People v. Gonzales , 56 Cal. 4th 353 ( 2013 )

Filed 3/18/13
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S191240
v. )
) Ct.App. 6 H032866
RAMIRO GONZALES, )
) Santa Clara County
Defendant and Appellant. ) Super. Ct. No. 211111
____________________________________)
We granted review in this case to determine whether the trial court properly
applied the psychotherapist-patient privilege with regard to statements made by a
parolee to his therapist during parole-mandated therapy sessions and, if not,
whether the trial court‟s error constitutes a violation of a federal constitutional
right of privacy as well as a violation of the state statutory privilege.
In January 2007, the Santa Clara County District Attorney filed a petition
seeking to commit defendant Ramiro Gonzales as a sexually violent predator
(SVP) under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code,
§ 6600 et seq.). Prior to the commencement of trial in the SVPA proceeding in
2008, the district attorney sought to obtain access to psychological records of
defendant that had been compiled during outpatient psychological evaluation and
counseling sessions in which defendant had participated as a condition of parole.
Defendant opposed such disclosure as a violation of California‟s statutory
psychotherapist-patient privilege. (Evid. Code, § 1010 et seq.) The trial court
1
concluded that disclosure of such records to the prosecution and its expert
witnesses in an SVPA proceeding was permissible under the dangerous patient
exception to the psychotherapist-patient privilege (Evid. Code, § 1024) and
ordered the requested disclosure. Thereafter, just prior to trial, the trial court
further determined, again on the basis of the dangerous patient exception, that the
therapist who had provided one-on-one counseling to defendant during the
counseling sessions would be permitted to testify at the SVPA trial regarding
statements made by defendant to the therapist during those counseling sessions.
At the conclusion of trial, the jury found that defendant was an SVP within the
meaning of the SVPA and the trial court committed defendant to the custody of
the State Department of Mental Health (now State Department of State Hospitals)
for an indefinite term.
On appeal, the Court of Appeal reversed. The Court of Appeal first
concluded that the trial court erred in ordering disclosure of defendant‟s
psychological records and permitting defendant‟s former therapist to testify to
statements made by defendant during his counseling sessions. The Court of
Appeal then determined that the trial court‟s error constituted not only state law
error but also a violation of defendant‟s federal constitutional right of privacy.
Because the Court of Appeal was of the view that the trial court‟s action
constituted federal constitutional error, it held that the question whether the
admission of the challenged evidence was prejudicial must properly be evaluated
under the stringent beyond a reasonable doubt prejudicial error standard generally
applicable to federal constitutional error under Chapman v. California (1967) 386
U.S. 18 and its progeny. Applying that strict prejudicial error standard, the Court
of Appeal held that the trial court error required reversal of the order of
commitment.
2
The People sought review in this court, contending that the Court of Appeal
was mistaken both in finding that the trial court erred in ordering disclosure of the
psychological records and admitting the former therapist‟s testimony, and further
in concluding that the asserted error violated the federal Constitution. We granted
review to address both issues.
For the reasons discussed hereafter, we agree with the Court of Appeal‟s
conclusion that the trial court erred in permitting disclosure of defendant‟s
psychological records and in admitting his former therapist‟s testimony in reliance
upon the dangerous patient exception to the psychotherapist-patient privilege. We
disagree, however, with the Court of Appeal‟s determination that the trial court
error in this regard constitutes an error of federal constitutional dimension, and
thus we conclude that the prejudicial nature of the error must properly be
evaluated under the usual prejudicial error standard applicable to state law error
set forth in People v. Watson (1956) 46 Cal. 2d 818, 836, namely, whether it is
reasonably probable that the error affected the result. Applying that standard, we
conclude that the trial court error was not prejudicial and does not require reversal
of the trial court judgment.
I. Summary of Facts and Proceedings Below
A. Defendant’s Background and Events Preceding His 2004 Parole
Defendant was born on February 18, 1955, and was 53 years old at the time
of the 2008 trial of the SVPA proceeding at issue in this case. At age seven,
defendant contracted spinal meningitis, which caused him to suffer significant
intellectual and developmental disabilities, and thereafter he attended special
education classes and needed help with daily living chores. (In psychological
testing conducted many years later, defendant was determined to have a full IQ
score of between 65 and 71.) He ultimately dropped out of high school, continued
to live at home with his mother, received Social Security benefits as a result of his
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disability, and earned some money collecting cans for recycling and doing simple
yard work.
In April 1975, at age 20, defendant was convicted of his first sex offense.
As described in the probation report, defendant, while mowing the lawn at a home
where a five-year-old girl lived, was seen hugging the girl and when he let her go
he was observed with an erection. The girl reported that while defendant was
hugging her he whispered obscenities in her ear. As a result of that incident,
defendant was convicted of misdemeanor annoying or molesting a child. (Pen.
Code, § 647.6.)
Two years later, in April 1977, defendant again committed a somewhat
similar offense with another young girl. In that incident, after defendant had
finished mowing the lawn of a home where a seven-year-old girl lived, the girl‟s
mother invited defendant into the house in order to obtain defendant‟s phone
number so she could pay him at a later date. Once inside, defendant asked to use
the telephone and then pretended to make a phone call, making the girl‟s mother
suspicious. The mother telephoned her brother and asked him to come to her
house and then went outside to wait for her brother to arrive. When the mother
reentered her house, she found defendant on the couch with her seven-year-old
daughter, touching the girl‟s buttocks and crotch area over her clothing. When
asked to explain his conduct, defendant said that it “looked easy,” that he did not
know how to “do sex” with women, and that he had “got hot” after the mother had
left the house. As a result of that incident, defendant was convicted of lewd and
lascivious conduct with a minor (Pen. Code, § 288, subd. (a)) and was placed on
probation with conditions including confinement in county jail, and registration as
a sex offender pursuant to Penal Code section 290.
Seventeen years later, in August 1994, when defendant was 39 years old,
defendant was convicted of another sex offense with a young girl. On that
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occasion, defendant was at his sister‟s house for a celebration of a child‟s baptism.
During the party, a friend of defendant‟s sister put her four-year-old daughter to
sleep in one of the bedrooms. Defendant was later found in the bedroom rubbing
the young girl‟s vaginal area over her underpants while she slept; upon his arrest,
defendant attributed his behavior to his being very drunk. As a result of that
conduct, defendant was again convicted of lewd and lascivious conduct with a
minor (Pen. Code, § 288, subd. (a)), and this time was sentenced to a determinate
term of 11 years in prison.
Prior to defendant‟s scheduled release from prison on parole in the spring
of 2004, the Santa Clara County District Attorney filed a petition seeking to have
defendant civilly committed under the SVPA. After a trial, however, a jury
unanimously found not true the allegation that defendant was an SVP within the
meaning of the SVPA, and as a result defendant was not subjected to an SVPA
commitment at that time.
B. Defendant’s 2004 Parole Conditions and Conduct on Parole
On May 28, 2004, defendant was released on parole under conditions that
barred his use of alcohol, contact with sex offenders, contact with minors, and
being within 100 feet of places where children congregate, including parks and
schools. Because his mother‟s residence was too close to a school, defendant was
not permitted to live at his mother‟s house, but he was allowed to visit her there.
Most significantly for the issue presented in this case, as an additional condition of
parole defendant was required to attend outpatient psychological evaluation and
treatment as directed by his parole agent.
In January 2006, defendant‟s parole agent took defendant to the Atkinson
Assessment Center (Atkinson Center) for outpatient treatment and counseling
pursuant to defendant‟s parole condition. At the Atkinson Center, Pat Potter
McAndrews, a certified psychologist, was defendant‟s psychotherapist; Dr. Carol
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Atkinson, the head of the Atkinson Center, was McAndrews‟ supervisor. As we
shall see, a principal issue presented by this case is whether statements made by
defendant to McAndrews as part of the evaluation, treatment and counseling
process at the Atkinson Center and records kept by the Atkinson Center reflecting
such statements are protected by the psychotherapist-patient privilege embodied in
the Evidence Code and should not have been disclosed to the prosecution and
admitted into evidence over defendant‟s objection at defendant‟s subsequent
SVPA proceeding.
While on parole, defendant committed a number of parole violations that
resulted in his arrest, brief confinement, and rerelease on parole on three occasions
between July 2004 and December 2005. In July 2004, defendant was arrested for
missing an outpatient meeting, but was released in August 2004 when it turned out
that defendant had mistakenly gone to his parole agent‟s office instead of to his
outpatient meeting because he thought he was supposed to check in with his parole
agent, and thereafter had returned home when his parole agent was not at his
office. In February 2005, defendant was arrested when his parole agent found six
unopened and 20 opened and empty beer cans in his motel room and defendant
admitted that he had been drinking; after four months in jail, he was rereleased on
parole in June 2005. In August 2005, he was again arrested for drinking when a
breathalyzer test showed a blood-alcohol level of .05 percent; defendant was
rereleased on parole in December 2005.
In April 2006, defendant was fitted with a GPS tracking device and
specifically agreed not to have contact with anyone under the age of 18 and to
report any such contacts he had with a minor, whether the contact was accidental
or not. On August 11, 2006, defendant‟s parole agent, in checking the records
obtained from defendant‟s GPS device, discovered that the previous day defendant
had been at a park with a playground for about 30 minutes. The agent checked
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defendant‟s GPS device, learned that he was currently at his mother‟s house, and
telephoned defendant there to ask about the prior day‟s incident. While on the
phone with defendant, the agent could hear children‟s voices in the background.
Without alerting defendant, the agent and other officers immediately drove to
defendant‟s mother‟s home and found two children (defendant‟s niece and
nephew), ages seven and four, at the house, along with the children‟s mother and
father (defendant‟s sister and her boyfriend/partner), defendant‟s mother, and
defendant. (Defendant‟s sister later explained that she and her family had recently
moved into her mother‟s house after they had been evicted from their own
apartment.) When the agents arrived, the two children were in the front yard with
their father, while defendant was in the side yard.
When questioned by his parole agent, defendant acknowledged that he
knew he was not supposed to be near the playground on the previous day, but said
he had just stopped at the park to roll some cigarettes and did not look at any of
the children. Defendant also admitted that he knew he was not supposed to be at
his mother‟s house when children were there and further admitted that over the
past few weeks he had at times been at the house when all four of his sister‟s
children were present. In addition, defendant acknowledged to his parole agent
that during the previous three months (from June to August 2006) he had regularly
drunk beer about three times a week. The parole agent arrested defendant for
violating parole and took him into custody.
C. SVPA Proceedings
1. Pretrial Proceedings
While defendant was in custody for the August 2006 parole violations, the
California Department of Corrections and Rehabilitation referred defendant for
screening as a potential SVP pursuant to Welfare and Institutions Code section
6601. Two psychologists, Thomas MacSpeiden and Jack Vognsen, employed
7
under contract with the State Department of Mental Health (now State Department
of State Hospitals), evaluated defendant in late 2006. At the subsequent probable
cause hearing, both psychologists testified that defendant suffered from pedophilia
and that the disorder impaired his emotional and volitional capacity. Although
both psychologists acknowledged that, in conformity with the holding in the Court
of Appeal decision in Turner v. Superior Court (2003) 105 Cal. App. 4th 1046(Turner), they accepted as true the earlier jury finding at defendant‟s prior SVPA
proceeding that, as of May 2004, defendant was not likely to reoffend if he were
not confined for treatment, both stated that they felt that defendant‟s four parole
violations since May 2004 constituted materially changed circumstances that
demonstrated defendant‟s decreasing control over his behavior and indicated that,
as of the date of their separate evaluations in late 2006, defendant was likely to
engage in sexually violent criminal acts without appropriate treatment and
custody. (See Welf. & Inst. Code, § 6601, subd. (d).) At the conclusion of the
hearing, the court found that there was probable cause to believe defendant met the
requirements of an SVP and ordered that a trial be conducted to determine whether
defendant was an SVP.
