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

Erik Galen MENENDEZ and Joseph Lyle Menendez, Petitioners, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent. PEOPLE of the State of California, Real Party in Interest.

No. B052293.

Decided: March 28, 1991

Leslie H. Abramson, Los Angeles, Howard W. Gillingham, North Hollywood, and Lewis A. Wenzell, San Diego, for petitioner Erik Galen Menendez. Gerald L. Chaleff, Santa Monica, and Jill D. Lansing, Los Angeles, for petitioner Joseph Lyle Menendez. No appearance for respondent. Ira Reiner, Dist. Atty., Harry B. Sondheim, Head Deputy Dist. Atty. and Brent Riggs, Deputy Dist. Atty., for real party in interest. Milgrim, Thomajan & Lee and Daniel H. Willick, Los Angeles, for amicus curiae Cal. Psychiatric Ass'n.


On August 20, 1989, Jose and Maria (“Kitty”) Menendez were murdered in their Beverly Hills home.   Petitioners, the victims' sons, are charged with committing the murders.

For a period of time before and after the murders, petitioners were patients of Dr. L. Jerome Oziel, a Beverly Hills psychotherapist.   On March 9, 1990, pursuant to a search warrant, a number of items were seized from Dr. Oziel's safe deposit box.1  Among these items were audio tapes of notes made by Dr. Oziel during psychotherapy sessions with petitioners on October 31, November 2 and November 28, 1989, and one tape of an actual session with petitioners on December 11, 1989.   Some of the tapes contain “confidential communications,” as that term is defined in Evidence Code section 1012,2 and thus, unless an exception applies, are protected by the psychotherapist-patient privilege (Evid.Code, § 1014).   Petitioners, as the holders of the privilege (Evid.Code, § 1013), may refuse to disclose, or prevent others from disclosing, these confidential communications.

One of the statutory exceptions to the psychotherapist-patient privilege is Evidence Code section 1024, the so-called “dangerous patient” exception, which provides:  “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.”   During the October 31 and November 2 sessions, petitioners made statements to Dr. Oziel which he perceived to be threats against his life and the lives of others.   These threats prompted Dr. Oziel to reveal the substance of these two sessions to the persons whose lives he believed were in danger.

With respect to the first two sessions, the issue is whether section 1024 exempts any of petitioners' communications from the privilege.   We resolved this issue with little difficulty after reviewing Dr. Oziel's notes of the October 31 and November 2 sessions:  petitioners made statements which even the most naive observer would conclude were threats against the life of Dr. Oziel.   Dr. Oziel reasonably concluded that because of those threats, certain persons who were close to him were also in danger, and that he had to disclose certain communications in order to insure those parties' safety.   The respondent court ruled, and we agree, that section 1024 applies to those communications which the psychotherapist reasonably believes he must necessarily disclose in order to prevent the threatened danger.   We hold that the section 1024 exception applies to the October 31 and November 2 sessions.

We further find that the latter two sessions are not privileged because, contrary to what the respondent court found, these sessions were not “for the purpose of therapy.”   Dr. Oziel's main objective was to insure his own safety in the face of petitioners' threats.   To petitioners, Dr. Oziel's primary role was not that of a therapist who could provide treatment for their emotional problems, but an individual who, if he could be trusted, could portray them from a sympathetic viewpoint if they were arrested and tried for the murders.   We hold that the privilege did not attach to the latter two sessions, since the communications were not made in the course of a psychotherapist-patient relationship.   Thus, whether the dangerous patient exception might also apply need not be determined.


On the evening of October 30, 1989, approximately two months after the Menendez murders, Dr. Oziel received a call from petitioner Erik Menendez (“Erik”), who stated that he urgently needed to see Dr. Oziel.   Dr. Oziel made an appointment with Erik for the next afternoon.

Dr. Oziel had spent several days with petitioners after the murders and suspected (but “did not want to believe”) that petitioners had committed the crimes.   Sensing that Erik might want to confess to the killings, Dr. Oziel concluded that he was about to be the recipient of information which could expose him to some danger.   He arranged for his business associate and paramour, Judalon Smyth, to sit in his waiting room (posing as a patient) during Erik's session, so that she could call the police if trouble arose.

