People v. Dutton

DESMOND, P. J.

Appellant was found guilty by a jury of violating section 288a of the Penal Code on three separate occasions, all counts involving the same individual, an eleven-year-old boy. The court refused to grant appellant probation and sentenced him to the penitentiary.

Although the record indicates that no motion for a

[864]

new trial was made in defendant’s behalf, he appeals, according to the notice in the clerk’s transcript, “from the order denying his motion for a new trial and from the judgment,” claiming that the jury’s verdict is contrary to law and the evidence and that the court erred in permitting a physician attached to the Los Angeles city police force to testify as to an interview had with him after his arrest. This interview, he claims, was a privileged communication as between physician and patient. The claim is not well grounded for various reasons, among them the following: the physician was not his physician but a psychiatrist employed as a member of the police force to “interview all the eases arrested on sex charges”; a third person, a police officer, was present at the interview, and therefore any communications then made could not be considered confidential (27 Cal.Jur. 53); further, the claim of privilege as between physician and patient is limited to civil cases and is not cognizable in a criminal proceeding. (See Code Civ. Proc., sec. 1881, subd. 4, and

People

v.

West,

106 Cal. 89 [39 P. 207].)

Appellant’s contention that the verdict is contrary to the evidence, and particularly that “the People’s evidence is so incredible as to be unworthy of belief and therefore amounts to no evidence at all,” falls of its own weight when one reads the record. In our opinion the evidence in this case is not incredible, and appellant has not called our attention to a single item or circumstance to support his claim that it is. The boy, who had been on friendly terms with the appellant for a considerable period of time, described in detail the events complained of; and although cross-examined at length by experienced counsel he never wavered in his story or contradicted himself. In addition, a police officer testified that after arresting appellant he informed him of the charge against him, quoting the language of the statute, and asked him if he had anything to say about the boy’s story and the complaint which had been issued. “My exact words were, ‘Are these statements true?’ And he said, ‘Yes, they are true’; that he might as well tell the truth about it.” Another officer corroborated this testimony, and the appellant, while denying the charges as made and the admissions of his guilt as detailed by the arresting officer, still upon cross-examination, testified as follows: “Q. Did he ask you whether you had done this with Lloyd or not? A. I don’t recall whether he did or not. Q. You wouldn’t say