Prior to the commencement of trial in the SVPA proceeding, the district
attorney sought to subpoena all records in the possession of the Atkinson Center
pertaining to the evaluation and treatment of defendant. Defense counsel filed a
motion to quash the subpoena.
At the hearing on the motion to quash, the defense maintained that the
records sought by the prosecution were protected by the psychotherapist-patient
privilege and could not be disclosed over defendant‟s objection. Defense counsel
relied heavily upon the Court of Appeal opinion in Story v. Superior Court (2003)
109 Cal. App. 4th 1007 (Story), where the appellate court concluded that
psychotherapy records relating to therapy sessions engaged in as a condition of
8
probation were protected by the psychotherapist-patient privilege and could not be
obtained by a prosecutor who sought the records for use in a subsequent murder
prosecution of the patient.
In response, the district attorney argued first that he had been informed by
both Dr. Atkinson and defendant‟s parole agent, and would make an offer of
proof, “that it is standard practice for a parolee to sign a consent form
acknowledging that the confidentiality of sex offender treatment is limited and
qualified to some degree due to the special relationship between the parolee, the
treater, and the parole agent,” and so “it is possible that the privilege does not
apply based on the consent” of defendant. Second, the district attorney maintained
that even if the psychotherapist-patient privilege had not been waived, the records
of defendant‟s prior evaluation and treatment at the Atkinson Center fell within the
so-called dangerous patient exception to the psychotherapist-patient privilege
embodied in Evidence Code section 1024 and thus were properly discoverable by
the prosecution. In support of the latter claim, the district attorney relied on the
Court of Appeal decision in People v. Martinez (2001) 88 Cal. App. 4th 465, which
held that records of prior inpatient psychotherapy treatment conducted during a
mentally disordered sex offender (MDSO) commitment were properly admitted in
a subsequent SVPA proceeding.
At the conclusion of the hearing, the trial court determined that although
the psychotherapist-privilege applied to the records in question, the prosecution
was entitled to obtain access to the records under the dangerous patient exception
to the privilege. Accordingly, the court denied the defense motion to quash the
subpoena. Because the trial court relied upon the dangerous patient exception, it
did not reach or resolve the district attorney‟s alternative theory that defendant had
consented to the disclosure of such materials as part of the standard parole
outpatient therapy procedure.
9
Just prior to the commencement of the SVPA trial, defense counsel
renewed the objection to the disclosure of the Atkinson Center‟s records to the
district attorney and to the evaluating psychologists. In addition, defense counsel
objected to the district attorney‟s proposal to call McAndrews as a witness at trial
to testify to statements defendant had made during therapy and counseling
sessions with McAndrews, maintaining that such testimony would also violate the
psychotherapist-patient privilege. The trial court denied both objections on the
same ground that it had denied the motion to quash the subpoena — namely, that
disclosure was permissible by virtue of the dangerous patient exception.
2. SVPA Trial — Prosecution Case1
At trial, the two psychologists (MacSpeiden and Vognsen) who had
testified at the probable cause hearing testified again about their evaluations,
diagnoses and conclusions regarding defendant‟s condition and potential
dangerousness. MacSpeiden testified that in his opinion defendant suffered from
pedophilia and alcohol dependence, and that although defendant had a cognitive
deficiency, he (MacSpeiden) was of the view that defendant should not properly
be characterized as mentally retarded but instead as borderline intellectual
functioning. MacSpeiden further testified that in his view defendant‟s pedophilia
affected his emotional or volitional control in a way that predisposed him to
commit sexual criminal acts such that he is a menace to the health and safety of
others, rendering him an SVP under the provisions of the SVPA. In the course of
his testimony, MacSpeiden stated that he had reviewed a report prepared by
1 Because one of the issues before this court concerns whether any error
committed by the trial court was prejudicial, we set forth the evidence presented at
trial in some detail.
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Dr. Atkinson (the Atkinson report), which stated that defendant, in summarizing
his “psychosexual history,” had told McAndrews that he had engaged in “child
molestation beginning at age 14 and ending at age 37 with 16 victims, having 18
separate acts.” MacSpeiden indicated that he had prepared his own initial report
regarding defendant before receiving and reviewing the Atkinson report, and that
the information in that report “[e]ssentially corroborat[ed]” his own opinion. As at
the probable cause hearing, MacSpeiden testified at trial that although in
May 2004 a jury had unanimously determined that defendant was not an SVP, his
(MacSpeiden‟s) conclusion that defendant currently met the requirements of an
SVP was based on what MacSpeiden viewed as a material change in defendant‟s
circumstances as evidenced by defendant‟s conduct after May 2004.
Vognsen similarly testified that on the basis of his review of defendant‟s
criminal background, the results of psychological testing, and his two personal
interviews of defendant, he diagnosed defendant as suffering from pedophilia and
alcohol dependence, and that as a result of his pedophilia defendant posed a
serious danger of committing another sexual offense with children. Like
MacSpeiden, Vognsen recognized that, in light of the jury finding in the earlier
SVPA proceeding and the decision in Turner, supra, 105 Cal. App. 4th 1046, his
conclusions regarding the seriousness of the risk defendant posed to others could
properly be based only on events occurring after the prior SVPA proceeding.
Nonetheless, Vognsen testified that in his opinion defendant‟s parole violations in
the years following the earlier SVPA proceeding “indicate very impaired ability to
control his behavior, to think about what he‟s doing, and to decide not to do
certain things that are dangerous, and he‟s a danger.” Phrasing his conclusions in
terms that tracked the legal standard established by the governing judicial
decisions (see People v. Superior Court (Ghilotti) (2002) 27 Cal. 4th 888, 922;
Cooley v. Superior Court (2002) 29 Cal. 4th 228, 255; People v. Roberge (2003)
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29 Cal. 4th 979, 987), Vognsen stated that in his view there was “a substantial and
well-founded risk” that defendant would again commit “a sexually violent
offense,” a category that, by statute, is defined to include any sexual offense
against a minor under the age of 14 (Welf. & Inst. Code, § 6600.1). When
questioned by the district attorney whether he found significant the statement in
the Atkinson report that defendant had stated that between the time he was 14
years of age and the time he was 37 years of age he had touched 16 children,
Vognsen answered that he did “[b]ecause this is a large number of victims . . .
[and] goes to demonstrating his constant and impulsive offending in a sexual
manner throughout his life span.” Further, when pressed by defense counsel
whether defendant‟s sexual touching of children might be attributable to his
mental retardation and consequent social awkwardness with adults rather than
pedophilia, Vognsen replied: “I would go along with that if we had, say, one,
maybe even just two instances of inappropriate sexual behavior, especially if those
instances had occurred fairly early in the Respondent‟s experience. But the fact
that we have at least three, and possibly as many as 16 different victims and that
they have occurred throughout this man‟s life, at least up to the age of 39,
indicates to me that his retardation is coupled with a sexual interest in kids.”
In addition to the two evaluating psychologists, the prosecution also called
as a witness McAndrews, the psychologist who had counseled and treated
defendant on an outpatient basis at the Atkinson Center from January 24, 2006
through August 2006 while defendant was on parole. (As noted, the trial court
earlier overruled defendant‟s objection to the admission of McAndrews‟s
testimony.) McAndrews reported that defendant regularly attended his scheduled
group and individual counseling sessions, that she and defendant established a
comfortable “therapeutic rapport,” and that her individual sessions with defendant
uniformly “went well,” “[m]eaning that I had created an environment where the
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therapeutic process could continue. We were making progress. We‟re trying to
help Mr. Gonzales understand a little bit more about himself and his needs and
perhaps learn not to reoffend in the future.”
In the course of her testimony, McAndrews reported many statements made
by defendant throughout the eight-month counseling process, including
defendant‟s admission “that he was very attracted to children, small children, and
that especially when he was drinking that he found that he couldn‟t really control
himself and would have an overwhelming desire to touch them,” and his
statement, in response to a question as to how many times between the ages of 14
and 37 he had molested children, that “he had had 16 victims and he thought there
were about 18 crimes.” McAndrews also testified that when defendant was asked
during therapy to write about why he was required to undergo sexual offender
treatment, defendant wrote: “I would just like to stop thinking about 16-year-old
girls and think of pretty women from the age of 45 years of age or older on my
birthday. I will be 51 years old. That is what I would like.” McAndrews further
stated that in their counseling sessions defendant had told her that he “had not had
a drink since he‟d gotten out of prison,” had not told her that he had been at his
mother‟s house at a time when his nieces and nephews were there, and that if she
knew that “he was at his mom‟s house when kids were there and he was drinking,”
she would be concerned because “[t]hat would be a recipe for a sex offense.”
On cross-examination, McAndrews acknowledged that over the entire
eight-month counseling process defendant had not missed a single group or
individual counseling session (there were 85 group sessions and eight individual
sessions during this period), that no suspicion had been raised that defendant was
then molesting children, and that McAndrews had no intention of removing him
from the outpatient therapy program for noncompliance or noncooperation.
McAndrews also testified that on a number of occasions defendant, in reporting
13
his sexual history, stated that in the past he had sexually touched four, rather than
16, young girls, and that the sole instance in which he stated that he had sexually
touched 16 different children occurred during her administration of a lengthy (79-
page) assessment test (the Abel Assessment test) that employed about 250
multipart questions. McAndrews indicated, however, that she was confident
defendant understood the question.
The parole agent who supervised defendant during the period at issue in
this case also testified on behalf of the prosecution. The agent testified that he felt
that he had a good relationship with defendant, and recounted for the jury each of
defendant‟s parole violations described earlier in this opinion (ante, pp. 6-7):
(1) defendant‟s failure to attend an outpatient meeting because of a
misunderstanding as to where he was to go, (2) defendant‟s drinking beer in his
room, (3) defendant‟s use of alcohol as evidenced by a positive blood-alcohol test,
and (4) defendant‟s presence in a park containing a playground on August 10,
2006, and his presence at his mother‟s home when children were there on
August 11, 2006, along with defendant‟s admission on that date that he had drunk
beer three times a week over the past few months.
The prosecution also called defendant to testify as a witness at trial. In the
course of defendant‟s brief testimony, the district attorney asked defendant
whether “it [was] okay” for him to drink beer when he was on parole. When
defendant answered “No,” and the district attorney asked “Why not?,” defendant
stated: “Because it would have — it would give me visions of little kids, and then,
like, if I didn‟t — if I did not remember that I should not be drinking.” (As
discussed below, the district attorney highlighted this portion of defendant‟s
testimony in his closing argument to the jury.)
