P. v. Chaney
Filed 11/14/13 P. v. Chaney CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE
DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
ELDRIDGE CHANEY,
Defendant and Appellant.
H037202
(Monterey
County
Super. Ct.
No. SC006639)
Eldridge Chaney appeals from the denial of his
petition for conditional release from civil confinement as a
proceeding under the wrong provision of the Sexually Violent Predator Act (SVPA)
(Welf. & Inst. Code, § 6600 et seq.)
ineffective assistance by inviting the error and/or forfeiting the issue; (2) the
trial court violated his equal protection rights by requiring him to bear the
burden of proving his suitability for conditional release; (3) the trial court
violated his procedural due process rights, his
psychotherapist-patient privilege, and public policy when it ordered production
of his written treatment assignments; (4) the trial court violated his
request to present “rebuttal†witnesses; (5) the cumulative effect of the trial
court’s errors denied him a fair trial; (6) he is entitled to a different judge
on remand; and (7) the deputy district attorney who tried the case must be
disqualified on remand. We conclude that
Chaney’s counsel rendered ineffective assistance by seeking relief under section
6608. We reject Chaney’s other
arguments. We reverse the judgment and
remand the matter for a new hearing under section 6605.
I.
Background
Chaney was found to be an SVP in 2000 and
committed to the custody of the Department of Mental Health (DMH)
for treatment. In May 2010, Coalinga
State Hospital (CSH) psychologist Nameeta Sahni conducted the annual
examination that section 6605 requires and prepared a declaration stating that Chaney
could be effectively treated in the community with adequate supervision. CSH’s acting medical director Robert Withrow,
M.D. disagreed with Sahni’s opinion and so informed the superior court judge
who had committed Chaney.
Three months later, CSH staff met to
determine whether Chaney satisfied the criteria for advancement to Phase V outpatient
treatment. The meeting was chaired by Dr.
Withrow and attended by, among others,
Lavalle; social worker and head of the enhanced treatment program Ernest
Marshall; senior psychologist in charge of the group program Virginia Greer; psychologist
Steven Arkowitz, the clinical director of Liberty Conditional Release Program (Liberty
CONREP), which contracts with the DMH to provide conditional release services
to the SVP population; and Alan Stillman, Liberty CONREP’s community program
director. The meeting, which included a
group interview of Chaney and “a lengthy assessment of his problem areas and
how he would deal with them,†ended with a consensus decision to recommend his
conditional release.
After the meeting, Dr. Lavalle prepared a memorandum
from CSH’s then acting medical director Jagsir Sandhu, M.D. to the DMH’s
director, notifying him that Chaney had been recommended for conditional
release.
On December 2, 2010, Chaney filed a “Motion
for Conditional Release Pursuant to . . . Sections 6607/6608†in which he asserted
that the DMH, “by and through its agents†at CSH, had provided a section 6607,
subdivision (a) recommendation to request a section 6608 hearing.
On April 4, 2011, the trial court ordered
CSH’s then acting medical director Dr. Withrow to provide an updated
recommendation “concerning the pending W&I 6608 petition for outpatient
treatment filed by [Chaney],†and Dr. Lavalle prepared a letter recommending
Chaney for outpatient treatment.
Dr. Lavalle testified at Chaney’s probable
cause hearing on April 28, 2011. Dr. Lavalle
had been a psychiatrist at CSH since July 2009, and one of his duties as the
forensic consultant to CSH’s medical director was to prepare Phase V
recommendation letters. He authored the
letters recommending Chaney’s conditional release. The letters were based on his review of
Chaney’s medical records and interviews with his treatment providers and staff
members. Dr. Lavalle had never been Chaney’s
direct provider, nor had he interviewed or evaluated him, “[w]ith the exception
of overhearing his conversations and watching his activity.†He had an office in Chaney’s unit from July
to December 2010, but had “less than a dozen†contacts with him during that
time.
Psychologist Arkowitz testified that he had
known Chaney since 2002 and had attended his last three staffings. Although Liberty CONREP does not,
“technically, have a vote in that process,†the staff at CSH, including the
medical director, “do pay attention to our input,†Arkowitz told the court, and
he had “significant input†into Chaney’s Phase V staffing.
Arkowitz had “many . . . formal and informal
interactions†with Chaney and “full access to [Chaney’s] records.†In evaluating a person’s progress at CSH,
Arkowitz typically reviewed treatment plans and annual assessments, and he
“paid a lot of attention to . . . the PPG [penile plethysmograph]
assessments, polygraph exams, [and] psychological testing.†He reviewed “the day-by-day notes of how the
client is doing,†treatment notes, and notes from job supervisors. He did not review Chaney’s written treatment
assignments.
In an evaluation prepared after Chaney’s
Phase V staffing, Arkowitz concluded that Chaney “is now seen as a suitable
candidate for conditional release . . . .â€
In the section of the report labeled “Potential for reoffense
wrote that evaluators estimated Chaney’s risk of conviction for another sexual
offense as moderate to high compared to other sex offenders and that Chaney’s
diagnosis of antisocial personality disorder could increase his risk for
reoffense. “It is difficult to assess
Mr. Chaney’s current degree of sexual self-regulation,†Arkowitz wrote. Noting that early phallometric assessments had
shown “a deviant sexual interest in sexually aggressive acts,†Arkowitz
reported that Chaney had “completed behavioral counter-conditioning treatments
to address this issue and now displays a nondeviant sexual arousal profile.†Arkowitz conceded on cross-examination,
however, that “there’s ways to, in essence, beat the PPG.â€
In the section of the report labeled
“Awareness of precursors,†Arkowitz wrote that “Chaney has stated that he
believed each of his victims had rejected him and mistreated him. As a result, he wanted revenge on them.†In Arkowitz’s opinion, cognitive behavior
therapy had given Chaney a mechanism to identify and correct any such
thoughts.
