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)

STORY CONTINUE FROM PART I….


Federal Constitutional Error
Ordinarily, evidentiary errors are reviewed under the standard announced in People v. Watson (1956) 46 Cal.2d 818 (Watson)—i.e., whether it is reasonably probable the defendant would have obtained a more favorable result in the absence of the error (the Watson standard). (Id. at p. 836; People v. Fudge (1994) 7 Cal.4th 1075, 1103 [evidentiary errors under state rules of evidence evaluated under Watson standard].) Defendant claims the release of privileged information was not only error under the Evidence Code but also a violation of his state constitutional right to privacy. (Cal. Const., art. I, § 1 [“[a]ll people” have an “inalienable” right to “privacy”]) That may well be. Unquestionably, the state constitutional guarantee of privacy extends to psychotherapy records. (Martinez, supra, 88 Cal.App.4th at pp. 474-475.) Moreover, defendant had a legally protected privacy interest and a reasonable expectation that the privilege would protect the confidentiality of his records at the SVP trial; and the releasing all of the psychotherapy records and the trial testimony of McAndrews constituted a serious invasion of that privacy interest. (See Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-37, 39-40.) However, regardless of whether the court’s ruling was only statutory error or both statutory and state constitutional error, our review for prejudice would still be governed by the Watson standard. (People v. Hurtado (2002) 28 Cal.4th 1179, 1190 [Watson standard applies to all error under state law].)
In addition to his state law claims, defendant asserts that the federal constitutional right to privacy protects privileged psychotherapeutic records from unwarranted and unjustifiable disclosure. Thus, he claims the erroneous disclosure of his records violated this right, making the error reviewable under the more stringent beyond-a-reasonable-doubt standard set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman standard).[1]
As we explain, both the United States Supreme Court and the California Supreme Court acknowledge a constitutionally protected interest in the privacy or confidentiality of highly personal information. Moreover, the great weight of authority from lower federal courts and other state courts recognizes a federal constitutional right to informational privacy that protects medical and psychiatric records from unwarranted, unnecessary, and unjustifiable disclosure.
The United States Supreme Court formally recognized the constitutional right to privacy in Griswold v. Connecticut (1965) 381 U.S. 479 (Griswold). At that time, the court found it rooted in the “penumbras” of guarantees in the Bill of Rights. (Id. at p. 484.) As the court then explained, “Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’ ” (Ibid.)[2]
Later, in Roe v. Wade (1973) 410 U.S. 115, the Court located the right to privacy “in the concept of liberty guaranteed by the Fourteenth Amendment.” (Id. at p. 152; accord, Whalen v. Roe (1977) 429 U.S. 589, 598, fn. 23 (Whalen); e.g. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) 505 U.S. 833, 846-853.)[3] The court explained that the Constitution protects “a right of personal privacy” or guarantees “certain areas or zones of privacy,” and this right or guarantee covers “personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty.’ ” (Roe v. Wade, supra, 410 U.S. at p. 152.)
Thus, for example, the court has held that the right to privacy protects decisions about marriage, procreation, contraception, family relationships, child rearing, and private sexual conduct from unwarranted, unjustified, and unnecessary state interference. E.g., Pierce v. Society of the Sisters (1925) 268 U.S. 510 [Fourteenth Amendment protects privacy concerning decisions about schooling]; Skinner v. Williamson (1942) 316 U.S. 535 [procreation]; Loving v. Virginia (1967) 388 U.S. 1 [marriage]; Griswold, supra, 381 U.S. 479 [use of contraceptives]; Troxel v. Granville (2000) 530 U.S. 57 [care and custody of children]; Lawrence v. Texas (2003) 539 U.S. 558 [private intimate activity]; see also Nelson v. Nebraska (1923) 262 U.S. 390, 399.)
In Whalen, supra, 429 U.S. 589, the high court explained that it had previously identified at least two distinct types of protected privacy interests: one is the interest in avoiding disclosure of personal matters, commonly referred to as informational privacy; the other interest is in independence in making decisions on fundamental matters. (Id. at p. 599; accord, Nixon v. Administrator of General Services (1977) 433 U.S. 425, 457 [“We may agree with appellant that, at least when Government intervention is at stake, public officials, including the President, are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity.”]; see, e.g., Aid for Women v. Foulston (10th Cir.2006) 441 F.3d 1101, 1116 [first Whalen interest is “ ‘informational privacy’ ”] Bloch v. Ribar (6th Cir.1998) 156 F.3d 673, 683 [“informational right to privacy”].)