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3. SVPA Trial — Defense Case
In defense, defendant‟s mother testified to defendant‟s childhood illness
and very limited personal skills, describing his need for assistance in dressing,
grooming, cooking, and other ordinary activities of everyday life. She testified
that after defendant stopped attending high school, he made some money
collecting cans for recycling and doing occasional simple gardening jobs for
friends and neighbors and received Social Security benefits as a result of his
mental disability. She stated that defendant lived with her until he was sentenced
to prison at age 39. When asked about what defendant would do at her house
when he visited during the time he was on parole, she said that he would go in the
yard and package cans for recycling and smoke and drink beer. She
acknowledged that after her daughter‟s family moved into her house, defendant
would occasionally visit while some children were at the house, but she stated that
defendant would stay in the backyard listening to music, smoking and drinking
beer, and she emphasized that she had never seen defendant touch any of the
children. On cross-examination, defendant‟s mother acknowledged that although
defendant‟s parole officer had told her that there should be no drinking and no
children when defendant visited her at her home, she could not stop him from
drinking beer because “[h]e won‟t mind me anyway even if I tell him. He won‟t
mind me.”
Defendant‟s sister, Gloria, who was living at defendant‟s mother‟s house at
the time of defendant‟s August 2006 arrest for parole violations, testified that she
and her family had moved into her mother‟s house a few weeks before the arrest
after her family had been evicted from their own apartment. She testified that
defendant had come to her mother‟s house about three times a week during that
period, usually stayed for only an hour or two, and never touched any of her
children. On cross-examination, Gloria stated that she made a point of keeping
15
her eye on her children when defendant was visiting, and, when asked why she did
that, she stated: “Because of what happened. [Q]: You mean because of the
reason he‟d been in prison? [A]: Right.”
A defense investigator testified regarding the geographic details of the
park/playground area at which defendant‟s GPS device had indicated that he had
briefly stopped on the day prior to his arrest. The investigator indicated that the
park was extremely large and had many areas with benches and tables that were
not immediately adjacent to the children‟s playgrounds. The investigator also
noted that a community center at which meals were regularly served on a walk-in
basis to needy persons was located about two blocks from the park in question.
A service coordinator for the San Andreas Regional Center, a state-funded
entity that provides services to developmentally disabled persons, testified that
defendant was one of his clients and had qualified for services at the center on the
basis of his mental retardation and specific deficiencies in communication,
learning, self-direction, capacity for independent living and economic self-
sufficiency. The service coordinator testified about an individual program plan,
prepared specifically for defendant, that proposed defendant be provided 24-hour
care and supervision and skills training and that such services, including residence
in a group home with a ratio of one staff member to two or three clients, would be
appropriate for defendant at that time. On cross-examination, the coordinator
acknowledged that he was not aware that defendant‟s parole term had ended and
that, if defendant were released from custody, defendant would not be under the
additional supervision of a parole officer. The coordinator conceded that this
would impose an additional supervision burden on the center, but stated that he
had been successful in working with such sexual offenders in the past.
The defense also called two psychologists who had interviewed and
evaluated defendant at the defense counsel‟s request after the initiation of this
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SVPA proceeding. Timothy Derning, who had considerable experience dealing
with mildly retarded or developmentally disabled persons, testified to the
considerable limitations facing such persons. When asked if defendant, who had
become used to visiting his mother regularly while he was on parole, would have
had difficulty knowing what to do when his sister and her children unexpectedly
moved in with his mother, Derning testified that the problem would have been
very difficult for defendant to recognize or to adjust to, and that it would have
been beyond defendant‟s intellectual capabilities to put in place a plan in which he
would call his mother first to make sure no children would be at her house when
he visited. Derning also stated that in his view defendant would have great
difficulty in understanding many of the complicated questions using sophisticated
vocabulary that were included in the psychological tests that were administered
and relied upon by the evaluating psychologists who testified on behalf of the
prosecution, and in particular the questions that asked defendant at what age he
first became “sexually aroused by touching a child” and the number of children he
had “touched sexually” in his lifetime. In general, Derning testified that he
believed that the evaluating psychologists, in administering tests and in diagnosing
defendant‟s condition, had not given adequate weight to defendant‟s mental
retardation in concluding that defendant suffers from pedophilia, and that
defendant‟s occasional inappropriate touching of children could reasonably be
explained by his mental retardation and his consequent difficulty in forming
intimate social relationships with persons of his own age, rather than by
pedophilia.
Brian Abbott, a licensed clinical psychologist and social worker who had
evaluated and counseled a substantial number of sex offenders, also testified for
the defense. Abbott explained that in light of his review of records concerning
defendant‟s family background and psychological testing and his numerous
17
personal interviews with defendant, he determined that defendant did not suffer
from pedophilia. When asked what would have caused defendant to engage in
three acts of sexually touching female children, Abbott stated that in his view
because defendant “suffers from mild mental retardation and because of the lack
of impulse control and judgment associated with that disorder, he acted out his
sexual feelings in an inappropriate way towards a child who was accessible at that
point in time.” In response to a question whether defendant currently has the
ability to manage his sexual feelings better than in the past, Abbott stated that he
believed defendant now does have better control, pointing to the fact that “since
his release from prison there‟s been no indication that he has tried to do anything
sexual with a child” and to the fact that his current age (over 50) is associated with
a decrease in sexual drive. He also stated that he was unaware of any statements
made by defendant indicating that he felt sexually aroused by or intended to
engage in sexual activity with children since his release in 2004,2 and noted that
although defendant‟s residence was subject to parole searches there was no
indication that defendant possessed any child pornography or magazines or other
material suggesting that defendant harbored an erotic interest in children. In sum,
Abbott concluded that in his view there was no change in circumstances since the
prior SVP proceeding in which defendant was found not to be an SVP indicating
that there was a danger that defendant would engage in predatory sexual behavior.
2 When Abbott was asked about the note defendant had written during his
treatment at the Atkinson Center in which he said he would like to stop thinking of
16-year-old girls and would like to think of pretty women from the age of 45 years
of age or older, he stated that even if defendant was referring to thinking about 16-
year-old girls sexually, the statement would not suggest that defendant suffered
from pedophilia because 16-year-old girls are generally not prepubescent, and thus
such thoughts would not support a diagnosis of pedophilia.
18
In addition, Abbott discussed at some length other studies that, in his view,
demonstrated the unreliability or limited usefulness of the psychological tests that
had been relied upon by the evaluating psychologists who had testified on behalf
of the prosecution.
4. Closing Arguments
The district attorney began his closing argument by directing the jury‟s
attention to defendant‟s in-court testimony in response to the question why it was
not all right for him to drink beer while on parole: “ „because it would give me
visions of little kids.‟ ” Describing this evidence as “chilling,” the district attorney
argued that, in light of the overall facts in this case, there was not “any other
explanation for visions of little kids given what we know about [defendant] other
than the interpretation of great concern that I . . . respectfully suggest to you is
there” — namely that defendant suffers from pedophilia and poses a serious and
well-founded risk of reoffending in a sexually predatory manner. In the course of
his closing argument, the district attorney also stated: “I started out with the real
concern . . . about the 16 victim statement. But in fact you heard so much about
what he did and did not tell his parole officer and sex offender counselor, . . . what
he did not tell, I‟m drinking. I‟m going home and drinking. I am there when there
are kids.” The district attorney additionally reminded the jury that “[t]he family
tells [one of the defense psychologists] and others now we never let him out of our
sight. Sister, baby sister told you . . . .” The district attorney concluded: “I
submit that it has been shown beyond a reasonable doubt that this man suffers a
serious but dangerous condition which isn‟t going to go away.”
In his closing argument, defense counsel emphasized the prior jury verdict
finding defendant not to be a danger to commit a future sexually violent crime as
of May 27, 2004, and maintained that the prosecution had not proved, beyond a
reasonable doubt, the existence of materially changed circumstances occurring
19
after that date indicating that defendant was likely to commit a sexually violent
offense. Counsel argued in this regard that defendant‟s drinking beer was not a
new circumstance (observing that defendant had regularly been drinking beer
since he was a teenager), that even defendant‟s parole agent acknowledged that
defendant‟s normal daily routine — riding the bus, going to the market, eating at
the soup kitchen — would invariably bring defendant around children, and that the
prosecution had introduced no evidence that, during the time in which he was
living in the community after May 27, 2004, defendant had ever touched or
attempted to touch any child, either at the park where he stopped for 30 minutes on
October 10, 2006, at his mother‟s house, or at any other time. Stressing
defendant‟s limited mental ability, counsel argued that the fact that defendant had
continued to visit his mother several times a week even after his sister and her
children had moved in with his mother did not indicate that defendant posed an
increased danger, but simply reflected defendant‟s limited ability to devise a new
plan or schedule on his own. Finally, defense counsel drew the jury‟s attention to
the evidence introduced at trial indicating that defendant, because of his disability,
would be eligible for lifelong services through the San Andreas Regional Center
that would include living at a group home with other developmentally disabled
adults, and argued that defendant did not pose a substantial risk of reoffending,
particularly in light of his advanced age and the fact that he had not committed any
offense in the years since May 2004.
5. Jury Instructions
Following closing arguments, the court instructed the jury on the applicable
legal principles that it was to apply in resolving the case. After setting forth the
numerous elements that the prosecution was required to prove beyond a
reasonable doubt in order to establish that defendant is a sexually violent predator,
the court instructed the jury regarding the effect of the judgment in the prior SVPA
20
proceeding in which defendant was found not to be a sexually violent predator.
The court informed the jury: “[Defendant] was found not to be a danger to
commit a future sexual violent crime on May 27, 2004. You, the jury, must accept
this to be true as of [that date]. Before a verdict finding [defendant] is likely to
commit a future sexually violent crime can be returned, the District Attorney must
prove beyond a reasonable doubt that there are materially changed circumstances
that have occurred since [that date] that now make [defendant] a likely danger to
commit a sexually violent offense. If you find that materially changed
circumstances which make [defendant] likely to commit a sexually violent offense
have not been proven beyond a reasonable doubt to have occurred since [that
date], then you must find that [defendant] does not qualify as a sexually violent
predator.”
6. Jury Deliberations and Verdict
During its deliberations, the jury asked that the trial testimony of defendant
and of defendant‟s sister Gloria be reread. The following morning, the court
reporter provided the requested readback of testimony in the jury deliberation
room. Later that morning, the jury returned its verdict, finding defendant to be an
SVP within the meaning of Welfare and Institutions Code section 6600. After the
jury was polled and unanimously affirmed the verdict, the trial court signed an
order committing defendant as an SVP under the SVPA.
D. Court of Appeal Decision
In the Court of Appeal, defendant challenged the judgment on a number of
grounds. First, defendant maintained that the trial court erred in authorizing the
disclosure of defendant‟s psychological records at the Atkinson Center to the
district attorney and the evaluating psychologists and in permitting McAndrews to
testify at trial regarding statements that defendant made to her during counseling
sessions. Second, he argued there was insufficient evidence to support a finding
21
of a material change in circumstances after the prior SVPA proceeding at which a
jury determined that he did not meet the requirements for commitment under the
SVPA. Third, he claimed the trial court erred in refusing to instruct the jury that
mental retardation could not be considered a mental disorder for purposes of the
SVPA. Fourth, he argued that the provisions of the SVPA authorizing indefinite
commitment violate a number of distinct constitutional guarantees, including equal
protection, due process, ex post facto, double jeopardy, and the right to petition for
redress of grievances.
