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					     PATRICK S. HALLINAN (#33838)
 1   KENNETH H. WINE (#142385)
 2   345 Franklin Street
     San Francisco, California 94102
 3   (415) 621-2400
     Attorneys for Defendant
                                    SUPERIOR COURT OF CALIFORNIA
                                   IN AND FOR THE COUNTY OF MARIN
     PEOPLE OF THE STATE OF CALIFORNIA, )                 NO. CR 131760
11                                           )
                  Plaintiff,                 )            DEFENDANT’S TRIAL BRIEF
12                                           )
                 v.                          )            Date: February 9, 2004
13                                           )            Department: TBA
     GEORGINA RITCHIE,                       )
14                                           )
                  Defendant.                 )
15   _______________________________________ )
                       I.      INTRODUCTION
                       Defendant Georgina Ritchie is a psychic healer who practices shamanic and other
      non-traditional, spirituality- based methods of providing counseling to the public. As set forth on her
      web-site, she is advertised to the public as follows:
20           “Georgina Ritchie, private counselor and leader of spiritual workshops in the San Francisco Bay
             Area and nationwide, has been helping people achieve personal mastery and spiritual well-being
21           since 1979. She has also worked with Bay Area legal firms, PG&E, and other large
             corporations. Georgina’s tapes offer inspirational teaching, meditation, and visualization,
22           accompanied by healing sounds. The tapes and workshops encourage personal enpowerment
             and release of anger, guilt, and fear. They are based on A Course in Miracles, Buddhist thought
23           and practice, the work of Louise Hay, and Georgina’s own channeled wisdom.”
24            “Her work is very client-centered, and using her psychic insight she is quickly able to guide
              clients to make connections, release the past, and implement new options.”
              “Georgina has 17 years experience doing past life regressions to heal relationships and present
26            life limitations which are rooted in the distant past.”
28   DEFENDANT’S TRIAL BRIEF                                                                               1
              “Re-A.N. stands for Re-Atonement Now – becoming one with yourself and with the healing
 2            power of the Universe. In my 20 years of counseling this is the most comprehensive
              clearing/healing process I have found. It includes clearing the chakras, the auric fields, energy
 3            grids, belief structures, experiences holding and magnetizing patterns of behavior and recurring
              situations – across all lifetimes. It raises the body’s vibrational frequency, making your
 4            creative, positive life choices more powerful.” A copy of the website is attached hereto as
              Exhibit A.
 6                     The government received complaints about Ms. Ritchie from the disgruntled wife (and
 7    her psychiatrist) of one of Ms. Ritchie’s clients. An undercover investigation was initiated and on
 8    March 8, 2003, an agent wearing a concealed microphone appeared at Ms. Ritchie’s for a psychic
 9    healing service. The agent described a fictional tale of living with his girlfriend in Novato, his
10    girlfriend’s 15 year old daughter, and his girlfriend’s grandmother. The agent then stated that the
11    daughter flashed him her breasts while showing him a “nude” picture of herself on the internet, and that,
12    simultaneously, the grandmother came into the room, screamed, and was then slapped by the daughter.
13            Ms. Ritchie responded that she was not a psychologist, that she was a “psychic” with the gift of
14    “insight,” and then Ms. Ritchie offered advice on how to handle the difficult situation, and requested
15    that all parties – the undercover agent, his fictional girlfriend, and her fictional daughter – come back
16    for a second appointment. Of course, the appointment never happened, and Ms. Ritchie was
17    subsequently prosecuted. Ms. Ritchie has never claimed to be licensed by the state.
