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Name: People v. Gonzales
Case #: H032866
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 01/27/2011
Subsequent History: Rev. gr. 4/27/11 (S191240)

The institution of SVPA proceedings does not strip an individual of the right to privacy against the unjustified disclosure of information protected by the psychotherapist-patient privilege such that the dangerous-patient exception automatically applies. In an SVPA proceeding, the prosecution sought discovery of appellant’s psychological records pertaining to out-patient treatment ordered as a condition of parole. Over defense objection, the trial court ruled that appellant’s psychological records were discoverable and admissible under the “dangerous patient” exception to the psychotherapist-patient privilege. The appellate court reversed. The dangerous patient exception should be narrowly construed, and here the prosecutor presented no evidence to support the application of the exception to the privilege. The prosecutor simply made a vague and conclusory offer of proof that the records would show appellant posed a danger. The records were not discoverable. Respondent’s reliance on People v. Martinez (2001) 88 Cal.App.4th 465, for the proposition that the privilege did not apply is misplaced because in that case the defendant was already civilly committed as a dangerous person and he could not have expected the privilege to attach since those records were generated as part of that treatment. Treatment as a condition of parole is different since release on parole suggests an individual poses a minimal risk to society. (See e.g., Story v. Superior Court (2003) 109 Cal.App.4th 1007 [privilege attaches to records of therapy ordered as probation condition].) In this case, given the nature of the records and the fact that the court allowed disclosure of everything in the file, the evidentiary error amounted to a constitutional violation of the right to privacy. Applying the Chapman standard, reversal was required because appellant told the psychotherapist that he had molested many more children than the authorities knew about and this would obviously impact the jury determining the SVPA proceedings.