Whalen involved the interest in informational privacy and addressed the constitutionality of a New York law requiring the state to maintain an informational database of people who had obtained prescriptions for various drugs. The court opined that the statute was a reasonable exercise of police power designed to combat the misuse of prescription drugs. (Whalen, supra, 429 U.S. at pp. 597-598.) The court noted that the statute authorized only the collection and storage of information, and it contained security provisions to protect against improper disclosure. The court further observed that there was no evidence that the security provisions would be administered improperly or that judicial supervision of the evidentiary use of particular items of stored information will provide inadequate protection against unwarranted disclosures. (Id. at pp. 601-602.)
The court acknowledged that the statute required limited disclosure of the information to authorized personnel but found this disclosure no more invasive or burdensome than those typically made to doctors, hospital personnel, insurance companies, and public health officials. (Whalen, supra, 429 U.S. at p. 602.) In short, the court concluded that neither the immediate nor threatened impact of the law was sufficient to constitute an unconstitutional invasion of informational privacy. (Id. at pp. 603-604.)
However, the court cautioned, “We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. Recognizing that in some circumstances that duty arguably has its roots in the Constitution, nevertheless New York’s statutory scheme, and its implementing administrative procedures, evidence a proper concern with, and protection of, the individual’s interest in privacy. We therefore need not, and do not, decide any question which might be presented by the unwarranted disclosure of accumulated private data whether intentional or unintentional or by a system that did not contain comparable security provisions. We simply hold that this record does not establish an invasion of any right or liberty protected by the Fourteenth Amendment.” (Whalen, supra, 429 U.S. at pp. 605-606, fn. omitted, italics added.)
Although the court reached its conclusion without expressly holding that due process included the right to informational privacy, its emphasis on the limited nature and scope of disclosure under the New York statute and the importance of statutory safeguards controlling further disclosure and its concerns about unwarranted disclosure of personal medical information strongly implied that personal and confidential information was entitled to constitutional protection from unlimited, unjustified, and unnecessary disclosure by the state.
In United States v. Westinghouse (3d Cir.1980) 638 F.2d 570 (Westinghouse), the court, citing Whalen, expressly held that an employee’s medical records, which may contain intimate facts of a personal nature, implicated the interest in informational privacy identified in Whalen and came “well within the ambit of materials entitled to privacy protection.” (Id. at p. 577.) In Westinghouse, a federal occupational safety agency sought the medical records of a company’s employees to facilitate an investigation of health hazards. In holding that the Constitution protected the privacy of those records, the court opined, “Information about one’s body and state of health is matter which the individual is ordinarily entitled to retain within the ‘private enclave where he may lead a private life.’ ” (Ibid., fn. omitted.) The court further explained “ ‘Privacy, thus, is control over knowledge about oneself. But it is not simply control over the quantity of information abroad; there are modulations in the quality of the knowledge as well. We may not mind that a person knows a general fact about us, and yet feel our privacy invaded if he knows the details. For instance, a casual acquaintance may comfortably know that I am sick, but it would violate my privacy if he knew the nature of the illness. Or a good friend may know what particular illness I am suffering from, but it would violate my privacy if he were actually to witness my suffering from some symptom which he must know is associated with the disease.’ ” (Ibid., fn. 5, quoting Fried, Privacy, 77 Yale L. J. 475, 483 (1968).)
Since Whalen and Westinghouse, virtually all federal circuits have recognized a constitutional right to informational privacy. Although there are disagreements concerning the scope of the right and the types of information it protects, many have specifically found that it protects privileged medical records from unwarranted and unjustified disclosure by the state.[4] Many state courts also have recognized the federal constitutional right to informational privacy.[5]