Responding to concern that the reports
contained “conclusionary statements that he’s taken classes and that he seems
to be . . . more of a thinking person, but no real discussion . . . how, if he
has those thoughts, he’s going to . . . not act on them,†Arkowitz testified
that patients in the phase program complete written treatment assignments and
that Chaney “probably had a folder . . . where he has addressed those specific
things . . . .â€
“That’s . . . the kind of thing I wish I
could look at,†the trial court stated, noting that because the written
assignments reflected Chaney’s “independent thought process,†they would be far
more helpful than “someone else summarizing something and I’m not quite sure
exactly what context those descriptions come in and I don’t know who the
individual is that is describing them.†Defense
counsel noted Arkowitz’s concern that the assignments “would be misused and
taken out of context,†but agreed to ask Chaney if he still had them. “And you understand the previous objections
I’ve made,†he added, referring to his earlier unsuccessful motion to quash a subpoena
for Chaney’s mental health records, “but I assume the Court would overrule
those objections . . . .†“[T]his would
be the Court’s order,†the court replied.
“[W]e would all agree that [Dr. Lavalle] can just mail them [to] the
court, maybe like a subpoena duces tecum type of thing . . . .â€
Called to the stand a month later, Chaney was
questioned by counsel and by the court about his offenses, his treatment, and
his relapse prevention plans. He
authenticated his written treatment assignments, and they were admitted into
evidence as court exhibit 1.
The trial court denied Chaney’s petition for
conditional release. The court had spent
“a good deal of time†looking at and had become “very familiar†with the evidence.
It considered Chaney’s testimony “the
most, absolute most important evidence in this case.†Aspects of that testimony reflected that
Chaney had “learned . . . what the image is that he is to project in order to
be normal.†“The problem is that when he
talks about it, it sounds like something out of a textbook that has been
memorized. It sounds rote. It sounds superficial. It is superficial. It sounds canned.†The court gave examples where Chaney had avoided
directly answering questions until, “[e]ventually, you are asked something so
direct you can’t -- you can’t avoid it.â€
It described Chaney’s testimony as “at times incredible.†“[Y]our answer to the question . . . of what
you were thinking about when you were frequently masturbating, during a time
where [phallometric assessments showed] you were excited by deviant sex, is
that you only thought about that one time.
No one believed that. Not only
that, you didn’t. Your demeanor, when
you answered that question, was you knew you were lying.†“I am trying to judge whether or not you’re
going to be transparent,†the court told Chaney. “You’re not, yet. And you’ll hide it when you think it’s the
wrong thing to say, when you think it will get you in trouble. And that’s dangerous,†the court told him, especially
when combined with his particular triggers—e.g., rejection and being told what
to do. “[T]hose two triggers, if you’re
released into the community, are going to be your life. You are going to be told what to do, you’re
going to be regulated, you’re going to be controlled, and those are triggers
for you. You’re going to be
rejected.â€
Although the court felt Chaney was
“beginning to learn about†empathy, it found his understanding “very
superficial†and his answers “canned†and “rote.†The court also found that Chaney continued to
become angry too often, noting his testimony that when he became angry, “nine
times out of ten, even in your own estimation, it was groundless and
inappropriate.â€
The “other critical aspect†of the trial
court’s decision was a finding that Chaney lacked insight about his mental
disorder. Chaney initially testified that
he did not perceive himself as having any kind of psychological disorder at all
in terms of desiring sex from nonconsenting women. He later conceded that he “had to have had†a
mental disorder. When challenged about
his use of the past tense, he finally admitted, “I have a mental disorder based on what I did with my victims. I have a mental disorder based on my history
of alcoholism. And those two things will
probably be with me for the rest of my life, but they’re two things that I’m
working on every day. They’re
there. I don’t deny them. I take
full responsibility for them.†(Italics
added.) The court concluded that Chaney’s
insight was “developing†but had not “matured in a way that gives the Court any
confidence whatsoever†that he would not reoffend. It was “too soon to let you out, even under
supervised release.†“So it’s the
decision of the Court that the Petitioner has not met its burden. Quite the contrary.†The court ordered Chaney returned to CSH, and
Chaney filed a timely notice of appeal.
II.
Discussion
A.
Section 6605 Versus 6608
Chaney contends that the trial court erred
by proceeding under section 6608 instead of under section 6605 and that his
trial counsel rendered ineffective assistance by inviting the error and/or
forfeiting the issue. We agree that his
trial counsel rendered ineffective assistance.
We reject Chaney’s claim of trial court
error. The SVPA permits SVP’s to petition
for conditional release under section 6605 (with the DMH’s authorization after a
favorable annual review) or under section 6608 (without the DMH’s concurrence). (Former §§ 6605, subd. (b), 6608, subd. (a);
31, 38-39 (Landau);
1394, 1398-1399, 1404 (Smith).) Chaney elected to proceed under section 6608.
It was not the trial court’s role to
question that choice. (
(People v. Scott (1997) 15
Cal.4th 1188, 1206.) “The court may not
. . . assume the role of either the prosecution or the defense.†(People
v. Cook (2006) 39 Cal.4th 566, 597.) Since Chaney cannot fault the trial court for
proceeding under provisions that Chaney expressly invoked, we turn our
attention to his ineffective assistance claim.
1.
Standard of Review
A defendant seeking reversal for ineffective
assistance of counsel must prove both deficient performance and prejudice. (People v. Ledesma (1987) 43 Cal.3d
171, 218 (Ledesma);
counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.†(Strickland, at p. 687.) The proper measure of attorney performance is
“reasonableness under prevailing professional norms.†(Id.
at p. 688.) The court “must judge the
reasonableness of counsel’s challenged conduct on the facts of the particular
case, viewed at the time of counsel’s conduct.†(Id. at
p. 690.) “Judicial scrutiny of counsel’s
performance must be highly deferential†and “every effort [must] be made to
eliminate distorting effects of hindsight. . . .†(Id. at p. 689.) When counsel’s conduct can reasonably be
attributed to sound strategy, a reviewing court will presume the conduct was
the result of a competent tactical decision, and a defendant must overcome that
presumption to establish ineffective assistance. (Ibid.)
However, “deferential scrutiny of counsel’s performance is
limited in extent and indeed in certain cases may be altogether unjustified. ‘[Deference] is not abdication’ [citation];
it must never be used to insulate counsel’s performance from meaningful
scrutiny and thereby automatically validate challenged acts or omissions. Otherwise, the constitutional right to the
effective assistance of counsel would be reduced to form without substance.†(Ledesma,
at p. 217.)
the defendant must show that the deficient performance prejudiced the defense.â€
(Strickland, supra, 466 U.S. at p. 687.)
