Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 211111
RUSHING, P.J.
I. Statement of the Case
In 2007, the Santa Clara County District Attorney filed a petition to commit defendant Ramiro Gonzalez as a sexually violent predator (SVP) under the SVP Act. (Welf. & Inst. Code, § 6600 et seq.) A jury found the allegations in the petition to be true, and the court ordered defendant committed to the custody of the Department of Mental Health (DMH) for an indeterminate term.
All unspecified statutory references are to the Welfare and Institutions Code.
On appeal from the commitment order, defendant claims the trial court erred in releasing psychological records to the prosecution and admitting the testimony of his therapist. He claims there is insufficient evidence that circumstances had materially changed since a prior jury determination that he did not qualify as an SVP. He claims the court erred in refusing to instruct the jury that mental retardation could not be considered a mental disorder in determining whether he qualified as an SVP. He claims the indeterminate commitment violates his constitutional rights to equal protection and due process and also the constitutional protections against ex post facto legislation and double jeopardy. Finally, he claims the SVP law, as amended, violates his first amendment rights.
We conclude that further proceedings are necessary to resolve defendant’s equal protection claim. Accordingly, we reverse the commitment order and remand the matter.
II. The Evidence
Defendant’s Background
Defendant was born in 1955 and at the time of the SVP trial in 2008, he was 53 years old. At age seven, he contracted spinal meningitis which resulted in intellectual and developmental disabilities. Thereafter, he attended special education classes for a while but ultimately dropped out of school. He lived at home until he was sent to prison. During that time, he made money collecting cans for recycling and doing yard work. However, he needed help with daily living chores.
Between 1972 and 1974, defendant was convicted numerous times of petty theft. In 1975, at age 20, he was convicted of misdemeanor annoying or molesting a five-year-old girl. The probation report indicated that while he had an erection, defendant hugged the girl and whispered obscenities to her.
In 1977, defendant was convicted of lewd and lascivious conduct with a seven-year-old girl. In that incident, defendant was at the house where the girl lived to mow the lawn. He asked if he could use the phone but once inside faked making a call. The girl’s mother got suspicious, called her brother, and waited outside for him, leaving the girl sitting on the couch. When she and her brother returned, defendant was rubbing the girl’s buttocks and crotch area over her clothing. When asked to explain his conduct, defendant said it “looked easy” and he did not know how to “do sex” with women.
In 1981, defendant was convicted of vandalism, and in 1989, he was convicted of battery on a woman whom he pushed down after she threw away a beer that he was drinking. In 1994, defendant was convicted of molesting a four-year-old girl. In that incident, a woman, who was visiting defendant’s sister, put her daughter in a bedroom to sleep, and defendant was caught in the room rubbing her vagina.
Because of his impaired mental and intellectual development, defendant was housed at the San Andreas Regional Center, which provides services to those with developmental disabilities. Defendant received 24-hour care, supervision, and skills training.
Defendant was scheduled to be released on parole in the spring of 2004. At that time, the Santa Clara County District Attorney filed a petition seeking to have defendant committed as an SVP, but the jury found the allegations that he was likely to reoffend not true. Thereafter, defendant was released on parole with conditions that barred use of alcohol, contact with sex offenders, contact with minors, and being within 100 feet of places where children congregate, including parks and schools. He was not permitted to live at his mother’s residence because it was too close to a school, but he was allowed to visit her. He was also required to wear a tracking device and attend an outpatient psychiatric treatment program. Two different parole officers personally read and explained each of the conditions to defendant, and defendant signed the parole conditions acknowledging them. His second parole officer also drove defendant to his treatment program.
In July 2004, defendant was arrested for missing an outpatient meeting, and he was released in August. In January 2005, defendant violated parole because he was assisting another sex offender who lived in the same motel. Both offenders were reminded of the no-contact condition. In February 2005, defendant was arrested when parole agents found 20 beer cans in his motel room; he was released in June. In August he was arrested for drinking and released in December 2005.
