, and oral copulation with his stepdaughter Sarah. ¹ When Sarah's mother--defendant's wife--learned of these activities she arranged for her daughter and her husband each to see Dr. Walker, a licensed clinical psychologist. During Sarah's counseling session on July 28, 1981, she revealed that she had engaged in sexual activity with her stepfather. Dr. Walker reported the conversation to the child welfare agency that same afternoon. ² The agency in turn relayed the information to the sheriff's office.

The next day Deputy Buttell of the sheriff's office telephoned Dr. Walker to investigate the child abuse report. Dr. Walker told Buttell that he had seen Sarah the day before, and related the substance of her discussion of sexual relations with her stepfather. He also informed Buttell that he was scheduled to meet with defendant himself later that afternoon, July 29, and with Sarah's older sister two days later, July 31. The deputy asked the doctor to call back after his session with Sarah's sister because he was concerned that she might also be the victim of child abuse. However, he hesitated on the issue of defendant's communications, acknowledging there might be a "confidentiality" problem. This telephone conversation was tape recorded.

Defendant saw Dr. Walker as scheduled, and during his conversation with the psychotherapist discussed his sexual relations with Sarah. Deputy Buttell telephoned the doctor again the next day, July 30, to inquire further about the reported child abuse. When Dr. Walker expressed reservations about disclosing defendant's confidential communications, Buttell read him Penal Code section 11171, subdivision (b), part of the Child Abuse Reporting Act, which he described as providing an applicable exception to the psychotherapist-patient privilege. The doctor then recounted the substance of defendant's session of July 29. This telephone conversation was also taperecorded, and a written report summarizing the conversation was prepared.

At the opening of trial defendant moved that Dr. Walker's testimony be excluded on the basis of the psychotherapist-patient privilege. (Evid.Code, § 1014.) The court held that Penal Code section 11171, subdivision (b), provides an applicable exception to the privilege and ruled the testimony admissible.

The court also conducted a pretrial hearing to determine whether Sarah could be declared unavailable as a witness under Evidence Code section 240, subdivision (a)(3), so that her preliminary hearing testimony could be admitted as an exception to the rule against hearsay. (Evid.Code, § 1291.) Based solely on Sarah's mother's testimony and on its conclusion that Sarah's testimony would not be damaging to defendant's case, the court held that Sarah was suffering from a mental illness or infirmity and was thus unavailable as a witness. (Evid.Code, § 240, subd. (a)(3).) Her preliminary hearing testimony was therefore ruled admissible.

At trial Dr. Walker testified, over objection, regarding his July 29 consultation with defendant. To refresh the doctor's memory, the district attorney showed him a copy of the report summarizing his second telephone conversation with Deputy Buttell and, in the absence of the jury, played the tape recording of this conversation for him. Sarah's mother also testified and Sarah's preliminary hearing testimony was read to the jury. Deputy Hoberg testified regarding her interview with Sarah, in order to impeach Sarah's preliminary hearing testimony.

Defendant was convicted of one count of lewd and lascivious conduct with a minor, a felony, in violation of Penal Code section 288a, subdivision (b)(2); one count of misdemeanor child molestation, a necessarily included lesser offense under this section, based on an act of oral copulation; and seven counts of misdemeanor child molestation in violation of Penal Code section 647a. The verdict on one of the latter counts was set aside on defendant's motion to dismiss. Defendant was sentenced to three year's probation with ninety days in the county jail.

I

The Psychotherapist-Patient Privilege

and the Child Abuse Reporting Act.

Defendant first contends that Dr. Walker's testimony regarding the consultation of July 29 was erroneously admitted at trial in violation of the psychotherapist-patient privilege, a relationship subsumed in the right to privacy and defined by statutory provision. On the facts of this case, we agree that the doctor's testimony should have been excluded.

Evidence Code section 1014 provides in part that "the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist...." We acknowledged in In re Lifschutz (1970) 2 Cal.3d 415, 421, 85 Cal.Rptr. 829, 467 P.2d 557, "the growing importance of the psychiatric profession in our modern, ultracomplex society." Thus for reasons of policy the psychotherapist-patient privilege has been broadly construed in favor of the patient. (Roberts v. Superior Court (1973) 9 Cal.3d 330, 107 Cal.Rptr. 309, 508 P.2d 309; Grosslight v. Superior Court (1977) 72 Cal.App.3d 502, 140 Cal.Rptr. 278.) Confidential communications between psychotherapist and patient are protected in order to encourage those who may pose a threat to themselves or to others, because of some mental or emotional disturbance, to seek professional assistance. (Grosslight v. Superior Court, supra, 72 Cal.App.3d at pp. 507-508, 140 Cal.Rptr. 278.)

The psychotherapist-patient privilege has been recognized as an aspect of the patient's constitutional right to privacy. (Cal. Const., art. I, § 1; In re Lifschutz, supra, 2 Cal.3d at pp. 431-432, 85 Cal.Rptr. 829, 467 P.2d 557, citing Griswold v. Connecticut (1965) 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510; Caesar v. Mountanos (9th Cir.1976) 542 F.2d 1064, 1070.) It is also well established, however, that the right to privacy is not absolute, but may yield in the furtherance of compelling state interests. (Britt v. Superior Court (1978) 20 Cal.3d 844, 855, 143 Cal.Rptr. 695, 574 P.2d 766; Jones v. Superior Court (1981) 119 Cal.App.3d 534, 550, 174 Cal.Rptr. 148; Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 680, 156 Cal.Rptr. 55.)

Thus in Lifschutz we held that the patient-litigant exception to the psychotherapist-patient privilege (Evid.Code, § 1016), if narrowly drawn, does not impermissibly invade the patient's right to privacy: "Even though a patient's interest in the confidentiality of the psychotherapist-patient relationship rests, in part, on constitutional underpinnings, all state 'interference' with such confidentiality is not prohibited." (In re Lifschutz, supra, 2 Cal.3d at p. 432, 85 Cal.Rptr. 829, 467 P.2d 557.) Similarly in Jones v. Superior Court, supra, 119 Cal.App.3d at page 550, 174 Cal.Rptr. 148, the court concluded that "The constitutional right is by no means absolute. The state's interest in facilitating the ascertainment of truth in connection with legal proceedings is substantial enough to compel disclosure of a great variety of confidential material, including even communications between a psychotherapist and his patient."

To determine whether the psychotherapist-patient privilege embraced by the right to privacy has impermissibly been violated, we begin by considering the state's competing interest. Here that interest is the detection and prevention of child abuse, and is expressed in the recently enacted Child Abuse Reporting Act. (Pen.Code, § 11165 et seq.) Section 11166, subdivision (a), of the act provides in part that "any child care custodian, medical practitioner, nonmedical practitioner, or employee of a child protective agency who has knowledge of or observes a child in his or her professional capacity or within the scope of his or her employment whom he or she knows or reasonably suspects has been the victim of child abuse shall report the known or suspected instance of child abuse to a child protective agency immediately or as soon as practically possible by telephone and shall prepare and send a written report thereof within 36 hours of receiving the information concerning the incident." Section 11165 of the act provides the following: subdivision (g) defines "child abuse" to include "the sexual assault of a child ..."; subdivision (i) defines "medical practitioner" to include licensed psychiatrists and psychologists; and subdivision (k) defines "child protective agency" to include a "police or sheriff's department" and a "county welfare department." The scope and substance of the reporting requirement are set out in section 11167. Subdivision (a) thereof states that "A telephone report of a known or suspected instance of child abuse shall include the name of the person making the report, the name of the...