Dr. Oziel met with Erik late in the afternoon of October 31.   After talking for awhile in the office, they took a walk in a nearby park, during which Erik confessed that he and his brother Lyle (petitioner Joseph Lyle Menendez) had murdered their parents.   Erik revealed in detail the planning and execution of the crime, including petitioners' fabricated alibi defense.

Since Lyle did not yet know that Erik had confessed to Dr. Oziel, Erik stated that he planned to reveal his confession to Lyle during an upcoming Caribbean vacation.   However, Dr. Oziel, who considered Lyle to be by far the more dangerous of the two brothers, felt it was imperative for him to observe Lyle's demeanor upon learning that Erik had confessed.   With Erik's consent, Dr. Oziel called Lyle and asked him to come to the office as soon as possible.3

 Soon after Lyle arrived, Smyth went back into the hallway to eavesdrop on the conversation in Dr. Oziel's office.   She overheard Lyle tell Erik:  “I can't believe you did this!   I can't believe you told him!   I don't even have a brother now!   I could get rid of you for this!   Now I hope you know what we are going to do.   I hope you realize what we are going to have to do.   We've got to kill him and anyone associated to him.”   Smyth heard Erik, who was sobbing, reply, “I can't stop you [Lyle] from what you have to do, but ․ I can't kill anymore.” 4  Dr. Oziel's notes of this session reflect that Lyle was “very, very unhappy and he would have to think about what to do with this situation.”   Dr. Oziel “clearly was getting the message that ․ Lyle was telling me that he was considering killing me, and ․ it was very clear from Erik that Erik had the same feeling.”

Dr. Oziel told Lyle that he found Lyle “to be personally menacing to me, and he glared at me and made comments that related to how he didn't want to have anybody looking over his shoulder and controlling him, and that's why he murdered his parents to begin with ․”

The session ended when Erik left the office, still crying.   Lyle, followed by Dr. Oziel, walked past Smyth and summoned the elevator.   While waiting for the elevator, Lyle told the doctor, “I can understand Erik, but he shouldn't have done this.”   When Dr. Oziel asked if Lyle was threatening him, Lyle shook the doctor's hand and said, “Good luck, Dr. Oziel.”

Dr. Oziel perceived this as a threat and concluded that he and his loved ones were in grave danger.   Since petitioners knew where Dr. Oziel lived, he telephoned his wife and told her that petitioners had confessed to the murder of their parents, and that he feared for his life, her life, and the lives of their children.   He instructed Mrs. Oziel to leave the house with the children, which she did.   Dr. Oziel also concluded that Smyth might be in danger, since she was in his company a great deal of the time.   After warning his wife, Dr. Oziel went to spend the night at Smyth's home.   At that time, he repeated his fears and related the details of his session with petitioners.5

Fearing for his life, but concerned about the ethical implications of revealing petitioners' threats, Dr. Oziel consulted several other therapists and a number of attorneys and presented the facts of this case in hypothetical form.   Dr. Oziel was advised that the communications were no longer confidential once threats were made.   The comments made by these individuals were not comforting.   One individual advised Dr. Oziel to leave the country;  another stated, “You're dead.   There's no way out of this, they are going to kill you, I'm glad that was not my patient!”   Smyth also called several private detective agencies to see about arranging a bodyguard for Dr. Oziel.

Dr. Oziel took other precautions as well.   From November 1 through November 3, the Oziel family stayed at a local hotel, rather than return to their home.   On November 6, Dr. Oziel bought three shotguns (one for himself, one for his wife, and one for Smyth).   He also had the broken security system at his home repaired.

