PEOPLE v. EDWARDS

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Court of Appeal, First District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Sheridan Ann EDWARDS, Defendant and Appellant.

A032616.

Decided: August 25, 1987

Paul N. Halvonik, and Halvonik & Halvonik, Berkeley, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Ronald E. Niver, Supervising Deputy Atty. Gen., and Don Jacobson, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Defendant was convicted by the court, sitting without a jury, on four counts of grand theft (Pen.Code, § 487, subd. 1) following denial of her claim of a clergy-penitent privilege (Evid.Code, §§ 1030–1034).1  On appeal from the order granting probation, defendant renews her claim on the theory that inculpatory statements made by her to Father Rankin, an Episcopalian priest, were in the nature of a sacramental confession or “penitential communication” privileged from nonconsensual disclosure.

FACTS

We recite the factual background against which the statutory privilege is raised.  (The facts underlying the embezzlement counts are essentially undisputed.)

Around 8:30 p.m. on Sunday, August 5, 1984, defendant Sheridan Edwards telephoned Father William Rankin, the rector of St. Stephen's Episcopal Church in Belvedere, and said she urgently needed to talk to him about “a problem.”   Father Rankin, who was planning to leave early next morning for a week-long meeting in Oklahoma, asked defendant, a church member, if her problem could wait.   After defendant related she had already talked to Reverend Gompertz, another priest affiliated with St. Stephen's, who told her it was imperative to see Father Rankin immediately, they arranged to meet that evening at Father Rankin's office.   At the meeting, defendant requested that their conversation be confidential;  he agreed.   Defendant then declared she had done something almost “as bad as murder.”

Defendant proceeded to tell Father Rankin that she needed his help in stopping payment on certain checks drawn against the account of St. Stephen's Guild, of which she served as treasurer.   In fact, the Guild account was practically depleted due to her embezzlement of nearly $30,000 over a period of many months.   Defendant told him she had arranged to borrow money to cover her misappropriation but that the loan proceeds would not be available in time to prevent the checks authorized for issuance to various charities from being dishonored.

Because he was leaving early the following morning, Father Rankin believed he would be unable to provide a solution and therefore offered defendant two alternatives:  he could keep her revelation in confidence, as agreed, or he could talk to the church wardens to seek their help in solving the problem.2  Defendant consented to the latter option.   Father Rankin repeated the question whether that was the course of action defendant wanted to pursue, and she assured him it was.   However, defendant testified that she felt she had no choice but to agree.3

Later that evening, Father Rankin called Daniel King, the senior warden, and informed him of defendant's visit and the two alternatives he presented.   King agreed to handle the problem in Rankin's absence.   Father Rankin also called Sandra Ogden, the junior warden, and asked her to attempt retrieval of the (worthless) checks before they were presented for payment;  ultimately, her efforts proved successful.

During the week of his absence, Father Rankin and the two wardens remained in contact with defendant, but no resolution was reached.   King testified that defendant told him she had taken some $27,000, which could not be discovered in an audit.  (According to Ogden, defendant told her she had burned the incriminating checks.)

King thereafter scheduled a meeting of the 15–member vestry for Saturday, August 11.   Before the meeting, defendant showed Father Rankin a telegram from a loan agency indicating her loan had been approved.   Upon the request of the vestry, defendant delivered to them pertinent records and documents with the explanation that she had destroyed some of the checks.   Acting upon the advice of the controller of the diocese, the vestry decided the missing funds had to be reported to the police because their fidelity bond was otherwise at risk.   Soon thereafter, King and other church members reported the incident to the local police resulting in the issuance of a search warrant.   Various bank records, ledgers and cancelled checks seized during the authorized search of defendant's house were admitted in evidence at trial.

At the conclusion of the evidentiary stage of trial, the court determined that the clergy-penitent privilege did not apply and, in any event, was limited to testimonial as opposed to extrajudicial statements.   The court then found defendant guilty as charged, including an enhancement pursuant to Penal Code section 12022.6, subdivision (a).   Thereafter, sentence was suspended and defendant placed on formal probation subject to certain conditions including four months in jail.

DISCUSSION

Defendant argues that the trial court erred in allowing into evidence the content of her confidential statements to Father Rankin and other incriminating evidence obtained as a direct result thereof.   We cannot agree.

Under the relevant statutory scheme, “a penitent ․ has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication․” (§ 1033.)   A penitent is defined as one who has made a “penitential communication to a clergyman” (§ 1031) which in turn is defined as a confidential communication to a clergyman “who, in the course of the discipline or practice of his church, denomination, or organization, is authorized or accustomed to hear such communications and, under the discipline or tenets of his church, denomination, or organization, has a duty to keep such communications secret.”  (§ 1032;  People v. Thompson (1982) 133 Cal.App.3d 419, 425, 184 Cal.Rptr. 72.)   The focus of our inquiry is whether defendant's confidential statements to Father Rankin constituted a penitential communication within the meaning of the statutory privilege.4

At trial, defendant claimed her original conversation with Father Rankin was intended as a penitential communication.   She testified that she sought out Father Rankin at the direction of Father Gompertz to whom she had initially confessed and asked forgiveness.   Father Gompertz confirmed he had so directed defendant to whom he gave absolution, but he invoked the clergyman's privilege (§ 1034) and declined to testify as to the substance of their conversation.   Father Rankin testified that he believed defendant's statements to him were in the nature of a secular or pastoral confession seeking counselling and not absolution;  that when he offered to help, requiring that the confidential subject matter be divulged, defendant willingly agreed.