18                     On September 26, 2003, the government filed a complaint against Ritchie for one count
19    of unlicensed practice of marriage, family, and child counseling as defined in Cal. Bus. & Prof. Code §
20    4980.2; one count of unlicensed clinical social work, as defined in Cal. Bus. & Prof. Code §4996.9; one
21    count of failure to report elder abuse, Cal. Welfare & Inst. Code §15630(h); and one count of failure to
22    report child abuse, Cal. Penal Code §11166(b)
23                     The first two laws under which Ms. Richie was charged are unconstitutional as applied
24    to Ms. Ritchie – they are overbroad and vague, and violate Ms. Richie’s First Amendment rights to
25    freedom of speech and freedom of religion. Finally, while there is some dispute as to whether or not
26    Ms. Richie is a “mandated reporter” for child or elder abuse, the charges for failure to report cannot
27    stand because neither of the fictional “events” alleged in the complaint are reportable.
28   DEFENDANT’S TRIAL BRIEF                                                                                 2
 1    //
 2    //
 3                     II.     THE STATUTES
 4                     Count one of the complaint charges Ritchie with unlicensed practice of marriage, family
 5    and child counseling as defined in Cal. Bus. & Prof. Code § 4980.2, which reads as follows:
             “For the purposes of this chapter, the practice of marriage and family therapy shall mean that
 6           service performed with individuals, couples, or groups wherein interpersonal relationships are
             examined for the purpose of achieving more adequate, satisfying, and productive marriage and
 7           family adjustments. This practice includes relationship and premarriage counseling. ¶ The
             application of marriage and family principles and methods includes, but is not limited to, the
 8           use of applied psychotherapeutic techniques, to enable individuals to mature and grow within
             marriage and the family, and the provision of explanations and interpretations of the
 9           psychosexual and psychosocial aspects of relationships.” (Emphasis added).
11                     Count two of the complaint charges Ritchie with unlicensed practice of social work as
12    defined in Cal. Bus. & Prof. Code §4996.9, as follows:
             “The practice of clinical social work is defined as a service in which a special knowledge of
13           social resources, human capabilities, and the part that unconscious motivation plays in
             determining behavior, is directed at helping people to achieve more adequate, satisfying, and
14           productive social adjustments. The application of social work principles and methods includes,
             but is not restricted to, counseling and using applied psychotherapy of a nonmedical nature with
15           individuals, families, or groups; providing information and referral services; providing or
             arranging for the provision of social services; explaining or interpreting the psychosocial aspects
16           in the situations of individuals, families, or groups; helping communities to organize, to
             provide, or to improve social or health services; or doing research related to social work.
17           Psychotherapy, within the meaning of this chapter, is the use of psychosocial methods within a
             professional relationship, to assist the person or persons to achieve a better psychosocial
18           adaptation, to acquire greater human realization of psychosocial potential and adaptation, to
             modify internal and external conditions which affect individuals, groups, or communities in
19           respect to behavior, emotions, and thinking, in respect to their intrapersonal and interpersonal
             processes.” (Emphasis added).
21                      Both of these statutes are unconstitutionally overbroad, vague, and violate Ms. Ritchie’s
22    First Amendment Rights as applied to practice her religious beliefs, and to provide religious counseling
23    as she sees fit, and should be dismissed. The following will address the legal basis for the challenges.
25    //
27    //
28   DEFENDANT’S TRIAL BRIEF                                                                                   3
 3                     III.    THE STATUES ARE OVERBROAD1
                       A.      A Statute Whose Language Is So Broad as to Prohibit Constitutionally
 4                             Protected Conduct Violates the Due Process Guarantees of the Constitution
                     As a practicing psychic healer whose work is based on Buddhist thought, channeling
 6    spirits from the beyond, past-life regressions, clearing chakras2, auric fields, and energy grids, Ms.
