PEOPLE v. GONZALES










Filed 1/27/11







CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. RAMIRO GONZALES, Defendant and Appellant.

H032866 (Santa Clara County Super. Ct. No. 211111)

I. Statement of the Case
In 2007, the Santa Clara County District Attorney filed a petition to commit defendant Ramiro Gonzales as a sexually violent predator (SVP) under the SVP Act. (Welf. & Inst. Code, § 6600 et seq.)[1] A jury found the defendant qualified as an SVP, and the court ordered defendant committed to the custody of the Department of Mental Health (DMH) for an indeterminate term.
On appeal from the commitment order, defendant claims the trial court erred in releasing psychological records to the prosecution and admitting the testimony of a former therapist. He claims there is insufficient evidence that his circumstances had materially changed since a previous determination that he did not qualify as an SVP. He claims the court erred in refusing to instruct the jury that mental retardation could not be considered a mental disorder in determining whether he qualified as an SVP. He claims the indeterminate commitment violates his constitutional rights to equal protection and due process and also the constitutional protections against ex post facto legislation and double jeopardy. Finally, he claims the SVP law, as amended, violates his First Amendment rights.
We conclude that the court committed reversible error in releasing privileged psychotherapeutic records and admitting testimony concerning privileged information. Accordingly, we reverse the commitment order.
II. The Evidence
Defendant’s Background
Defendant was born in 1955 and at the time of the SVP trial in 2008, he was 53 years old. At age seven, he contracted spinal meningitis which resulted in intellectual and developmental disabilities. Thereafter, he attended special education classes for a while but ultimately dropped out of school. He lived at home until he was sent to prison. During that time, he made money collecting cans for recycling and doing yard work. However, he needed help with daily living chores.
Between 1972 and 1974, defendant was convicted numerous times of petty theft. In 1975, at age 20, he was convicted of misdemeanor annoying or molesting a five-year-old girl. The probation report indicated that while he had an erection, defendant hugged the girl and whispered obscenities to her.
In 1977, defendant was convicted of lewd and lascivious conduct with a seven-year-old girl. In that incident, defendant was mowing the lawn at the house where the girl lived. He asked if he could use the phone but once inside faked making a call. The girl’s mother got suspicious, called her brother, and waited outside for him, leaving the girl sitting on the couch. When her brother and mother returned, defendant was rubbing the girl’s buttocks and crotch area over her clothing. When asked to explain his conduct, defendant said it “looked easy” and he did not know how to “do sex” with women.
In 1981, defendant was convicted of vandalism, and in 1989, he was convicted of battery on a woman whom he pushed down after she threw away a beer that he was drinking. In 1994, defendant was convicted of molesting a four-year-old girl. In that incident, a woman, who was visiting defendant’s sister, put her daughter in a bedroom to sleep, and defendant was caught in the room rubbing her vagina.
Because of his impaired mental and intellectual development, defendant was housed at the San Andreas Regional Center, which provides services to those with developmental disabilities. Defendant received 24-hour care, supervision, and skills training.
Defendant was scheduled to be released on parole in the spring of 2004. At that time, the Santa Clara County District Attorney filed a petition seeking to have defendant committed as an SVP, but the jury found the allegations that he was likely to reoffend not true. Thereafter, defendant was released on parole with conditions that barred use of alcohol, contact with sex offenders, contact with minors, and being within 100 feet of places where children congregate, including parks and schools. He was not permitted to live at his mother’s residence because it was too close to a school, but he was allowed to visit her. He was also required to wear a tracking device and attend an outpatient psychiatric treatment program. Two different parole officers personally read and explained each of the conditions to defendant, and defendant signed the parole conditions acknowledging them. His second parole officer also drove defendant to his treatment program.
In July 2004, defendant was arrested for missing an outpatient meeting, and he was released in August. In January 2005, defendant violated parole because he was assisting another sex offender who lived in the same motel. Both offenders were reminded of the no-contact condition. In February 2005, defendant was arrested when parole agents found 20 beer cans in his motel room; he was released in June. In August he was arrested for drinking and released in December 2005.