The Court of Appeal reached only the first of these contentions. The
appellate court unanimously concluded (1) that the trial court had erred in ordering
disclosure of defendant‟s psychological records to the prosecution and in
admitting the testimony of defendant‟s former therapist at trial, (2) that this error
constituted not only state law error but also a violation of defendant‟s federal
constitutional right of privacy, and (3) that the error was prejudicial and required
reversal of the trial court‟s commitment order under the stringent beyond a
reasonable doubt prejudicial error standard applicable to federal constitutional
error under Chapman v. California, supra, 386 U.S. 18. Because the Court of
Appeal determined that reversal of the judgment was required on this ground
alone, it did not reach any of defendant‟s additional claims.
The People sought review of the Court of Appeal decision, contesting both
its conclusion that the trial court erred in permitting disclosure of defendant‟s
psychological records and admitting his former therapist‟s testimony and its
further holding that the asserted error violated the federal Constitution and thus
was subject to the Chapman harmless error standard. We granted review to
address these issues.
22
II. When a parolee is required to participate in psychotherapy as a
condition of parole, may the parolee’s statements to the
psychotherapist during therapy be disclosed in an SVPA
proceeding pursuant to Evidence Code section 1012?
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. Evidence Code section 1014 —
the basic provision setting forth California‟s psychotherapist-patient privilege —
provides in relevant part: “Subject to Section 912 [waiver] and except as
otherwise provided in this article, the patient . . . has a privilege to refuse to
disclose, and to prevent another from disclosing, a confidential communication
between patient and psychotherapist . . . .” Evidence Code section 1012, in turn,
defines “ „confidential communication between patient and psychotherapist‟ ” to
mean “information, including information obtained by an examination of the
patient, transmitted between a patient and his psychotherapist in the course of that
relationship and in confidence by a means which, so far as the patient is aware,
discloses the information to no third persons other than those who are present to
further the interest of the patient in the consultation, or those to whom disclosure
is reasonably necessary for the transmission of the information or the
accomplishment of the purpose for which the psychotherapist is consulted, and
includes a diagnosis made and the advice given by the psychotherapist in the
course of that relationship.”
The statutory provisions embodying the psychotherapist-patient privilege
were initially enacted in California in 1965. The Law Revision Commission
comment accompanying Evidence Code section 1014 sets forth an overview of the
scope and purpose of the psychotherapist-patient privilege as envisioned by its
legislative authors. The comment states in part: “This article creates a
psychotherapist-patient privilege that provides much broader protection than the
23
physician-patient privilege. [¶] . . . [¶] A broad privilege should apply to both
psychiatrists and certified psychologists. Psychoanalysis and psychotherapy are
dependent upon the fullest revelation of the most intimate and embarrassing
details of the patient‟s life. Research on mental or emotional problems requires
similar disclosure. Unless a patient or research subject is assured that such
information can and will be held in utmost confidence, he will be reluctant to
make the full disclosure upon which diagnosis and treatment or complete and
accurate research depends. [¶] The Law Revision Commission has received
several reliable reports that persons in need of treatment sometimes refuse such
treatment from psychiatrists because the confidentiality of their communications
cannot be assured under existing law. Many of these persons are seriously
disturbed and constitute threats to other persons in the community. Accordingly,
this article establishes a new privilege that grants to patients of psychiatrists a
privilege much broader in scope than the ordinary physician-patient privilege.
Although it is recognized that the granting of the privilege may operate in
particular cases to withhold relevant information, the interests of society will be
better served if psychiatrists are able to assure patients that their confidences will
be protected. [¶] . . . [¶] The privilege also applies to psychologists and
supersedes the psychologist-patient privilege provided in Section 2904 of the
Business and Professions Code. The new privilege is one for psychotherapists
generally.” (Cal. Law Revision Com. com., reprinted in Deering‟s Ann. Evid.
Code (2004 ed.) foll. § 1014, p. 217.)
Although the Legislature established a broad psychotherapist-patient
privilege in section 1014, it at the same time adopted numerous explicit statutory
exceptions to the privilege that limit the circumstances in which the privilege is
applicable. (See Evid. Code, §§ 1016 [patient-litigant exception],
1017 [psychotherapist appointed by court or Board of Prison Terms (now Board of
24
Parole Hearings) to examine individual], 1018 [crime or tort], 1019 [parties
claiming through deceased patient], 1020 [breach of duty arising out of
psychotherapist-patient relationship], 1021 [intention of deceased patient
concerning writing affecting property interest], 1022 [validity of writing affecting
property interest], 1023 [proceeding to determine sanity of criminal defendant],
1024 [patient dangerous to self or others], 1025 [proceeding to establish
competence], 1026 [required report open to public inspection].) We shall discuss
a number of these statutory exceptions in our analysis of the legal issues presented
by this case.
Past cases establish that a person seeking to invoke the psychotherapist-
patient privilege has the initial burden of establishing the basic facts to show that
the privilege is presumptively applicable — in general, that the person consulted
constitutes a “psychotherapist” and that the communication in question constitutes
a “confidential communication between patient and psychotherapist,” within the
meaning of the privilege. (Evid. Code, §§ 1010, 1012.) Once the patient has met
that burden, the burden shifts to the party who contends that the privilege is
inapplicable because one or more of the statutory exceptions applies. (See, e.g.,
People v. Wharton (1991) 53 Cal. 3d 522, 551-552.)
In the present case, the undisputed facts establish that McAndrews was a
psychotherapist and that the therapy records in question and McAndrews‟s
testimony at trial involved confidential communications between patient and
psychotherapist within the meaning of the psychotherapist-patient privilege.
Accordingly, the privilege was presumptively applicable and the prosecution bore
the burden of establishing that a statutory exception applies.
The People initially argue that when psychotherapy is engaged in by a
parolee as a condition of parole, the disclosure of the records of such therapy to
the district attorney and evaluating psychologists in an SVPA proceeding falls
25
within an exception to the psychotherapist-patient privilege because parole-
mandated therapy has the dual purpose of assisting the parolee and protecting
public safety and such disclosure is reasonably necessary to accomplish the public
safety goal of such therapy. In support of this argument, the People rely on
language in Evidence Code section 1012 — the section quoted above defining
“confidential communication between patient and psychotherapist” — that refers
to “third persons . . . to whom disclosure is reasonably necessary for . . . the
accomplishment of the purpose for which the psychotherapist is consulted,” and
on several Court of Appeal decisions that have referred to this language as
creating an exception to the psychotherapist-patient privilege that permits
disclosure of confidential communications to third persons to whom disclosure is
reasonably necessary to accomplish the purpose for which the psychotherapist is
consulted. (See, e.g., In re Christopher M. (2005) 127 Cal. App. 4th 684, 696; In re
Pedro M. (2000) 81 Cal. App. 4th 550, 554.)
As we explain, however, the People‟s argument in this regard, and the
Court of Appeal decisions upon which the People rely, rest upon a
misinterpretation of the purpose and effect of the relevant portion of Evidence
Code section 1012. The language in question tracks comparable language in
Evidence Code section 952, which defines “ „confidential communication between
client and lawyer‟ ” for purposes of the lawyer-client privilege,3 and in Evidence
3 Evidence Code section 952 provides: “As used in this article, „confidential
communication between client and lawyer‟ means information transmitted
between a client and his or her lawyer in the course of that relationship and in
confidence by a means which, so far as the client is aware, discloses the
information to no third persons other than those who are present to further the
interest of the client in the consultation or those to whom disclosure is reasonably
necessary for the transmission of the information or the accomplishment of the
(footnote continued on next page)
26
Code section 992, which defines “ „confidential communication between patient
and physician‟ ” for purposes of the physician-patient privilege.4 As in these other
provisions, the relevant language of Evidence Code section 1012 is intended to
make clear that the privileged nature of confidential communications is not lost
when, for example, a therapist discloses such communications to his or her
personal secretary or to other office staff or consults with other therapists to aid in
the diagnosis and treatment of the patient. (Accord, Blue Cross v. Superior Court
(1976) 61 Cal. App. 3d 798, 800-802 [explaining purpose of identical language in
Evid. Code, § 992].) This language does not create an exception to the privilege,
but rather assures that the communication retains its privileged nature
notwithstanding such limited disclosure. (See also Evid. Code, § 912, subd. (d)
[“A disclosure in confidence of a communication that is protected by a privilege
provided by Section 954 (lawyer-client privilege), 994 (physician-patient
privilege), [or] 1014 (psychotherapist-patient privilege) . . . , when disclosure is
reasonably necessary for the accomplishment of the purpose for which the lawyer,
(footnote continued from previous page)
purpose for which the lawyer is consulted, and includes a legal opinion formed
and the advice given by the lawyer in the course of that relationship.”
4 Evidence Code section 992 provides: “As used in this article, „confidential
communication between patient and physician‟ means information, including
information obtained by an examination of the patient, transmitted between a
patient and his physician in the course of that relationship and in confidence by a
means which, so far as the patient is aware, discloses the information to no third
persons other than those who are present to further the interest of the patient in the
consultation or those to whom disclosure is reasonably necessary for the
transmission of the information or the accomplishment of the purpose for which
the physician is consulted, and includes a diagnosis made and the advice given by
the physician in the course of that relationship.”
27
physician, [or] psychotherapist . . . was consulted, is not a waiver of the
privilege”].)5
Contrary to the People‟s contention, nothing in the text, legislative history,
or purpose of Evidence Code section 1012 supports the proposition that the
language in question was intended to give a third party (such as the district
attorney or an evaluating psychologist in an SVPA proceeding) the authority to
obtain disclosure of a confidential patient-psychotherapist communication over the
patient‟s objection or without the patient‟s permission on the theory that such
disclosure is necessary to accomplish the purpose for which the therapist has been
consulted. Whether or not it would be useful or valuable for a district attorney or
an evaluating psychologist to have access to confidential communications made by
a parolee in the course of therapy sessions in order to evaluate the individual‟s
5 The Law Revision Commission comment to Evidence Code section 912,
which accompanied the provision‟s enactment in 1965, explains: “[Section 912]
[s]ubdivision (d) is designed to maintain the confidentiality of communications in
certain situations where the communications are disclosed to others in the course
of accomplishing the purpose for which the lawyer, physician, or psychotherapist
was consulted. For example, where a confidential communication from a client is
related by his attorney to a physician, appraiser, or other expert in order to obtain
that person‟s assistance so that the attorney will better be able to advise his client,
the disclosure is not a waiver of the privilege, even though the disclosure is made
with the client‟s knowledge and consent. Nor would a physician‟s or
psychotherapist‟s keeping of confidential records necessary to diagnose or treat a
patient, such as confidential hospital records, be a waiver of the privilege even
though other authorized persons have access to the records. . . . Communications
such as these, when made in confidence, should not operate to destroy the
privilege, even when they are made with the consent of the client or patient. Here,
again, the privilege holder has not evidenced any abandonment of secrecy. Hence,
he should be entitled to maintain the confidential nature of his communications to
his attorney or physician despite the necessary further disclosure.” (Cal. Law
Revision Com. com., reprinted in Deering‟s Ann. Evid. Code, supra, foll. § 912,
pp. 78-79.)
28
mental condition or potential danger, the usefulness or value of such information
is not a valid basis to interpret section 1012 to eliminate the patient‟s right to
protect against the disclosure of such communications. As a general matter, of
course, privileges under the Evidence Code have the effect of shielding otherwise
relevant, and in some cases crucial, information from disclosure, based upon a
legislative determination that the benefits served by the privilege outweigh the
advantages that might be obtained in the absence of the privilege. The Law
Revision Commission comments accompanying the initial enactment of the
psychotherapist-patient privilege, quoted above, make this point clearly. (Cal.