2.
Overview of the Relevant SVPA Provisions
Enacted to identify, confine, and treat inmates
with mental disorders predisposing them to commit violent criminal sexual acts,
the SVPA was “ ‘designed to ensure
that the committed person does not “remain confined any longer than he suffers
from a mental abnormality rendering him unable to control his dangerousness.†[Citation.]’ †(People
v. McKee (2010) 47 Cal.4th 1172, 1186 (McKee);
People v. Allen (2008) 44 Cal.4th
843, 857.) Before its amendment in 2006,
the SVPA provided for a two-year commitment, renewable for successive terms if
the People proved beyond a reasonable doubt that the committed person remained
an SVP. (Former § 6604; Stats.
1995, ch. 763, § 3.) There were two
ways a committed SVP obtained review of his or her current mental condition to
determine if civil confinement was still necessary. (McKee,
at p. 1186.) Section 6608 permitted the
SVP to petition the court for conditional
release to a community treatment program, while section 6605 described a
procedure, initiated by the DMH, that could lead to the committed person’s
v. Cheek (2001) 25 Cal.4th 894, 902 (Cheek);
McKee, at p. 1186.) The conditional versus unconditional release distinction
between the two sections was eliminated when California voters approved
Proposition 83. (Smith, supra, 212
Cal.App.4th at pp. 1398-1399.)
3.
Proposition 83
Proposition 83, an initiative measure
approved by the electorate on November 7, 2006, amended the
SVPA. (McKee, supra, 47 Cal.4th
at p. 1183.) Among other modifications, Proposition
83 changed an SVP commitment from a two-year term to an indeterminate term and substantially
changed the procedures for seeking release.
(McKee, at p. 1186.)
After Proposition 83, section 6605 continued
to require yearly examinations of a committed SVP’s mental condition. (McKee,
supra, 47 Cal.4th at p. 1186.) “However, Proposition 83 added new provisions to
section 6605 regarding the DMH’s obligations: Pursuant to section
6605, subdivision (a), the DMH now files an annual report in conjunction with
its examination of SVP’s that ‘shall include consideration of whether the
committed person currently meets the definition of a sexually violent predator
restrictive alternative or an unconditional release is in the best interest
of the person and conditions can be imposed that would adequately protect the
community.’ Subdivision (b) now provides
that ‘[i]f the [DMH] determines that either: (1) the person’s condition has so changed that
the person no longer meets the definition of a sexually violent predator,
interest of the person and conditions can be imposed that adequately protect
the community, the director shall
authorize the person to petition the court for conditional release to a less
restrictive alternative or for an unconditional discharge.’ (§ 6605, subd. (b).) If the state opposes the director’s petition,
then, as under the pre-Proposition 83 statute, it must prove beyond a
reasonable doubt that the person still meets the definition of an SVP.†(McKee,
at p. 1187, italics added.)
“In the event the DMH does not
authorize the committed person to file a petition for release pursuant to
section 6605, the person nevertheless may file, as was the case with the
pre-Proposition 83 Act, a petition for conditional release for one year and
subsequent unconditional discharge pursuant to section 6608. (§ 6608, subd. (a).) Section 6608, subdivision (i), which was also
unamended by the Act, provides: ‘In any
hearing authorized by this section, the petitioner shall have the burden of
proof by a preponderance of the evidence.’ (Italics added.)†(McKee,
supra, 47 Cal.4th at p. 1187.)
After 2006, then, an SVP may seek
conditional release either under section
6605 (with the DMH’s authorization after a favorable annual review)
concurrence). (Smith, supra, 212
Cal.App.4th at pp. 1398-1399.)
4.
Analysis
Chaney argues that his counsel should have
invoked section 6605, because his “application for release was approved by the
DMH†inasmuch as he received a “favorable annual review†in 2010. The Attorney General counters that Chaney is
“mistaken†because his petition was not
authorized by the DMH as a result of his
annual review but was instead initiated by Chaney himself in response to
Dr. Sandhu’s September 30, 2010 recommendation after the Phase V staffing. We agree with Chaney.
The version of section 6605 in effect when
Chaney filed his petition provided that “[i]f the [DMH] determines [as a result
of the SVP’s annual review] that . . . conditional release to a less
restrictive alternative is in the best interest of the person and conditions
can be imposed that adequately protect the community, the director
the court for conditional release . . . .†(Former § 6605, subd. (b); Stats. 2009, ch.
61, § 1, italics added.) Sahni,
Chaney’s examining psychologist, made that determination in her report of his
2010 examination. CSH’s medical director
disagreed. That created a conflict.
The conflict highlighted an ambiguity in the
statutory language and squarely raised the issue of what the Legislature meant
by “[i]f the [DMH] determines.†(Former
§ 6605, subd. (b).) If the
Legislature meant that “[i]f the [the examining psychiatrist or psychologist] determines
[as a result of the SVP’s annual review] that . . . conditional release to a
less restrictive alternative is in the best interest of the person and
conditions can be imposed that adequately protect the community, the director shall
authorize the person to petition the court for conditional release . . . ,†then
the director was statutorily required to authorize the petition, and Chaney
could have invoked section 6605 notwithstanding the director’s disagreement
with Sahni’s determination. (Former
§ 6605, subd. (b); see Rice v.
Superior Court (1982) 136 Cal.App.3d 81, 86 [“where the Legislature employs
the terms ‘shall’ and ‘may’ in different portions of the same statute, it must
be concluded that the Legislature was aware of the different meanings of these
words and intended them to denote mandatory and directory requirements,
respectively.â€].)
If, on the other hand, the Legislature meant
that “[i]f the [the director of the DMH or, alternatively, CSH’s medical director]
determines that . . . conditional release to a less restrictive alternative is
in the best interest of the person and conditions can be imposed that
adequately protect the community, the director shall authorize the person to
petition the court for conditional release . . . ,†Chaney’s petition was
properly brought pursuant to section 6608.