In April 2006, defendant was fitted with another tracking device and agreed not to have contact with anyone under the age of 18 and to report any such contacts he had with minors, whether accidental or not. In August 2006, defendant’s parole agent learned from the tracking device that defendant had loitered in an area with a playground. The next day, the agent called defendant at his mother’s house. When the agent heard children’s voices in the background, he and other officers immediately went there. They found two children in the driveway, defendant’s mother, the children’s father, and defendant, who was then arrested. Defendant said that he knew he was not supposed to be near the playground, but he said he just stopped to roll some cigarettes and did not look at any of the children. Defendant also knew he was not supposed to be at the house when children were there and admitted that he had been drinking three times a week for a couple of months. Defendant was arrested for violating parole.
Defendant’s sister testified that she, her husband, and children moved to her mother’s house after they were evicted. Defendant lived in a motel but visited two or three times per week. He would collect empty cans, buy cigarettes, and drink. She never saw him inappropriately touch her children.
Professional Psychological Testimony
In January 2006, a parole agent took defendant to the Atkinson Assessment Center for outpatient treatment and counseling as a court-ordered condition of parole. Pat Potter McAndrews was defendant’s psychotherapist. She testified that she administered an assessment test (the Abel Assessment). Because of his limited intellectual abilities, she carefully explained and rephrased some of the questions and helped record his answers. Thereafter, defendant regularly attended his group sessions, and his participation was good.
During his initial interview, they discussed his family, medical, social, and criminal history, including the sexual misconduct and convictions. He told her he had been drinking alcohol regularly since he was 14 years old. He said that he had committed four sexual offenses against minors. Later, however, he reported that he had had a total of 16 victims. Defendant explained that he was very attracted to children, and when he was drinking, he could not really control himself and had an overwhelming desire to touch them.
During the treatment, McAndrews regularly asked defendant if he had been drinking, and he said that he had not done so after his release on parole. McAndrews was particularly concerned about this because alcohol lowered inhibitions and had played a part in defendant prior sexual misconduct. Defendant never told McAndrews that he had been drinking regularly or that his sister and her children had moved in to his mother’s house, and she was unaware that defendant had violated parole by drinking or that he was visiting his mother’s house. McAndrews said these facts would have been very important to have known because they showed that defendant had the opportunity to commit another offense. Had she known, she would have been highly concerned because his drinking around children was a “recipe for a sex offense.”
After defendant was arrested at his mother’s house, two state appointed psychologists, Jack Vognsen and Thomas MacSpeiden, evaluated him to determine whether he posed a risk of danger. At the SVP trial, both MacSpeiden and Vognsen testified that defendant met the statutory criteria for an SVP: (1) he had previously been convicted of sexually violent offenses against at least two victims; and (2) he suffered from a diagnosed mental disorder that rendered him dangerous because of a likelihood he would commit similar offenses. (See § 6600, subd. (a)(1).)
Specifically both psychologists diagnosed defendant with pedophilia and opined that it impaired his emotional and volitional capacity. MacSpeiden opined that defendant also suffered from alcohol dependency and borderline intellectual functioning. Vognsen opined that defendant suffered from alcohol abuse and mild mental retardation.
The psychologists reviewed defendant’s background, history, and available records. They conducted their evaluations and reached their conclusions before reviewing defendant’s records from the Atkinson Center. However, at trial, both noted defendant’s statement to McAndrews that between the ages of 14 and 37, he had sexually touched 16 children. MacSpeiden testified that this confirmed his analysis and conclusion. Vognsen concurred and found the statement significant.
Both psychologists accepted the jury finding in 2004 that defendant was not likely to reoffend. However, they both felt that defendant’s subsequent parole violations reflected a material change in the circumstances after 2004 and demonstrated a decreasing ability to control his behavior. MacSpeiden believed that since 2004, defendant’s drinking had gotten worse, and his presence in places where children were or might have been manifested his diminished control.
Both psychologists administered a standardized risk assessment test designed to evaluate the likelihood that a person would reoffend (Static 99). The test results in each case placed defendant in a very high risk group, and both psychologists testified that in general the test underestimated risk. The psychologists considered a number of other static and dynamic risk factors. Both doctors found that defendant’s low intellectual functioning made it difficult for him to learn how to control his impulses. Although defendant had engaged in therapy sessions, the psychologists disagreed concerning whether he was amenable to treatment and could understand how to avoid sexual misconduct. Together, defendant’s low intellectual functioning, pedophilia, and alcohol dependence made him dangerous.
