People v. Gonzales

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

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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.

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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

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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

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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.

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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

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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

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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

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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.

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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 152

Rehearing 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