People v. Scherr

KAUS, P. J.

—I concur in the result, but wish to make two points: 1. We must follow the rule of People v. Westek, 31 Cal.2d 469, 478-479 [190 P.2d 9], and impeachment by contradiction of defendant’s testimony that he had never molested any of his children was therefore proper. Personally I dislike a rule which puts a premium on the prosecutor’s failure to object to improper testimony. 2. Had defendant consulted a psychologist after molesting his then seven-year-old daughter, his communications would have been privileged. (See footnote 2, ante.) Quite arguably it was a denial of equal protection to grant a privilege to patients who consulted psychologists, but to deny it to those who took their troubles to psychiatrists. Had the matter been argued from that point of view in the trial court, and were it thus argued before us, I might conceivably reach a different result.

A petition for a rehearing was denied May 2, 1969, and appellant’s petition for a hearing by the Supreme Court was denied June 18, 1969.