Based on their evaluation of defendant, both psychologists concluded that he was likely to engage in sexually violent predatory acts as a result of his diagnosed mental disorders. Vognsen was also concerned that defendant would stay with his mother if released. He noted that when defendant was last arrested, his mother said, “ ‘I don’t see what the problem is. He just comes here, has a few beers with us and watches the kids.’ ” Vognsen considered it dangerous for defendant to rely on his mother for support because “[S]he’s so protective and, one might say, enabling of his bad habits.”
Two psychologists, Timothy Joseph Derning and Brian Abbott, testified for the defense.
Derning explained that mental retardation is a disability and not an illness. He opined that because of his disability, defendant was dependent on his mother and family and his routine of visiting her, and, therefore, it would have been very difficult for him to alter on his habits and develop alternatives to comply with his parole conditions after his sister and her children moved in.
Derning had previously evaluated defendant in 2004. In this case, he reviewed defendant’s records, including those from the San Andreas Regional Center, the Department of Corrections, the Atkinson center, as well as police, probation, and parole reports and the evaluations by MacSpeiden and Vognsen and the testing by McAndrews. Because of defendant’s disabilities and reading difficulties, he did not think that defendant could understand the test and did not believe its results were valid. Despite defendant’s parole violations after 2004, he did not find that defendant’s ability to comply with rules and regulations or control his behavior or sexual impulses had deteriorated. He criticized the contrary conclusions by MacSpeiden and Vognsen for failing to adequately address the impact of defendant’s mental retardation. He also believed that mental retardation was a more accurate and appropriate diagnosis than pedophilia. According to Derning, that defendant had on occasions explored sex with little girls could be attributed to his retardation and did not necessarily mean that he had a sexual preference or urge for children or suffered from pedophilia.
Abbot also evaluated defendant in 2004 and reviewed defendant previous and subsequent history and records. He testified that although defendant suffered from mental retardation and alcohol dependence, he did not currently suffer from pedophilia or have any other mental disorder, and he faulted the contrary view because it was based on old behavior and failed to consider mental retardation as a possible explanation for defendant’s prior sexual behavior. Abbot characterized defendant’s inappropriate behavior with girls to be isolated incidents of sexual experimentation attributable to poor impulse control and bad judgment, both of which are manifestations of his retardation. Apart from these incidents, Abbott believed that defendant appeared to have adequate control over his sexual impulses and feelings. And there was no evidence that he had attempted any inappropriate acts with children since his incarceration in 1994. Since his release on parole, he had properly registered as a sex offender, attended counseling and individual therapy, complied with room searches and worn his tracking device. Thus, except for resuming his life-long habit of drinking beer, defendant had demonstrated his ability to comply with rules and regulations. Consequently, he did not find that there had been a material change in defendant’s circumstances after his release on parole.
Given defendant’s limited verbal skills and retardation, Abbot questioned the validity and reliability of the Abel Assessment, which was not designed to assess those with mental disabilities. He also opined that the Static 99 had inherent design flaws, and he believed the risk of reoffending posed by defendant to be much lower than MacSpeiden or Vognsen had found.
Defendant’s Testimony
Defendant recalled that his parole agent explained the conditions of parole, and he knew he was not supposed to drink or be near children. He admitted drinking beer. He recalled molesting the girl in 1994 and explained that he was drunk. He said he had similarly molested two other girls. He knew that doing so was wrong. He said that if he were released on parole, he would register with the police department, see his parole officer, and then see his mother.
III. Release of Records from Atkinson Center
Before trial, the district attorney subpoenaed defendant’s psychological records from the Atkinson Center. Defendant sought to quash the subpoenas and exclude both the records and any testimony from McAndrews, his therapist at the Center, on grounds that all of the information was protected by the psychotherapist-patient privilege. (Evid. Code, § 1014.)
Evidence Code section 1014 provides: “[T]he patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist....”
At a hearing, the district attorney argued, among other things, that defendant’s therapy records and all communications between him and his therapist were admissible under the “dangerous patient” exception to the psychotherapist-patient privilege. (See Evid. Code, § 1024.) In support of this argument, the district attorney made an offer of proof that “Dr. Atkinson, as well as [defendant’s parole agent] all believe that [defendant] did present a danger and would have indicated as such in their records.”
The court found that the materials sought were covered by the psychotherapist-patient privilege, but further found that they were relevant concerning whether defendant currently posed a risk of danger to others and came within the “dangerous patient” exception to privilege.