In April 2006, defendant was fitted with another tracking device and agreed not to have contact with anyone under the age of 18 and to report any such contacts he had with minors, whether accidental or not. In August 2006, defendant’s parole agent learned from the tracking device that defendant had loitered in an area with a playground. The next day, the agent called defendant at his mother’s house. When the agent heard children’s voices in the background, he and other officers immediately went there. They found two children in the driveway, defendant’s mother, the children’s father, and defendant, who was then arrested.[2] Defendant said that he knew he was not supposed to be near the playground, but he said he just stopped to roll some cigarettes and did not look at any of the children. Defendant also knew he was not supposed to be at the house when children were there and admitted that he had been drinking three times a week for a couple of months. Defendant was arrested for violating parole.
Professional Psychological Testimony
In January 2006, a parole agent took defendant to the Atkinson Assessment Center for outpatient treatment and counseling as a court-ordered condition of parole. Pat Potter McAndrews was defendant’s psychotherapist. She testified that she administered an assessment test (the Abel Assessment). Because of his limited intellectual abilities, she carefully explained and rephrased some of the questions and helped record his answers. Thereafter, defendant regularly attended his group sessions, and his participation was good.
McAndrews testified that during defendant’s initial interview, they discussed his family, medical, social, and criminal history, including the sexual misconduct and his convictions. He told her he had been drinking alcohol regularly since he was 14 years old. She gave him an assessment test, and, in response to one of the questions, defendant told her that between the ages of 14 and 37, he had touched 16 children sexually. Defendant explained that he was very attracted to children, and when he was drinking, he could not really control himself and had an overwhelming desire to touch them.
During the treatment, McAndrews regularly asked defendant if he had been drinking, and he said that he had not done so after his release on parole. McAndrews was particularly concerned about this because alcohol lowered inhibitions and had played a part in defendant prior sexual misconduct. Defendant never told McAndrews that he had been drinking regularly or that his sister and her children had moved into his mother’s house, and she was unaware that defendant had violated parole by drinking or that he was visiting his mother’s house. McAndrews said these facts would have been very important to have known because they showed that defendant had the opportunity to commit another offense. Had she known, she would have been highly concerned because his drinking around children was a “recipe for a sex offense.”
After defendant was arrested at his mother’s house, two state-appointed psychologists, Jack Vognsen and Thomas MacSpeiden, evaluated him to determine whether he posed a risk of danger. At the SVP trial, both MacSpeiden and Vognsen testified that defendant met the statutory criteria for an SVP: (1) he had previously been convicted of sexually violent offenses against at least two victims; and (2) he suffered from a diagnosed mental disorder that rendered him dangerous because of a likelihood that he would commit similar offenses. (See § 6600, subd. (a)(1).)
Specifically, both psychologists diagnosed defendant with pedophilia and opined that it impaired his emotional and volitional capacity. MacSpeiden opined that defendant also suffered from alcohol dependency and borderline intellectual functioning. Vognsen opined that defendant suffered from alcohol abuse and mild mental retardation.
The psychologists reviewed defendant’s background, history, and available records. They conducted their evaluations and reached their conclusions before reviewing defendant’s records from the Atkinson Center. However, at trial, both noted defendant’s statement to McAndrews that between the ages of 14 and 37, he had sexually touched 16 children. MacSpeiden testified that this confirmed his analysis and conclusion. Vognsen concurred and found the statement significant.
Both psychologists accepted the jury finding in 2004 that defendant was not likely to reoffend. However, they both felt that defendant’s subsequent parole violations reflected a material change in circumstances after 2004 and demonstrated a decreasing ability to control his behavior. MacSpeiden believed that since 2004, defendant’s drinking had gotten worse, and his presence in places where children were or might have been manifested his diminished control.
