A juvenile ward’s statements to a counselor, who was assigned to the minor and his family as part of his probation to assess their need for mental health services, did not fall within the psychotherapist-patient privilege. After sustaining a Welfare and Institutions Code section 602 petition, the juvenile court placed A.C. home on probation. Burgos, an in-home counselor, was assigned to A.C.’s family. She assessed the needs of the family and assisted the family and A.C. with receiving mental health services. She did not provide one-on-one therapy sessions. Prior to sessions with minors, she advises them that their statements will be private unless it appears to her that the life of someone else is in danger. During a session, A.C. told Burgos that he would stab classmates who were bullying him. Burgos reported A.C.’s statements and the prosecution filed a notice of violation of probation based on these statements. When the counselor testified at the violation hearing regarding the statements, the court overruled A.C.’s objection based on the psychotherapist-patient privilege (Evid. Code, § 1014). The juvenile court found that A.C. violated probation and he appealed. Held: Statements to counselor were admissible. Statements made by a patient to a psychotherapist during therapy are generally treated as confidential and are protected by the psychotherapist-patient privilege. But “when a therapist who is 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.” (People v. Gonzales (2013) 56 Cal.4th 353, 380.) Here, the record supported the juvenile court’s finding that Burgos was not acting as a therapist; she was assessing the needs of the family for mental health services. Even if A.C.’s statements were made to a therapist, they would still be admissible because Burgos felt they were a threat towards some individuals.

Insufficient evidence supported finding that the minor violated his probation by making an unlawful threat where he made statements about hurting unidentified bullies at school to convince counselor he should be excused from school. Based on the statements A.C. made to Burgos, the juvenile court found he violated a probation condition required that he “must not unlawfully threaten” any person. A.C. had told Burgos that he did not want to go to school and that he was being bullied by some unnamed students. He said he would react if the others teased him, that he would stab them with whatever he had available, and that he was serious about it. On appeal, A.C. argued that the evidence was insufficient to support the finding that he violated this parole condition. The People conceded there was insufficient evidence and the Court of Appeal agreed. To support the finding that A.C. made an unlawful threat, the People had to prove: (1) he made the statements with the specific intent that they be taken as a threat; (2) he communicated the statements directly or by a third party to the victims; and (3) the statements caused the victims to be in a state of sustained fear. When statements are made to a therapist, it is possible that a defendant may not violate the criminal threat statute (Pen. Code, § 422) “even though the third party psychotherapist has a duty to warn the intended victim.” (People v. Felix (2001) 92 Cal.App.4th 905, 908.) Here, there was no evidence A.C. intended to communicate the statements to the bullies at his school because he did not tell Burgos their names. There was no evidence that the students were in sustained fear because they did not know about the statements. A.C. was expressing his feelings and frustration about being bullied in a private setting and the statements were made to convince Burgos that he should be excused from attending school. Mere angry comments do not, by themselves, constitute criminal threats.

Insufficient evidence supported finding that the minor violated his probation by possessing, or acting like he possessed, a dangerous or deadly weapon. The juvenile court also found A.C. violated a probation condition that provided “You must not have, possess or act like you possess an object you know is a dangerous or deadly weapon. You must not knowingly have or possess a replica gun.” The juvenile court reasoned, “In order to stab somebody, [A.C.] would have to have an object he knows is a dangerous or deadly weapon.” On appeal, A.C. argued that the evidence was also insufficient to support the finding that he violated this parole condition. The People also conceded there was insufficient evidence and the Court of Appeal agreed. The probation condition prohibited the use or possession of a weapon. A.C. did not use a knife, he did not say he had “a dangerous or deadly weapon,” and there was no evidence that he possessed one. A.C. also did not perform an “act” that simulated his possession of a weapon. The juvenile court’s statement regarding A.C. needing to have a weapon to stab someone was based on speculation, not evidence of possession. The orders finding A.C. violated the probation conditions were reversed.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B292149.PDF