(Former § 6605, subd. (b).)
The ambiguity in the statutory language gave
Chaney’s trial counsel an opportunity to make a plausible argument that the DMH
had “determine[d]†that Chaney was a suitable candidate for conditional release
and that the director was required to authorize his filing of a section 6605
petition. (Landau, supra, 199
Cal.App.4th at pp. 38-39.) That
argument, if successful, would have shifted the burden of proof from Chaney to
the State. (Former § 6605, subd.
(d).) Chaney would not have had the
burden of proving by a preponderance of the evidence that he “would [not] be a
danger to the health and safety of others in the community in that it [was not]
likely that he . . . [would] engage in sexually violent criminal behavior due
to his . . . diagnosed mental disorder if under supervision and treatment in
the community.†(Former § 6608,
subd. (d); Stats. 2007, ch. 571, § 3.)
Instead, the burden would have been on the People to negate that claim
beyond a reasonable doubt. (Former § 6605,
subd. (d).)
We acknowledge that we must “ ‘ “ ‘accord great deference to counsel’s
tactical decisions,’ †’ †that “ ‘ “ ‘[t]actical errors are generally not
deemed reversible, and [that] counsel’s decisionmaking must be evaluated in the
context of available facts.’ [Citation.]†’ â€
(People v. Montoya (2007) 149
Cal.App.4th 1139, 1147.) “To the extent
the record on appeal fails to disclose why counsel acted or failed to act in
the manner challenged, we will affirm the judgment ‘unless counsel was asked
for an explanation and failed to provide one, or unless there simply could be
no satisfactory explanation . . . . ’ [Citation.]†(People v. Bolin
(1998) 18 Cal.4th 297, 333.) Here, there could be no satisfactory
explanation for counsel’s failure to identify the ambiguity in the statutory
language and attempt to take advantage of it to his client’s benefit. (People
v. Roberts (2011) 195 Cal.App.4th 1106, 1129-1130.) Of course, there was no guarantee that the
argument would succeed. But it was a
reasonable interpretation of the statutory language, and Chaney had nothing to
lose by advancing it. His trial counsel’s
failure to at least raise the issue cannot reasonably be attributed to sound
strategy.
Shortly after this case was tried, the
Fourth District Court of Appeal, presented with facts similar to those
presented here, held that
“when section 6605, subdivision (b) requires the director to authorize a person
committed as an SVP to file a petition for release when ‘the [DMH] determines’
the person meets the criteria set forth in the statute, it means when the
annual report of its evaluator concludes the person meets the criteria.†(Landau,
supra, 199 Cal.App.4th at p. 39.) The court reasoned that
“[i]n initiating SVP proceedings, the director forwards a request for the
filing of a petition to commit the person as an SVP, if ‘the [DMH] determines
that the person is [an SVP] . . . .’ (§
6601, subd. (h).)†(Landau, at p. 39.) Since the
initial identification “is accomplished by mental evaluations performed by
professionals selected by DMH,†the court found it “evident that DMH’s
determination that the person qualifies as an SVP equates to two evaluators
having found the person qualifies as an SVP.â€
(Ibid.) Similarly, identifying committed persons who
no longer qualify as SVP’s or whose best interests require conditional release,
“is accomplished by providing yearly mental evaluations also performed by professionals
selected by DMH.†(Id. at pp. 38-39.) The court
concluded that “when section 6605, subdivision (b) requires the director to
authorize the committed person to file a petition ‘[i]f the [DMH] determines’
the person no longer qualifies as an SVP or conditional release is in his or
her best interest . . . , it is apparent the same language again refers to the
report prepared under the statutory scheme. ‘When the Legislature uses the same language .
. . , we can infer the same result is intended.’ †(
McKay (2002) 27 Cal.4th 601, 622.) Thus,
the director of CSH should have authorized Landau’s petition for release, and
the trial court should have treated the petition, which invoked both sections
6605 and 6608, as having been filed under section 6605. (Landau,
at pp. 39-40.)
That Landau
had not yet been decided when Chaney filed his petition does not, in our view,
excuse his trial counsel’s failure to spot the obvious issue raised by the
conflicting conclusions that Chaney’s 2010 annual report generated and, at a
minimum, invoke both sections in the petition.
(See Smith,
[holding that despite the absence of authority clarifying a different ambiguity
in section 6605, Smith’s trial counsel’s failure “to at least recognize the
issue and to urge the court to proceed under section 6605†constituted
deficient performance.].) We think
counsel’s performance was deficient.
That deficient
performance prejudiced Chaney. The trial
court concluded that he “ha[d] not met his burden.†Although the ruling was based in large part on
the court’s determination that Chaney had not yet internalized the lessons he
had learned, the court also acknowledged that he had “come a long way†and
“appreciate[ed] the concepts that should control [his] conduct.†“I look and I see progress,†the court
said. “I see Mr. Chaney . . . being
sincere in his testimony that his intention is not to reoffend, his intention
is to use the tools that he’s been trained to use to cope with deviant
thoughts, with distorted thinking, those kinds of things.†The court also acknowledged that “all of the
experts that came in and testified, who are involved closely in this program,
perceive Mr. Chaney as an individual who deserves this opportunity to be
supervised in the community.†The evidence reflected CSH and Liberty
CONREP staff’s unanimous support for Chaney’s conditional release. Before the trial concluded, moreover, Chaney
had received his 2011 annual report which, like his 2010 annual report,
recommended his conditional release.
This time, however, Dr. Withrow concurred in the recommendation. The parties stipulated to the admission of
the 2011 annual report. In view of the strong
evidence supporting Chaney’s conditional release and notwithstanding the trial
court’s negative credibility determinations, we think there is a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different†had the state had the burden of proving
its case beyond a reasonable doubt. (
re Jones (1996) 13 Cal.4th 552, 561.)
We conclude that if intervening events have not rendered the matter
academic, Chaney is entitled to a new hearing under the procedures specified in
section 6605.
name="_ftnref3" title="">[3]
B.
Order to Produce Written Treatment Assignments
1.