Defendant contends that the trial court erred in finding that the “dangerous patient” exception applied.
Our Supreme Court has consistently recognized “ ‘the public interest in supporting effective treatment of mental illness and... the consequent public importance of safeguarding the confidential character of psychotherapeutic communication.’ [Citations.]” (People v. Wharton (1991) 53 Cal.3d 522, 555 (Wharton), quoting Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 440.)
By its terms the psychotherapist-patient privilege protects “ ‘confidential communication between patient and psychotherapist.’ ” (Evid.Code, §§ 1012, 1014.) “The privilege can cover a communication that was never, in fact, ‘confidential’-so long as it was made in confidence. The communication need only comprise ‘information... 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 ‘outside’ third person. [Citation.] [¶] Similarly, the privilege can cover a communication that has lost its ‘confidential’ status. [¶] ‘[T]he patient... has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist... ’ [Citation.]” (Menendez v. Superior Court (1992) 3 Cal.4th 435, 447-448 (Menendez).) The “privilege to prevent” disclosure to others not only prevents disclosures by a patient’s psychotherapist, it also governs any other third person privy to a confidential communication. “In this aspect, the ‘privilege to prevent’ effectively repudiates the old ‘eavesdropper rule, ’ under which the privilege is defeated whenever any ‘outside’ ‘third person-eavesdropper, finder or interceptor-overhears or otherwise receives the confidential communication....’ [Citations.]” (Id. at p. 448.)
“Where the psychotherapist-patient privilege is claimed as a bar to disclosure, the claimant has the initial burden of proving the preliminary facts to show the privilege applies.” (Story v. Superior Court (2003) 109 Cal.App.4th 1007, 1014 (Story).
As important as psychotherapeutic confidentiality is, it is not absolute, and its value and the protection of the privilege may be outweighed by other societal interests. (Story, supra, 109 Cal.App.4th at p. 1014; San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1091 (San Diego Trolley).) Such a determination is expressed in Evidence Code section 1024 which establishes an exception to the privilege, commonly referred to as the “dangerous patient” exception. (Menendez, supra, 3 Cal.4th at p. 449.) That section provides, in relevant part, “ ‘There is no [psychotherapist-patient] privilege... if the psychotherapist has reasonable cause to believe that the patient is in such a 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.” The exception reflects the Legislature’s conclusion that “the value of safeguarding confidential psychotherapeutic communications, as great as it is, is outweighed by the public interest in protecting foreseeable victims from physical harm. [Citation.]’ ” (San Diego Trolley, supra, 87 Cal.App.4th at p. 1091, fn. 1, quoting Evid. Code, § 1024.)
Nevertheless, because the psychotherapist-patient privilege is to be liberally construed in favor of the patient, courts “have an ‘obligation to construe narrowly any exception to the psychotherapist-patient privilege: we must apply such an exception only when the patient’s case falls squarely within its ambit.’ [Citation.]” (Wharton, supra, 53 Cal.3d at p. 554.) Moreover, even when the factual predicate for the exception is shown, it applies only to those communications which triggered the psychotherapist’s conclusion that disclosure of a communication was needed to prevent harm. (Ibid.; San Diego Trolley, supra, 87 Cal.App.4th at p. 1091.)
Where a claimant has shown the privilege applies, the burden shifts to the opponent to show that the communications were not confidential, the privilege was waived, or the communications fall within an exception to the privilege. (Story, supra, 109 Cal.App.4th at p. 1015.)
With these principles in mind, we turn to the trial court’s ruling in this case, and, in particular, its finding that the “dangerous patient” exception applied.
The Attorney General does not challenge the trial court’s finding that communications between defendant and McAndrews were presumptively privileged. Understandably so. It is undisputed that defendant saw McAndrews for psychotherapy as a condition of parole.
Although the district attorney had the burden to prove the factual predicate for the exception, he presented no evidence that defendant had ever said anything to McAndrews during therapy that led her to believe that he posed a danger to others. Nor did the district attorney present any evidence that McAndrews ever considered it necessary to disclose particular confidential communications in order to prevent defendant from harming someone or that she discussed such a concern with anyone. Indeed, later at trial, McAndrews did not suggest that over the course of therapy, defendant’s statements caused her alarm or led her to think he might be dangerous. On the contrary, her testimony implies that she had no such concerns and never thought of disclosing any confidential material except what might be necessary to keep defendant’s parole officer apprised of defendant’s compliance with his condition of parole. McAndrews did express some concern that certain circumstances constituted a “recipe” for a possible offense. However, that concern was not based on confidential communications during therapy; it arose because she learned from someone else that defendant had been drinking and was around his sister’s children.
