GARCETTI v. Ross Washington, Real Party in Interest.

Reset A A Font size: Print

Court of Appeal, Second District, Division 5, California.

Gil GARCETTI as District Attorney, etc., Petitioner, v. The SUPERIOR COURT Of Los Angeles County, Respondent; Ross Washington, Real Party in Interest.

Nos. B142294, B143136.

Decided: December 19, 2000

Gil Garcetti, District Attorney, George M. Palmer, Head Deputy District Attorney, and Fred Klink, Deputy District Attorney, for Petitioner. Michael P. Judge, Public Defender, Albert J. Menaster, Ken Fang, and Jack T. Weedin, Deputy Public Defenders, for Real Party In Interest. No appearance for Respondent.

In proceedings authorized by Welfare and Institutions Code section 6600 et seq., the district attorney petitions for two extraordinary writs of mandate.   In his first petition, the district attorney seeks an order directing the trial court to vacate its order excluding the testimony of an expert witness at the probable cause hearing.   In his second petition, the district attorney seeks an order directing the trial court to vacate its order limiting his experts' review of treatment records concerning the real party in interest.   We conclude that the district attorney's expert witness should not be excluded from the probable cause hearing, and that his expert witnesses should be permitted to review the real party's treatment records.   We therefore grant the petitions.


Real party in interest Ross Washington was convicted of rape for the second time on February 21, 1989.   As he neared the end of his sentence, the Director of Corrections and Board of Prison Terms determined that Washington might be a sexually violent predator (“SVP”) as that term is defined in Welfare and Institutions Code section 6600 et seq.1  Pursuant to that statute, Washington was referred to the State Department of Mental Health (“DMH”) for evaluation by two mental health practitioners.   Dr. Dawn Starr, Ph.D., and Dr. Melvin Macomber, Ph.D., were designated to evaluate Washington.   Each interviewed Washington and reviewed his medical and criminal records.   Both concluded that Washington suffers from a mental disorder such that, without treatment, he is likely to engage in acts of sexual violence.   Washington's file was referred to the district attorney and on October 22, 1996, a petition to civilly commit him as an SVP was filed.   At some point, Washington was transported to the Atascadero State Hospital, a facility designated in the SVP act as an appropriate place to house potential SVP's for treatment. (§ 6600.05.) He was later transferred to the Los Angeles County Jail to await his probable cause hearing.

On August 25, 1997, the DMH removed Dr. Macomber from the panel of psychologists and psychiatrists it appoints to conduct SVP evaluations because of his inability to prepare reports according to the standards set by the department.   Dr. Kent Franks, Ph.D., was asked to reevaluate Washington.   Washington refused to speak to Dr. Franks, so Dr. Franks reviewed Washington's medical and criminal records, as well as Dr. Macomber's prior evaluation.   In a report dated December 31, 1998, Dr. Franks agreed that Washington suffers from a mental disorder making him likely to engage in sexually violent acts in the future.

On February 15, 2000, Washington filed a motion to exclude the testimony of Dr. Franks from the probable cause hearing set for July 19, 2000.   On April 28, 2000, he argued that section 6601, subdivision (d), authorized only two psychological evaluations of the defendant, so the opinions of a third psychologist should not be allowed absent good cause.   He analogized the situation to the facts in Sporich v. Superior Court (2000) 77 Cal.App.4th 422, 91 Cal.Rptr.2d 752, in which Division Six of this court held that, absent good cause, the SVP act does not authorize additional psychological evaluations to provide the district attorney with updated reports for trial.   The trial court agreed, concluding that without good cause the district attorney may not substitute a new doctor for one already designated, and so may not have the new doctor testify.   Examples of good cause cited were the death or incapacity of the original doctor.

The district attorney filed a petition for writ of mandate seeking review of that ruling.   We issued an alternative writ on the petition, directing the trial court to vacate its order or show cause why the order should not be vacated.   Further proceedings were stayed pending determination of the petition on its merits.   However, before the alternative writ issued, the trial court entered a second ruling requiring review.   Washington asserted an argument successfully made by another respondent in an SVP matter, Anthony Wethington, that section 5328 rendered all records relating to his stay in Atascadero State Hospital confidential.2  Accordingly, he argued, to the extent any of the DMH evaluators inappropriately relied upon confidential records in finding he met SVP criteria, their testimony should also be excluded.   The court denied Washington's motion except to the extent therapy records had been reviewed, deeming such records to be confidential.   In doing so, the court invited the district attorney to seek review of its ruling, and he obliged.   A second petition for writ of mandate was filed.   We issued an alternative writ of mandate, directing the trial court to either vacate its second order or show cause why it should not also be vacated.   Both petitions are addressed here.