 7    Ritchie is undoubtedly involved in untraditional spiritual healing practices which are, nonetheless,
 8    protected First Amendment activities. The statutes in question clearly inhibit the spiritual practices that
 9    Ms. Ritchie performs for her clients.
10                     An overly broad criminal statute is one containing language that, in its normal meaning,
11    is so broad that its prohibitions apply to conduct protected by the Constitution. When constitutionally
12    protected speech is involved, the statute must be examined strictly. "Because First Amendment
13    freedoms need breathing space to survive, government may regulate the area only with narrow
14    specificity." (NAACP v Button (1963) 371 US 415, 433, 9 L Ed 2d 405, 83 S Ct 328.) "[T]he regulation
15    must not be of such a nature as to frighten those coming within its sweep into limiting 'their behavior to
16    that which is unquestionably safe.' (Keyishian v. Board of Regents (1967) 385 US 589, 609, 17 L Ed 2d
17    629, 87 S Ct 675; other citations omitted.)" (Castro v Superior Court of Los Angeles County (1970, 2nd
18    Dist) 9 Cal App 3d 675, 683.)
19                     Additionally, as the court held in Alford v Municipal Court for Sacramento Judicial
20    Dist. (1972, 3rd Dist) 26 Cal App 3d 244, 248, 102 Cal Rptr 667:
21                     "When a statute involves a First Amendment right and it is being tested for overbreadth
22    (1) it will not do to say in a given case that a statute or statutes under review may be constitutional
23    sometimes, and for some purposes, and void otherwise. Such statutes are valid always or they are
             . This section reiterates Defendant’s previously filed facial challenge to the statutes, which was
25   denied by Judge Graham on January 6, 2004.
26           2
             . A “Chakra” is any of several points of spiritual “energy” in the human body. Miriam-Webster
     On-line Dictionary, 2003
28   DEFENDANT’S TRIAL BRIEF                                                                                   4
 1    altogether void; (2) reasonable strictness of interpretation must be applied by the courts."
 2                     The court in Castro v Superior Court of Los Angeles County (1970, 2nd Dist) 9 Cal App
 3    3d 675, 701, 88 Cal Rptr 500, also made it clear that a judicially crafted narrow interpretation of an
 4    overly broad statute cannot save it from constitutional infirmity.
             "The vice of mirroring a defendant's conduct against a narrowing judicial definition not yet
 5           handed down at the time of the alleged crime is the same: as to him the law is ex post facto
             [citation omitted] and he has not had fair warning of what he may not do. The United States
 6           Supreme Court has applied the rule quite indiscriminately in cases involving vagueness,
             overbreadth or both. [Citations omitted.] If the statute cannot be saved by an intervening judicial
 7           decision, a fortiori a narrowing construction in the very case under construction cannot be
             adequate to convey to the defendant that which he should have been told at the time of his
 8           alleged criminal act."
 9                     B.      In Order to Challenge an Overly Broad Statute, the Defendant Need Not
                               Show That Her Conduct Fell Within the Protected Area
11                  In order to challenge a statute as overly broad, the defendant need not show that her
      conduct fell within the area of constitutionally protected conduct that the statute's language
      encompassed. "It will not do to say that surely no court would hold that such matters are covered by the
      statute or that, if they are, the statute is to that extent unconstitutional. If that were an answer, the entire
      concept of overbreadth is illusory and there would be no need to legislate with 'narrow specificity'; most
      of the Supreme Court's cases invalidating state or federal statutes on the ground of overbreadth would
      not have to have been written." (Castro v Superior Court of Los Angeles County (1970, 2nd Dist) 9 Cal
      App 3d 675, 703, 88 Cal Rptr 500.)
                       Therefore, the question for the Court is not whether Ms. Ritchie’s practice would fit
      within the First Amendment protections of religious practices, but rather, whether any protected
      conduct would fall within the statute. Here, it is obvious – literally hundreds of protected activities fall
      within §4980.02 definition of family therapy which is a “service in which interpersonal relationships
      are examined for the purpose of achieving more adequate marriage and family adjustments.”
                       This language of the statute would include literally hundreds of protected activities, from
      suicide-prevention help lines, to radio and TV talk shows, to religious counseling within the context of
      a multitude of religious beliefs related to marriage or families, to an act as commonplace as discussing
      family problems with a friend or neighbor.