Asserted Violation of Procedural Due Process
Chaney claims the trial court violated his
procedural due process rights when it
ordered him to produce his written treatment assignments “without any notice or
opportunity to litigate the issue, and without any apparent authority to issue
the order.†His failure to object in the
trial court on any procedural ground has forfeited the procedural due process issue
on appeal. Anticipating that problem, he
asserts as a fallback argument that any forfeiture occasioned by his trial
counsel’s failure to object in the trial court constituted ineffective
assistance, since there could be “no tactical reason for failing to raise the
due process and procedural objections relating to the trial court’s failure to
follow proper discovery procedures.†We
reject both his procedural due process and his ineffective assistance claims.
“ ‘An elementary and fundamental requirement of due process in any
proceeding . . . is notice
reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to present
their objections.
[Citations.] The notice must be of such nature as
reasonably
information [citation], and it must afford a reasonable time for those
interested to make their appearance [citations].’ [Citations.]â€
(Traverso v. People ex rel. Dept.
of Transportation (1993) 6 Cal.4th 1152, 1169-1170, italics omitted;
U.S. 233, 246.)
Chaney had reasonable notice that the trial
court wanted to review his written treatment assignments. He was present when the court, alerted to
their existence by Arkowitz’s testimony, expressed a desire to see them. Chaney’s counsel voiced several objections in colloquy
later that afternoon, but then concurred, albeit reluctantly, with the court’s
suggestion that “we would all agree that [Dr. Lavalle] can just mail them into
the court, maybe like a subpoena duces tecum type of thing --.†At no time on that day or during the two-week
interim before the trial court actually released the documents to the parties did
Chaney’s trial counsel suggest briefing and further argument on the procedural
due process or any procedural issue, nor did he urge the court to reconsider
its ruling.
We reject Chaney’s assertion that “by the
time the next hearing occurred, the documents had already been seized
of the May 11, 2011 hearing at which the trial court released
the documents for duplication and distribution to the parties reflects that the
court had not yet reviewed them. It was
not until a week after that, when Chaney appeared to testify, that the court told
the parties it had reviewed the assignments.
In sum, Chaney had notice that the court
wanted to review his assignments. He had
an opportunity to present his objections.
We therefore reject his assertion that he had no opportunity to litigate
the issue. He asserted his objections
through his counsel on April 28 and reiterated them on May 11, 2011. His procedural due process rights were not
violated.
Chaney argues that his trial counsel’s
failure to object on procedural grounds constituted ineffective assistance. Not so.
Because his procedural due process rights were not violated, an
objection on that ground would have been meritless. “Representation does not become deficient for
failing to make meritless objections.†(
463.)
An objection that the trial court lacked
authority to issue the order would have fared no better. “As has often been stated, a trial court has
inherent power, independent of statute, to exercise its discretion and control
over all proceedings relating to the litigation before it. [Citation.]
One phase of such power . . . is the power to obtain evidence upon which
the judgment of the court may rest.
[Citation.]†(
254, 260; see Code Civ. Proc., § 187.)
Chaney has not shown deficient performance. (Strickland, supra, 466
U.S. at p. 687; Ledesma, supra,
43 Cal.3d at p. 218.) Nor has he shown
prejudice, because the result would have been exactly the same had the trial
court, upon a timely objection, rigorously adhered to the formal procedures that
Chaney maintains were required.
“ ‘[T]he Civil Discovery Act applies to SVPA proceedings . . . .’ [Citation.]
The act is ‘applied in each SVPA proceeding on a case-by-case basis.’ [Citation.]
The discovery rules are ‘liberally construed in favor of disclosure and
the trial court is vested with wide discretion to grant or deny discovery. [Citation.]’
[Citation.]†(
1, 25.)
Here, Chaney concedes that the district
attorney could have subpoenaed the documents or requested their production pursuant
to Code of Civil Procedure section 2031.010. He claims, however, that the district
attorney’s inaction forfeited that opportunity. But he cannot fault the district attorney for
failing to seek production of his written treatment assignments given his
affirmative representation, in his March 24, 2011 letter requesting discovery
from the prosecution, that “Mr. Chaney has attached to his Motion for
Conditional Release all the records he
has in the above entitled matter . . . .â€
(Italics added.)
Nor can Chaney argue that “there was no good
cause to permit this late discovery.†(Code Civ. Proc., § 2024.050, subds. (a),
(b)(1)-(2).) Given the misrepresentation,
the undisputed materiality of the assignments, and Chaney’s reliance, in large
part, on the same substantive objections that had just been thoroughly briefed,
argued, and rejected on his unsuccessful motion to quash the subpoena for his mental
health records, we think it highly likely that the trial court would have
granted a short continuance and reopened discovery to permit the district
attorney to request production of the assignments, had counsel objected to the shortcut
procedure the court employed instead. (See Lee
v. Superior Court (2009) 177 Cal.App.4th 1108, 1123-1124 [“General civil
discovery methods . . . have been held to be available to litigants in SVPA
proceedings.â€].) The documents would
have been produced. Chaney would have
been asked the same questions at trial.
He would have given the same responses.
There is not “a reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.†(Strickland,
supra, 466 U.S. at p. 694;
Chaney’s ineffective assistance claim
fails.
2.
Asserted Violation of Psychotherapist-Patient Privilege
Chaney claims the trial court’s order to
produce his treatment assignments violated the psychotherapist-patient
privilege. We disagree.
“In California, as in all other states,
statements made by a patient to a psychotherapist during therapy are generally
treated as confidential and enjoy the protection of a psychotherapist-patient
privilege.†(Gonzales, supra, 56
Cal.4th at p. 371; Evid. Code, § 1014.)
Despite its broad and protective nature, however, “ ‘the psychotherapist-patient
privilege is legislatively
created and is not absolute.’ †(People v. Martinez (2001) 88
Cal.App.4th 465, 483 (Martinez);
dangerous patient exception, which provides that “[t]here is no privilege under
this article if the psychotherapist has reasonable cause to believe that the
patient is in such 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.†(Evid. Code, § 1024.) This exception “is an expression of the
Legislature’s determination 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.†(San
Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1091 (
automatically render the psychotherapist-patient privilege inapplicable in SVPA
proceedings.†(Gonzales, at pp. 380-381.) But
as our high court has “emphasize[d],†that “does not mean that [it] cannot
properly come into play in an SVPA proceeding.â€
(Ibid.)
