California Court of Appeals, Fourth District, Third Division
Appeal from a judgment of the Superior Court of Orange County, No. 10WF0041 Carla Singer, Judge.
[Copyrighted Material Omitted]
Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
RYLAARSDAM, ACTING P. J.
Anthony Wyatt Cannata appeals from the judgment following his conviction on one count of continuous sexual abuse
of a child (Pen. Code, § 288.5, subd. (a); all further statutory references are to this code unless otherwise specified). He was sentenced to 12 years in prison.
Defendant’s conviction came in his second trial, after his first trial ended in a hung jury. He claims the trial court erred in the second trial by ruling that, if he elected to testify on his own behalf, his statements to a staff member at a psychiatric hospital could be used by the prosecutor for impeachment. According to defendant, this ruling improperly forced him to choose between testifying on his own behalf and maintaining the confidentiality of his privileged psychotherapy communications. We conclude the asserted privilege does not apply and therefore reject this contention.
Defendant also contends the judgment must be reversed because the trial court instructed the jury with CALCRIM Nos. 1110 and 1120, which, he argues, omit a required element of the charged crimes, i.e., that the lewd or lascivious acts were committed “in a lewd or sexual manner.” We conclude the omission, if it was one, was harmless. Given the nature of the acts described by the victim, and the jury’s express finding he had engaged in masturbation with her, there is no reasonable possibility the jury believed his conduct with the victim was innocuous.
The judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant’s stepdaughter, A., told her mother, defendant’s wife, he had been sexually abusing her over an extended period of time. A’s mother reported the alleged abuse to the Cypress Police Department, located in Orange County, and contacted defendant by telephone. Defendant, who had just learned of A’s disclosure to both neighbors and to his wife, told her he was on his way to his brother’s house in Long Beach and was contemplating committing suicide. Defendant’s wife then reported this information to a member of the Cypress Police Department. Long Beach police thereafter arrested defendant at his brother’s home. Because of defendant’s suicidal threats, the police transported him to College Hospital in Los Angeles County.
Defendant was admitted to the hospital on a 72-hour involuntary hold in accordance with Welfare and Institutions Code section 5150. According to Christal Verduzco, a hospital nurse, when a patient is brought to College Hospital on an involuntary hold, a psychiatrist evaluates the patient, to confirm the basis for the hold and to assess the patient’s condition. In this case, defendant was seen by Dr. Fidel. In the course of this meeting,
defendant mentioned having engaged in child sexual abuse. Fidel thereupon suspended the evaluation, to locate a nurse to witness defendant’s statements.
Verduzco accompanied Fidel back into the evaluation room, and joined the discussion with defendant. Fidel then told defendant he wanted him to tell the nurse what he had already disclosed. Defendant then told Verduzco he had been brought to the hospital because he was feeling suicidal. He had fought with his wife because she found out he had been sexually abusing her daughter. Verduzco “asked questions for specifics, ” so that she could prepare a mandated report about the abuse. She asked defendant about the types of sexual acts they had engaged in, how often, how long it had been going on, and whether it was consensual. He disclosed that the two of them had engaged in oral sex, had engaged in touching each other, and he had penetrated her vaginally with a finger; but he denied they engaged in intercourse. He claimed the acts were consensual. After defendant had disclosed the information, Verduzco informed him she would have to report it to the Los Angeles Department of Children and Family Services (DCFS).
Verduzco did not know defendant’s conduct had already been reported to the police in Cypress. She explained that, if an incident of child sexual abuse had been reported to authorities, she would not be required to make a second report. After Verduzco’s interview with defendant concluded, she made a telephonic report to DCFS. She asked whether DCFS had already received a report about it, and was told they had no such record. Verduzco then followed up her telephonic report with a written report.
When defendant was first tried, he moved to exclude from evidence any statements he had made to Verduzco. His motion was based on his contention those statements were protected by the psychotherapist-patient privilege. (Evid. Code, § 1014.) The court took testimony from Verduzco, outside the presence of the jury, and then granted the motion to exclude the evidence based on the psychotherapist-patient privilege. Defendant then testified on his own behalf. The jury was unable to reach a unanimous verdict and the court declared a mistrial.
Before defendant’s second trial, the prosecutor filed a brief, arguing that, if defendant elected to testify, his statements to Verduzco would be admissible to impeach him. The prosecutor relied on People v. Macias (1997) 16 Cal.4th 739, 752 [66 Cal.Rptr.2d 659, 941 P.2d 838] for the proposition that, in the wake of the voters enactment of the “Right to Truth–in–Evidence” provision (Cal. Const., art I, § 28, subd. (f), par. (2)), as part of Proposition 8, statements obtained from a defendant in violation of his right to remain silent – what the prosecutor referred to as “Miranda defective statements” (see Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]
(Miranda)) – were nonetheless admissible for impeachment purposes if the ...