28   DEFENDANT’S TRIAL BRIEF                                                                                        5
 1                     Similarly, the definition of clinical social work found in §4996.9, to wit: “a service in
 2    which a special knowledge of social resources, human capabilities, and the part that unconscious
 3    motivation plays in determining behavior, is directed at helping people to achieve more adequate,
 4    satisfying, and productive social adjustments” would apply to literally thousands of people. As an
 5    example, that definition would apply to almost any religious service, a suicide help line, or a
 6    community resource center which gives advice and assists those receiving social services.           Quite
 7    literally, a self-help guru, such as motivational speakers, or even a neighbor who offers advice on
 8    dealing with a personal problem would fit the definitions of §§4980.2 and 4996.9.
 9                     C.      The Statutes As Applied Violate Ms. Ritchie’s First Amendment Rights
10                     The seminal case of the government attempting to outlaw non-traditional, spiritual based
11    practices is Spiritual Psychic Science Church of Truth, Inc. v. City of Azusa (1985) 39 Cal. 3d
12    501(disapproved, other grounds, Kasky v. Nike, Inc. (2002) 27 Cal. 4th 939(cert granted, 123 S.Ct.
13    817). In the Azusa case, the town of Azusa, much like the government herein, attempted to outlaw the
14    clairvoyant arts.3 The Azusa court recognized that all the non-traditional, spiritual based practices are
15    constitutionally protected speech, and struck down the Azusa ordinance as overbroad.
16                     Moreover, contrary to the government’s argument that hypothetical situations are
17    inapposite in determining whether or not a given statute is overbroad, the Court in Azusa described
18    many hypothetical situations in which the Azusa city ordinance could be overbroad. For example, the
19    Azusa Court noted that the ordinance’s ban on “spiritual readings” could encompass Bible lessons, or
20    the banning of “prophecy” could encompass a religious service. Hence, the use of hypotheticals is a
21    perfectly legitimate way to test the overbreadth of a statute.
22                     Finally, where First Amendment rights are entailed, broad prophylactic rules prohibiting
23    protected and unprotected speech, like the definitions of “family therapy” and “social work” at issue
24    here, are suspect. Precision of regulation is required. Asuza, 29 Cal.3d at 515.
25           3
             .     The Azusa city ordinance attempted to outlaw “astrology, augery, card or tea reading,
     cartomancy, clairvoyance, crytalgazing, divination, fortune telling, hypnotism, magic, mediumship,
26   necromancy, palmistry, phronology, prophecy, or spiritual reading, or any similar business or art. . .”
     Azusa, 39 Cal.3d 501.
28   DEFENDANT’S TRIAL BRIEF                                                                                  6
 1                     As applied to Ms. Ritchie, the statutes being challenged are so broad, so all
 2    encompassing of so many protected activities, that Counts One and Two should be dismissed as
 3    overbroad.
 4    //
 5    //
 7                     In addition to being overbroad as applied to Ms. Ritchie, the statutes in question are
 8    unconstitutionally vague. If a court determines a statute is not overbroad, then the court should
 9    examine the statute for vagueness. Hoffman Estates v. Flipside (1982) 455 U.S. 489. A statute may be
10    void for vagueness for three reasons: (1) to avoid punishing people for behavior that they could not
11    have known is illegal; (2) to avoid subjective law enforcement of the laws based on arbitrary or
12    discriminatory interpretations by law enforcement; and (3) to avoid a chilling effect on the exercise of
13    First Amendment freedoms. U.S. v. Wunsch (9th Cir. 1996) 84 F.3d 1110. Additionally, where criminal
14    penalties are involved, a stricter application of the vagueness test than with civil penalties is required
15    because the consequences of imprecision are qualitatively more severe with criminal penalties.