Dr. Oziel concluded that the best way he could mitigate the danger to himself and others was to convince petitioners that he was their ally, and if they continued to see him, his possession of the information they revealed “could potentially be helpful ․ in the event they were brought to trial for their parents' murder, that I might be able to piece together some of the events in their family constellation that led to them having hatred and ․ abuse, most particularly from their father, that could have led to such an event occurring.” 6

For his own protection, Dr. Oziel decided to make audio tapes of his notes on petitioners' “therapy” sessions, an unusual practice for him.   At petitioners' next session on November 2, 1989, Dr. Oziel informed petitioners that although the session was confidential, they would not be if petitioners threatened Dr. Oziel or anyone else, and if anything happened to Dr. Oziel, the tapes (which he was having duplicated and placed in three different locations) would be given to the police.

According to Dr. Oziel, Lyle proceeded to laugh and to tell me that I should have felt threatened because immediately after the session he and Erik had sat in Erik's new Jeep and the first statement that he had made to Erik was, “Well, now how do we kill Oziel?”   Although Erik replied that he was not up to killing anyone else, they both laughed at the thought of Dr. Oziel “looking down on their Jeep, seeing them laugh and knowing that they were planning to kill” him.   Lyle told Dr. Oziel at the November 2 session that “he decided that it wouldn't look too good if I [Oziel] disappeared too soon because, in the event I did, ․ it would start to become obvious that it wasn't too healthy to be associated with the Menendez boys since people who did seemed to die a lot and always with shotguns shells around ․” Lyle asked Dr. Oziel if he was frightened about what Lyle told him.   Dr. Oziel replied that ordinarily he didn't choose to live in fear.   Lyle “looked at me coldly and said, ‘Neither did my father.’ ”   Dr. Oziel construed this comment as a clear threat to him.   The issue of confidentiality was raised several times during the session, with Lyle suggesting that an actual tape recording of the sessions should be made “because he wanted the notes to accurately reflect things that he thought might mitigate the severity of the crime he committed in the event he was ever caught.”   Lyle stated it was very important to him that “these notes never get read,” because “at least one of his cousins had said he would cut off the hands of anyone found to have ever killed Jose and Kitty.”   Petitioners (Lyle in particular) also discussed some of their motivation for the crime, including the fact that “they didn't kill their parents for money but rather out of hatred and out of a desire to be free from their father's domination, messages of inadequacy, and impossible standards.”

Although by the end of the session Dr. Oziel was somewhat less fearful, he still believed that petitioners would have killed him “were it not for the fact that I had explained to them that I had notes kept in a safety deposit box with instructions to reveal them upon my death,” and that petitioners were “absolutely capable” of murdering him.7

According to Judalon Smyth, petitioners intended to spend the upcoming weekend in Hawaii, and the November 2 session ended with Dr. Oziel recommending some places to stay.   Petitioners later told Dr. Oziel that they would be staying at one of the hotels recommended by him.   However, when Dr. Oziel and Smyth telephoned the hotel to confirm that petitioners had left town, they were told “there were no reservations for the name of Menendez.”   Dr. Oziel then called the Menendez home and spoke to petitioners' grandmother, who stated that petitioners were “not going on any trip.”   Dr. Oziel “realized that they [petitioners] had lied to him, and he believed that he may not have fooled them into thinking he could help them and that he was their buddy.”   Dr. Oziel thought his life was still in “mortal danger” and he left town with Smyth.   He also told her, “This is more serious than I can imagine and maybe I really can't work this out and maybe what we're going to have to do is ․ I am going to have to move and liquidate everything and leave the country ․”

On November 28, Erik saw Dr. Oziel alone.   Although the murders were discussed during part of the session, the majority of the session was devoted to a discussion of Erik's fear of Lyle.   Lyle “was afraid of Erik's confessing to other people,” the thought that Erik might do so had made Lyle “very jumpy,” and he (Erik) thought that Lyle “would in a tenth of a second kill anybody he thought was at risk for informing the police.”   Erik expressed remorse for the killings, and told Dr. Oziel he was “feeling suicidal” and wanted to die.   With respect to his fear of Lyle, Erik stated, “it wouldn't be so bad if he killed me.   I would just let him do it.”