The sole basis for the court’s ruling was the district attorney’s brief, vague, and wholly conclusory offer of proof that the records of McAndrews and defendant’s parole officer would show that they believed defendant posed a danger. The district attorney did not reveal how, before discovery was authorized, he came to know what McAndrews thought or what her records might have indicated. Nor did he suggest that he had spoken to McAndrews or defendant’s parole officer and that when McAndrews learned about defendant’s drinking and his sister’s children, she felt that he might pose a danger. In any event, even if she had expressed concern to the district attorney or parole officer, the district attorney’s offer still failed to establish that McAndrews felt that it was necessary to disclose confidential communications in order to prevent some harm.
In short, the record does not contain sufficient evidence to support the application of the “dangerous patient” exception. Moreover, notwithstanding a correct finding that the material sought was privileged, and the mandate to narrowly construe the “dangerous patient” exception, the court granted the district attorney blanket discovery of all records and information about defendant’s therapy and implicitly authorized McAndrews to testify about everything and anything concerning the therapy, including what she and defendant said to each other during therapy as well as her advice and diagnosis. Under the circumstances, we conclude that the trial court abused its discretion.
In defense of the court’s ruling, the Attorney General relies on this court’s opinion in People v. Martinez (2001) 88 Cal.App.4th 465 (Martinez). However, the Attorney General’s reliance is misplaced.
To explain Martinez, we first discuss People v. Lakey (1980) 102 Cal.App.3d 962 (Lakey). In Lakey, the defendant was involuntarily committed to a state institution as an MDSO (mentally disordered sex offender), where he underwent therapy. At a later hearing to extend the commitment, two psychologists testified in favor of recommitment, basing their opinions on defendant’s treatment history, records, and statements during therapy. (Id. at pp. 967-969.)
On appeal, the defendant claimed that this testimony violated the psychotherapist-patient privilege. The court disagreed. It noted that the privilege is not absolute. The court explained that the MDSO commitment was designed to provide the defendant with treatment and to protect society. One purpose of supervised confinement and psychotherapy was to monitor progress and gather information that was relevant to future dangerousness and provide a basis for decisions concerning whether the MDSO should be released. (Lakey, supra, 102 Cal.App.3d at pp. 976-977.) The court found no evidence that the Legislature intended to preclude reliance on such information under the psychotherapist/patient privilege. (Ibid.)
The court found support in Evidence Code section 1024, noting that the MDSO recommitment proceeding was premised on the treating psychologists’ belief that the defendant currently constituted serious threat to society. Under the circumstances, the court opined that “ ‘the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.’ ” (Lakey, supra, 102 Cal.App.3d at p. 977, quoting Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425, 442.)
In Martinez, supra, 88 Cal.App.4th 465, the defendant was convicted of sex offenses and later involuntarily committed to a state institution as an MDSO, where he received psychiatric treatment and therapy. At some point he was released, and years later, he was convicted of failing to register as a sex offender and placed on probation. He violated probation by again failing to register and was incarcerated. Before his term expired, the district attorney initiated an SVP commitment proceeding. At trial, two psychologists opined that the defendant qualified as an SVP. They testified that they relied on the defendant’s institutional psychiatric records, including prior psychological evaluations and statements the defendant had made to psychologists, assistants, and technicians during his previous MDSO commitment. On appeal, the defendant claimed that the admission of this testimony violated his psychotherapist-patient privilege. This court rejected his claim. (Id. at pp. 469-473, 482-483.)
We discussed Lakey, supra, 102 Cal.App.3d 962, agreed with its analysis, and applied it in the context of an SVP proceeding. “The SVPA protects the public from sexual predators by detaining them and providing treatment until the mental condition causing their disorder has abated. The determination that a disorder has abated requires a full assessment of the person’s current mental condition, including reference to treatment records and progress in therapy.” (Martinez, supra, 88 Cal.App.4th at p. 484, italics added.) Accordingly, we concluded that the psychotherapist-patient privilege did not preclude later SVP psychologists from considering and testifying about statements defendant had previously made as an MDSO because the privilege never attached to his communications with the treatment staff. “Indeed, given Lakey, an MDSO commitment, the purpose of his initial evaluation and subsequent supervision and treatment, defendant could not have expected his communications to be absolutely confidential or otherwise protected by the privilege.” (Ibid.)
