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Name: People v. Gonzales
Case #: S191240
Court: CA Supreme Court
District CalSup
Opinion Date: 03/18/2013

In a trial under the Sexually Violent Predator Act (SVP), admission of defendant’s therapy records and therapist’s testimony, under the dangerous patient exception of Evidence Code section 1024, was error, although harmless under the Watson standard. As a condition of parole following conviction of Penal Code section 288, subdivision (a), appellant was required to attend outpatient psychological evaluation and treatment. In 2006, he was arrested for parole violations and, while in custody, SVP proceedings were initiated. Over appellant’s objection that psychological treatment records and testimony of the psychotherapist were protected under the psychotherapist-patient privilege, the prosecution obtained the records and testimony. The trial court determined that the prosecution was entitled to them under the dangerous patient exception to the privilege. The Supreme Court noted that the privilege is not absolute and when a therapist providing treatment to a parolee concludes that the patient is a danger to himself or others and disclosure is necessary to prevent the threatened danger, despite the psychotherapist-patient privilege, the therapist may testify in an SVP proceeding. Here, however, the trial court’s conclusion that the dangerous patient exception applied was based solely on the prosecution’s conclusory offer of proof that the records and testimony of the therapist would show that the therapist believed appellant presented a danger, and no actual proof was presented. Because appellant was a parolee and the therapy was required as a condition of parole, his expectation of privacy was reduced, particularly insofar as the state’s legitimate and substantial interest in the SVP proceeding. Accordingly, the erroneous admission of the records and the testimony were evaluated under the Watson standard. Here, it was found that it was not reasonably probable that a more favorable result would have been reached had the records and testimony been excluded.