Erik also stated he would try to get Lyle to come in and see Dr. Oziel, and “he thought Lyle definitely wanted to see me, mainly for strategizing and protection reasons, in terms of what to do with the weapons ․ and the videotape,8 and not so much because he wanted therapy.”   When Dr. Oziel asked Erik if he thought Lyle wanted therapy, Erik said, “No, I don't think he wants to be controlled by anybody ․ that's why he murdered my parents ․ He just wants to be free and he wants to do whatever he wants to do.   He doesn't want anybody bugging him too much.   I think he wants to see you but I don't think he wants to feel like he's controlled by you.”

For obvious reasons, this session did little to assuage Dr. Oziel's fears.   Dr. Oziel stated in his notes that he “still continued to feel threatened and to believe that at any moment if Lyle perceives that in any way, shape or form I am capable of ․ giving information to anyone, that Lyle is fully capable of trying to encourage Erik to, or arrange for, my murder or anyone else's murder.”   It was Dr. Oziel's intention to encourage petitioners to disclose to their attorney the fact that they had committed the murders, “since this would be confidential and I feel that the more people that know, the less likely Lyle is to do things that harm himself and harm other people, perhaps harm his brother, or myself.   I believe that if I persuade him to confess to his attorney, he is very much less likely to harm either his brother or me with the knowledge that there are more people who know about the murder.”

In early December, 1989, petitioners consulted with their attorney, and gave Dr. Oziel permission to do so as well.   After that time Dr. Oziel perceived that the danger or threat had diminished somewhat.   Dr. Oziel met with both petitioners on December 11, 1989.   This session focused on the Menendez “family constellation,” including petitioners' relationship with each other and with their parents.

During the first week of March, 1990, after Dr. Oziel and Judalon Smyth ended their relationship, Smyth went to the Beverly Hills Police and told them everything she had been told by Dr. Oziel.   The information provided by Smyth was used to prepare a search warrant affidavit, and the resulting warrant was served at Dr. Oziel's home on March 9, 1990.

During the search, Dr. Oziel's fear of petitioners was evident.   He was quite agitated and inquired whether petitioners were in custody, stating, “If you don't get these people [petitioners] immediately, you're going to have a lot more things to investigate.”   Dr. Oziel also asked for police protection;  to drive his point home, Dr. Oziel's counsel, who was present during the search, urged Dr. Oziel to have the police and the District Attorney listen to the tapes;  “when you listen to the tapes, if you were he, you would want a whole lot of protection.”


The hearing required by Penal Code section 1524, subdivision (c)(2), was conducted over a six-day period beginning June 15, 1990.   The hearing was held in camera, with the People and the public excluded.9

After the hearing, the respondent court made extensive findings of fact and ruled that all of the communications made to Dr. Oziel during the four sessions were exempted from the privilege.   The court's rulings, in pertinent part, are as follows:

“This court rules that the communications between Dr. Oziel and Mr. Lyle Menendez and Mr. Erik Menendez [hereinafter referred to as ‘the brothers'] about which this court has heard testimony, began on October 31, 1989 and continued through and including Dec. 11, 1989 [hereinafter referred to as ‘the referenced communications'] were intended by the brothers to be confidential within the meaning of the psychotherapist-patient privilege but that as a result of the reasonable and necessary disclosures by the Dr. pursuant to [Evidence Code section] 1024, initially made on Oct. 31, 1989, none of the above referenced communications are privileged.   For reasons articulated below, this court finds that the moment Dr. Oziel reasonably concluded that the brothers, either in their individual capacity, or jointly, constituted a threat to him and then disclosed those communications to prevent that threat, that all of the referenced communications lost their confidential status.   This moment occurred at the end of the session with both brothers on Oct. 31, 1989, when the Dr. revealed the communications to his wife and to Ms. Smyth.”