A. Propriety of Review

 As a preliminary matter, we must consider Washington's challenge to the propriety of reviewing the orders at issue on petitions for extraordinary writ.   He asserts that the orders constitute pretrial evidentiary rulings, not ripe for review until after the probable cause hearing they may affect.   It is true that the district attorney can appeal dismissal of his petition to commit Washington as an SVP if that ultimately occurs.  (People v. Superior Court (Johannes) (1999) 70 Cal.App.4th 558, 561-562, fn. 5, 82 Cal.Rptr.2d 852.) However, because the issues here are of great importance to the public while presenting little risk of harassment to the respondent, extraordinary review is appropriate.  (People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 147, 82 Cal.Rptr.2d 481;  see Washington Mutual Bank v. Superior Court (1999) 75 Cal.App.4th 773, 777, fn. 4, 89 Cal.Rptr.2d 560.) The issues presented have not heretofore been addressed by the courts, but, according to the district attorney, will impact numerous cases currently pending in the superior court.   It is within this court's discretion to consider the issues now and we elect to do so.

B. Exclusion of Dr. Franks's Testimony

We begin with the order excluding testimony by Dr. Franks at the upcoming probable cause hearing.   In making that ruling, the trial court held that absent a showing of good cause no expert witnesses beyond the initial two who evaluated Washington may testify.   The court drew that conclusion from reasoning in case law prohibiting the district attorney from compelling evaluations beyond the two submitted in support of a commitment petition without good cause.   We cannot agree with that holding.   The case law upon which the trial court relied has been repudiated by urgency legislation enacted just after oral argument in this matter.   Moreover, the statutory scheme governing SVP proceedings suggests that when one of the evaluations supporting a petition proves to have been prepared outside the relevant guidelines another evaluation must be conducted to ensure the petition is proper.   Having obtained a second evaluation warranting continued commitment proceedings, the district attorney was entitled to call the evaluator to testify.

It is useful to first observe the purpose behind the SVP act.   As our Supreme Court explained, the SVP act enables identification of those persons who suffer a mental impairment such that he or she is likely to commit acts of sexual violence toward others.   Civil commitment of such persons facilitates treatment of their disorders, while reducing the threat of harm otherwise posed to the public.  (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1144, 81 Cal.Rptr.2d 492, 969 P.2d 584.)   If it is ultimately determined the respondent poses a danger to others as a result of the mental impairment, the state's interest in providing treatment and protecting the public prevails over the individual's interest in being free from compulsory confinement.  (Id. at p. 1151, 81 Cal.Rptr.2d 492, 969 P.2d 584.)   For the protection of both the potential SVP and the public, then, it is essential that accurate evaluations are utilized in support of a commitment petition.

Indeed, the SVP act requires the agreement of multiple experts that a threat exists before SVP proceedings may be initiated.   Section 6601, subdivision (d), requires the DMH to obtain evaluations by two mental health professionals, psychologists or psychiatrists, agreeing that the person suffers from a mental impairment making him or her likely to engage in sexually violent acts.   The evaluations must be conducted according to standardized assessment protocols established by the DMH for identifying potential SVP's. (§ 6601, subd. (d).)  Should the initial two doctors who evaluate the person disagree on the diagnosis, an additional two evaluators will be appointed.   Both of those additional evaluators must agree that the person meets the criteria for commitment as an SVP. (Id. at subds. (e) & (f).)   Only then is the matter referred to the district attorney for filing of a commitment petition.  (Id. at subds. (d) & (h).)

 Once there is support for the filing of a petition, the proceedings progress to a probable cause hearing to determine if there is reason to believe the individual is likely to engage in sexually violent predatory criminal behavior. (§ 6602, subd. (a).)  The probable cause hearing is a separate phase of the proceedings, going beyond a mere determination that there is documentary support for the petition.   The parties are represented by counsel and evidence is introduced for the court's determination of probable cause.  (Ibid.;  In re Parker (1998) 60 Cal.App.4th 1453, 1469, 71 Cal.Rptr.2d 167.)   Qualified expert testimony may be advanced to support the conclusion that the SVP respondent's mental impairment leaves him or her likely to act in a sexually violent, predatory manner.  (In re Parker, supra, 60 Cal.App.4th at pp. 1469-1470, 71 Cal.Rptr.2d 167;  see also People v. Ward (1999) 71 Cal.App.4th 368, 374, 83 Cal.Rptr.2d 828 [permitting expert testimony at an SVP trial].)   There is no statutory limit on the amount of evidence that may be produced;  rather, the usual rules governing the admission of evidence apply.   (See In re Kirk (1999) 74 Cal.App.4th 1066, 1072, 88 Cal.Rptr.2d 648.)   Testimony by the experts who evaluated the SVP respondent is generally relevant and admissible.  (E.g., People v. Ward, supra, 71 Cal.App.4th at pp. 374-375, 83 Cal.Rptr.2d 828.)