Both psychologists administered a standardized risk assessment test designed to evaluate the likelihood that a person would reoffend (Static 99). The test results in each case placed defendant in a very high risk group, and both psychologists testified that in general the test underestimated risk. The psychologists considered a number of other static and dynamic risk factors. Both doctors found that defendant’s low intellectual functioning made it difficult for him to learn how to control his impulses. Although defendant had engaged in therapy sessions, the psychologists disagreed concerning whether he was amenable to treatment and could understand how to avoid sexual misconduct. Together, defendant’s low intellectual functioning, pedophilia, and alcohol dependence made him dangerous.
Based on their evaluation of defendant, both psychologists concluded that he was likely to engage in sexually violent predatory acts as a result of his diagnosed mental disorders. Vognsen was also concerned that defendant would stay with his mother if released. He noted that when defendant was last arrested, his mother said, “ ‘I don’t see what the problem is. He just comes here, has a few beers with us and watches the kids.’ ” Vognsen considered it dangerous for defendant to rely on his mother for support because “[S]he’s so protective and, one might say, enabling of his bad habits.”
Two psychologists, Timothy Joseph Derning and Brian Abbott, testified for the defense.
Derning explained that mental retardation is a disability and not an illness. He opined that because of his disability, defendant was dependent on his mother and family and his routine of visiting her, and, therefore, it would be very difficult for him to alter his habits and develop alternatives to comply with his parole conditions after his sister and her children moved in.
Derning had previously evaluated defendant in 2004. In this case, he reviewed defendant’s records, including those from the San Andreas Regional Center, the Department of Corrections, and the Atkinson Center. He also reviewed police, probation, and parole reports; the evaluations by MacSpeiden and Vognsen; and the testing by McAndrews. Because of defendant’s disabilities and reading difficulties, he did not think that defendant could understand the test and did not believe its results were valid. Despite defendant’s parole violations after 2004, he did not find that defendant’s ability to comply with rules and regulations or control his behavior or sexual impulses had deteriorated. He criticized the contrary conclusions by MacSpeiden and Vognsen for failing to adequately address the impact of defendant’s mental retardation. He also believed that mental retardation was a more accurate and appropriate diagnosis than pedophilia. According to Derning, that defendant had on occasion explored sex with little girls could be attributed to his retardation and did not necessarily mean that he had a sexual preference or urge for children or suffered from pedophilia.
Abbott also had evaluated defendant in 2004, and he reviewed defendant’s previous and subsequent history and records. He testified that although defendant suffered from mental retardation and alcohol dependence, he did not currently suffer from pedophilia or have any other mental disorder, and he faulted the contrary view because it was based on old behavior and failed to consider mental retardation as a possible explanation for defendant’s prior sexual behavior. Abbot characterized defendant’s inappropriate behavior with girls to be isolated incidents of sexual experimentation attributable to poor impulse control and bad judgment, both of which are manifestations of his retardation. Apart from these incidents, Abbott believed that defendant appeared to have adequate control over his sexual impulses and feelings. And there was no evidence that he had attempted any inappropriate acts with children since his incarceration in 1994. Since his release on parole, he had properly registered as a sex offender, attended counseling and individual therapy, complied with room searches, and worn his tracking device. Thus, except for resuming his lifelong habit of drinking beer, defendant had demonstrated his ability to comply with rules and regulations. Consequently, he did not find that there had been a material change in defendant’s circumstances after his release on parole.
Given defendant’s limited verbal skills and retardation, Abbot questioned the validity and reliability of the Abel Assessment, which was not designed to assess those with mental disabilities. He also opined that the Static 99 had inherent design flaws, and he believed the risk of reoffending posed by defendant to be much lower than MacSpeiden or Vognsen had found.


Defendant’s Testimony
Defendant recalled that his parole agent had explained the conditions of parole, and he knew he was not supposed to drink or be near children. He admitted drinking beer. He recalled molesting the girl in 1994 and explained that he had been drunk. He said he had similarly molested two other girls. He knew that doing so was wrong. He said that if he were released on parole, he would register with the police department, see his parole officer, and then see his mother.