“It is important to note that all of the sessions occurred within about six weeks of October 31, 1989, and focused on the topic of the brothers and the murder of their parents.   Each session was related to and inextricably intertwined with the one that preceded it and followed it.   These communications are not privileged because they involved discussions that were simply statements and amplifications of matters discussed at the sessions on Oct. 31, 1989, and Nov. 2, 1989.   This court finds that each of these subsequent sessions was really one part of the totality of the series of sessions that had begun earlier.   The ‘communication’ as that term is used in [Evidence Code section] 1024 and Clark 10 is, under the unique facts of this case, all of the discussions between the brothers and the Dr. concerning the subject of the brothers' murder of their parents, their confessions, and the threat to the Dr., that occurred between Oct. 31, 1989 and Dec. 11, 1989.”

The court's rationale as to the latter sessions was incorrect because it construed section 1024 too broadly.   The result, however, was correct.   As the court appropriately concluded, “there is no logical legal or public policy rationale for there to exist a privileged, confidential relationship between a psychotherapist and patients who having confessed to two recent, impulsive and brutal murders, seriously threaten the psychotherapist's life.”


1. Evidence Code Section 1024 Exempts the October 31 and November 2 Sessions From the Privilege.

 Evidence Code section 1024 provides an exception to the psychotherapist/patient privilege where there is reason to believe (1) the patient is dangerous, and (2) it is necessary for the psychotherapist to disclose the communication.11

Even petitioners, who urge the narrowest possible construction of section 1024, concede for the purpose of argument that Dr. Oziel had reasonable cause to believe petitioners posed a danger to him, his wife, and his paramour.12  Petitioners contend, however, that all Dr. Oziel need have done was contact his wife and Smyth and inform them, in the simplest possible terms (and omitting any reference to a confession), that petitioners had threatened his life and he believed Smyth, Mrs. Oziel and the Oziel children were in danger also.

In our view, a “generic” warning of the type envisioned by petitioners would not have been sufficient in this case.   At the time of the October 31 session, petitioners had not been arrested, nor were they, as far as Dr. Oziel knew, suspects in the murders.   To the contrary, they had been publicly portrayed as the grieving sons of a close and loving family, hardly the type of individuals who were capable of committing a brutal, cold-blooded murder.   Given the public image that petitioners had cultivated, Dr. Oziel would have been hard pressed to convince anyone of the seriousness of the threat without including specific information about the crime.

Given the fact that the second session on November 2 occurred so soon after the first, and the threats made at the November 2 session were more direct, it was reasonable for Dr. Oziel to conclude that continued “updates” to his wife and Smyth were necessary in order to apprise them of the extent of the threats to Dr. Oziel and the consequent danger to them.

2. The November 28 and December 11 Sessions are Not Privileged.

 Our Supreme Court has “recognized the contemporary value of the psychiatric profession, and its potential for the relief of emotional disturbances and of the inevitable tensions produced in our modern, complex society.”  (People v. Stritzinger (1983) 34 Cal.3d 505, 514, 194 Cal.Rptr. 431, 668 P.2d 738;  In re Lifschutz (1970) 2 Cal.3d 415, 421, 85 Cal.Rptr. 829, 467 P.2d 557.)   The primary reason for the psychotherapist-patient privilege is to promote the therapeutic relationship.  (Clark, supra, 50 Cal.3d at p. 620, 268 Cal.Rptr. 399, 789 P.2d 127.)   Obviously, “[t]he accurate diagnosis and effective treatment in psychotherapy are greatly dependent upon conditions of trust and confidentiality between patient and therapist.”  (Scull v. Superior Court (1988) 206 Cal.App.3d 784, 789, 254 Cal.Rptr. 24.)   Conversely, the psychotherapist cannot provide effective treatment where the trust upon which the therapist-patient relationship is founded does not exist.

The respondent court found that the sessions involved here were “intended by the parties thereto to be for the purpose of therapy.”   This finding is not supported by substantial evidence.  (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.)   If petitioners ever had a relationship with Dr. Oziel based upon trust and confidence, that relationship disintegrated once petitioners threatened Dr. Oziel's life.   Indeed, under these circumstances, Dr. Oziel could not reasonably be expected to maintain an effective professional relationship with a patient who has expressed, in no uncertain terms, a desire to kill him, and had the ability to carry out the threat.   As the Supreme Court recognized inTarasoff, supra, “the open and confidential character of psychotherapeutic dialogue encourages patients to express threats of violence, few of which are ever executed.”   (17 Cal.3d at p. 441, 131 Cal.Rptr. 14, 551 P.2d 334.)   These, however, were not such threats;  petitioners were deadly serious.

