Metropolitan News-Enterprise


Tuesday, October 9, 2001


Page 1


Threat Made During Therapy Session Not ‘Terrorist’—C.A.


By a MetNews Staff Writer


A man who told his therapist he intended to kill his ex-girlfriend was improperly convicted of making a “terrorist threat,” because there was no proof he intended to have the threat communicated to the woman, the Court of Appeal for this district has ruled.

Thursday’s  ruling by Div. Six will do little to help Fernando Felix, however.

The panel affirmed his convictions on charges of kidnapping, making two other terrorist threats to the same woman, and two counts of leaving the scene of a motor vehicle accident. His total sentence of eight years, four months could be reduced by no more than eight months as a result of the ruling.

The victim, Julia Luckhart, had obtained a restraining order to prevent Felix, whom she used to live with, from contacting her or going to her infant daughter’s school.

The kidnapping charge arose from an incident in which Felix grabbed Luckhart’s daughter, in her car seat, as Luckhart was picking the girl up at school. Ignoring her pleas, he put the girl in his car, she testified, saying it was the only way he could get Luckhart to talk to him.

Luckhart said she got in his car for fear he wouldn’t give the child back otherwise. He drove around for 30 or 45 minutes, she said, ignoring repeated pleas to take her home before finally doing so.

The rest of the charges, except for the one involving the therapist, resulted from an incident at a friend’s house. Felix, according to testimony, drove up, honked his horn, drove forward, and hit Luckhart’s fiancé. After the friend whom they were visiting threw a brick through Felix’s windshield, Felix yelled, “Both of you are dead mother f—ers.”

Two hours later, Luckhart said, Felix called her and said he was “going to f—ing kill you.”

The therapy session that formed the basis of the third terrorist threat charge occurred three weeks later. The psychologist testified Felix told him he was thinking about killing Luckhart once he was released from jail.

Therapist Carl Levinger said Felix told him “that if he saw her with somebody else that he would shoot her and then the kids and then himself.”  Felix also said “one of his friends would kill her if he asked him to.” 

Levinger said he telephoned Luckhart three days later.  When the prosecution asked Levinger what he told her, Los Angeles Superior Court Judge Clifton L. Allen  sustained an objection on relevance and hearsay grounds.

Luckhart testified that after the call she went to her room, cried, and said, “he’s going to try to kill me.”

Levinger and Luckhart’s testimony wasn’t sufficient to prove that the comments to the therapist were a terrorist threat under Penal Code Sec. 422, Presiding Justice Arthur Gilbert wrote for the Court of Appeal.

To constitute a terrorist threat, the presiding justice explained, the threat must be made to the victim, or to a third person with intent that it be communicated to the victim. There must also be specific intent that the statement be taken as a threat, Gilbert said.

There is, the presiding justice noted, a narrow exception to the therapist-patient privilege in this state. As determined by the state high court in Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, a psychologist who reasonably believes that a patient is dangerous to another person has a duty to warn the intended victim and may be required to testify against the patient.

But there was no evidence, Gilbert reasoned, that Felix knew that Levinger would be legally obligated to tell Luckhart about the threat or that he otherwise intended to have the statements communicated to her.

Nor, Gilbert said, did the prosecution show that Felix intended his statements to instill fear in Luckhart, as opposed to merely satisfying the requirements of his therapy.

The presiding justice explained:

“The prosecution showed that Felix made his remarks 45 minutes into his therapy session.  But it produced no evidence about what preceded them, why he made them, whether they were in response to therapy, or what Felix wanted Levinger to do about them….

“Psychoanalysts often try to probe deeply into the psyche to measure stress and the origins of aberrations…But there was no testimony regarding the scope of this session.  There was no evidence as to whether anything Levinger did brought these remarks out or whether they were purely voluntary.  Because the prosecution did not adequately prove the factual setting involving Felix’s remarks, it did not show whether his words were the product of therapy, ranting soliloquies, or a crime.”

Attorneys on appeal were Murray Rosenberg, by court appointment, for the defendant and Murray A. Rosenberg, under appointment by the Court of Appeal, for the defendant and Deputy Attorney General Michelle M. Paffile for the state.

The case is People v. Felix, 01 S.O.S. 4917.Copyright 2001, Metropolitan News Company