Law Revision Com com., Deering‟s Ann. Evid. Code, supra, foll. § 1014, p. 217
[“Although it is recognized that the granting of the privilege may operate in
particular cases to withhold relevant information, the interests of society will be
better served if [psychotherapists] are able to assure patients that their confidences
will be protected”].)6
We emphasize that this conclusion — that the language in Evidence Code
section 1012 relied upon by the People cannot properly be interpreted to create an
exception to the psychotherapist-patient privilege permitting the district attorney
or evaluating psychologists in an SVPA proceeding to obtain access to the details
of a parolee/patient‟s therapy records without the patient‟s permission or consent
— does not mean that when therapy is engaged in as a condition of parole the
therapist cannot provide general nonintrusive information to parole authorities
6 We disapprove the Court of Appeal decisions in In re Christopher M.,
supra, 127 Cal. App. 4th 684, and In re Pedro M., supra, 81 Cal. App. 4th 550,
insofar as they hold that the language of section 1012 in question creates an
exception to the psychotherapist-patient privilege.
29
concerning, for example, the parolee‟s failure to attend scheduled therapy sessions
or to participate in the parole-mandated therapy process.7
In Story, supra, 109 Cal. App. 4th 1007, for example, the Court of Appeal,
after concluding that the psychotherapist-patient privilege applies to and bars the
disclosure of hospital records containing the details of outpatient therapy sessions
in which a probationer engaged as a condition of probation (id. at pp. 1015-1018),
went on to make clear that the therapist was not precluded from disclosing more
general information to permit the court “to monitor the defendant‟s participation
and progress in the psychotherapy ordered as a condition of probation” (id. at
p. 1019). (See also In re Kristine W. (2001) 94 Cal. App. 4th 521, 528 [where
juvenile court ordered dependent child to undergo therapy to ameliorate the effects
of abuse or neglect, Court of Appeal concluded that “the psychotherapist-patient
privilege protects [the child‟s] confidential communications and details of the
therapy, but does not preclude her therapist from giving circumscribed information
to accomplish the information-gathering goal of therapy”]; In re Pedro M., supra,
81 Cal. App. 4th 550, 554-555 [where a juvenile sex offender was required to
participate in therapy in a residential sex offender program, Court of Appeal
concluded that therapist was permitted to testify in a subsequent proceeding as to
whether the juvenile had cooperated in therapy, but at the same time the appellate
7 Unlike instances in which a private individual voluntarily and
confidentially seeks treatment from a psychotherapist — where the fact that
treatment has been sought may itself be considered confidential information (see,
e.g., Smith v. Superior Court (1981) 118 Cal. App. 3d 136, 140-142) — when
treatment is entered into pursuant to a condition of parole the parole officer and
supervising parole authorities are, of course, aware that treatment is occurring, and
thus disclosure of the patient‟s attendance or nonattendance at scheduled therapy
sessions would not involve a breach of confidentiality.
30
court approvingly noted that the trial court “carefully sought to circumscribe [the
therapist‟s] testimony „so that the details of the therapeutic session [would] not
[be] disclosed.‟ As a consequence, no testimony was admitted regarding any
specific statements appellant had made to [the therapist], any advice given to
appellant by [the therapist], or any diagnosis made by [the therapist]. Under the
circumstances, . . . we hold that the psychotherapist-patient privilege did not
preclude [the therapist] from testifying at the adjudication of the supplemental
petition concerning appellant‟s participation and progress in the court-ordered
treatment plan”]; accord, Reynaud v. Superior Court (1982) 138 Cal. App. 3d 1, 11
[when a patient seeks payment for therapy from Medi-Cal, “certain narrowly
circumscribed information” can be communicated to the state to permit payment
and audit of public funds].)
Nonetheless, the therapist‟s authority to provide this limited type of general
nonintrusive information to parole officials regarding the parolee‟s compliance
with the parole condition requiring participation in therapy does not mean, as the
People contend, that by virtue of the language of Evidence Code section 1012 all
records and all details of parole-mandated therapy may be provided to public
officials without the parolee‟s knowledge and consent.8
A more recent statutory provision, enacted in 2010, indicates the
Legislature‟s recognition that a requirement that a parolee undergo therapy as a
condition of parole does not, in itself, operate to exclude confidential
8 Because the trial court in this case granted the prosecution access to all of
defendant‟s therapy records and permitted his therapist to testify to all of
defendant‟s communications during therapy, we have no occasion to consider
what limited information concerning a parolee‟s participation in a parole-
mandated treatment plan may be disclosed without the parolee‟s waiver or
consent. Here, disclosure was not limited in any fashion.
31
communications made during the parole-mandated therapy process from the
psychotherapist-patient privilege. The 2010 legislation in question built upon a
statutory provision, Penal Code former section 3005, enacted in 2000 (Stats. 2000,
ch. 142, § 5, p. 2062), that required the Department of Corrections and
Rehabilitation to ensure that any parolee who was found “to pose a high risk . . . of
committing violent sex crimes . . . be placed on an intensive and specialized parole
supervision,” including a “relapse preventive treatment program[].” In 2007,
Penal Code former section 3005 was amended and renumbered as Penal Code
section 3008 (Stats. 2007, ch. 579, § 47, pp. 4851-4852), and in 2010 section 3008
was amended once again as part of the legislation popularly known as Chelsea‟s
law. (Stats. 2010, ch. 219, §§ 1, 21.)
As amended in 2011, Penal Code section 3008, subdivision (d) provides in
part: “On or after July 21, 2012, the parole conditions of a person released on
parole for an offense that requires registration pursuant to Sections 290 to 290.023,
inclusive [the sex offender registration provisions], shall include all of the
following: [¶] . . . [¶] (4) Waiver of any psychotherapist-patient privilege to
enable communication between the sex offender management professional and
supervising parole officer, pursuant to Section 290.09.” (Italics added.) A section
of the Sex Offender Treatment Program Certification Requirements, promulgated
by the California Sex Offender Management Board (see Pen. Code, § 9000 et
seq.), explains the reasoning underlying the recently enacted waiver requirement:
“The effectiveness of the containment model of sex offender management depends
upon open and ongoing communication between all professionals responsible for
supervising, assessing, evaluating, treating, supporting, and monitoring sex
offenders. The absence of open and ongoing communication between these
professionals and other involved persons compromises the purpose of the
containment team approach and may jeopardize the safety of the community.”
32
(Cal. Sex Offender Management Bd., Sex Offender Treatment Program
Certification Requirements, supra, at p. 9.) As a consequence, the Requirements
provide: “Prior to accepting an offender into treatment and as a condition of the
individual receiving treatment services, the treatment provider shall obtain signed
waivers of the psychotherapist-patient privilege. . . . [¶] . . . [¶] Treatment
providers shall not disclose confidential client information to those for whom
waivers have not been obtained.” (Id. at pp. 9-10, italics added, available online at
www.casomb.org/docs/Certification_Standards/Certification-Program.pdf [as of
DATE OF OPN FILING].)
This recently enacted legislation and the implementing administrative
requirements implicitly recognize (1) that when a parolee participates in outpatient
therapy as a condition of parole, the therapy sessions are not automatically exempt
from the psychotherapist-patient privilege and hence subject to disclosure to
parole and related law enforcement authorities, but (2) that the state, in imposing
such a parole condition, may require a parolee to waive the psychotherapist-patient
privilege with regard to such mandated therapy sessions when such a waiver is
considered necessary to the effective functioning of the parole process with regard
to the parolee in question.
As explained above (ante, p. 9), in the present case the trial court, in
granting the district attorney‟s request for disclosure of the Atkinson Center
records pertaining to defendant‟s outpatient therapy sessions, did not rely upon a
consent or waiver theory, and no evidence was presented with regard to whether
defendant was advised of and affirmatively consented to a disclosure of statements
made during the therapy sessions or, if so, the scope or extent of his consent.9
9 As noted, at the hearing on the motion to quash, the district attorney stated
that he had been informed by Dr. Atkinson and defendant‟s parole agent, and
(footnote continued on next page)
33
Instead, the trial court concluded that disclosure of the therapy records to the
district attorney and admission of the therapist‟s testimony at trial were
permissible on the basis of the dangerous patient exception to the psychotherapist-
patient privilege embodied in Evidence Code section 1024. We next consider the
applicability of that exception.
III. Was disclosure of defendant’s therapy records and admission of
his therapist’s testimony authorized under the dangerous patient
exception to the psychotherapist-patient privilege?
Evidence Code section 1024 — the dangerous patient exception to the
psychotherapist-patient privilege — provides in full: “There 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.”
The Law Revision Commission Comment accompanying the 1965
enactment of Evidence Code section 1024 explains: “This section provides a
(footnote continued from previous page)
would make an offer of proof, “that it is standard practice for a parolee to sign a
consent form acknowledging that the confidentiality of sex offender treatment is
limited and qualified to some degree due to the special relationship between the
parolee, the treater, and the parole agent” and therefore that “it is possible that the
privilege does not apply based on [defendant‟s] consent.” No evidence on the
issue of consent was introduced at the hearing, however, and the trial court did not
address that point and instead denied the motion to quash on the basis of the
dangerous patient exception to the psychotherapist-patient privilege. The current
provisions of section 3008, subdivision (d)(4), requiring that the parole conditions
of any person released on parole for an offense requiring sex offender registration
include a “[w]aiver of any psychotherapist-patient privilege to enable
communication between the sex offender management professional and
supervising parole officer,” were not in effect at the time defendant was placed on
parole or engaged in the parole-mandated therapy at issue here.
34
narrower exception to the psychotherapist-patient privilege than the comparable
exceptions provided by Section 982 (privilege for confidential marital
communications) and Section 1004 (physician-patient privilege). Although this
exception might inhibit the relationship between the patient and his
psychotherapist to a limited extent, it is essential that appropriate action be taken if
the psychotherapist becomes convinced during the course of treatment that the
patient is a menace to himself or others and the patient refuses to permit the
psychotherapist to make the disclosure necessary to prevent the threatened
danger.” (Cal. Law Revision Com. com., reprinted in Deering‟s Ann. Evid Code,
supra, foll. § 1024, p. 236.)
The People contend that in an SVPA proceeding, whenever a trial court
finds that the statutorily mandated psychological evaluations of a defendant
demonstrate that there is probable cause to believe that the defendant poses a
sufficient danger to qualify as an SVP, the dangerous patient exception of
Evidence Code section 1024 authorizes the disclosure of the records and content
of all prior psychotherapy sessions undergone by the defendant even when those
records are otherwise protected by the psychotherapist-patient privilege. For the
reasons discussed hereafter, we disagree with the People‟s contention.10
10 We note that the People do not rely upon the statutory exception to the
psychotherapist-patient privilege established by Evidence Code section 1017.
That exception applies when a psychotherapist is appointed by a court or the
“Board of Prison Terms” (now Board of Parole Hearings) “to examine” an
individual, rather than, as here, to provide counseling and treatment. (Ibid.;
accord, In re Jones (Ohio 2003) 790 N.E.2d 321, 325-328 [finding privilege
inapplicable to psychologists appointed by court to examine parent but applicable
to psychologist appointed to provide counseling to parent].)