III. Release of Records from The Atkinson Center
Background
Before trial, the district attorney subpoenaed defendant’s psychological records from the Atkinson Center. Defendant sought to quash the subpoenas and exclude both the records and any testimony from McAndrews, his therapist at the Atkinson Center, on grounds that all of the information was protected by the psychotherapist-patient privilege. (Evid. Code, § 1014.)[3]
At a hearing, the district attorney argued, among other things, that defendant’s therapy records and all communications between him and his therapist were admissible under the “dangerous patient” exception to the psychotherapist-patient privilege. (See Evid. Code, § 1024.) In support of this argument, the district attorney made an offer of proof that “Dr. Atkinson, as well as [defendant’s parole agent,] all believe that [defendant] did present a danger and would have indicated as such in their records.”
The court found that the materials sought were covered by the psychotherapist-patient privilege, but further found that they were relevant concerning whether defendant currently posed a risk of danger to others and came within the “dangerous patient” exception to privilege.
Evidentiary Error
Defendant contends that the trial court erred in finding that the “dangerous patient” exception applied. We agree.
Our Supreme Court has consistently recognized “ ‘the public interest in supporting effective treatment of mental illness and . . . the consequent public importance of safeguarding the confidential character of psychotherapeutic communication.’ [Citations.]” (People v. Wharton (1991) 53 Cal.3d 522, 555 (Wharton), quoting Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 440.)
By its terms the psychotherapist-patient privilege protects “ ‘confidential communication between patient and psychotherapist.’ ” (Evid.Code, §§ 1012, 1014.) “The privilege can cover a communication that was never, in fact, ‘confidential’—so long as it was made in confidence. The communication need only comprise ‘information . . . transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information’ to no ‘outside’ third person. [Citation.] [¶] Similarly, the privilege can cover a communication that has lost its ‘confidential’ status. [¶] ‘[T]he patient . . . has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist . . . ’ [Citation.]” (Menendez v. Superior Court (1992) 3 Cal.4th 435, 447-448 (Menendez).) The “privilege to prevent” disclosure to others prevents disclosures not only by a patient’s psychotherapist, but also by any other third person privy to a confidential communication. “In this aspect, the ‘privilege to prevent’ effectively repudiates the old ‘eavesdropper rule,’ under which the privilege is defeated whenever any ‘outside’ ‘third person—eavesdropper, finder or interceptor—overhears or otherwise receives the confidential communication . . . .’ [Citations.]” (Id. at p. 448.)
“Where the psychotherapist-patient privilege is claimed as a bar to disclosure, the claimant has the initial burden of proving the preliminary facts to show the privilege applies.” (Story v. Superior Court (2003) 109 Cal.App.4th 1007, 1014 (Story).)
As important as psychotherapeutic confidentiality is, it is not absolute, and its value and the protection of the privilege may be outweighed by other societal interests. (Story, supra, 109 Cal.App.4th at p. 1014; San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1091 (San Diego Trolley).) Such a determination is expressed in Evidence Code section 1024 which establishes an exception to the privilege, commonly referred to as the “dangerous patient” exception. (Menendez, supra, 3 Cal.4th at p. 449.) That section provides, in relevant part, “ ‘There is no [psychotherapist-patient] privilege . . . if the psychotherapist has reasonable cause to believe that the patient is in such a mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.” The exception reflects the Legislature’s conclusion that “the value of safeguarding confidential psychotherapeutic communications, as great as it is, is outweighed by the public interest in protecting foreseeable victims from physical harm. [Citation.]’ ” (San Diego Trolley, supra, 87 Cal.App.4th at p. 1091, fn. 1, quoting Evid. Code, § 1024.)
Nevertheless, because the psychotherapist-patient privilege is to be liberally construed in favor of the patient, courts “have an ‘obligation to construe narrowly any exception to the psychotherapist-patient privilege: we must apply such an exception only when the patient’s case falls squarely within its ambit.’ [Citation.]” (Wharton, supra, 53 Cal.3d at p. 554.) Moreover, even when the factual predicate for the exception is shown, it applies only to those communications that triggered the psychotherapist’s conclusion that disclosure of a communication was needed to prevent harm. (Ibid.; San Diego Trolley, supra, 87 Cal.App.4th at p. 1091.)