In
962 (Lakey), a mentally disordered
sex offender (MDSO) challenged the admission, in his recommitment proceeding,
of statements he had made during inpatient therapy sessions. (Id.
at pp. 967-968, 970.) In rejecting the
claim, the court acknowledged that “ ‘an
environment of confidentiality of treatment is vitally important to the
successful operation of psychotherapy,’ â€
and “the effectiveness of the treatment given . . . probably would be improved
if complete confidentiality were accorded every statement made by a person
involuntarily confined for the treatment of their mental disorders.†(Id. at p. 976.) “However,†the court recognized, “the
psychotherapist/patient privilege is legislatively created and is not absolute.
[Lakey] has been confined as an MDSO
because he took the life of another human being and is dangerous. The purpose of his confinement is not merely
to treat his mental disorder, but to protect society. An important purpose of the close supervision
given persons who are confined as MDSOs is to gather information through which
it is possible to predict their future behavior. It seems apparent that one legislative purpose
in providing psychotherapy for MDSOs is to monitor their progress so that the
decision to release the MDSO from confinement may be based upon as much
information as possible. We cannot find
any legislative intent to exclude testimony such as that presented in this
matter because of any psychotherapist/patient privilege.†(Lakey, at pp. 976-977.)
The
decision in Evidence Code section 1024. (Lakey, supra, 102 Cal.App.3d at p.
977.) “The proceeding below was premised
upon the belief of defendant’s psychotherapist, and the medical staff at Atascadero
State Hospital, that [Lakey] constitutes ‘a serious threat of substantial harm
to the health and safety of others,’ as provided in [the MDSO statute]. As the Supreme Court stated in Tarasoff v.
Regents of University of California (1976) 17 Cal.3d 425, 442, ‘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, at pp. 976-977.)
This court relied on
Lakey when it concluded in
psychotherapy treatment provided during Martinez’s previous commitment as an MDSO
were properly admitted in a later proceeding to determine whether he qualified
as an SVP. (Martinez, supra, 88
Cal.App.4th at pp. 483-484.) “We agree
with the reasoning in Lakey,â€
the court explained, “and consider it applicable 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. To this end, we conclude that the
psychotherapist-patient privilege did not preclude [the testifying
psychologists] from considering [Martinez’s] therapy records because the
privilege never attached to his communications with the treatment staff at ASH
or the MDSO evaluator.†(
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 shield psychological treatment records created during a prior
involuntary commitment. Although those
records are generated in the course of treating MDSO’s and SVP’s, they have an
additional and equally important purpose:
to provide authorities with a professionally informed basis for
determining when the committed person can be safely released. Having been found at trial to pose a danger to
the health and safety of others, persons involuntarily committed as MDSO’s or
SVP’s cannot reasonably expect that their therapeutic communications will be absolutely
privileged at future commitment or recommitment hearings. The very purpose of those proceedings is to
determine whether the person is dangerous.
The public safety benefit of a full assessment of the person’s current
mental condition, including review of all relevant treatment records, outweighs
the more general public policy of treating patients’ psychotherapeutic
communications as confidential. Such records may reasonably be deemed to fall
within Evidence Code section 1024’s dangerous patient exception. (Lakey,
supra,
102 Cal.App.3d at pp. 976-977; Martinez,
supra, 88 Cal.App.4th at pp. 483-484.)
Chaney attempts to distinguish Lakey
and Martinez, but we do not find his
arguments persuasive. We are not
convinced that a proceeding to determine whether a committed SVP is suitable
for conditional release is materially different from a commitment or
recommitment proceeding, as all three focus on an assessment of the committed
person’s current mental condition to determine whether the person poses a
danger to the health and safety of others.
Nor are we persuaded by Chaney’s assertion that his written treatment
assignments are nondiscoverable because they “were deliberately kept out of his
medical records by the DMH.†The civil
discovery rules permit “any party†to obtain discovery regarding “any matter,
not privileged,†that is relevant to the subject matter of the pending action or
reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) It was undisputed below that, as Arkowitz
acknowledged, “there would be lots of valuable information in [Chaney’s written
treatment assignments].†Neither Chaney
nor the DMH can shield that information from discovery if it falls within a
statutory exception to the psychotherapist-patient privilege, because the
Legislature has determined that “as important as psychotherapeutic confidentiality
is, even its value may be outweighed by other societal interests.†(San
Diego Trolley, supra,
controls—not DMH’s. (In re Lifschutz (1970) 2
Cal.3d 415, 427 [“Although
petitioner argues that, as a matter of social as well as medical policy, the
benefits to be derived from a broadening of the existing privilege would
outweigh the detriments resulting from a narrowing of evidence available in
litigation, the balancing of those alternatives remains with the Legislature.â€]
We reject Chaney’s contention that the
trial court’s order to produce his treatment
assignments violated the psychotherapist-patient privilege.
3.
Asserted Violation of State and Federal Constitutional Rights to Privacy
Chaney claims the trial court’s order to
produce his treatment assignments violated his state and federal constitutional
rights to privacy. We disagree.
Article I, section 1 of the California Constitution provides that “[a]ll
people†have certain “inalienable rights,†including a right to privacy. “[T]o prove a violation of this
constitutional guarantee, one must establish [1] a legally protected privacy
interest, [2] a reasonable expectation of privacy in the circumstances, and [3]
conduct constituting a serious invasion of the privacy interest.†(Martinez,
supra, 88 Cal.App.4th at p. 474,
citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 37
(Hill).) “Invasion of a privacy interest is not a
violation of the state constitutional right to privacy,†however, “if the
invasion is justified by a competing interest.â€
(Hill, at p. 38.)