16    Flipside, 455 U.S. 498-99.
17                     The statutes in question violate all three of the tests for vagueness. As to the first test,
18    how could a person, especially one living in the Bay Area, know that non-traditional, spiritual based
19    counseling practices would be against the law? One need look no further than Spirit Rock, in
20    Woodacre, or Esalen, in Monterey, or the literally hundreds of practitioners of non-traditional, spiritual
21    based counseling in, e.g., such publications as Common Ground, to realize that the Bay Area is loaded
22    with these type of unlicensed, non-traditional, spiritual based healers.4
23                     Second, the statutes in question provide carte blanche to the police to arrest anyone
24    providing non-traditional, spiritual based counseling. Much like the unconstitutional statute in Azusa,
              .      A copy of some Common Ground advertisements are attached hereto as Exhibit B.
26   Ironically, the Marin County Courthouse actually provides a distribution stand for this magazine filled
     with potential criminal defendants.
28   DEFENDANT’S TRIAL BRIEF                                                                                     7
 1    the statutes in question allow for the prosecution of the very First Amendment protected activities the
 2    government attempted to outlaw in Azusa. Which of the advertised spiritual-based healers set forth in
 3    the Common Ground advertisements could not be prosecuted in the way the government has prosecuted
 4    Ms. Ritchie herein? The statutes as applied to Ms. Ritchie have literally no limits.
 5                     Moreover, how can the police be guided by this definition of licensed family therapy
 6    found in §4980.02: “a service in which interpersonal relationships are examined for the purpose of
 7    achieving more adequate marriage and family adjustments”?
 8                     The definition of licensed clinical social work is no better. The definition of licensed
 9    clinical social work, found in §4996.9 “a service in which a special knowledge of social resources,
10    human capabilities, and the part that unconscious motivation plays in determining behavior, is directed
11    at helping people to achieve more adequate, satisfying, and productive social adjustments” provides no
12    guidelines to the police. These are not the kind of statutes one relies on for a criminal prosecution. In
13    fact, the definitional sections of both counts one and two are so vague as to allow the prosecution of
14    almost anyone providing any kind of non-traditional, non-licensed advice, whether paid or not, a result
15    which runs directly contrary to Azusa.
16                     Finally, as to the third test, the vagueness of the statutes under which Ms. Ritchie is
17    charged will certainly chill the exercise of her, and many others’, First Amendment rights to provide
18    spiritual counseling as they see fit, without governmental interference. In fact, the most recent decision
19    related to civil liability held that there can be no governmental standards for “clergy” malpractice in
20    counseling, and therefore no civil case of action. In Rachelle L. v. Roman Catholic Archibishop (2003)
21    130 Cal. Rptr.2d 601, 608, the First District Court of Appeal held that:
             “ . . .a [civil] action for clergy malpractice cannot be reconciled with the First Amendment
22           because a standard of care and its breach could not be established without judicial
             determinations as to the training, skill, and standards applicable to members of the clergy in a
23           wide array of religions holding different beliefs and practices. Even if a reasonable standard
             could be devised, which is questionable, it could not be uniformly applied without restricting
24           the free exercise rights of religious organizations which could not comply without
             compromising the doctrines of their faith. The application of such a standard would also result
25           in the establishment of judicially accepted religions, because it would inevitably differentiate
             ecclesiastical counseling practices that are judicially acceptable from those that are not.”
27                     Here, in a much worse attempt by the government to ban spiritual based counseling by
28   DEFENDANT’S TRIAL BRIEF                                                                                  8
 1    criminalizing the behavior, the government is trying to outlaw non-traditional spiritual based counseling
 2    using an unconstitutionally vague statute. The First Amendment prohibits it.
 3                      Given that this is a criminal prosecution, and, therefore one in which the court should
 4    hold the government to a strict standard, counts one and two of the complaint should be dismissed.
 6                     In an incredible case of bungled police work, the government’s undercover agent’s
 7    fictitious tale does not amount to reportable elder abuse under Welfare & Institutions Code §16530(h),
 8    or reportable child abuse under Penal Code §11166(b). A person who is a “mandated reporter” is one
 9    who is licensed by the state and receives training about the duty to report child or elder abuse, or a
10    member of the clergy who is not receiving the information as part of a confidential. See, e.g,, Welfare
11    & Inst. Code §15630(a).