Where a claimant has shown the privilege applies, the burden shifts to the opponent to show that the communications were not confidential, the privilege was waived, or the communications fall within an exception to the privilege. (Story, supra, 109 Cal.App.4th at p. 1015.)
With these principles in mind, we turn to the trial court’s ruling in this case, and, in particular, its finding that the “dangerous patient” exception applied.[4]
Although the district attorney had the burden to prove the factual predicate for the exception, he presented no evidence that defendant had ever said anything to McAndrews during therapy that led her to believe that he posed a danger to others. Nor did the district attorney present any evidence that McAndrews ever considered it necessary to disclose particular confidential communications in order to prevent defendant from harming someone or that she discussed such a concern with anyone. Indeed, later at trial, McAndrews did not suggest that over the course of therapy, defendant’s statements caused her alarm or led her to think he might be dangerous. On the contrary, her testimony implies that she had no such concerns and never thought of disclosing any confidential material except what might be necessary to keep defendant’s parole officer apprised of defendant’s compliance with his condition of parole. McAndrews did express some concern that certain circumstances constituted a “recipe” for a possible offense. However, that concern was not based on confidential communications during therapy; it arose because she learned from someone else that defendant had been drinking and was around his sister’s children.
The sole basis for the court’s ruling was the district attorney’s brief, vague, and wholly conclusory offer of proof that the records of McAndrews and defendant’s parole officer would show that they believed defendant posed a danger. The district attorney did not reveal how, before discovery was authorized, he had come to know what McAndrews thought or what her records might have indicated. Nor did he suggest that he had spoken to McAndrews or defendant’s parole officer and that when McAndrews learned about defendant’s drinking and his sister’s children, she felt that he might pose a danger. In any event, even if she had expressed concern to the district attorney or parole officer, the district attorney’s offer still failed to establish that McAndrews felt that it was necessary to disclose confidential communications in order to prevent some harm.
In short, the record does not contain sufficient evidence to support the application of the “dangerous patient” exception. Moreover, notwithstanding a correct finding that the material sought was privileged, and the mandate to narrowly construe the “dangerous patient” exception, the court granted the district attorney blanket discovery of all records and information about defendant’s therapy and implicitly authorized McAndrews to testify about everything and anything concerning the therapy, including what she and defendant said to each other during therapy as well as her advice and diagnosis. Under the circumstances, we conclude that the trial court abused its discretion.
In defense of the court’s ruling, the Attorney General relies on this court’s opinion in People v. Martinez (2001) 88 Cal.App.4th 465 (Martinez). However, reliance on Martinez is misplaced.
To explain Martinez, we first discuss People v. Lakey (1980) 102 Cal.App.3d 962 (Lakey). In Lakey, the defendant was involuntarily committed to a state institution as an MDSO (mentally disordered sex offender), where he underwent therapy. At a later hearing to extend the commitment, two psychologists testified in favor of recommitment, basing their opinions on defendant’s treatment history, records, and statements during therapy. (Id. at pp. 967-969.)
On appeal, the defendant claimed that this testimony violated the psychotherapist-patient privilege. The court disagreed. It noted that the privilege is not absolute. The court explained that the MDSO commitment was designed to provide the defendant with treatment and to protect society. One purpose of supervised confinement and psychotherapy was to monitor progress and gather information that was relevant to future dangerousness and provide a basis for decisions concerning whether the MDSO should be released. (Lakey, supra, 102 Cal.App.3d at pp. 976-977.) The court found no evidence that the Legislature intended to preclude reliance on such information under the psychotherapist-patient privilege. (Ibid.)
The court found support in Evidence Code section 1024, noting that the MDSO recommitment proceeding was premised on the treating psychologists’ belief that the defendant currently constituted a serious threat to society. Under the circumstances, the court opined that “ ‘the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.’ ” (Lakey, supra, 102 Cal.App.3d at p. 977, quoting Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, 442.)
