Court: Superior County: Santa Clara Judge: Alfonso Fernandez Ct.App. 6 H032866 Super. Ct. No. 211111
The opinion of the court was delivered by: Cantil-sakauye, C. J.
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 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.
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 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 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 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 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.
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 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 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.
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 Case*fn1
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 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) 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 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 non-cooperation. McAndrews also testified that on a number of occasions defendant, in reporting 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 ...