 The trial court's ruling in this case did not comport with that statutory scheme.   The evidence reveals that Dr. Macomber, initially selected by the DMH to assess Washington, was removed from the panel of doctors utilized to evaluate potential SVP's due to his inability to prepare reports conforming to the standardized assessment protocol.   Thus, it appeared one of the two evaluations that precipitated filing of the petition was not conducted in accordance with the statutory terms.   Before the DMH, or the district attorney at this later stage of the proceedings, could go forward, a second evaluation by a mental health professional done in accordance with the standardized assessment protocol was required. (§ 6601, subd. (e).)  If Dr. Macomber's replacement had disagreed with the diagnosis of Washington's mental disorder or that he was likely to commit sexually violent acts against others, then the statutory procedure for resolving the conflict would have been triggered.   Unless two independent mental health professionals agreed that the petition was supported, it would have to be dismissed.   If, on the other hand, the replacement evaluator confirmed the diagnosis, the proceedings could move forward based on the two competent evaluations.   At the later probable cause hearing, the district attorney would be free to advance the testimony of the new evaluator as an expert witness to the SVP respondent's mental condition.

Washington points to the decision in Sporich v. Superior Court, supra, 77 Cal.App.4th 422, 91 Cal.Rptr.2d 752, as support for the trial court's conclusion that the SVP statute limits the number of evaluations that may be conducted.   In Sporich, Division Six of this court held that where the district attorney wished to compel updated psychological evaluations in preparation for trial, the SVP respondent was entitled to refuse additional interviews based on his right to privacy.   It was in that context that the court read the SVP statute as authorizing two, and only two, evaluations of the respondent.  (Id. at pp. 426-427, 91 Cal.Rptr.2d 752.)   However, urgency legislation has since been enacted amending the SVP statute to provide for updated evaluations as necessary to present the case for commitment. (§ 6603, subd. (c).) 3  The same amendment provides for preparation of replacement evaluations where one of the original evaluators becomes unavailable to testify.  (Ibid.) Washington recognizes the new legislation, but argues its reference to evaluator unavailability imposes a good cause requirement for additional evaluations that is consistent with the trial court's holding.4  It is true that the amended statute states “․ updated or replacement evaluations shall not be performed except as necessary to update one or more of the original evaluations or to replace the evaluation of an evaluator that [sic] is no longer available for testimony.”   (Ibid.) However, that provision addresses a situation in which an evaluator cannot participate further in the proceedings.   It does not account for the concerns that arise when one of the evaluations was improperly prepared in the first place, regardless of whether the evaluator is available to testify or not.   As we explained above, the interests of both the state and the SVP respondent are served by ensuring evaluations are conducted within the guidelines set by the DMH pursuant to the SVP statute. (§ 6601, subd. (c).)  Having identified an evaluator who failed to perform within the guidelines, the district attorney was obligated to obtain a second competent evaluation concurring in the diagnosis underlying his effort to commit Washington as an SVP. He may thereafter ask that evaluator to testify.

C. Confidentiality of Treatment Records

 The trial court also ruled that records relating to Washington's therapy are confidential by the terms of section 5328, and so were improperly considered by the evaluators.   However, such records are not confidential where the doctors selected to evaluate the respondent in SVP proceedings are concerned.   To hold otherwise would unduly restrict the information available to those evaluators and necessarily skew their findings, a situation that would defeat the purpose of the statute and endanger the interests of both the public and the potential SVP. The SVP act concerns persons with a current mental disorder, and records relevant to consideration of an SVP respondent's present condition must be part of the assessment.

Throughout the SVP act, the intent to provide evaluators with complete information relative to the potential SVP's condition is patent.   Section 6601 states that the Department of Corrections' screening of a potential SVP shall be based on a review of the individual's social, criminal and institutional history. (§ 6601, subd. (b).)  The DMH's later evaluation of persons referred by the Department of Corrections must account for factors including the person's “․ criminal and psychosexual history, type, degree and duration of sexual deviance, and severity of mental disorder.”  (Id. at subd. (c).)  Should the DMH request that a petition to commit be filed, the district attorney shall be given access to the evaluations, “and any other supporting documents.”  (Id. at subd. (h).)  Section 6603 specifies that evaluators appointed for the SVP respondent be given similar access to all relevant medical and psychological records and reports to facilitate their own assessment.  (Id. at subd. (a).)  Indeed, the recent amendment to that section provides that those preparing any updated or replacement evaluations may consider all available medical and psychological records, including treatment records.  (Id. at subd. (c).)  Section 6605 goes on to mandate that persons actually committed be given annual examinations to assess their condition.   The SVP again has a right to have his or her own expert do an exam and be given “access to all records concerning the person.” (§ 6605, subd. (a).)  In short, the statute consistently provides for consideration of all records relevant to an SVP respondent's condition, effectively creating an exception to the confidentiality provisions of section 5328 as interpreted by the trial court.   Thus, the trial court's ruling that therapy records could not be considered by the DMH evaluators in preparing their reports was erroneous.