Applying
these principles in Martinez, this
court held that the district attorney’s review of Martinez’s psychological
treatment records did not violate his state constitutional right to
privacy. (Martinez, supra, 88
Cal.App.4th at p. 474.) “It is settled
that a person’s medical history, including psychological records, falls within
the zone of informational privacy protected under [the constitutional provision],â€
the court explained. (
diminished—if not completely eliminated†by his consent to interviews with the
evaluating psychologists and by the fact that the SVPA makes all relevant
records, including psychological records and “especially those generated at
[the state hospital],†relevant to the determination whether a person qualifies
as an SVP. (Martinez, at pp. 476-477; former § 6601, subds. (b)-(d),
(h); see People v. Sumahit (2005) 128
Cal.App.4th 347, 351, 353 [SVP who declined to be interviewed recommitted based
on evaluators’ review of records, including notes by staff, psychologist notes,
probation reports and court records].) The
district attorney is entitled to review the evaluators’ reports, moreover, and “ ‘any other supporting documents’ †must also be made available to him or
her. (Martinez, at p. 477; former § 6601, subd. (d).) Finally, the prosecutor’s review did not
constitute a serious invasion of Martinez’s privacy interests. (Martinez,
at p. 478.) His mental state was the
primary focus of the commitment proceeding, and the records had already been
examined and relied upon by nontreating doctors. (Ibid.)
The court concluded that the minimal
invasion of Martinez’s right to informational privacy was justified by the
“compelling public interests behind the SVPA and the [district attorney’s] duty
to make an independent and informed decision . . . whether to file a
petition.†(Id. at p. 480.)
We reach the
same conclusion here. Although Chaney’s
inpatient psychotherapy records, which include his written treatment assignments,
fall within the zone of informational privacy protected by the California
constitution, he could not reasonably expect the assignments to be kept private
in a proceeding to determine whether he would be a danger to the health and
safety of others “in that it is likely that he . . . will engage in sexually
violent criminal behavior due to his . . . diagnosed mental disorder if under supervision
and treatment in the community.â€
(§ 6608, subd. (d).) By
initiating the petition for conditional release, Chaney put his mental
condition at issue. (See Evid. Code, § 1016.) He does not dispute that his assignments were highly relevant to the determination the trial
court had to make. On the contrary, he
concedes that had
they been maintained in CSH’s files, “they would almost certainly not be
subject to either the psychotherapist-patient privilege or protected by his
[constitutional] right to privacy. . . .â€
We have already rejected the file location distinction. (Code Civ. Proc., § 2017.010;
Evid. Code, § 1024; see ante, at pp. 21-22.) Thus, Chaney had, at best, a diminished
expectation of privacy in his written treatment records.
Given that
diminished expectation of privacy, any invasion of Chaney’s
interest was minimal. The assignments had
already been reviewed by his treatment providers, shared with his fellow phase
participants, and studied by outside clinicians. They were not widely
disseminated, moreover, but were shared only with the court and with the
district attorney in the limited context of determining Chaney’s suitability
for conditional release. This minimal invasion
was more than justified by the compelling purpose of the SVPA and by the trial
court’s duty to make an informed and independent decision about Chaney’s
suitability for conditional release. The
trial court’s order did not violate Chaney’s state constitutional right to
privacy.
Nor did it violate
his federal constitutional right to
privacy. As our high court has noted, “the
United States Supreme Court itself has not yet definitively determined whether
the federal Constitution embodies even a general right of informational
privacy.†(Gonzales, supra, 56
Cal.4th at p. 384; see Whalen v. Roe (1977) 429 U.S. 589, 605-606
[assuming, without deciding, that such a right exists]; NASA v. Nelson
(2011) __ U.S. __, [131 S.Ct. 746, 751-752].)
The Ninth Circuit has held that the indiscriminate public disclosure of
Social Security numbers “may implicate the constitutional right to
informational privacy.†(
954, 958.) “The right to informational
privacy, however, ‘is not absolute; rather, it is a conditional right which may
be infringed upon a showing of proper governmental interest.’ [Citation.]â€
(Id. at p. 959.) “[T]he relevant considerations will
necessarily vary from case to case. In
each case, however, the government has the burden of showing that ‘its use of
the information would advance a legitimate state interest and that its actions
are narrowly tailored to meet the legitimate interest.’ [Citation.]â€
(Ibid.) Applying this test in Hubbs v. Alamao (9th Cir. 2005) 360 F.Supp.2d 1073 (
claim that disclosure of his medical information in an SVPA commitment
proceeding violated his constitutional right to privacy. (Hubbs,
at p. 1082.) “[T]he State has a
compelling governmental interest in identifying, confining and treating SVPs,
who have been diagnosed as sexually violent and represent a distinct threat to
the health and safety of the public,†the court wrote. (Ibid.) Relying on Martinez, it noted that the SVPA expressly provides for the
disclosure of relevant records not only to evaluators but also to others,
including the prosecutor. (
concluded, “the balance falls squarely in the State’s favor, and plaintiff’s
constitutional rights were not violated . . . .†(Ibid.) Chaney’s federal constitutional privacy claim
thus fails for the same reasons his state constitutional claim fails.
4.
Asserted Violation of Public Policy
Chaney contends that the trial court’s order
to produce his treatment assignments violated public policy. It is in the interest of everyone, he points
out, that SVPA treatment be as effective as possible, a goal that is advanced
when patients are “honest and forthcoming†in their written work. Giving courts access to that work creates an
incentive to be less honest and less forthcoming. That, Chaney asserts, led to a determination
by mental health experts at the DMH “that these documents should not be part of
the medical file and should not be available to the courts . . . .†Chaney claims “the trial court had no
business overriding this policy . . . .â€
The essence of his argument is that public policy on this issue should
be set by the DMH rather than by the Legislature. We have already rejected that argument.
C.
Asserted Denial of Right to Present Case in Full
Chaney claims the trial court violated his due
process rights when it denied his request to present “rebuttal†witnesses.
1.
Background
When Chaney finished testifying, the court asked
if there was “any other evidence.†The
district attorney answered, “No,†and defense counsel said nothing. The court then asked counsel to prepare memoranda
explaining “the structure†of conditional release and the extent of the court’s
continued involvement in the event it granted Chaney’s petition. It set a hearing on that issue in three
weeks. Two days before the scheduled
hearing, the court told the parties it needed to continue the hearing because it
wanted a transcript of Chaney’s testimony and was having difficulty obtaining
it. “I’m thinking a couple of weeks,â€
the court said. At that point, defense
counsel asked for “a date that we could have a full day of hearing, in case I
bring the executive director or other facilitators down to testify.†The court said it was not sure it could
guarantee a full day, and it continued the matter to June 30, 2011.