Martinez and Lakey stand for the proposition that in the context of an MDSO or SVP commitment or recommitment proceeding, the psychotherapist-patient privilege does not protect psychological records of a previous involuntary commitment. Those records are generated, in part, as part of an ongoing process designed to treat MDSO’s and SVP’s and to provide authorities with a professionally informed basis for determining whether it is safe to release such persons upon the expiration of their terms of involuntary commitment. When those treatment records are being generated, the MDSO or SVP cannot reasonably expect that their therapeutic communications would be absolutely confidential or protected by the privilege at future commitment or recommitment hearings. At such hearings, the public safety purpose and benefit of a full assessment of a MDSO’s or SVP’s mental condition, including review of institutional psychotherapy records, outweighs the general public policy favoring confidentiality between psychotherapist and institutionalized patient. Under these circumstances, the MDSO’s or SVP’s records may reasonably be deemed to fall within the “dangerous patient” exception.
The circumstances here are distinguishable from those in Martinez and Lakey. A defendant who has been released on parole with a therapy condition is not comparable to a person involuntarily committed to a state institution as an MDSO or an SVP in order to protect the public and provide treatment. Moreover, in our view, a parolee participating in court-ordered therapy can reasonably expect communications with a psychotherapist to be confidential and protected by the privilege.
We find support for our view in In re Pedro M. (2000) 81 Cal.App.4th 550 (Pedro M.) and Story, supra, 109 Cal.App.4th 1007. In Pedro M., the minor committed a sex offense and was placed in a facility for young sex offenders on condition he participate in psychological testing and treatment. When he refused to cooperate, the court sent him to CYA (California Youth Authority) based on testimony from a therapist about the minor’s participation and progress. On appeal, the minor claimed the testimony violated the psychotherapist-patient privilege. The court disagreed, explaining that because psychological treatment was ordered, the therapist’s testimony was necessary to evaluate the minor’s compliance. The court noted that Evidence Code section 1012 expressly provided for the disclosure of a confidential communications between patient and psychotherapist to “ ‘those to whom disclosure is reasonably necessary for... the accomplishment of the purpose for which the psychotherapist is consulted....’ ” (Id. at pp. 553-555.) This did not mean that the privilege did not apply at all. The court pointed out that the juvenile court had properly circumscribed the therapist’s testimony, limiting it to the issue of compliance with the therapy order so that the therapist would not reveal details of therapeutic sessions, the minor’s diagnosis, the therapist’s advice, or statements by the minor. (Id. at. pp. 554-555.)
In Story, supra, 109 Cal.App.4th 1007, the defendant was charged with murder, and the district attorney sought the record of therapy that had previously been ordered as a condition of probation in an unrelated case. This court reversed the order granting discovery, concluding that the records were privileged. (Id. at pp. 1010-1019.) In doing so, we rejected a claim, based on Martinez, supra, 88 Cal.App.4th 465, that therapy ordered as a condition of probation was the same as therapy provided during an involuntary MDSO or SVP commitment and therefore the therapy records were not protected by the privilege. We found reliance on Martinez misplaced because the two therapeutic contexts were distinguishable. In Martinez (and Lakey), it was appropriate to apply the “dangerous patient” exception to the therapy records of MDSO’s and SVP’s because there had been a determination that the defendant posed a danger to others before the therapy commenced and the defendant was considered dangerous during his commitment. By contrast, we observed in Story that probation is reserved for those who pose a minimal risk of danger. Thus, the rationale of the exception had no application to those released on probation and ordered to participate in therapy, and under such circumstances the public’s compelling interest in safety did not outweigh the public policy of confidentiality and the potential benefit conferred to a probationer by protecting the confidentiality of his or her therapy. In this regard, we agreed with Pedro M., supra, 81 Cal.App.4th 550 that the psychotherapist-patient privilege attached to the records of court-ordered therapy except for the limited disclosure of information reasonably necessary to monitor and ensure compliance with the probation condition.