35
Unlike Evidence Code section 1004, which expressly provides a broad
exception to the physician-patient privilege rendering the privilege inapplicable in
any proceeding “to commit the patient or otherwise place him . . . under the
control of another because of his alleged mental or physical condition,” Evidence
Code section 1024 does not similarly establish a broad categorical exception
making the psychotherapist-patient privilege inapplicable either in civil
commitment proceedings generally or in SVPA proceedings in particular. (See
Cal. Law Revision Com. com., reprinted in Deering‟s Ann. Evid. Code, supra,
foll. § 1014, p. 217 [explaining that whereas “[t]here is an exception in the
physician-patient privilege for commitment or guardianship proceedings for the
patient[,] . . . Section 1024 provides a considerably narrower exception in the
psychotherapist-patient privilege”].) Although other statutory exceptions to the
psychotherapist-patient privilege render the privilege inapplicable in some types of
proceedings (see Evid. Code, §§ 1023 [psychotherapist-patient privilege
inapplicable in a proceeding “initiated at the request of the defendant in a criminal
action to determine his sanity”], 1025 [psychotherapist-patient privilege
inapplicable “in a proceeding brought by or on behalf of the patient to establish his
competence”]), neither section 1024 nor any other provision renders the
psychotherapist-patient privilege inapplicable in an SVPA proceeding.11
11 Although it was neither cited nor relied upon by either the district attorney
or the trial court, the People, in briefing filed in this court, advance in support of
their position a provision of the SVPA — Welfare and Institutions Code section
6603, subdivision (c) — that was addressed by this court in Albertson v. Superior
Court (2001) 25 Cal. 4th 796. That statutory provision, however, authorizes only a
limited disclosure of therapy records in circumstances that differ from this case.
Welfare and Institutions Code section 6603, subdivision (c)(1) provides in
relevant part: “If the attorney petitioning for commitment under [the SVPA]
determines that updated evaluations are necessary in order to properly present the
case for commitment, the attorney may request the State Department of State
(footnote continued on next page)
36
Although the dangerous patient exception of Evidence Code section 1024
does not automatically render the psychotherapist-patient privilege inapplicable in
SVPA proceedings, we emphasize that this does not mean that the dangerous
patient exception cannot properly come into play in an SVPA proceeding. As we
have seen, Evidence Code section 1024 provides that “[t]here is no privilege . . . 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.” Under section 1024, when a therapist who is
(footnote continued from previous page)
Hospitals to perform updated evaluations. . . . These updated or replacement
evaluations shall include review of available medical and psychological records,
including treatment records, consultation with current treating clinicians, and
interviews of the person being evaluated, either voluntarily or by court order.”
By its terms, Welfare and Institutions Code section 6603, subdivision (c)(1)
applies only when updated or replacement evaluations are requested and prepared,
which did not occur in this case. Moreover, the provision does not authorize
disclosure of therapy records directly to the district attorney, as the trial court
ordered here, but rather authorizes review of such records only by the independent
evaluators and grants a district attorney access to otherwise confidential treatment
information concerning an alleged SVP only “to the extent such information is
contained in an updated mental evaluation.” (Albertson v. Superior Court, supra,
25 Cal.4th at p. 807.) Finally, the legislative history of this statutory provision —
described in Albertson, at pages 805-807 — indicates that the provision was
enacted in response to the earlier Court of Appeal opinion in Albertson, suggesting
that the therapy records that the Legislature contemplated would be reviewed for
the updated evaluations are the records of current inpatient therapy that is being
provided to the defendant while he or she is confined as part of the SVPA
procedure. (See Albertson, supra, at p. 800 [district attorney sought access to
“records of petitioner‟s mental health treatment undertaken after he was moved [to
Atascadero State Hospital] pending trial [in the SVPA proceeding]”].) In light of
this history, it is not apparent whether the Legislature intended the updated
evaluations to include review of the records of all psychotherapy sessions in which
a defendant has participated in the past when not subject to such confinement.
37
providing treatment to a patient concludes that the patient is a danger to himself or
herself or to others and that disclosure of the contents of a therapy session is
necessary to prevent the threatened danger, the therapist is free to testify about
those statements in the SVPA proceeding.12 (See, e.g., Mavroudis v. Superior
Court (1980) 102 Cal. App. 3d 594, 603 [“[Evid. Code, § 1024] apparently was
designed to enable the therapist to initiate commitment proceedings and to testify
in those proceedings when he determines the patient may present a danger to
himself or others”]; accord, People v. Lakey (1980) 102 Cal. App. 3d 962, 977
[under Evid. Code, § 1024, therapist who treated the defendant during the course
of his MDSO commitment at Atascadero State Hospital could properly testify at
MDSO recommitment proceeding to statement made by the defendant during
treatment inasmuch as “[t]he proceeding below was premised upon the belief of
defendant‟s psychotherapist, and the medical staff at Atascadero State Hospital,
12 Although the language of Evidence Code section 1024 — providing that
the dangerous patient exception is applicable “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” —
is potentially ambiguous regarding whether the statute requires only that the
therapist have reasonable cause to believe the patient is dangerous or also requires
that the therapist subjectively believe that the patient is dangerous, the Law
Revision Commission Comment accompanying this exception, quoted earlier
(ante, pp. 34-35), indicates that the drafters intended the exception to come into
play only when the therapist has reasonable cause to believe and actually believes
that the patient is dangerous. (“[I]t is essential that appropriate action be taken if
the psychotherapist becomes convinced during the course of treatment that the
patient is a menace to himself or others . . . .” (Cal. Law Revision Com. com.,
reprinted in Deering‟s Ann. Evid. Code, supra, foll. § 1024, p. 236.)) Our past
cases have interpreted section 1024 consistently with the drafters‟ intent in this
regard. (See, e.g., People v. Wharton, supra, 53 Cal.3d at p. 560 [“Under [Evid.
Code, § 1024], if a certain factual predicate exists (i.e., if the therapist believes the
patient is a danger to another and disclosure is necessary to prevent the danger),
the statute . . . provides that „[t]here is no privilege.‟ ”].)
38
that defendant constitutes „a serious threat of substantial harm to the health and
safety of others‟ ”]; In re Kevin F. (1989) 213 Cal. App. 3d 178, 183 [under Evid.
Code, § 1024, statements during therapy session were properly admitted in
juvenile proceeding where therapist concluded that patient was dangerous and
disclosure was necessary to avert future threatened danger upon patient‟s transfer
to a more secure facility]; People v. One Ruger .22-Caliber Pistol (2000) 84
Cal. App. 4th 310, 315 [“Information obtained on the question of endangerment
during [Welf. & Inst. Code] section 5150 treatment and evaluation is admissible
[under Evid. Code, § 1024] because it is „necessary to prevent the threatened
danger.‟ ”].)13
In the present case, however, we agree with the Court of Appeal‟s
conclusion that the trial court erred in relying on section 1024 in ordering
disclosure of the Atkinson Center treatment records, and in permitting
McAndrews to testify to the details of defendant‟s therapy sessions. From the
record before us, it appears that the trial court‟s conclusion that the dangerous
patient exception was applicable was based solely on the district attorney‟s
13 In many other states, the psychotherapist-patient privilege statute contains a
similarly limited dangerous patient exception under which the privilege is
inapplicable in a civil commitment or hospitalization proceeding only if the
therapist has determined in the course of diagnosis or treatment that the patient is
in need of commitment or hospitalization. (See, e.g., Ala. Rules Evid., rule
503(d)(1); Alaska Rules Evid., rule 504(d)(4); Ark. Rules Evid., rule 503(d)(1);
Del. U. Rules Evid., rule 503(d)(1); Fla. Stat., tit. VII, § 90.503(4)(a); Idaho Rules
Evid., rule 503(d)(1); Ky. Rules Evid., rule 507(c)(1); Mass. Gen. Laws, pt. III,
ch. 233, § 20B(a); Me. Rules Evid., rule 503(e)(1); Miss. Rules Evid., rule
503(d)(1); Neb. Rev. Stat. § 27-504(4)(a); N.M. Rules Evid., rule 11-504,
subd. D. (1); N.D. Rules Evid., rule 503(d)(1); Okla. Stat., tit. 12, §12-2503(D)(1);
S.D. Codified Laws § 19-13-9; Utah Rules Evid., rule 506(d)(2); Wis. Stat.
§ 905.04(4)(a).)
39
conclusory offer of proof that the Atkinson Center records would show that
McAndrews believed defendant did present a danger. As the Court of Appeal
explained, however, “[a]lthough the district attorney had the burden to prove the
factual predicate for the exception, he presented no evidence that defendant had
ever said anything to McAndrews during therapy that led her to believe that he
posed a danger to others. Nor did the district attorney present any evidence that
McAndrews ever considered it necessary to disclose particular confidential
communications in order to prevent defendant from harming someone . . . .”
Indeed, as set forth in the statement of facts (ante, pp. 12-14), when McAndrews
later testified at the SVPA trial she did not indicate that defendant‟s statements or
actions during the therapy sessions led her to believe that he was dangerous or that
it was necessary to disclose such statements to prevent any threatened danger.
Although in her trial testimony McAndrews did express her concern that
defendant‟s consumption of alcohol in the presence of children constituted a
“recipe for a sex offense,” that concern was not based upon any information
conveyed to her by defendant during therapy and she did not testify that she
believed that it was necessary to reveal any confidential communications from
therapy to prevent danger to defendant or to others.14
14 The case of People v. Martinez, supra, 88 Cal. App. 4th 465, upon which the
People heavily rely, is distinguishable from the present case in this respect.
Unlike this case, in which there is no evidence that defendant‟s statements during
therapy led his therapist to conclude that he posed a danger to others, the decision
in Martinez indicates that the therapists who conducted the prior therapy sessions
at issue in that matter, which occurred while the defendant was confined at
Atascadero State Hospital as an MDSO, had concluded that the defendant suffered
from “disorders of atypical paraphelia, aggressive sexual assault, and
antipersonality disorder,” had not benefitted from treatment as an MDSO, and
therefore should be returned to prison. (Id. at p. 471.) Thus, the therapists in
Martinez clearly believed, as a result of their interactions with the defendant
(footnote continued on next page)
40
We note also that the district attorney made no effort to demonstrate why
the dangerous patient exception would justify the disclosure of all the
presumptively privileged Atkinson Center therapy records, rather than simply
those particular communications whose disclosure was necessary to prevent the
threatened danger. Past decisions of this court make it clear that even when some
of a patient‟s statements in therapy are subject to disclosure under Evidence Code
section 1024, the rest of the patient‟s confidential communications remain
privileged. (See, e.g., People v. Wharton, supra, 53 Cal.3d at p. 554 [“the mere
fact that some statements are nonprivileged by operation of section 1024 does not
automatically make all of defendant‟s confidential communications to his
therapists available to the prosecution”]; see also Menendez v. Superior Court
(1992) 3 Cal. 4th 435, 455-456; San Diego Trolley, Inc. v. Superior Court (2001)
87 Cal. App. 4th 1083, 1091 [“The „dangerous patient‟ exception to the privilege is
narrow in the sense it only permits disclosure of those communications which
triggered the psychotherapist‟s conclusion that disclosure of a communication was
needed to prevent harm”].) Accordingly, the trial court erred in ruling that under
section 1024 the confidential Atkinson Center therapy records could properly be
disclosed to the district attorney and evaluating psychologists, and in permitting
(footnote continued from previous page)
during therapy, that the defendant continued to pose a danger to others, and the
prior psychological records that were disclosed and utilized in the SVPA
proceeding in Martinez reflected that belief. Accordingly, the disclosure was
permissible under Evidence Code section 1024. (See, e.g., People v. Wharton,
supra, 53 Cal.3d at p. 558 [“Because defendant made comments within the
psychotherapeutic relationship which led his therapists to reasonably conclude he
posed a threat . . . , such comments were not privileged pursuant to section
1024”].)