In this case, it is evident from the record that from the time petitioners threatened Dr. Oziel, the doctor's primary objective was not to provide treatment to petitioners, but justifiably to protect his own life and the lives of his family and Smyth, who were only in danger because of their association with him.   Petitioners' primary objective was not to receive therapy, but to provide themselves with a possible psychiatric defense.   The latter two sessions focus primarily upon topics which might aid petitioners should they be arrested and tried for the murders.   During these sessions, Dr. Oziel was motivated by self-preservation, and petitioners were motivated by self-interest.   The purported “therapy” was, in fact, a charade.   No privilege existed because no therapist-patient relationship, of the type contemplated by Evidence Code section 1014, existed.


 In summary, we hold that where a psychotherapist has reasonable cause to believe that his patient poses a threat to himself or others, the psychotherapist may disclose otherwise confidential communications.   (Tarasoff, supra.)  Evidence Code section 1024 exempts from the psychotherapist-patient privilege all communications which a psychotherapist may reasonably believe are necessary to disclose in order to prevent the threatened danger.

 Where the patient seriously threatens the therapist himself, and thereafter neither the psychotherapist or the patient are engaged in a genuine therapeutic relationship, the confidential nature of the therapist-patient relationship ceases to exist, and further communications by the patient to the therapist are not privileged.


The petition for writ of mandate is denied.13


1.   The search was conducted pursuant to Penal Code section 1524, which provides in pertinent part:  “(a) A search warrant may be issued upon any of the following grounds:  [¶] ․ (4) When the property or things to be seized consist of any item or constitutes any evidence which tends to show a felony has been committed, or tends to show that a particular person has committed a felony.”Subdivision (c) of section 1524 provides that no search warrant shall issue for any documentary evidence in the possession of a lawyer, physician, psychotherapist or clergyman, unless the procedure set forth in subdivisions (c)(1) through (3) of section 1524 is complied with.   The portions of that procedure relevant to this proceeding are as follows:  “(1) At the time of the issuance of the warrant the court shall appoint a special master in accordance with subdivision (d) to accompany the person who will serve the warrant.   Upon service of the warrant, the special master shall inform the party served of the specific items being sought and that the party shall have the opportunity to provide the items requested.   If the party, in the judgment of the special master, fails to provide the items requested, the special master shall conduct a search for the items in the areas indicated in the search warrant.  [¶] (2) If the party who has been served states that an item or items should not be disclosed, they shall be sealed by the special master and taken to court for a hearing.   At the hearing the party searched shall be entitled to raise any issues which may be raised pursuant to Section 1538.5 as well as a claim that the item or items are privileged, as provided by law.   Any such hearing shall be held in the superior court.   The court shall provide sufficient time for the parties to obtain counsel and make any motions or present any evidence.   The hearing shall be held within three days of the service of the warrant unless the court makes a finding that the expedited hearing is impracticable.   In that case the matter shall be heard at the earliest possible time.”In accordance with this section, the items seized from Dr. Oziel were sealed by the special master and transmitted to the superior court.   The items remain under seal pending a resolution of the privilege issue by this court.   The only issue before us is whether the tapes should be released to the People or returned to Dr. Oziel.

2.   Evidence Code section 1012 provides:  “As used in this article, ‘confidential communication between patient and psychotherapist’ means 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.”   All further statutory references are to the Evidence Code unless otherwise indicated.

3.   According to Smyth, Dr. Oziel, while waiting for Lyle to arrive, took her into the outer hall and told her that, as he suspected, both boys were responsible for the killings of their parents.   He continued, “Judalon, if I let him tell Lyle, and I'm not there to see Lyle's face, to see the psychology of what's going on with Lyle, I'm really afraid for you and my kids and myself.   I have to be there when he tells Lyle.   So I'm going to have him get Lyle over here now.   So you just pretend as though you're waiting here for a session.”