For the purpose of determining whether the privilege applies, we find no meaningful basis to distinguish between therapy ordered as a condition of probation and therapy ordered as a condition of parole. (Cf. D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 204 [“no meaningful distinction between treatment ordered as a condition of probation and treatment ordered as a condition of parole” for purposes of determining whether failure to comply signifies an intractable substance abuse problem].) In both circumstances, the defendant has been conditionally released to the general public subject to supervision because he or she poses a minimal safety risk; therapy is ordered to assist the defendant’s rehabilitation; and preserving confidentiality will facilitate that goal.
We acknowledge that in Story, the district attorney sought the defendant’s therapy records to help in a prosecution for murder; and here, the district attorney sought the records to help in an SVP commitment proceeding that was commenced only after two psychologists-MacSpeiden and Vognsen-had made a preliminary determination that defendant currently suffered from a mental disorder and was likely to commit a sexually violent offense in the future, and only after the trial court found probable cause to believe that defendant qualified for commitment as an SVP. (§§ 6601, subds. (a)(1)-(2), (b), (c), (d), & (i); 6602.) Under such circumstances, one could reasonably argue that the general policy favoring confidentiality between patient and psychotherapist is outweighed by the compelling public interest in protection from SVP’s and by the benefit at an SVP trial of having a comprehensive assessment of defendant’s mental condition based on all mental health records and relevant testimony, including records of therapy ordered as a condition or probation or parole.
However, in deciding whether to allow discovery of material that is presumptively privileged, the court does not simply determine whether the public benefits of disclosure outweigh the policy behind the privilege. Unquestionably, the rules of evidence, including those concerning the psychotherapist-patient privilege and exceptions thereto, apply no less to SVP trials than criminal trials. For that reason, using a simple balancing test to rule on privileged material, though attractively efficient, is not possible. Rather, where the claimant establishes that the privilege is applicable, the opponent must show that the material sought was not confidential, the claimant waived the privilege, or the material comes within a statutory exception. (Story, supra, 109 Cal.App.4th at p. 1015.) Here, the district attorney failed to satisfy this burden and show that the “dangerous patient” exception applied, and the analyses in Martinez and Lakey do not support the court’s finding that it did.
We turn now to the question of prejudice. Despite the release of defendant’s records from the Atkinson Center and McAndrews’s extensive testimony about their therapy sessions, defendant claims reversible prejudice arose from only one piece of evidence: his statement to McAndrews that he had 16 victims.
Defendant claims the court’s erroneous evidentiary finding and discovery ruling violated his state constitutional right to privacy (Cal. Const. art. I, § 1) and compels reversal unless the Attorney General can show that it was harmless beyond a reasonable doubt. However, that standard of review applies to errors that violate a defendant’s federal constitutional rights. (Chapman v. California (1967) 386 U.S. 18, 24.) Defendant does not claim such a violation and cites no authority for the proposition that the federal standard applies to errors under California law. On the contrary, it is settled that the standard of review for error under state law is whether it is reasonably probable the defendant would have obtained a more favorable result in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
McAndrews reported that defendant said he had committed four sexual offenses against minors. She also said that when asked how many victims he had had, he said 16. However, there was no evidence or testimony corroborating that number. Moreover, during their evaluations of defendant, MacSpeiden and Vognsen did not have access to McAndrews’s report, they were unaware of his statement about the claimed number of victims, and they could not have relied, and did not rely on, it in independently concluding that defendant qualified as an SVP. Rather, they relied on the undisputed evidence concerning defendant’s convictions for sexual misconduct with minors, particularly his 1994 conviction for lewd conduct. When they learned of his later statement, they found that it merely corroborated their determinations.
We further note that McAndrews was cross-examined extensively concerning the reliability of the various statements that defendant made to her. And Derning testified that it was common for intellectually disabled persons like defendant to mask their limitations, say self-detrimental things, be manipulated and be susceptible to suggestions in order to appear normal.
Clearly, the court’s error did not influence the conclusions reached by McSpeiden and Vognsen, and there is no reasonable possibility they would have come to a different conclusion had the error not occurred. There was undisputed evidence of defendant’s prior acts of sexual misconduct, which were sufficient to sustain an SVP finding. There was also undisputed evidence of defendant’s parole violations for drinking and being where children were or might be. Moreover, there was undisputed evidence that at a previous SVP trial, the jury did not find that defendant posed a risk of danger to others. Finally, the jury heard the testimony of two experts who disagreed with MacSpeiden and Vognsen and concluded that defendant was not an SVP. And jurors were aware of defendant’s intellectual disability and the limitations that it could have on his comprehension and veracity.