41
McAndrews to testify about all of defendant‟s confidential communications made
during their numerous therapy sessions.
For the foregoing reasons, we conclude that the trial court erred in
permitting disclosure and admission at trial of defendant‟s confidential
communications during the therapy sessions.
We turn to the question whether the trial court‟s error in this regard requires
a reversal of the trial court judgment.
IV. Was the trial court error in ordering disclosure of defendant’s
therapy records and admitting the testimony of defendant’s
therapist prejudicial?
In analyzing the issue of prejudice, we first address the question of what
prejudicial error standard applies in this setting. In its initially filed opinion, the
Court of Appeal applied the prejudicial error standard applicable to state law error
set forth in People v. Watson, supra, 46 Cal. 2d 818 — which calls for reversal
only if it is reasonably probable that the result would have been different in the
absence of such error — and found the error nonprejudicial under that standard.
Thereafter, however, the Court of Appeal granted rehearing and ultimately
concluded that the applicable standard is the prejudicial error standard for federal
constitutional error set forth in Chapman v. California, supra, 386 U.S. 18 —
which requires reversal unless the appellate court concludes that the error was
harmless beyond a reasonable doubt —and further concluded that the error was
prejudicial under that standard. The People contend that the Court of Appeal erred
in applying the prejudicial error standard applicable to federal constitutional error.
For the reasons discussed hereafter, we conclude that the Court of Appeal
erred in this regard.
42
A. Does the federal constitutional prejudicial error standard apply in
this context?
In concluding that the federal constitutional prejudicial error standard
applies in this setting, the Court of Appeal relied on language from this court‟s
decision in In re Lifschutz (1970) 2 Cal. 3d 415, 431-432, and similar statements in
a number of other federal and state court decisions, indicating that there is a
federal constitutional right of privacy that affords some measure of protection to
confidential psychotherapist-patient communications.15 Although over 40 years
have elapsed since our decision in Lifschutz, the United States Supreme Court
itself has not yet definitively determined whether the federal Constitution
embodies even a general right of informational privacy. (See Whalen v. Roe
(1976) 429 U.S. 589, 605 [assuming, but not deciding, that such a right exists];
NASA v. Nelson (2011) ___ U.S. ___ [178 L. Ed. 2d 667, 673] [same].) In Jaffee v.
Redmond (1996) 518 U.S. 1, the United States Supreme Court adopted a
psychotherapist-patient privilege applicable in federal proceedings, but the Jaffee
15 In In re Lifschutz, supra, 2 Cal.3d at pages 431-432, the court stated:
“[W]e are . . . mindful of the justifiable expectations of confidentiality that most
individuals seeking psychotherapeutic treatment harbor. . . . [¶] We believe that a
patient‟s interest in keeping such confidential revelations from public purview, in
retaining this substantial privacy, has deeper roots than the California statute and
draws sustenance from our constitutional heritage. In Griswold v. Connecticut
[(1965)] 381 U.S. 479, 484, the United States Supreme Court declared that
„Various guarantees [of the Bill of Rights] create zones of privacy,‟ and we
believe that the confidentiality of the psychotherapeutic session falls within one
such zone.” (See also Parle v. Runnels (9th Cir. 2007) 505 F.3d 922, 930, fn. 11;
Caesar v. Mountanos (9th Cir. 1976) 542 F.2d 1064, 1067-1068; State v. Russo
(Conn. 2002) 790 A.2d 1132, 1147-1150; McMaster v. Iowa Bd. of Psychology
Examiners (Iowa 1993) 509 N.W.2d 754, 758-759; Alpha Medical Clinic v.
Anderson (Kan. 2006) 128 P.3d 364, 376.)
43
decision was grounded in the Federal Rules of Evidence,16 not the federal
Constitution, and subsequent lower court decisions confirm that the federal
psychotherapist-patient privilege recognized in Jaffee “is not rooted in any
constitutional right of privacy.” (United States v. Glass (10th Cir. 1998) 133 F.3d
1356, 1358; see also United States v. Chase (9th Cir. 2003) 340 F.3d 978, 993 [“a
violation of the psychotherapist-patient privilege is not a constitutional error”];
United States v. Squillacote (4th Cir. 2000) 221 F.3d 542, 560 [the
psychotherapist-patient privilege recognized in Jaffee “is a testimonial or
evidentiary one, and not constitutionally based”].)
Nonetheless, for purposes of resolving the issue in this case, we conclude
that it is appropriate to follow the lead of the high court in Whalen v. Roe, supra,
429 U.S. 589 and NASA v. Nelson, supra, ___ U.S. ___ [178 L. Ed. 2d 667], and to
assume, without deciding, that in at least some circumstances the federal
Constitution protects an individual from governmentally compelled disclosure of
confidential communications between the individual and his or her
psychotherapist or the use of information obtained by such compelled disclosure
in a court proceeding. Assuming (without deciding) the federal Constitution
provides such protection in some circumstances, however, it does not follow that
every violation of a state-created psychotherapist-patient privilege constitutes a
16 At the time of Jaffee, rule 501 of the Federal Rules of Evidence (28 U.S.C.)
provided in relevant part: “Except as otherwise required by the Constitution of the
United States or provided by Act of Congress or in rules prescribed by the United
States Supreme Court pursuant to statutory authority, the privilege of a witness,
person, government, State, or political subdivision shall be governed by the
principles of the common law as they may be interpreted by the courts of the
United States in the light of reason and experience.”
44
violation of the federal Constitution or that the error in this case constitutes such a
federal constitutional violation.
To begin with, it is clear that, for federal constitutional purposes, the
relevant question is not whether the disclosure in this case violated the terms of
California‟s current statutory provisions regarding the psychotherapist-patient
privilege. The governing United States Supreme Court decisions establish that
“ „a “mere error of state law” is not a denial of due process.‟ ” (Swarthout v.
Cooke (2011) 562 U.S. ___, ___ [178 L. Ed. 2d 732, 737]; see also, e.g., Engle v.
Isaac (1982) 456 U.S. 107, 121, fn. 21 [“If the contrary were true, then „every
erroneous decision by a state court on state law would come [to this Court] as a
federal constitutional question.‟ ”]; People v. Letner and Tobin (2010) 50 Cal. 4th
99, 195; People v. Rundle (2008) 43 Cal. 4th 76, 136.) We recognize that in Hicks
v. Oklahoma (1980) 447 U.S. 343, the high court held that when state law creates
a liberty interest in having a jury make a particular factual finding that is necessary
for criminal punishment, the denial of a jury trial with respect to such a finding
constitutes a violation of the federal due process clause. (Id. at p. 346.)
Subsequent high court cases explain, however, that Hicks is limited to the jury trial
context and holds “only that where state law creates for the defendant a liberty
interest in having the jury make particular findings, the Due Process Clause
implies that appellate findings do not suffice to protect that entitlement.” (Cabana
v. Bullock (1986) 474 U.S. 376, 387, fn. 4.) California‟s psychotherapist-patient
privilege does not implicate the right to jury trial and thus the decision in Hicks
has no application here. Accordingly, the fact that the trial court‟s rulings violated
the state statutory psychotherapist-patient privilege does not demonstrate that the
error violates the federal Constitution.
In finding a federal constitutional violation in its decision below, the Court
of Appeal relied heavily on the fact that the current statutory exceptions to
45
California‟s psychotherapist-patient privilege were inapplicable under the
circumstances of this case.17 Instead of relying upon the contours of the existing
state statutory provisions and the specific state interest reflected in those particular
statutory provisions, however, we believe that in order to properly distinguish the
federal constitutional issue from the state law issue, it is necessary, in determining
whether the disclosure of defendant‟s therapy records and the admission of his
therapist‟s testimony violated a federal constitutional right of privacy, to look to
the specific nature and extent of the federal constitutional privacy interests that are
actually implicated in this particular setting and to the permissible state law
interests that would support the disclosure and admission of testimony in question
in such a setting. The United States Supreme Court undertook a similar approach
in Whalen v. Roe, supra, 429 U.S. 589, and NASA v. Nelson, supra, ___ U.S. ___
[178 L. Ed. 2d 667], assessing the justification for the challenged governmental
action at issue in those cases against a realistic view of the intrusion upon privacy
that the governmental action actually entailed. (Whalen, supra, 429 U.S. at
pp. 598-604; Nasa, supra, ___ U.S. at ___ [178 L.Ed.2d at pp. 679-686].)18
17 The Court of Appeal stated in this regard: “[A]t an SVP trial, when the
dangerous-patient exception applies, it can be said that the state‟s interest 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 interest in public safety and the ascertainment of truth do not clearly or
necessarily outweigh an inmate/patient‟s privacy interests. . . . And if the state‟s
interests are not strong enough to outweigh the statutory protection of privacy, we
do not consider those interests to be sufficiently compelling to outweigh the
constitutional protection.”
18 In this case, unlike Whalen v. Roe, supra, 429 U.S. 589, and NASA v.
Nelson, supra, ___ U.S. ___ [178 L. Ed. 2d 667], the challenged disclosure was not
authorized by the governing state law. Nonetheless, in order to determine
whether the disclosure violated the federal Constitution (and not simply current
(footnote continued on next page)
46
Here, the privacy interest at issue was that of a parolee, and the therapy
sessions were engaged in by the parolee as a condition of parole and were
conducted by a therapist chosen and paid for by the state. In evaluating the
potential intrusion upon a federal constitutional right of privacy that is present
under these circumstances, we must keep in mind the numerous cases that
recognize that the federal Constitution grants states considerable leeway to impose
very substantial limitations on the right of privacy retained by persons who are
released on parole — much greater limitations than those the state may impose on
persons who are not on parole. In Samson v. California (2006) 547 U.S. 843, for
example, the federal high court noted that it had repeatedly found “that a State‟s
interest in reducing recidivism and thereby promoting reintegration and positive
citizenship among probationers and parolees warrant privacy intrusions that would
not otherwise be tolerated under the Fourth Amendment” (id. at p. 853), and held
that the federal Constitution did not preclude a state from adopting a general
policy authorizing a parole officer or any law enforcement officer to search a
parolee at any time or place even in the absence of a reasonable suspicion that the
parolee had violated parole (Samson, supra, at pp. 854-855). In the course of its
decision, the court in Samson noted the many limitations upon a parolee‟s privacy
that are authorized under California law, “including psychiatric treatment
programs, mandatory abstinence from alcohol, residence approval, and „[a]ny
other conditions deemed necessary by the Board [of Parole Hearings] or the
(footnote continued from previous page)
state law), we must consider whether or not there is a sufficient constitutionally
permissible state interest to justify the actual intrusion upon a federally protected
privacy interest of defendant that is actually implicated under the circumstances of
this case.
47
Department [of Corrections and Rehabilitation] due to unusual circumstances‟ ”
and concluded that “[t]he extent and reach of these conditions clearly demonstrate
that parolees like petitioner have severely diminished expectations of privacy by
virtue of their status alone.” (Id. at p. 852, italics added.) In light of the very
limited scope under the governing federal authorities of the federal constitutional
right of privacy possessed by a parolee, the intrusion upon defendant‟s federal
constitutional right of privacy was considerably less than if the disclosure
implicated therapy sessions of a nonparolee.