The California Supreme Court has provided authoritative guidance on this issue. Long before Whalen identified the confidentiality of highly personal information as an aspect of privacy, the California Supreme Court in In re Lifschutz (1970) 2 Cal.3d 415 (Lifschutz) recognized that the federal Constitution protected the privacy of privileged psychotherapeutic records from unwarranted, unjustified, and unnecessary disclosure. (Id. at pp. 431-432; see Roberts v. Superior Court of Butte County (1973) 9 Cal.3d 330, 337 [compelled disclosure of privileged information potentially encroaches upon constitutional right to privacy]; People v. Stritzinger (1983) 34 Cal.3d 505, 511; [“psychotherapist-patient privilege has been recognized as an aspect of the patient’s constitutional right to privacy”]; Chico Feminist Women’s Health Center v. Scully (1989) 208 Cal.App.3d 230, 241; Scull v. Superior Court (1988) 206 Cal.App.3d 784, 790 [“Communications between the patient and psychotherapist are also protected by the constitutional right of privacy.”]; cf. Rosales v. City of Los Angeles (2000) 82 Cal.App.4th 419, 431 [the constitutional right to privacy “protects individuals from government disclosure of personal information”].)
In Lifschutz, a psychiatrist was jailed for contempt for refusing to comply with an order to disclose information about a patient under Evidence Code section 1016, which establishes a patient-litigant exception to the psychotherapist-patient privilege where the patient puts his or her mental health in issue.[6] He challenged the statute on the ground that it violated his absolute right to privacy under the federal Constitution. (Lifschutz, supra, 2 Cal.3d at pp. 420-422.)
The court observed that most patients seeking psychotherapy have a justifiable expectation of confidentiality. (Lifschutz, supra, 2 Cal.3d at p. 431.) “ ‘ “The psychiatric patient confides more utterly than anyone else in the world. He exposes to the therapist not only what his words directly express; he lays bare his entire self, his dreams, his fantasies, his sins, and his shame. Most patients who undergo psychotherapy know that this is what will be expected of them, and that they cannot get help except on that condition. . . . It would be too much to expect them to do so if they knew that all they say—and all that the psychiatrist learns from what they say—may be revealed to the whole world from a witness stand.” ’ ” (Ibid., quoting Taylor v. United States (D.C. Cir. 1955) 222 F.2d 398, 401; see Scull v. Superior Court, supra, 206 Cal.App.3d at p.788.[7])
The court opined that a patient’s interest in the confidentiality of psychotherapeutic records “draws sustenance from our constitutional heritage.” (Lifschutz, supra, 2 Cal.3d at p. 431.) More specifically, the court, citing Griswold v. Connecticut, supra, 381 U.S. 479, concluded that privileged psychotherapeutic records came within a constitutionally protected zone of privacy. (Lifschutz, supra, 2 Cal.3d at p. 431.) The court explained, “Although Griswold itself involved only the marital relationship, the open-ended quality of that decision’s rationale evidences its far-reaching dimension. [Citation.] Indeed, the decision’s concern for valued aspects of individual privacy may ultimately aid in protecting man from the dehumanization of an ever-encroaching technological environment. The retention of a degree of intimacy in interpersonal relations and communications lies at the heart of the broad rationale of Griswold; the opinion itself significantly followed the teachings of NAACP v. Alabama (1958) 357 U.S. 449, which struck down a state statute requiring an association to disclose its membership list as an unconstitutional impingement upon the members’ rights of privacy and anonymity. [Citation.]”[8] (Lifschutz, supra, 2 Cal.3d at p. 432 & fn. 12, fn. omitted.)
Although the court concluded that psychotherapeutic records were constitutionally protected, the court rejected the psychiatrist’s claim that the right to privacy was absolute and barred all state interference, even in the form of an exception to the psychotherapist-patient privilege. (Lifschutz, supra, 2 Cal.3d at p. 432.) Rather, the court opined that the constitutional right may yield in furtherance of a compelling state interest. To determine whether the statutory exception passed constitutional muster, the court in essence employed a balancing test, analyzing whether the nature, purpose, and scope of the exception outweighed the patient’s interest in confidentiality and justified the degree to which disclosure would intrude upon the right of privacy.[9]
In examining the statutory exception, the Lifschutz court first noted that it was “carefully tailored to serve the historically important state interest of facilitating the ascertainment of truth in connection with legal proceedings,” an interest, the court observed, that in other contexts had justified the disclosure of a wide variety of confidential information. (Lifschutz, supra, 2 Cal.3d at p. 432.) The court further opined that “since the exception compels disclosure only in cases in which the patient’s own action initiates the exposure, ‘intrusion’ into a patient’s privacy remains essentially under the patient’s control.” (Id. at p. 433.)
