The opinion
TAMURA, J.
I dissent from the majority’s view that petitioner failed to provide an adequate record to review the trial court’s order denying discovery. The Supreme Court order directing this court to issue an alternative writ and order to show cause constituted an implied determination that petitioner made an adequate showing to have a decision on the merits of his petition.
I also respectfully dissent from that portion of the majority opinion relating to discovery of the records sought in. item 22, i.e., medical records of any psychiatric or psychological treatment of either officer in which the treating or examining doctor has rendered an opinion as to the officer’s trait for “acts of aggression, violence, excessive force or for acts demonstrating racial or ethnic bias or prejudice.” The majority holds that by virtue of the psychotherapist-patient privilege, the court was statutorily required to deny discovery of item 22.
To borrow the expression of the Supreme Court in In re Lifschutz, 2 Cal.3d 415, 438 [ 85 Cal.Rptr. 829 , 467 P.2d 557 , 44 A.L.R.3d 1 ]: “[I] do not believe the patient-psychotherapist privilege should be frozen into the rigidity of absolutism.” Nor has the Legislature done so. As our high court observed in Tarasoff v. Regents of University of California, 17 Cal.3d 425 [ 131 Cal.Rptr. 14 , 551 P.2d 334 ], in attempting to balance the countervailing interests, the Legislature has tempered the broad rule of privilege granted by Evidence Code section 1014 by enacting the exception provided for in Evidence Code section 1024. (Id., at pp. 440-441.) The latter section provides: “There is no privilege under this article if the psychotherapist has reasonable cause to believe that the *168 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.”
In Tarasoff the court applied the Evidence Code section 1024 exception in the context of a patient whose mental condition posed a physical danger to another. The court declared: “We conclude that the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.” (Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, 442 .)
I submit that the peril to which the public is exposed by a police officer who is suffering from a mental or emotional condition which renders him violence prone or causes him to demonstrate racial bias is a danger of sufficient gravity to justify the invocation of the exception provided by Evidence Code section 1024. In the instant case, I would hold that the trial court abused its discretion in denying out of hand discoveiy of the records sought in item 22. Instead, the trial court should have ordered production of the records sought, conducted an in camera review and determined “through a sensitive exercise of [its] discretionary authority” whether the interests of justice in the particular case would be furthered by disclosure of the records to defendant. (See In re Lifschutz, supra, 2 Cal.3d 415, 438, fn. 26 .)
I would issue a peremptory writ of mandate directing the trial court to permit discovery of the records sought in item 22, subject to the conditions set forth above.
Petitioner’s application for a hearing by the Supreme Court was denied April 13, 1978. Bird, C. J., Tobriner, J., and Mosk, J., were of the opinion that the application should be granted.