In Martinez, supra, 88 Cal.App.4th 465, the defendant was convicted of sex offenses and later involuntarily committed to a state institution as an MDSO, where he received psychiatric treatment and therapy. At some point he was released, and years later, he was convicted of failing to register as a sex offender and placed on probation. He violated probation by again failing to register and was incarcerated. Before his term expired, the district attorney initiated an SVP commitment proceeding. At trial, two psychologists opined that the defendant qualified as an SVP. They testified that they relied on the defendant’s institutional psychiatric records, including prior psychological evaluations and statements the defendant had made to psychologists, assistants, and technicians during his previous MDSO commitment. On appeal, the defendant claimed that the admission of this testimony violated his psychotherapist-patient privilege. This court rejected his claim. (Id. at pp. 469-473, 482-483.)
We discussed Lakey, supra, 102 Cal.App.3d 962, agreed with its analysis, and applied it in the context of an SVP proceeding. “The SVPA protects the public from sexual predators by detaining them and providing treatment until the mental condition causing their disorder has abated. The determination that a disorder has abated requires a full assessment of the person’s current mental condition, including reference to treatment records and progress in therapy.” (Martinez, supra, 88 Cal.App.4th at p. 484, italics added.) Accordingly, we concluded that the psychotherapist-patient privilege did not preclude later SVP psychologists from considering and testifying about statements defendant had previously made as a MDSO because the privilege never attached to his communications with the treatment staff. Indeed, given Lakey, his MDSO commitment, the purpose of his initial evaluation and treatment, defendant could not have expected his communications to be absolutely confidential or otherwise protected by the privilege. (Ibid.)
Martinez and Lakey stand for the proposition that in the context of an MDSO or SVP commitment or recommitment proceeding, the psychotherapist-patient privilege does not protect psychological records of a previous involuntary commitment. Those records are generated, in part, as part of an ongoing process designed to treat MDSOs and SVPs and to provide authorities with a professionally informed basis for determining whether it is safe to release such persons upon the expiration of their terms of involuntary commitment. When those treatment records are being generated, the MDSO or SVP cannot reasonably expect that their therapeutic communications will be absolutely confidential or protected by the privilege at future commitment or recommitment hearings. At such hearings, the public safety purpose and benefit of a full assessment of a MDSO’s or SVP’s mental condition, including review of institutional psychotherapy records, outweigh the general public policy favoring confidentiality between psychotherapist and institutionalized patient. Under these circumstances, the MDSO’s or SVP’s records may reasonably be deemed to fall within the “dangerous patient” exception.
The circumstances here are distinguishable from those in Martinez and Lakey. A defendant who has been released on parole with a therapy condition is not comparable to a person involuntarily committed to a state institution as an MDSO or an SVP in order to protect the public and provide treatment. Moreover, in our view, a parolee participating in therapy as a condition of parole can generally expect communications with a psychotherapist to be confidential and protected by the privilege except insofar as disclosure is necessary to ensure compliance with the parole condition.
We find support for our view in In re Pedro M. (2000) 81 Cal.App.4th 550 (Pedro M.) and Story, supra, 109 Cal.App.4th 1007. In Pedro M., the minor committed a sex offense and was placed in a facility for young sex offenders on condition he participate in psychological testing and treatment. When he refused to cooperate, the court sent him to CYA (California Youth Authority) based on testimony from a therapist about the minor’s participation and progress. On appeal, the minor claimed the testimony violated the psychotherapist-patient privilege. The court disagreed, explaining that because psychological treatment was ordered, the therapist’s testimony was necessary to evaluate the minor’s compliance. The court noted that Evidence Code section 1012 expressly provided for the disclosure of confidential communications between patient and psychotherapist to “ ‘those to whom disclosure is reasonably necessary for . . . the accomplishment of the purpose for which the psychotherapist is consulted . . . .’ ” (Pedro M. 81 Cal.App.4th at pp. 553-555.) This did not mean that the privilege did not apply at all. The court pointed out that the juvenile court had properly circumscribed the therapist’s testimony, limiting it to the issue of compliance with the therapy order so that the therapist would not reveal details of therapeutic sessions, the minor’s diagnosis, the therapist’s advice, or statements by the minor. (Id. at. pp. 554-555.)