 Finally, we address Washington's argument, asserted for the first time in the appellate court, that his records are subject to the psychotherapist-patient privilege, Evidence Code section 1014.   Of course, arguments not raised or developed in the trial court may not be raised in the appellate court.  (Brunson v. Department of Motor Vehicles (1999) 72 Cal.App.4th 1251, 1255-1256, 85 Cal.Rptr.2d 710.)   However, even if the issue were properly raised, it would be to no avail.   The protections of the psychotherapist-patient privilege do not extend to these facts.   The district attorney refers us for guidance to cases decided under the former Mentally Disordered Sex Offenders Act, which permitted civil commitment of a person found likely to commit a sexual offense due to a mental disorder.   Particularly, the court in People v. Lakey (1980) 102 Cal.App.3d 962, 162 Cal.Rptr. 653, considered an argument that statements made during therapeutic sessions at Atascadero State Hospital by a mentally disordered sexual offender were protected by the privilege.   The Lakey court rejected the argument, holding that legislatively created privileges such as the psychotherapist-patient privilege are not absolute.   Rather, privileges sometimes must yield to compelling state interests, including the interest in detaining mentally disordered offenders so as to provide them treatment and protect the public.   (Id. at pp. 976-977, 162 Cal.Rptr. 653.)   We find that reasoning equally applicable to SVP cases.   The SVP act protects the interests of the public in detaining potentially sexually violent predators and providing them treatment until the mental condition causing their disorder has abated.   That determination must be based on a full assessment of the person's current mental condition, including reference to treatment records and progress in therapy.   The psychotherapist-patient privilege does not preclude the DMH evaluators' consideration of therapy records.


The petitions for writs of mandate are granted.   The trial court is ordered to vacate its orders precluding Dr. Franks's testimony at the probable cause hearing and limiting the district attorney's experts review of Washington's treatment and therapy records.   The stay of this matter shall be dissolved upon the opinion becoming final.


1.   All further statutory references are to the Welfare and Institutions Code unless otherwise indicated

2.   Petitioner reports that Division Four of this court is considering a petition for writ of mandate in Garcetti v. Superior Court (Penate), case No. B141684, that also raises the issue of record confidentiality.   He requests that we take judicial notice of the records in that case.   We deny the request.   At the same time, petitioner requests that we take judicial notice of our own records regarding his first petition, Garcetti v. Superior Court (Washington), case No. B142294, and the superior court file, for purposes of deciding his second petition, Garcetti v. Superior Court (Washington), case No. B143136.   We grant that portion of petitioner's request.   We also take judicial notice of the records in our case No. B143136 for purposes of deciding case No. B142294.

3.   On September 13, 2000, Senate Bill No.2018 was enacted as urgency legislation amending section 6603, subdivision (c).   That section now provides:  “If the attorney petitioning for commitment under this article determines that updated evaluations are necessary in order to properly present the case for commitment, the attorney may request the State Department of Mental Health to perform updated evaluations.   If one or more of the original evaluators is no longer available to testify in court proceedings, the attorney petitioning for commitment under this article may request the State Department of Mental Health to perform replacement evaluations.   When a request is made for an updated or replacement evaluation, the State Department of Mental Health shall perform the requested evaluations and forward them to the petitioning attorney.   However, updated or replacement evaluations shall not be performed except as necessary to update one or more of the original evaluations or to replace the evaluation of an evaluator that is no longer available for testimony.   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.   If an updated or replacement evaluation results in a split opinion as to whether the subject meets the criteria for commitment, the State Department of Mental Health shall conduct two additional evaluations in accordance with subdivision (f) of Section 6601.”

4.   Even as he argues that the newly enacted amendments support the trial court's ruling, Washington contends the amendments cannot be applied to this case because to do so would give retroactive effect to a statute that is presumptively prospective.   However, the presumption against retroactivity does not come into play where a statute has no true retroactive effect.   Rather, where the new statute will influence future activity in the case, there is no retroactive effect to raise concern.   (Garcetti v. Superior Court (1999) 76 Cal.App.4th 685, 693-694, 90 Cal.Rptr.2d 581 [new provisions of the SVP act amending definition of SVP criteria had no retroactive effect where probable cause hearing and trial had not occurred].)


GRIGNON, Acting P.J., and WEISMAN, J.*

Copied to clipboard