On June 28, 2011, the defense moved to
exclude electronic media coverage. On June
30, the court heard that matter, which included testimony by Liberty CONREP’s
community program director, first. It denied
the motion.
Defense counsel then declared that he had
two witnesses to present “in response to [Chaney’s] testimony,†to “fill outâ€
or “to rebut to some extent†the inferences drawn from it. He proposed calling Chaney’s social worker to
testify about various aspects of his treatment and to provide “her ultimate
opinion†on his suitability for conditional release. He also proposed calling Dr. Withrow to
testify, “consistent with what the expert witnesses already presented,†that
the medical and psychological experts supported Chaney’s conditional
release.
“I
thought we were done with the evidence,†the court responded. “I thought Mr. Chaney was the last
witness.†“I thought you were finished
after the other witnesses testified and it was the Court that was inclined to listen to Mr. Chaney.†(Italics added.) The court said it understood counsel’s
earlier comment about additional witnesses to refer witnesses who would describe
the structure of conditional release. The
district attorney concurred in that understanding, noting that both parties had
by that time submitted memoranda on the subject. The district attorney argued that the impact
written assignments was irrelevant and that the other areas of testimony had
already been addressed by other witnesses.
The trial court denied defense counsel’s
request as cumulative. “[N]ot only is it
cumulative, but I do believe that I have accurately described where we were
when we last left off before June 8th; and that was we were coming back for one
purpose and that was to have a decision ultimately on the conditional release
issue and then have further information provided to the Court . . . . I think in my mind [that further information]
was actually part of the decision-making process.â€
The court stated a second basis for its
ruling—that “these witnesses clearly were witnesses that were foreseeable, the
information they had was foreseeable . . . I can’t even call it rebuttal. You know, it’s just additional. And . . . I don’t see the significant
relevance of it. [¶] It may be relevant, but in terms of 352 and
in terms of anticipating what your case is going to be, they’re the kind of
witnesses that I would have expected to see up front. And even then, they would have been
cumulative probably, on most issues.â€
2.
Analysis
Chaney argues that the trial court’s refusal
to allow him to present “rebuttal†witnesses violated his “California statutory
and constitutional rights as well as the due process clause of the
In our view, the trial court reasonably
inferred from defense counsel’s silence when the court asked if there was any
other evidence that the defense had rested its case. That meant the defense had to seek leave to
reopen its case to present further evidence.
“A request to reopen for further evidence is addressed to the discretion
of the trial court whose determination is binding on appeal in the absence of
palpable abuse.†(Guardianship of Phillip B. (1983) 139 Cal.App. 3d 407, 428 (
cumulative is properly excluded. (
(Pauly).) “And denial of a motion to reopen will be
upheld if the moving party fails to show diligence . . . .†(Phillip
B., at p. 428.) “It does not follow .
. . that the discretionary denial of a motion to reopen warrants reversal. Only in rare instances involving evidence of
crucial significance will reviewing courts reverse a decision where denial has
resulted in such exclusion.†(
We cannot say that the excluded evidence was
of crucial significance. It was not rebuttal
evidence, which “by definition . . . counters
. . . the [opposing party’s] case-in-chief,†because it was undisputed that
those who attended Chaney’s Phase V staffing had unanimously recommended his
conditional release and that CSH’s then acting medical director had concurred
in the recommendation. (
Chaney argues, however, that he needed the
proposed evidence to rebut his own
testimony. A similar argument was
rejected in Lompoc Produce & Real
Estate Co. v. Browne (1919) 41 Cal.App. 607.) “[T]his is not a case of a refusal to permit
a party to introduce evidence to overcome the testimony of the opposing party,â€
the court noted. (Id. at p. 614.) “All the
testimony upon the subject . . . was given by the appellant himself. He cannot claim to have been surprised by his
own testimony, and should not object to its being given full credence. He should not be permitted to attempt to
contradict it.†(Ibid.)
In any event, the proposed testimony was merely
cumulative, as defense counsel acknowledged when he told the trial court it
would be “consistent with what the expert witnesses already presented.†The evidence was, moreover, neither newly
discovered nor even newly relevant, and Chaney offered no explanation why it
could not have been presented earlier. Because
he failed to show diligence and because the proposed testimony would have been cumulative,
the trial court did not abuse its discretion in excluding it. (Pauly,
supra, 44 Cal.2d at p. 661; Phillip
B., supra, 139 Cal.App.3d at p. 428.) Chaney was not denied “a meaningful
opportunity to be heard on critical issues.†His due process rights were not violated.
D.
Cumulative Error
Chaney contends that the cumulative effect
of the trial court’s errors violated his due process rights and deprived him of
a fair trial. We have identified one
instance of ineffective assistance and no trial court error. There is nothing to cumulate. (See People
v. Myles (2012) 53 Cal.4th 1181, 1225.)
E.
Request to Disqualify th
| Description | Eldridge Chaney appeals from the denial of his petition for conditional release from civil confinement as a sexually violent predator (SVP). He contends that (1) the trial court erred by proceeding under the wrong provision of the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.)[1] and that his trial counsel rendered ineffective assistance by inviting the error and/or forfeiting the issue; (2) the trial court violated his equal protection rights by requiring him to bear the burden of proving his suitability for conditional release; (3) the trial court violated his procedural due process rights, his constitutional rights to privacy, the psychotherapist-patient privilege, and public policy when it ordered production of his written treatment assignments; (4) the trial court violated his due process rights when it denied his request to present “rebuttal†witnesses; (5) the cumulative effect of the trial court’s errors denied him a fair trial; (6) he is entitled to a different judge on remand; and (7) the deputy district attorney who tried the case must be disqualified on remand. We conclude that Chaney’s counsel rendered ineffective assistance by seeking relief under section 6608. We reject Chaney’s other arguments. We reverse the judgment and remand the matter for a new hearing under section 6605. |
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