Scherr

Defendant-appellant Seherr was found guilty by a jury of two violations of section 288 and one violation of section 288a of the Penal Code. Thereafter, through appropriate proceedings, defendant was placed at Atascadero State Hospital for a 90-day diagnosis period and, after observation was found to be a mentally disordered sex offender but not amenable to treatment. Two years later he was returned to court, and, at a probation and sentence hearing, he was found still to be a mentally disordered sex offender. Proceedings were suspended, and he was placed on probation for five years on certain specified conditions. Defendant took a timely appeal from the order granting probation.

*167 At the trial there was substantial evidence presented by the prosecution to support the finding that defendant committed an act in violation of section 288 of the Penal Code on his 11-year-old daughter and an act in violation of section 288 and another act in violation of 288a of the Penal Code on his 10-year-old son. Forthrightly, defendant does not claim that there was insufficient evidence to support the verdict with respect to each of these counts. However, he urgently does contend that the trial…

—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.

Defendant-appellant Scherr was found guilty by a jury of two violations of section 288 and one violation of section 288a of the Penal Code. Thereafter, through appropriate proceedings, defendant was placed at Atascadero State Hospital for a 90-day diagnosis period and, after observation was found to be a mentally disordered sex offender but not amenable to treatment. Two years later he was returned to court, and, at a probation and sentence hearing, he was found still to be a mentally disordered sex offender. Proceedings were suspended, and he was placed on probation for five years on certain specified conditions. Defendant took a timely appeal from the order granting probation.

At the trial there was substantial evidence presented by the prosecution to support the finding that defendant committed an act in violation of section 288 of the Penal Code on his 11-year-old daughter and an act in violation of section 288 and another act in violation of 288a of the Penal Code on his 10-year-old son. Forthrightly, defendant does not claim that there was insufficient evidence to support the verdict with respect to each of these counts. However, he urgently does contend that the…