At the same time, the state has a particularly strong and legitimate interest
in authorizing the disclosure and use of a parolee‟s prior statements that occur in
parole-mandated therapy in a subsequent SVPA proceeding, especially when, as
here, the parole-mandated therapy was occasioned by the parolee‟s prior
conviction of a sex offense. The central issue in an SVPA proceeding, of course,
concerns the defendant‟s current mental condition and whether he or she poses a
potential danger to others in light of that mental condition. The state clearly has a
substantial interest in permitting all potentially relevant information relating to the
defendant‟s current mental state to be considered in such a proceeding, so that an
accurate assessment of the potential danger posed by the defendant can be
determined.19 Accordingly, from a federal constitutional standpoint, it cannot be
19 We note that although California has chosen not to adopt a broad statutory
exception to the psychotherapist-patient privilege that renders the privilege
completely inapplicable in any civil commitment or SVPA proceeding, the
psychotherapist-patient privilege statutes of a number of other states provide that
the privilege is inapplicable in civil commitment proceedings. (See, e.g., Hawaii
Rules Evid., rule 504.1(d)(1); Md. Cts. & Jud. Proceedings Code Ann., § 9-
109(d)(1); N.J. Stat. Ann., § 45:14B-28; Tex. Evid. Rules, rule 509(e)(6); Va.
Code, § 8.01-400.2; Vt. Rules Evid., rule 503(d)(1).)
48
said that disclosure and use in an SVPA proceeding of a parolee‟s prior statements
in parole-mandated therapy is not supported by a legitimate and substantial state
interest.
Taking into account the limited intrusion upon defendant‟s federal
constitutional right of privacy and the substantial state interest that supports the
disclosure and use of evidence relating to defendant‟s mental state in an SVPA
proceeding, we conclude that disclosure and use of defendant‟s statements in this
case did not violate defendant‟s federal constitutional right of privacy. (Accord,
Seaton v. Mayberg (9th Cir. 2010) 610 F.3d 530, 535-541 [finding no federal
constitutional violation in the use, in an SVPA proceeding, of psychological
records of a person civilly confined for SVPA evaluation].)20
Accordingly, we conclude that the error that occurred in this SVPA
proceeding by virtue of the disclosure of defendant‟s therapy records and the
admission of his therapist‟s testimony constituted only state law error, and did not
rise to the level of federal constitutional error. It follows that the applicable
20 We note that this case does not present the question whether either the
federal constitutional right of privacy or the federal due process clause would bar
the state‟s use of a parolee‟s communications to his or her psychotherapist if the
state deliberately misled the parolee to believe that the communications would be
confidential but then used the communications in an SVPA proceeding
notwithstanding its prior representation of confidentiality. Here, there is no
suggestion that defendant‟s parole officer, treating therapist, or any state official
intentionally misled defendant or that defendant subjectively believed that
information he revealed to his therapist would not be revealed to his parole officer
or other public officials. On the contrary, during defendant‟s testimony at trial,
when asked why he did not tell his therapist that he had been drinking beer,
defendant responded: “Because she would call my parole officer and they would
come and put me back in jail.”
49
prejudicial error standard is the state law prejudicial error standard set forth in
People v. Watson, supra, 46 Cal. 2d 818.
B. Was reversal required under the Watson standard?
As explained above, under the prejudicial error standard set forth in People
v. Watson, supra, 46 Cal. 2d 818, 836, we must determine whether it is reasonably
probable that a result more favorable to defendant would have been reached in the
absence of the error. As already noted, in its initial opinion prior to its grant of
rehearing, the Court of Appeal applied the Watson prejudicial error standard and
found that under that standard the trial court error did not require reversal of the
trial court judgment. As we explain, we agree with that conclusion.
In evaluating the question of prejudice, we first set forth the elements that
the prosecution was required to prove in this proceeding and thereafter review the
evidence, absent the disputed records and therapist‟s testimony, which was before
the jury. We then consider whether or not it is reasonably probable that a result
more favorable to defendant would have been reached in the absence of the error.
As the trial court explained to the jury immediately prior to deliberations, in
order to prove that defendant is an SVP, the People were required to prove beyond
a reasonable doubt that (1) defendant has been convicted of at least one sexually
violent offense, (2) he has a diagnosed mental disorder, (3) as a result of that
mental disorder he will be a danger to the health and safety of others because it is
likely he will engage in sexually violent criminal behavior, and (4) it is necessary
to keep him in custody in a secure facility to ensure the health and safety of others.
Furthermore, because on May 17, 2004, at the prior SVPA proceeding, defendant
was found not to be a danger to commit a future sexual violent crime, the trial
court explained that the People were also required to prove beyond a reasonable
doubt that there were “materially changed circumstances” that occurred since that
50
date “that now make defendant a likely danger to commit a sexually violent
offense.”
Much of the prosecution‟s case did not involve the evidence that related to
the trial court error in question here — namely, the information from defendant‟s
therapy records and his therapist‟s testimony regarding defendant‟s statements
during the therapy sessions. The two prosecution psychologists who testified at
trial initially interviewed defendant and administered their own evaluative tests
without any knowledge of the content of the therapy sessions in question, and their
independent conclusions that defendant suffered from pedophilia, a mental
disorder that rendered him a danger to the health and safety of others, were largely
based on their personal interviews and testing of defendant, not on the disputed
evidence. Although both psychologists testified that defendant‟s statement to the
therapist that he had molested 16 children confirmed their conclusions, neither
appeared to give that isolated statement much weight and instead, in considering
defendant‟s past conduct, relied primarily on the three prior incidents that had
resulted in criminal convictions. In addition, the psychologists‟ conclusions that
defendant‟s parole violations that occurred after the prior SVPA proceeding —
involving repeated instances in which defendant, although aware of his parole
conditions, failed to comply with the prohibition on consuming alcohol and being
in his mother‟s home when children were present — demonstrated a deterioration
in defendant‟s ability to control his conduct and constituted materially changed
circumstances, which increased the likelihood that he would commit a sexually
violent offense, were not based upon the disputed evidence at all.
Similarly, the testimony of defendant‟s parole officer, relating the details of
defendant‟s parole violations, did not involve the disputed evidence. Finally,
defendant‟s own statement on the witness stand that it was not all right for him to
51
drink beer while on parole “because it would give me visions of little kids” was
independent of any evidence relating to his therapy sessions while on parole.
The jury also had before it additional evidence unrelated to the trial court
error that was presented during the defense case. The testimony of defendant‟s
mother regarding his illness, limited abilities, and his conduct during visits to her
house while on parole (including her testimony that she could not stop him from
drinking beer at her house because “he won‟t mind me even if I tell him”) was
unrelated to the disputed evidence. In addition, the testimony of defendant‟s
sister, including her acknowledgement on cross-examination that she made a point
of keeping an eye on her children when defendant was visiting because of
defendant‟s prior conduct that had led to his imprisonment, was independent of
any evidence concerning defendant‟s therapy sessions.
At the same time, the jury also had before it the testimony of a defense
investigator regarding the size and nature of the public park at which defendant
had stopped that could have minimized the seriousness of that conduct, the
testimony of the service coordinator at the San Andreas Regional Center regarding
the services and supervision that would be available to defendant because of his
developmental disability were he not committed as a sexually violent predator,
and, finally, the testimony of the two defense psychologists who disagreed with
the prosecution psychologists‟ diagnosis of defendant as suffering from pedophilia
and concluded instead that defendant‟s past offenses were better explained as
resulting from his developmental disability. All of this evidence, as well, was
independent of the disputed evidence.
Considering the elements that the People were required to prove, and taking
into account all of the evidence before the jury, we conclude for a number of
reasons that it is not reasonably probable that the jury would have reached a
different verdict in the absence of the trial court error. First, although the
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improperly admitted evidence unquestionably included a number of potentially
damaging statements made by defendant during therapy — in particular,
defendant‟s admission regarding 16 molestation victims and his acknowledgment
to his therapist that he was “very attracted” to small children and especially when
drinking “would have an overwhelming desire to touch them” — the reliability of
defendant‟s isolated reference to 16 victims was significantly weakened by the
circumstances in which that statement was made and that statement did not
overshadow the undisputed fact that defendant had been convicted of three
widely-spaced sex offenses against three different young girls, and defendant‟s
continued attraction to young children when drinking was reflected not only in his
statement to his therapist during therapy but also in defendant‟s testimony at trial
that he should not drink beer because it gave him “visions of little kids.” Second,
the determination of the evaluating psychologists — who had interviewed and
tested defendant independently — that defendant suffered from pedophilia and
posed a significant danger if not confined and treated was quite strong and did not
depend upon the therapy records from the Atkinson Center or the treating
therapist‟s testimony. Third, defendant‟s repeated parole violations for drinking
beer and his admission that he had knowingly been present at his mother‟s house
when children were present, combined with his testimony at trial regarding his
visions of small children when drinking beer, provided significant support for the
evaluating psychologists‟ conclusion that, absent confinement and treatment,
defendant posed a continuing danger to children. Fourth, in his closing argument,
the district attorney did not emphasize the evidence affected by the trial court error
but instead drew the jury‟s attention to defendant‟s testimony at trial in which he
stated that it was not all right for him to drink beer while on parole “because it
would give me visions of little kids,” as well as to defendant‟s sister‟s testimony
that when defendant was at their mother‟s house while her children were there, she
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always kept a close eye on her children because of defendant‟s past conduct.
Finally, the jury‟s request during deliberations for a rereading of the testimony of
defendant and defendant‟s sister suggests that the testimony of these witnesses —
rather than evidence related to the contents of defendant‟s therapy sessions — held
particular significance for the jury. Under these circumstances, we conclude that
the trial court error was not prejudicial under the Watson standard.
V. Conclusions and Disposition
For the reasons discussed above, we agree with the Court of Appeal‟s
conclusion that the trial court erred in determining that disclosure of defendant‟s
therapy records and admission of the testimony of defendant‟s therapist were
authorized by the dangerous patient exception to the psychotherapist-patient
privilege. We disagree, however, with the Court of Appeal‟s conclusion that the
trial court error constituted federal constitutional error rather than state law error,
and accordingly we conclude that the prejudicial nature of the error must be
evaluated under the Watson standard. Applying that standard, we conclude that
the trial court error at issue was not prejudicial.
Accordingly, the Court of Appeal judgment, reversing the trial court
judgment, is reversed. We remand this matter to the Court of Appeal for
consideration and resolution of the additional claims of error raised by defendant
on appeal. (See, ante, pp. 21-22.)
CANTIL-SAKAUYE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Gonzales
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 192 Cal. App. 4th 152Rehearing Granted
__________________________________________________________________________________
Opinion No. S191240
Date Filed: March 18, 2013
__________________________________________________________________________________
Court: Superior
County: Santa Clara
Judge: Alfonso Fernandez
__________________________________________________________________________________
Counsel:
Jean Matulis, under appointment by the Supreme Court, for Defendant and Appellant.
Ron Boyer for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Defendant and
Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gerald A. Engler, Assistant Attorney General, Gregg Zwyicke, Seth K. Schalit and
Bridgit Billeter, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Jean Matulis
P.O. Box 1237
Cambria, CA 93428
(805) 927-1990
Bridgit Billeter
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1340