People v. John B.

Opinion

Here we affirm a conviction for violation of Penal Code section 288, subdivision (b). Although the trial court may have erred in admitting the testimony of the defendant’s psychotherapist concerning a therapy session not reported pursuant to the Child Abuse Reporting Act (Pen. Code, § 11165 et seq.), the error was without prejudice.

Facts

On February 16, 1985, defendant, John B., walked into a Veteran’s Administration Hospital emergency room seeking psychiatric help. He told Doctor Melinda Young, a psychiatric resident, that he tried to kill his wife that morning and wished to kill himself. John B.’s wife, who accompanied him to the hospital, confirmed that he had tried to strangle her. Doctor Young admitted John B. to the hospital on a four-day involuntary hold because he appeared to be a danger to himself and others.

On February 19, the third day of his stay, John B. informed Doctor Young that he had been sexually abusing his 10-year-old daughter, Sonya. After soliciting a few details from him, Doctor Young told John B. that she would have to report him to the authorities, which she promptly did pursuant to the Child Abuse Reporting Act. During another session with Doctor Young the next day, John B. again discussed sexually abusing Sonya, revealing further details. Doctor Young did not file an additional report concerning this second session.

John B. was charged with 10 counts of committing lewd and lascivious acts on a child under the age of 14 by use of force, violence, duress, menace or fear of immediate and unlawful bodily injury, in violation of Penal Code section 288, subdivision (b). The first eight counts were alleged to have taken place between September 1982 and October 1984, and the remaining

But the privilege is not absolute and must yield in the face of compelling state interests such as the detection and prevention of child abuse. (People v. Younghanz (1984) 156 Cal.App.3d 811 , 816-17 [ 202 Cal.Rptr. 907 ]; People v. Stritzinger, supra, 34 Cal.3d at pp. 511-512.) The Child Abuse Reporting Act, supra, imposes on psychotherapists the affirmative duty to report to a child protective agency all known and suspected instances of child abuse. “ ‘Neither the physician-patient privilege nor the psychotherapist-patient privilege applies to information reported pursuant to [The Child Abuse Reporting Act] in any court proceeding or administrative hearing.’ ” (People v. Stritzinger, supra, 34 Cal.3d at p. 512, quoting Pen. Code, § 11171, subd. (b).)

Doctor Young was required to testify about John B.’s first conversation with her because that was the conversation she reported to the authorities. John B. argues however that the statutory waiver of the psychotherapist-client privilege does not extend to his second conversation with Doctor Young because she did not actually report that conversation, and was under no duty to do so. (Pen. Code, § 11171, subd. (b).) The People assert that Doctor Young was under a duty to report any new instances of abuse gleaned from subsequent sessions with John B., and that Penal Code section 11171, subdivision (b) should be interpreted to suspend the privilege for any information “reportable,” but not actually reported, to the authorities.

The Child Abuse Reporting Act, supra, creates a duty for health care professionals and others to report any known or suspected “instance” of child abuse. (Pen. Code, § 11166.) Once that initial report is made, the psychotherapist is not obligated to report “details given to him by the adult patient in subsequent sessions,” unless those sessions reveal “additional incidents” of abuse of the same or another victim. (People v. Stritzinger, supra, 34 Cal.3d 505 , 513-14; People v. Younghanz, supra, 156 Cal.App.3d 811 , 818.)

Doctor Young testified that during the first session, John B. admitted to fondling Sonya, having her perform oral sex on him, and having intercourse

We cannot tell from the record whether these second session admissions constituted “additional incidents” of abuse or merely “redundant communications” providing the therapist with details of the abuse already reported. (People v. Stritzinger, supra, 34 Cal.3d 505 , 513-14.) If Doctor Young did not realize or suspect that the information gained in the second session constituted “additional incidents,” she was under no duty to file a report merely to reiterate her knowledge. (Id., at p. 513; Pen. Code, § 11166, subd. (a).) The trial court made no finding as to whether Doctor Young had a continuing duty to report subsequent sessions.

But even if a duty to report the February 20 session did exist, Doctor Young did not make such a report. Under these circumstances, the psychotherapist-client privilege was not suspended. Penal Code section 11171, subdivision (b) applies by its language to information actually reported. The Legislature did not use the term “reportable,” and we decline to rewrite the statute to that end.

The interpretation urged by the People here could require a trial court to determine whether, contrary to the psychotherapist’s own good faith interpretation, the information in subsequent therapy sessions revealed “additional incidents” warranting additional reports. The result of such a court inquiry could be compelled testimony by the therapist against her patient on matters which they both may have believed were confidential. Such a scheme goes beyond the Legislature’s desire for prompt investigation and prosecution of the alleged child abuse. (People v. Stritzinger, supra, 34 Cal.3d at p. 512.)

Any exception to the psychotherapist-client privilege must be construed narrowly and applied only when the patient’s case falls squarely within its ambit. (Id., at p. 513.) Here the contents of the second session were not reported by Doctor Young, and John B. could therefore properly assert the psychotherapist privilege preventing Doctor Young from testifying as to that session.

John B. also contends that Doctor Young’s failure to warn him that she had a duty to report details given to her regarding child abuse in subsequent sessions precludes her from testifying as to statements made in the second session. The majority opinion in the Stritzinger case did not

The concurring opinion suggests that to protect the patient’s expectation of privacy, the psychotherapist should warn of the duty to report and testify about instances of child abuse in the first instance. If the patient continues the therapy sessions after the warning, the privilege is waived. (People v. Stritzinger, supra, 34 Cal.3d at p. 524 (conc, and dis. opin. of Kaus, J.); People v. Younghanz, supra, 156 Cal.App.3d at p. 818.)

Doctor Young informed John B. of her duty to report the admissions of the first session, but she did not, nor was she required to warn him of her possible duty to report or to testify to admissions made in subsequent sessions. If an initial warning discourages some patients from going ahead with therapy, subsequent warnings, in many cases, would induce the patient to stop therapy altogether. This is harmful to the patient and to the public. The psychotherapist-client privilege of confidentiality exists to encourage those in need of help to seek it before further harming others or themselves. (Grosslight v. Superior Court (1977) 72 Cal.App.3d 502 , 507-508 [ 140 Cal.Rptr. 278 ].) Repeated warnings that conversations will be reported eviscerates confidentiality, deters therapy, and frustrates the goal of stopping child abuse.

Any error, however, in admitting Doctor Young’s testimony about the second session with John B. was not prejudicial. Doctor Young’s testimony about the sessions was brief and general in nature, and was repeated in greater detail by Sonya and admitted by John B. himself while testifying on his own behalf. After an examination of the entire case, including the evidence, it is not reasonably probable that a result more favorable to John