Ultimately, the trial court determined that Father Rankin's characterization of the conversation was more credible and that defendant's statements made in confidence did not “fall[s] within the area of the church law or the statute as far as the privilege is concerned.”

Such judicial determination constituted an implicit finding that the conversation was not a penitential communication within the reach of the statutory privilege.   As with all factual determinations based upon conflicting evidence, the findings of the trial judge will not be disturbed on appeal;  the judgment is presumed correct, and the evidence cannot be reweighed.  (People v. Ratliff (1986) 41 Cal.3d 675, 686, 224 Cal.Rptr. 705, 715 P.2d 665;  In re E.L.B. (1985) 172 Cal.App.3d 780, 788, 218 Cal.Rptr. 429.)

Clearly, not every statement made by anyone to a minister is privileged.   (See, e.g., People v. Johnson (1969) 270 Cal.App.2d 204, 207, 75 Cal.Rptr. 605 [fleeing robber ran into nearby church and requested help of minister who suggested he surrender, then, in defendant's presence, told police his story.   Held:  no penitential communication in absence of evidence of confidentiality or required relationship].)   In order for a statement to be privileged, it must fall within the statutory definition of a communication confided to a member of the clergy who in the course of his or her professional sectarian duties is authorized to hear and to keep such communications secret.  (§ 1032.)

Extensive testimony was given by church officials as to the discipline and tenets of the Episcopal church.   Floyd Frisch, Chancellor of a neighboring diocese, testified that a priest is under an absolute duty to maintain the secrecy of the confession.   He stated that the Episcopal Book of Common Prayer provides for this principle with the force of law;  further, that in difficult cases, the benefit of the doubt must be given to the penitent.

In contrast, Reverend William Swing, Bishop of the California Diocese (which includes St. Stephen's Church), gave a different interpretation of Episcopalian church law.   He testified that the rules are not as clear or as rigid as suggested and that each incident must be viewed on a case-by-case basis.   In his opinion, as the church leader responsible for establishing liturgical practices for all churches within his diocese, the communication between Father Rankin and the defendant was not an “orecular [auricular] confession” but rather a request for pastoral counselling not subject to the confessional seal.   He believed that the question whether a religious confession or a secular confidence was involved must be decided by each priest individually.   After consulting with other church officials, he concluded that Father Rankin had not breached any religious duty.   Bishop Swing was of the further opinion that since dual confessions were unusual and defendant had already confessed to Father Gompertz, her second communication to Father Rankin could not ordinarily be considered a true religious confession.

Father Rankin himself testified that he believed there was no church “law” which required him to keep defendant's revelations in absolute confidence.   That though he acknowledged the duty to keep a true confession under seal of secrecy, he did not believe that any church law governed his authority to determine whether the purpose of the conversation or communication was a request for religious or spiritual aid.

All of the sectarian witnesses agreed that the Episcopal Church recognizes the inviolability of an act of confession by a penitent seeking God's forgiveness and absolution through a priest.   And both church experts and Father Rankin concurred that the aid of priests is frequently sought for the disparate purposes of religious confession and pastoral counselling.   Father Rankin had no recollection of defendant's request to make a true “confession” seeking forgiveness or absolution.   However, he had a clear recollection that she said she needed his help in order that the bad checks would not bounce and disclose her wrongdoing.   Bishop Swing and other church officials he consulted confirmed his belief that the situation involved pastoral counselling alone which was not subject to the seal of confession.

Since the trial court fully considered and evaluated all of the conflicting evidence in reaching its determination that the questioned statement was not a penitential communication within legal contemplation, no privilege attached preventing Father Rankin from disclosing the content of the private communication to the church wardens and vestry and, ultimately, to the police.   Where such determination is supported by substantial, credible evidence, as shown, we are duty bound to uphold it.  (People v. Thompson, supra, 133 Cal.App.3d 419, 427, 184 Cal.Rptr. 72;  Safeway Stores, Inc. v. Superior Court (1961) 193 Cal.App.2d 270, 273, 14 Cal.Rptr. 243.)

In view of our dispositive determination, we need not discuss the equally difficult questions of waiver and the scope of the clergy-penitent waiver.

The order appealed from is affirmed.

FOOTNOTES

1.   Unless otherwise indicated, all further statutory references are to the Evidence Code.

2.   As the lay leaders of the church, the wardens were responsible for its financial affairs.

3.   During that same conversation, defendant also revealed that she had taken funds from the accounts of several doctors for whom she managed property.   Those defalcations are the basis of three of the charged counts consolidated for trial.

4.   The evolution of the contemporary “minister's” privilege, adopted in some form in virtually every state, is the subject of a recent scholarly article:  Yellin, The History and Current Status of The Clergy-Penitent Privilege (1983) 23 Santa Clara L.Rev. 95.   The author's proposed model statute would remove any requirement of religious “discipline” in order to invoke the privilege.  (Id., at pp. 149–155.)

RACANELLI, Presiding Justice.

ELKINGTON and NEWSOM, JJ., concur.