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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Carl William STRITZINGER, Defendant and Appellant.

Cr. 41857.

Decided: October 29, 1982

Law Offices of Friedman & Warner, P. C., Kenneth R. Warner, Thousand Oaks, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen.—Crim. Div., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow, Otis D. Wright, Deputy Attys. Gen., for plaintiff and respondent.

Defendant Carl William Stritzinger appeals from a judgment of conviction of one count of violation of Penal Code section 288(a) (lewd act with a child), a felony;  and six counts of misdemeanor child molestation or annoyance in violation of Penal Code section 647a.   It was alleged that defendant and his stepdaughter, Sara, during the period from January 1, 1980 through May 1981, had engaged in various acts of sexual fondling, mutual masturbation and oral copulation.   Sara's age ranged from 13 to 15 years old during this period.

During 1981, Sara told her mother and grandmother that she and her stepfather, the defendant, had engaged in numerous acts of a sexual nature during the preceding fifteen months.   On July 28, after the disclosure, the mother took Sara to Dr. William Walker, a licensed clinical psychologist for counselling and professional services.   The mother also confronted defendant with the revelations of the daughter and he agreed to see Dr. Walker in order to assist in determining the truth of the daughter's story and to resolve any problems in the family.   On July 29, 1981, the defendant informed Dr. Walker of the sexual activity with Sara substantially as related to the doctor by Sara the day before.

Following Sara's counselling session with Dr. Walker he notified the child welfare agency of suspected child abuse.   The agency in turn notified the sheriff's department.   Subsequently Dr. Walker responded to sheriff's department inquiries by relating to them what had been revealed to him by the defendant and Sara, namely a history of mutual sexual activity initiated by one or the other of the participants over a fifteen month period.

 On appeal defendant contends that Dr. Walker's testimony was improperly received at trial in violation of the psychotherapist-patient privilege of Evidence Code section 1014, and that the trial court abused its discretion in finding Sara unavailable as a witness and admitting her testimony from the preliminary hearing.

Evidence Code section 1014 provides in part:

“[P]atient, whether or not a party, has a privilege to refuse to disclose, and prevent another from disclosing, a confidential communication between patient and psychotherapist․”

Penal Code sections 11165 et seq. enacted under the title of Child Abuse Reporting statutes in general reflect the intent of the Legislature that child abuse or even reasonable suspicion of child abuse be reported immediately to the county welfare department and appropriate law enforcement agencies in order to shield the child, rescue him or her from the threatening condition and permit necessary action to be taken against the cause of the harm to the child.

Penal Code section 11166 specifically mandates that a medical practitioner (among others) make an immediate report to a child protective agency of any actual or suspected abuse of a child.  Section 11165 sets out a varied and most complete catalogue of harmful conditions broadly labeled as child abuse.   Sexual assault upon a minor such as charged in the instant case occupies a prominent place on the list of proscribed abuses.

Section 11167(a) provides that the report of the abuse (telephonic) shall include “․ the name of the person making the report, the name of the child, the present location of the child, the nature and extent of the injury, and any other information, including information that led such person to suspect child abuse, requested by the child protective agency.”

Penal Code section 11172 provides immunity from both criminal and civil liability for such reporting.   A failure to report is punishable as a misdemeanor.

Section 11171(b) further provides that “Neither the physician-patient privilege nor the psythotherapist-patient privilege applies to information reported pursuant to this article in any court proceeding or administrative hearing.”

While the foregoing legislative scheme abrogates in certain cases, the privilege created by Evidence Code section 1014, it was well within the legislative power to do so, inasmuch as the privilege itself is a creature of the Legislature.

In Tarasoff v. Regents of University of California, 17 Cal.3d 425, at pages 441–442, 131 Cal.Rptr. 14, 551 P.2d 334, the Supreme Court in discussing the duty of a psychotherapist to warn other persons of a danger from a patient, stated:

“The revelation of a communication under the above circumstances is not a breach of trust or a violation of professional ethics;  as stated in the Principles of Medical Ethics of the American Medical Association (1957), section 9:  ‘A physician may not reveal the confidence entrusted to him in the course of medical attendance ․ unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or of the community.’  (Italics added.)   We conclude that the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others.   The protective privilege ends where the public peril begins.”

Where a child is subjected to sexual abuse within the confines of the family setting, such as the case at bench, the peril is great and its continuation almost assured if the child, as a result of the failure of someone to take action, is permitted to remain a virtual prisoner of the family members.   Thus the Legislature has declared that suspected child abuse is a point where “the protective privilege ends” and “the public peril begins,” and has simply determined, on balance, that the need to protect a highly vulnerable sector of our society outweighs the value of the privilege.

As a practical matter the relationship between defendant and Dr. Walker was a token one at best in terms of the patient-psychotherapist relationship.

Evidence Code section 1011 provides:  “As used in this article, ‘patient’ means a person who consults a psychotherapist or submits to an examination by a psychotherapist for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his mental or emotional condition, or submits to an examination of his mental or emotional condition for the purpose of scientific research on mental or emotional problems.”

The record shows only that the defendant went to Dr. Walker at his wife's request in order that the family could determine the truth or falsity of Sara's claims and to be able to decide a course of action for the family to take.   Only one hour of interview took place with no diagnosis given, no treatment prescribed and no follow-up interviews planned.

 Defendant's claim that the trial court abused its discretion in declaring the victim unavailable as a witness is based mainly upon the lack of medical testimony that her appearance would be harmful to her health.   The record shows that the physician who treated Sara was scheduled to appear but was unable to make an appearance at the time of trial.

The court relied upon testimony of Sara's mother who stated that Sara was hospitalized at a psychiatric center for treatment, that she was emotionally unstable, prone to suicide attempts and that her previous experience of incarceration as a recalcitrant witness during the preliminary hearing had left her extremely fearful of returning to a court to testify.

The mother also related a several year history of audio and visual hallucinations experienced by the victim which would be exacerbated by stressful situations such as testifying in the present case.   The trial court also read the testimony of Sara as contained in the transcript of the preliminary hearing.

Evidence Code section 240(a)(3) defines “unavailable” as a witness as “Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.”   Under the circumstances of this case there was no abuse of discretion.   It is clear that the victim was suffering from an existing mental infirmity and would be further disabled if subjected to the rigors of a trial.   It was not necessary to establish this infirmity by the testimony of a physician.

“[I]llness or infirmity must be of comparative severity;  it must exist to such a degree as to render the witness's attendance, or his testifying, relatively impossible and not merely inconvenient.   However, we cannot say just what illness or infirmity must be shown or the degree of its severity, leaving that determination to a trial court's exercise of discretion.”   (People v. Gomez, 26 Cal.App.3d 225, at 230, 103 Cal.Rptr. 80.)

The judgment is affirmed.

COMPTON, Associate Justice.

ROTH, P.J., and GATES, J., concur.