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Admission to Psychotherapist of Sexual Abuse Not Privileged

California Evidence Code §§ 1010 to 1027 set forth the psychotherapist-patient privilege and describe who holds the privilege, as well as the exceptions to the privilege.
Brief of Article:  Defendant’s Admission of Committing Sexual Abuse of Stepdaughter, Stated to Psychotherapist, Is Not Protected from Disclosure by Psychotherapist-Patient Privilege.
One of the exceptions not described under §§ 1010 to 1027 involves the Child Abuse and Neglect Reporting Act, codified at Penal Code § 11164.  This act requires nurses and psychiatrists to report suspected child abuse to law enforcement.

Defendant Anthony Wyatt Cannata was convicted in Orange County Superior Court of one court of continuous sexual abuse of a child under Penal Code § 288.5(a).  His first trial on the charge ended in a mistrial and the district attorney decided to try Cannata again.

The case arose when A., Cannata’s stepdaughter, told Cannata’s wife that Cannata had sexually abused her over an extended period of time.  Cannata’s wife immediately called the Cypress Police Department.  The police then called Mr. Cannata, who told police he was thinking about committing suicide.

art 439 - 4th app dist  div 3  orange county4th Appellate District Division 3 Orange County

Police eventually arrested Mr. Cannata and because of his threats of suicide, transported him to College Hospital on a 72-hour involuntary hold in accordance with Welfare and Institutions Code § 5150.  Once at College Hospital, Mr. Cannata was evaluated by a psychiatrist, Dr. Fidel.  Mr. Cannata told Dr. Fidel that one of the things that was troubling him greatly, creating suicide thoughts, was that he had engaged in sexual abuse of his daughter.

When Mr. Cannata revealed this fact, Dr. Fidel suspended the evaluation and brought in nurse Christal Verduzco as a witness.  Dr. Fidel then renewed the conversation and Mr. Cannata again stated that he had engaged in sexual acts with his stepdaughter.  Ms. Verduzco asked questions about the type of sexual contact, its frequency and whether it was consensual.

Mr. Cannata described how he and his stepdaughter had engaged in oral sex, sexual touching of each other and that he had digitally penetrated her with his finger.  He said that had not engaged in intercourse.  He said all of the conduct was consensual.

Verduzco then prepared a report to the Los Angeles Department of Children and Family Services.  

In Mr. Cannata’s first trial, he asked the judge to apply the psychotherapist-patient privilege to exclude the statements he made to nurse Verduzco.  The judge granted the motion and Cannata then testified on his own behalf.  The jury was unable to reach a verdict and the court declared a mistrial.

In the second trial, the prosecutor filed a brief saying that if defendant again testified on his behalf, the judge should admit the testimony of Ms. Verduzco to impeach him.  The prosecutor relied upon People v. Macias (1997) 16 Cal. 471, 730, 752, wherein the “Right to Truth in Evidence” as part of Proposition 8, which said such statements from a defendant were admissible to impeach defendant.

The judge agreed with the prosecutor’s position.  The second trial then proceeded and Mr. Cannata did not testify.  He was convicted and sentenced to 12 years in state prison. 

On appeal, Mr. Cannata argued that the Orange County judge erred by ruling that if he testified, the prosecution could introduce privileged statements made to Ms. Verduzco.  This ruling prevented him from exercising his right to testify at trial.

In ruling on Cannata’s appeal, the Fourth Appellate District denied Cannata’s appeal, but for a reason not argued for by the prosecutor (2015 DJDAR 1326).  The Fourth Appellate District pointed to the Child Abuse and Neglect Reporting Act, which obligated a “mandated reporter;” i.e. a psychotherapist or other health care professional, to report such activity.

Such reported statements are “expressly exempted” from the physician-patient and psychotherapist-patient privilege for purposes of “any court proceeding or administrative hearing.”  Penal Code § 11171.2(b).

Consequently, the appellate court ruled that the trial court did not err in its ruling regarding Cannata’s admissions made while under medical care. 

The citation for the Fourth Appellate District Court ruling discussed above is People v. Anthony Wyatt Cannata (4th App. Dist., 2015) 233 Cal.App.4th 1113.

For more information about the issues in this case, click on the following articles:
  1. Confession is Inadmissible When Probation Officer Promised Shorter Sentence If Probation is Waived Right to An Attorney. 
  2. Murder and Robbery Conviction Overturned Where Defendant Confessed in Reliance on Detective’s False Promises of Leniency.
  3. An Admission is Inadmissible if After an Illegal Search as the Fruit of a Poisonous Tree.
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