In this regard, the court observed that the cases involving an analogous exception to the physician-patient privilege “have identified two distinct grounds for the exception. First, the courts have noted that the patient, in raising the issue of a specific ailment or condition in litigation, in effect dispenses with the confidentiality of that ailment and may no longer justifiably seek protection from the humiliation of its exposure. Second, the exception represents a judgment that, in all fairness, a patient should not be permitted to establish a claim while simultaneously foreclosing inquiry into relevant matters. . . . ‘The whole purpose of the [physician-patient] privilege is to preclude the humiliation of the patient that might follow disclosure of his ailments. When the patient himself discloses those ailments by bringing an action in which they are in issue, there is no longer any reason for the privilege. The patient-litigant exception precludes one who has placed in issue his physical condition from invoking the privilege on the ground that disclosure of his condition would cause him humiliation. He cannot have his cake and eat it too.’ ” (Lifschutz, supra, 2 Cal.3d at pp. 433-434, fns. omitted.)
On the other hand, the court explained that because the statute in effect represents an automatic waiver of the privilege, the scope of the waiver must be limited to only that information necessary to effectuate the purpose of the exception. (Lifschutz, supra, 2 Cal.3d at p.435.) Thus, the patient does not waive his or her privilege over all otherwise privileged and confidential psychiatric information; rather, the waiver extends only to those mental conditions that the patient-litigant has disclosed by bringing an action in which those conditions are in issue. (Ibid.) “Disclosure cannot be compelled with respect to other aspects of the patient-litigant’s personality even though they may, in some sense, be ‘relevant’ to the substantive issues of litigation. The patient thus is not obligated to sacrifice all privacy to seek redress for a specific mental or emotional injury; the scope of the inquiry permitted depends upon the nature of the injuries which the patient-litigant himself has brought before the court.” (Ibid., fn. omitted.)
The court further pointed out that “[e]ven when the confidential communication is directly relevant to a mental condition tendered by the patient, and is therefore not privileged, the codes provide a variety of protections that remain available to aid in safeguarding the privacy of the patient. When inquiry into the confidential relationship takes place before trial during discovery, as in the instant case, the patient or psychotherapist may apply to the trial court for a protective order to limit the scope of the inquiry or to regulate the procedure of the inquiry so as to best preserve the rights of the patient. . . . [¶] When the questioning of the psychotherapist or patient as to confidential communications occurs at the trial itself, the danger of publicity and embarrassment is increased. Of course, unless the information sought is directly relevant to the issue as revealed by the evidence at trial, the communication is privileged and no disclosure can be compelled. Moreover, as with any evidence, the court retains discretion to ‘exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . (b) create substantial danger of undue prejudice . . . . ’ [Citation.]” (Lifschutz, supra, 2 Cal.3d at p. 435, quoting Evid. Code, § 352.)[10]
Given Lifschutz and the weight of federal and state authority cited above, we too find that the notion of substantive due process in general, and the notion of constitutionally protected zones of privacy in particular encompass a right to privacy that independently protects information generated in confidence between a patient and psychotherapist from unwarranted and unjustified intrusions by the government. We further find, however, that the constitutional protection is not absolute but may yield where disclosure serves competing state interests that outweigh the degree of intrusion disclosure would cause. More particularly, Lifschutz teaches that compelling the disclosure of otherwise privileged psychotherapy records under an exception does not violate the right to privacy where the exception promotes an important state interest, limits disclosure to what is reasonably necessary to achieve the purpose of the exception, and contains, and/or is subject to, safeguards that protect against the unwarranted and unnecessary disclosure.
Here, the court compelled the disclosure of privileged information under the dangerous-person exception. (Evid. Code, § 1024.) In light of the analysis of patient-litigant exception in Lifschutz, our discussion of the dangerous-patient exception—i.e., its purpose, nature, and limited scope—supports a finding that the exception is narrowly focused and justified by a compelling state interest in safety. Therefore, on its face the exception, like the patient-litigant exception, does not appear to violate the right of informational privacy.
However, we are not dealing with a facial challenge to the exception arising from its correct application. Rather, the issue here is whether an incorrect application and the erroneous and intentional disclosure of privileged psychotherapy records violated defendant’s right to privacy.[11]
