Although there is no impeachment exception to the psychotherapist-patient privilege, defendant’s disclosure to psychiatrist that he sexually abused a child was admissible in his criminal trial under the Child Abuse and Neglect Reporting Act (CANRA). During an evaluation in connection with an involuntary hold (Welf. & Inst. Code, § 5150), Cannata admitted to a psychiatrist and a nurse that he had sexually abused his stepdaughter. The nurse reported the abuse to the Department of Children and Family Services and Cannata was charged with continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)). Although the trial court ruled that his admissions were protected by the psychotherapist-patient privilege (Evid. Code, § 1014), the court also concluded that the statements could be used for impeachment if Cannata testified. The trial court relied on United States v. Nicholas (C.D. Cal. 2008) 594 F.Supp.2d 1116, which recognized an impeachment exception to the federal common law marital privilege. Cannata decided not to testify and he was convicted. He appealed. Held: Affirmed. In this case, the court determined that there is no impeachment exception to California’s statutory psychotherapist-patient privilege and the trial court was not at liberty to judicially create one. Nevertheless, reversal was not required because Cannata’s statements were admissible for all purposes (not just impeachment). The nurse here reported the abuse because she is a mandated reporter under CANRA. Information reported under CANRA is expressly exempted from the psychotherapist-patient privilege for purposes of any court proceeding. (Pen. Code, § 11171.2, subd. (b).) The fact that Cannata’s alleged abuse had already been reported to police by another person did not relieve the nurse from her initial obligation to report.
Even if CALCRIM Nos. 1110 and 1120 omit a required element of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)), the omission was harmless. The jury was instructed with CALCRIM Nos. 1110 and 1120. Both specify that the defendant’s touching of the child must be done “willfully” and “with the intent of arousing, appealing to or gratifying the lust, passions or sexual desires of [himself] or the child.” But they also state that the touching “need not be done in a lewd or sexual manner.” Cannata argued that the instructions omit a required element of the charged crime; i.e. that the defendant “willfully and lewdly” commits a “lewd and lascivious act” against a child under the age of 14. The Court of Appeal concluded any error in the instructions was harmless. One appellate court has already rejected Cannata’s argument. (See People v. Sigala (2011) 191 Cal.App.4th 695, 700.) In People v. Cuellar (2012) 208 Cal.App.4th 1067, however, the court urged the Judicial Council to reconsider the language of this sentence and propose new language that states that “the touching need not be made to an intimate part of the victim’s body, so long as it is done with the required intent.” The court noted that “any arguable inconsistency” would be removed if this revision was made. Nevertheless, the court in Cuellar concluded that it was unnecessary to resolve the arguable inconsistency because the instructions would not have confused the jury in light of the evidence. The same was true in this case as well. Based on the evidence and the jurys express finding that Cannata had engaged in masturbation with the child, there is no reasonable possibility that the jury believed his conduct was innocuous.