4.   Evidence Code section 1014, which permits the holder of the privilege to prevent disclosure of privileged communications, extends to communications which are overheard by an “eavesdropper, finder or interceptor.”  (2 Witkin, California Evidence (3d ed. 1986), § 1074, p. 1019.)

5.   Dr. Oziel testified at the hearing below that he considered both his wife (a psychotherapist who shared his office suite) and Smyth to be within his “zone of confidentiality,” since they had both signed confidentiality agreements with him, and he did not believe his discussions with them would waive petitioners' psychotherapist/patient privilege.   The respondent court properly rejected this assertion.

6.   According to Smyth, Dr. Oziel told petitioners “that they had to be able to show, since they had confessed this to him, that they continue to have sessions in therapy ․  Lyle originally refused, but Dr. Oziel said, ‘We'll set up the appointments and you pay as though you have just been coming and if you need to come in, you can, if you don't, don't.   But it has to look like you have remorse and know you did wrong and are getting help.’ ”

7.   Judalon Smyth was also present in Dr. Oziel's outer office during the November 2 session.   She heard some parts of the conversation, and other parts were later told to her by Dr. Oziel.   After the November 2 session, Dr. Oziel continued to “update” those for whose lives he feared.   However, beyond the initial disclosures made between October 31 and November 2, he could not recall exactly what he had told either Mrs. Oziel or Ms. Smyth.

8.   Petitioners had purchased the murder weapons, two shotguns, at a sporting goods store in San Diego, and they were concerned that the purchase had been videotaped and that the tape had not yet been erased.

9.   The People's contention that they should not have been excluded from the hearing, while petitioners were allowed to attend, is without merit.   Under the circumstances presented here, the court's only alternative was to hold the hearing in camera.  Evidence Code section 915 provides:  “(a) Subject to subdivision (b), the presiding officer may not require disclosure of information claimed to be privileged under this division in order to rule on the claim of privilege;  provided, however, that in any hearing conducted pursuant to subdivision (c) of Section 1524 of the Penal Code in which a claim of privilege is made and the court determines that there is no other feasible means to rule on the validity of such claim other than to require disclosure, the court shall proceed in accordance with subdivision (b).”   Subdivision (b) of Evidence Code section 915 provides in pertinent part:  “When a court is ruling on a claim of privilege ․ and is unable to do so without requiring disclosure of the information claimed to be privileged, the court may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and such other persons as the person authorized to claim the privilege is willing to have present.”   Petitioners, the “persons authorized to claim the privilege,” were, for obvious reasons, unwilling to have the District Attorney present.

10.   People v. Clark (1990) 50 Cal.3d 583, 619–620, 268 Cal.Rptr. 399, 789 P.2d 127.

11.   Actual disclosure is not required, however, in order for the exception to prevail over the privilege, although the therapist may be ethically and legally required to make disclosure to a threatened third party.  (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334.)

12.   Petitioner's assertion that “there never was a direct threat made against Oziel” is most unpersuasive in view of statements such as “Now, how do we kill Oziel” and “We've got to kill him and anyone associated to him.”   Although Lyle made other statements which might otherwise seem innocuous (e.g., “Good luck, Dr. Oziel” and “Neither did my father,”) the implication of these statements, in the context in which they were used, is “chillingly clear.”  (See People v. Phillips (1985) 41 Cal.3d 29, 91, 222 Cal.Rptr. 127, 711 P.2d 423 (conc. and dis. opn. of Feinerman, J.)

13.   We have not been asked to rule on whether the privilege applies to other items seized during the search.   All of the items seized pursuant to the search warrant, including the tapes and transcripts at issue in this proceeding, are to remain under seal until ten (10) days after this decision becomes final.  (Cal.Rules of Court, Rule 24(a).)

ASHBY, Acting Presiding Justice.

BOREN and GRIGNON, JJ., concur.

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