In determining whether there has been a constitutional violation, courts have employed various balancing tests.[12] Our analysis of relevant factors leads us to conclude that the balance tips in favor of finding a constitutional violation in this case.
First, defendant had a reasonable expectation of privacy concerning communications during psychotherapy at the Atkinson Center. Not only do such communications fall within a constitutionally protected zone of privacy, as Lifschutz found, but also they are protected by the psychotherapist-patient privilege. It is true that psychotherapy was a condition of defendant’s parole, and, therefore, he could not have prevented the disclosure of otherwise privileged information that was reasonably necessary to monitor and ensure his compliance with the parole condition. (See Pedro M., supra, 81 Cal.App.4th at pp. 553-555; Story, supra, 109 Cal.App.4th at pp. 1010-1019.) However, apart from the limited and justifiable disclosure of that information for that purpose, defendant could still expect the content of his therapy sessions, especially his statements to McAndrews, to remain private and confidential. That expectation was not necessarily diminished by the fact that defendant’s privacy concerning his history, background, criminal record, and psychological state was lost during the involuntary evaluations performed by MacSpeiden and Vogneson.
Next, we note that the court authorized the pre-trial release of all psychotherapy records, not just those that arguably fell within the dangerous-patient exception. Thus, the loss of confidentiality concerning his psychotherapy was total, and the court’s erroneous ruling further led to McAndrews’s public disclosure of defendant’s highly personal, secret, and revealing statements in therapy.
We next point out that the issue at the SVP trial was, essentially, whether defendant currently posed a danger if released. To this end, the state was allowed to have defendant evaluated and tested by psychological professionals. These evaluations were the most relevant and probative evidence concerning current dangerousness and reduced the need for unlimited access to less current psychological records. We note that both MacSpeiden and Vognsen, the prosecution’s experts who evaluated defendant, came to the conclusion that he qualified as an SVP without considering the privileged information from the Atkinson Center.
Finally, we acknowledge that the state has a compelling interest in protecting public safety and that Evidence Code section 1024 reflects the strong public policy favoring disclosure over privilege when reasonably necessary to ensure safety. Thus, when the exception applies, it can be said that the interest in safety outweighs the patient’s interest in confidentiality and justifies the loss of privacy. The state’s interest in safety is heightened in the context of an SVP trial because its sole purposes are to protect the public from dangerous sexual predators and provide them with treatment.
That said, however, the SVP Act does not include its own special exception to the psychotherapist-patient privilege or otherwise authorize the blanket disclosure of psychotherapy records that, in other contexts, would be privileged and inadmissible. As noted, the regular rules of evidence apply at SVP trials. Thus, at an SVP trial, when the dangerous-patient exception applies, it can be said that the state’s interests in public safety and the ascertainment of truth outweigh the inmate’s statutory interest in confidentiality and justify the interference with his or her constitutional right of privacy. However, where the dangerous-patient exception does not apply, the state’s interests in public safety and the ascertainment of truth do not clearly or necessarily outweigh an inmate/patient’s privacy interests. (See Jaffee v. Redmond (1996) 518 U.S. 1, 9-10 (Jaffee) [the federal psychotherapist-patient privilege “ ‘promotes sufficiently important interests to outweigh the need for probative evidence’ ”].) And if the state’s interests are not strong enough to outweigh the statutory protection for privacy, we do not consider those interests to be sufficiently compelling to outweigh the constitutional protection.
We acknowledge that in Seaton, supra, 610 F.3d 530, the Ninth Circuit opined that whatever right to informational privacy there may be, it simply does not apply in SVP proceedings. (Id. at p. 539.) There, an inmate was evaluated by two psychologists as a potential SVP. They reviewed his medical records from prison and then prepared reports, which were made available to the district attorney who then had to decide whether to seek a commitment. (See § 6601 [requiring psychological evaluations and making them available to authorities].) The inmate claimed the disclosure of prison records and the psychological reports violated his right to privacy. The court rejected his claim. It concluded that any privacy interests were outweighed by (1) the inmate’s reduced expectation of privacy due to his status as a prisoner and sex offender and the involuntary nature and adversary purpose of the evaluations; (2) the need for evaluations and the public safety purpose they served; (3) the limited disclosure of the information; and (4) the safeguards against unwarranted subsequent disclosure. The court also noted that the disclosure did not burden the exercise of any fundamental liberty. (Id. at pp. 535-541.)