12                     Ms. Ritchie is a member of the Universal Life Church. The Universal Life Church
13    grants to anyone who wishes a become a religious minister the title, with no training or fee required.
14    While the government has an arguable case that Ms. Ritchie is a “clergy” member, and therefore, has a
15    requirement as a “mandatory reporter,” the facts of the undercover investigation do not support a
16    continuation of the prosecution of this case because the fictional tale of the undercover agent does not
17    amount to reportable elder or child abuse.
18                     A.      The Failure to Report Elder Abuse - Count 3
19                     The undercover officer also described, during the time the 15-year was showing her
20    breasts, that the “elderly” grandmother came into the room, screamed, and was subsequently slapped
21    and pushed by the 15 year old. “Elder” is defined in Welfare and Inst. Code §15610.27 as a person 65
22    years of age or older. At no time did the uncover agent ever tell Ms. Ritchie that the “grandmother” in
23    the fictional scenario he described was 65 years of age or older. Hence, even assuming, arguendo, a
24    slap or a push fits the definition of abuse, at no time did the uncover agent disclose that the
25    “grandmother” in question was an “elder” within the definition of the law. This count should be
26    dismissed.
27                     A.      The Failure to Report Child Abuse - Count 4
28   DEFENDANT’S TRIAL BRIEF                                                                                 9
 1                     The undercover agent described the following fictional scenario to Ms. Richie: His
 2    girlfriend’s 15 year old daughter showed him a copy of an unidentified web site showing her “nude”
 3    and then flashed her breasts to him. Nothing in the acts described by the undercover agent fit the
 4    definition of “child abuse” found in Penal Code §11166(b) and related sections.
 5                     “Child abuse” means a variety of physical abuse and physical neglect which are not
 6    relevant here. The only relevant definition is found in the “sex abuse” references as defined in Penal
 7    Code §11165.6, which references Penal Code §11165.1, which defines sex abuse to “obscene sexual
 8    conduct,” which is further defined in Penal Code §311.3(b) as images that depict “(1) sexual intercourse
 9    . . .(2) penetration of the vagina . . .(3) masturbation . . . (4) sadomasochistic abuse . . . (5) exhibition of
10    the genitals or the pubic area or rectal area of any person for the purpose of sexual stimulation of the
11    viewer.”
12                     At no time was Ms. Richie ever shown the fictional “website” photo depicting the
13    fictional daughter as “nude.” She was never told that in the photo, the fictional 15 year old exhibited
14    her “genitals or pubic area or rectal area for the purpose of sexual stimulation.” Moreover, she was
15    never told that the undercover agent has any “sexual stimulation” at seeing the fictional 15 year old’s
16    nude photo or her breasts. Simply put, at no time was Ms. Ritchie ever told the fictional website photo
17    or topless prancing in her home satisfied any definition of the Penal Code related to sex abuse of a
18    child. Indeed, even the undercover agents description of his girlfriend’s daughter flashing her fictional
19    15 year old breasts does not fit the definition of child or sex abuse found in the Penal Code.
20                     Therefore, even assuming, arguendo, that Ms. Ritchie had a duty to as a mandatory
21    reporter under Penal Code §11165.7, there is no evidence to support this count, and it should be
22    dismissed.
23                     IV.     CONCLUSION
24                     The Defendant’s position is clearly stated. After their evidence is submitted, the
25    government cannot survive a motion to dismiss this case for the grounds set forth above.
27    Dated: January ___, 2004                                  HALLINAN & WINE
28   DEFENDANT’S TRIAL BRIEF                                                                                       10
 2                             Kenneth H. Wine
28   DEFENDANT’S TRIAL BRIEF                                     11

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