In Story, supra, 109 Cal.App.4th 1007, the defendant was charged with murder, and the district attorney sought the record of therapy that had previously been ordered as a condition of probation in an unrelated case. This court reversed the order granting discovery, concluding that the records were privileged. (Id. at pp. 1010-1019.) In doing so, we rejected a claim, based on Martinez, supra, 88 Cal.App.4th 465, that therapy ordered as a condition of probation was the same as therapy provided during an involuntary MDSO or SVP commitment and therefore the therapy records were not protected by the privilege. We found reliance on Martinez misplaced because the two therapeutic contexts were distinguishable. In Martinez (and Lakey), it was appropriate to apply the “dangerous patient” exception to the therapy records of MDSOs and SVPs because there had been a determination that the defendant posed a danger to others before the therapy commenced and the defendant was considered dangerous during his commitment. By contrast, we observed in Story that probation is reserved for those who pose a minimal risk of danger. Thus, the rationale of the exception had no application to those released on probation and ordered to participate in therapy, and under such circumstances the public’s compelling interest in safety did not outweigh the public policy of confidentiality and the potential benefit conferred to a probationer by protecting the confidentiality of his or her therapy. In this regard, we agreed with Pedro M., supra, 81 Cal.App.4th 550 that the psychotherapist-patient privilege attached to the records of court-ordered therapy except for the limited disclosure of information reasonably necessary to monitor and ensure compliance with the probation condition.
For the purpose of determining whether the privilege applies, we find no meaningful basis to distinguish between therapy ordered as a condition of probation and therapy ordered as a condition of parole. (Cf. D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 204 [“no meaningful distinction between treatment ordered as a condition of probation and treatment ordered as a condition of parole” for purposes of determining whether failure to comply signifies an intractable substance abuse problem].) In both circumstances, the defendant has been conditionally released to the general public subject to supervision because he or she poses a minimal safety risk; therapy is ordered to assist the defendant’s rehabilitation; and preserving confidentiality will facilitate that goal.
We acknowledge that in Story, the district attorney sought the defendant’s therapy records to help in a prosecution for murder; and here, the district attorney sought the records to help in an SVP commitment proceeding that was commenced only after two psychologists—MacSpeiden and Vognsen—had made a preliminary determination that defendant currently suffered from a mental disorder and was likely to commit a sexually violent offense in the future, and only after the trial court found probable cause to believe that defendant qualified for commitment as an SVP. (§§ 6601, subds. (a)(1)-(2), (b), (c), (d), & (i); 6602.) Under such circumstances, one could reasonably argue that the general policy favoring confidentiality between patient and psychotherapist is outweighed by the compelling public interest in protection from SVPs and by the benefit at an SVP trial of having a comprehensive assessment of defendant’s mental condition based on all mental health records and relevant testimony, including records of therapy ordered as a condition of probation or parole.
However, in deciding whether to allow discovery of material that is presumptively privileged, the court does not simply determine whether the public benefits of disclosure outweigh the policy behind the privilege. Unquestionably, the rules of evidence, including those concerning the psychotherapist-patient privilege and exceptions thereto, apply no less to SVP trials than to criminal trials. (See Evid. Code, § 300 [unless specified by statute, Evidence Code applies to court proceedings].) For that reason, using a simple balancing test to rule on privileged material, though attractively efficient, is not appropriate. Rather, where the claimant establishes that the privilege is applicable, the opponent must show that the material sought was not confidential, the claimant waived the privilege, or the material comes within a statutory exception. (Story, supra, 109 Cal.App.4th at p. 1015.) Here, the district attorney failed to satisfy this burden and show that the “dangerous patient” exception applied, and the analyses in Martinez and Lakey do not support the court’s finding that it did.





TO BE CONTINUED AS PART II….

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