Seaton is consistent with Lakey, supra, 102 Cal.App.3d 962 and Martinez, supra, 88 Cal.App.4th 465, which we discussed above, in that the initial psychological evaluations conducted are akin to psychological records generated during a commitment for treatment. The involuntary circumstances under which the psychological information is gathered and the purpose for which the information is gathered preclude one from reasonably expecting what he or she says to be private, confidential, and protected by the psychotherapist-patient privilege. On the other hand, Seaton is distinguishable from this case because here, defendant had a reasonable expectation of privacy concerning his communications with McAndrews during psychotherapy; the records of his treatment were erroneously released in violation of his statutory privilege; and certain highly personal information was publicly disclosed at his trial.
Seaton is not binding on us (see People v. Williams (1997) 16 Cal.4th 153, 190 [decisions of lower federal courts are not binding authority]), and we disagree with the court’s sweeping view that the mere institution of the SVP process automatically strips an inmate of privacy rights and protection under the due process clause. Rather, we believe that for the purposes of an SVP trial, an inmate retains the constitutional protection against the unwarranted and unjustified disclosure of privileged communications with his or her psychotherapist.
In sum, we conclude that the erroneous release and later admission of privileged psychotherapy information at the SVP trial violated defendant’s federal constitutional right to informational privacy.
We find support for our conclusion in Parle v. Runnels (9th Cir.2008) 505 F.3d 922. That case originated in this court. (People v. Parle (July 21, 2000, H017348) [nonpub. opn.].) There, the state trial court committed numerous errors, one of which was a finding that the defendant had waived the psychotherapist-patient privilege. This error, in turn, led to the admission of testimony by the defendant’s therapist. On appeal to this court, the Attorney General conceded that that the erroneous ruling on privilege violated the defendant’s federal right to privacy, which made the error reviewable under the Chapman standard. The defendant sought habeas relief in the federal district court. (Parle v. Runnels (N.D.Cal.2006) 448 F.Supp.2d 1158, 1160.) That court noted the Attorney General’s concession that the erroneous violation of psychotherapist-patient privilege “had to be reviewed under the [Chapman standard] because the privilege was part of petitioner’s federal, constitutional right to privacy.” (Id. at p. 1164.)
On appeal from the district court’s judgment, the Ninth Circuit in Parle v. Runnels, supra, 505 F.3d 922, agreed that the erroneous admission of psychiatric testimony violated the defendant’s federal Constitutional right to privacy in the psychotherapist-patient relationship. (Id. at p. 930, fn. 11.) In a footnote the court observed that the right to privacy of a patient’s communications with his or her psychotherapist “is grounded in the federal and state constitutions” and cited Caesar v. Mountanos, supra, 542 F.2d at pp. 1067-1068 for the proposition that the privacy of such communications arises from the Fourteenth Amendment. (Ibid.; see fn. 14, ante, discussing Mountanos.)
It is true that in Parle, the Attorney General conceded the constitutional error. However, as defendant points out, neither this court nor the federal courts were bound to accept that concession. (Orloff v. Willoughby (1956) 345 U.S. 83, 87; Desny v. Wilder (1956) 46 Cal.2d 715, 729; Tomlinson v. County of Alameda (2010) 185 Cal.App.4th 1029, 1045.)
The Attorney General now argues that the violation of defendant’s statutory privilege does not establish a separate federal violation of due process. He notes that in Jaffee, supra, 518 U.S. 1, the United States Supreme Court recognized a psychotherapist-patient privilege under federal law (id. at pp. 8-15); and in United States v. Glass (10th Cir. 1998) 133 F.3d 1356, the court opined that Jaffee “[m]ade clear” that the federal privilege “is not rooted in any constitutional right of privacy but in the public good which overrides the quest for relevant evidence.” (Id. at p. 1358.)
The Attorney General’s reliance on Jaffee and Glass is misplaced. Neither case involved the constitutional right of privacy or a claim that a violation of the psychotherapist-patient privilege further represented a violation of due process. Those were, however, the circumstances in Parle, and, as noted, the federal courts implicitly agreed with the Attorney General’s concession that the trial court’s erroneous ruling on privilege constituted federal error reviewable under the Chapman standard.
