Van De Kamp, 033183 CAAGO, AGO 82-1006

Docket Nº:AGO 82-1006
Case Date:March 31, 1983
JOHN K. VAN DE KAMP Attorney General
JOHN T. MURPHY Deputy Attorney General
AGO 82-1006
No. 82-1006
California Attorney General Opinion
Office of the Attorney General State of California
March 31, 1983
         THE HONORABLE ROBERT H. PHILIBOSIAN, DISTRICT ATTORNEY, LOS ANGELES COUNTY, has requested an opinion of the following questions:          Does a district attorney, when investigating or prosecuting a case of child abuse where the victim is or has been the subject of juvenile dependency or wardship proceedings in which the district attorney did not participate, or the victim is or has been the recipient of public welfare aid or assistance, have access to records of the juvenile court or the welfare agency pertaining to the victim? May the district attorney use a search warrant or a subpoena duces tecum to obtain such records?          CONCLUSION          A district attorney, when investigating or prosecuting a case of child abuse where the victim is or has been the subject of juvenile dependency or wardship proceedings in which the district attorney did not participate, has access to the records of the juvenile court only through an order of the juvenile court permitting such access and may not obtain such records by a search warrant or subpoena duces tecum. Where the victim has been the recipient of public welfare aid or assistance the district attorney, for his investigation or prosecution, has access to the records of the welfare agency pertaining to the victim and may obtain such records by search warrant or subpoena duces tecum.          ANALYSIS          This opinion will address the subjects of child abuse, the duties of district attorneys in investigating and prosecuting crimes against children and the confidentiality of certain juvenile court and welfare agency records relevant to child abuse investigations and prosecutions.          In 65 Ops.Cal.Atty.Gen. 345 (1982) and 65 Ops.Cal.Atty.Gen. 335 (1982) we discussed in detail the Child Abuse Reporting Law (Pen. Code, §§ 11165-11174). Under this law certain persons are required (and all persons are encouraged) to report to responsible public agencies specific acts of suspected misconduct toward children under the age of 18 years. Those compelled to make reports are persons who fall into the defined categories of "child care custodian," "medical practitioner," "nonmedical practitioner," "child protective agency" and "commercial film and photographic print processor."1 (Pen. Code, §§ 11165-11166.) Mandatory reports are made to a child protective agency, i.e., "a police or sheriff's department, a county probation department, or a county welfare department." (Pen. Code, §§ 11165, subd. (k) and 11166, subd. (a).) Reports are transmitted among such departments and so-called "preliminary reports" of investigated cases of serious neglect are submitted to the California Department of Justice in writing. (Pen. Code, §§ 11166-11170.) The "preliminary reports" are maintained by the California Department of Justice, are available to child protective agencies and district attorneys, and may be used by the Department "to investigate suspected child abuse cases and to protect children." (65 Ops.Cal.Atty.Gen. 335, supra.) As we observed in 65 Ops.Cal.Atty.Gen. 345, 347, supra:
         "The Child Abuse Reporting Law is designed to supply child protective agencies promptly with information of suspected misconduct against children so that those agencies may take timely action if necessary to protect the children."
         The strong public policy which favors the dissemination of child abuse information to those persons and agencies with a duty to act on behalf of a child was emphasized in our opinions. The California Supreme Court, in Barela v. Superior Court (198l) 30 Cal.3d 244, acknowledged this policy and held that a landlord could not evict a tenant who complained to the police that the landlord had molested the tenant's child, noting at page 254:
         "The public policy served in this case is clear and even more compelling. The landlord here was accused of a sexual assault on a child. The state has repeatedly emphasized that its citizens have a duty to protect children from sexual abuse. (See, e.g., Pen. Code § 11166 [adults who work with children must report suspected cases of child abuse to the police, the sheriff, the probation department or the welfare department].)"
         In our earlier opinions we outlined the numerous statutes designed to afford protection for child-victims of crime. The Legislature recently enacted the Roberti-Imbrecht-Rains-Goggin Child Sexual Abuse Prevention Act which, inter alia, enhanced the punishments for sex crimes against children. (Pen. Code, §§ 288, 667.51, 1203.065, 1203.066; see also Pen. Code, §§ 266h, 266j, 311.4 and 999e.) Moreover, in last year's funding of the Office of Child Abuse Prevention (Stats. 1982, ch. 1398, § 1, p. 1134) the Legislature made these findings and declarations:
         "(a) Children are a precious resource in this country and in this state.          "(b) Persons abused and neglected as children are prone to commit violent crimes as adults.          "(c) Child abuse and neglect prevention and intervention programs help protect children, stabilize families, and contribute to the reduction of crime."
(See also Health & Saf. Code, § 10605 and Welf. & Inst. Code, §§ 18965-18970 (funds for county child abuse prevention and intervention programs); Pen. Code, § 11107 (sheriff and police reports to California Department of Justice of suspected sexual exploitation of children); and Pen. Code, §§ 13516, 13836 and 13837 (training of district attorneys and others in the investigation and prosecution of child sexual abuse cases).)          We turn now to the duties of the district attorney. Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228, 240-241, discussed the authority and functions of a district attorney:
         "1. The district attorney is the public prosecutor, vested with the power to conduct on behalf of the people all prosecutions for public offenses. (Gov. Code, § 26500.) Except for the power of the electorate to remove him, his performance of these functions is subject only to the supervision of the Attorney General. (Cal. Const., art. V, § 13.)          "The discretionary power vested in the district attorney to control the institution of criminal proceedings may not be controlled by the courts (People v. Municipal Court, 27 Cal.App.3d 193, 207 [103 Cal.Rptr. 645, 66 A.L.R.3d 717]), and it may not be conferred on another by the board of supervisors (County of Modoc v. Spencer, 103 Cal. 498, 500-501 [37 P. 483]). The district attorney is charged with the responsibility of assisting and advising the grand jury in its investigation into criminal matters (Gov. Code, § 26501; Pen. Code, § 917) and no one may institute criminal proceedings without the concurrence, approval, or authorization of the district attorney (Gov. Code, § 26501; Rosato v. Superior Court, 51 Cal.App.3d 190, 226 [124 Cal.Rptr. 427]).          "2. Investigation and the gathering of evidence relating to criminal offenses is a responsibility which is inseparable from the district attorney's prosecutorial function. That the district attorney is charged with the duty of investigation as well as prosecuting criminal activity has been recognized by an unbroken line of California cases. In Cunning v. County of Humboldt, supra, 204 Cal. 31, it was held that under section 4307 (repealed) of the Political Code [footnote omitted] a district attorney had authority to employ persons to assist in the detection of crime and the gathering of evidence to be used in the prosecution of criminal cases, and that the claim for such services was a valid charge against the county even though not approved by the board of supervisors. (Id., at pp. 32-33; see also Cunning v. Carr, 69 Cal.App. 230, 235 [230 P. 987].)          "In Pearson v. Reed, 6 Cal.App.2d 277 [44 P.2d 592], dealing with a prosecutor's immunity from civil liability, it was held that the district attorney's function in determining whether to institute criminal proceedings is discretionary, that his authority to investigate the facts before acting is unlimited, and that the matter rests in his own discretion. (Id., at p. 286; see also People v. Municipal Court, supra 27 Cal.App.3d 193, 207.)"
         Accordingly, there can be no serious question as to the duty of the district attorney to investigate and...

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