Prejudice
Having concluded that the erroneous release of records and subsequent testimony by McAndrews violated defendant’s federal right to informational privacy, we now discuss whether the error was prejudicial.
Despite the release of defendant’s records from the Atkinson Center and McAndrews’s testimony and the extensive loss of confidentiality, defendant claims prejudice from only one piece of information: his statement to McAndrews that between the ages of 14 and 37, he molested 16 children.
Under the Chapman standard, we must reverse “unless it can be shown ‘beyond a reasonable doubt’ that the error did not contribute to the jury’s verdict.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 326, citing Chapman v. California, supra, 386 U.S. 18.) “In other words, the alleged error must be ‘unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’ [Citation.]” (People v. Low (2010) 49 Cal.4th 372, 392-393.) That can hardly be said in this case.
In light of the undisputed evidence that defendant had convictions for molesting three children, defendant’s admission in private to McAndrews that he had molested so many more children and was not caught or punished was inflammatory to say the least and uniquely liable to evoke a strong emotional bias against defendant. This is all the more so because defendant also told McAndrews that he was very attracted to children, and he could not really control himself when he drank.
Next, we note that MacSpeiden and Vognsen did not have the Atkinson Center records when they evaluated defendant, and so they did not base their analyses and conclusions on his admissions to McAndrews. Nevertheless, both learned about defendant’s admission at trial, both accepted it, as McAndrews apparently did, and both testified that defendant’s admission confirmed their analyses and conclusions that defendant qualified as an SVP. Since the prosecution’s experts credited defendant’s admission and considered it further evidence of his dangerousness, it is reasonable to assume that the jurors also considered it in rejecting the defense experts’ testimony and agreeing with the prosecution’s experts.
We further observe that the other evidence that defendant was currently dangerous was not compelling. Indeed, at defendant’s previous SVP trial, the jury did not find that he posed a risk of danger to others. The primary evidence at the second trial was defendant’s parole violations and the inference that they showed a lack of self-control. As noted, the parole violations were based on loitering near a park that contained a playground and being at his mother’s house when his sister’s children were there.
Concerning the loitering violation, the evidence was that defendant loitered near HP Pavilion, which is near a park the size of four football fields that somewhere has a children’s playground. There is no evidence how close to the playground defendant was or whether there were any children there at the time. Defendant said that he stopped to roll a cigarette.
Concerning the other violation, we note that before he went to prison, defendant lived at home with his mother. After he was released, he could not live there because the house was too close to a school. However, he was permitted to visit her, and he did so every week. In 2006, his sister had to move into their mother’s house with her children because she was getting evicted from her apartment, which she could not afford. It was during this time that the violation occurred. However, there is no evidence that defendant had any direct contact with his sister’s children. He was simply at the house.
Last, we note that Derning and Abbot, the two defense psychologists, disagreed with MacSpeiden’s and Vognsen’s conclusion that defendant suffered from pedophilia and criticized their methodology. Instead, they opined that defendant’s primary problem was mental retardation, and they concluded that he did not qualify as an SVP.
Under the circumstances, we cannot find beyond a reasonable doubt that defendant’s inflammatory admission to McAndrews about molesting so many other children did not contribute to the jury’s verdict and was unimportant in comparison with the other evidence supporting the verdict. Accordingly, we conclude that the commitment order cannot stand.
IV. Disposition[13]
The judgment is reversed.

______________________________________
RUSHING, P.J.


WE CONCUR:




____________________________________
PREMO, J.


____________________________________
ELIA, J.














Trial Court: Santa Clara County
Superior Court No.: 211111


Trial Judge: The Honorable Alfonso Fernandez



Attorney for Defendant and Appellant Jean Matulis
Ramiro Gonzales: under appointment by the Court of
Appeal for Appellant




Attorneys for Plaintiff and Respondent Edmund G. Brown, Jr.,
The People: Attorney General

Dane R. Gillette,
Chief Assistant Attorney General

Gerald A. Engler,
Senior Assistant Attorney General

Seth K. Schalit,
Supervising Deputy Attorney General

Bridget Billeter,
Deputy Attorney General










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