Under these circumstances, we do not find it reasonably probable that defendant would have obtained a more favorable verdict had evidence of defendant’s statement to McAndrews been excluded. (People v. Watson, supra, 46 Cal.2d at p. 836.)
IV. Sufficiency of the Evidence
To commit defendant as an SVP, the jury had to find that defendant was convicted of a violent sexual offense, he suffered from a mental disorder affecting his volitional or emotional capacity, and the disorder rendered him a danger to others because he was likely to engage in sexually violent criminal behavior. (§ 6600, subd. (a); People v. Hurtado (2002) 28 Cal.4th 1179, 1187-1188.) Moreover, because the jury at defendant’s previous SVP trial in 2004 did not make those findings and he was release on parole, the jury in this case also had to find that circumstances had materially changed since 2004 and made defendant likely to reoffend if released from custody. (Turner v. Superior Court (2003) 105 Cal.App.4th 1046, 1060 (Turner).)
To this end the jurors were instructed that in 2004, defendant was found not likely to commit a sexually violent crime and that they had to accept that finding. They were further advised that they could not find that defendant was likely to reoffend unless the prosecution proves beyond a reasonable doubt that there were materially changed circumstances since 2004 that rendered defendant likely to reoffend. Absent such proof, they must find that he was not likely to reoffend.
Defendant contends that there is insufficient evidence to support the jury’s finding of changed circumstances. We disagree.
When considering a challenge to the sufficiency of the evidence to support an SVP determination, we determine whether there is substantial evidence-i.e., evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could make the necessary findings beyond a reasonable doubt. In making that determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. Rather, we review the whole record in the light most favorable to the judgment, we draw all reasonable inferences from the evidence that support it, and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Fulcher (2006) 136 Cal.App.4th 41, 52 [same standard used in criminal cases]; see Jackson v. Virginia (1979) 443 U.S. 307, 319-320 [standard in criminal cases]; People v. Johnson (1980) 26 Cal.3d 557, 578 [same].)
Here, both MacSpeiden and Vognsen said that they accepted the 2004 jury determination that that defendant was not likely to reoffend. However, both testified that circumstances had materially changed since then. MacSpeiden believed that since 2004, defendant’s drinking had gotten worse. Vognsen expressed concern that defendant wanted to be with his mother, who did not seem to care about whether he complied with the conditions of parole and in fact enabled him to drink and be around children at her house. Both opined that defendant’s subsequent failure to comply with simple but important conditions of parole related to avoiding the use of alcohol and being in places where minors might be not only reflected a decreasing ability to control his behavior but also an increasing likelihood of reoffense.
The testimony of two expert witnesses supports the jury’s finding of changed circumstances. Indeed, “[t]he testimony of one witness, if believed, may be sufficient to prove any fact.” (People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1508; Evid. Code, § 411.) Moreover, although defendant presented two experts who disagreed with virtually every finding and conclusion that MacSpeiden and Vognsen reached, “[t]he credibility of the experts and their conclusions were matters resolved against defendant by the jury, ” and, therefore, “[w]e are not free to reweigh or reinterpret the evidence.” (People v. Mercer (1999) 70 Cal.App.4th 463, 466-467; People v. Perry (1972) 7 Cal.3d 756, 785, fn. 17, disapproved on another point in People v. Green (1980) 27 Cal.3d 1, 28.)
Defendant’s reliance on Turner, supra, 105 Cal.App.4th 1046 is misplaced. There, the defendant was committed as an SVP in 1999. Before his term expired, recommitment proceedings were commenced. In 2001, after a trial, the jury found that the defendant was not an SVP, and he was released on parole. In 2002, while on parole, he was arrested for violating a curfew. A new commitment proceeding was commenced, and at the probable cause hearing, two psychologists opined that the defendant qualified as an SVP. These were the same two psychologists who had testified in support of his commitment in 1999. They did not base their opinions and conclusions on events and evidence that occurred after the prior trial-i.e., the curfew violation-but rather on the same evidence presented at the prior trial, where the jury found that the defendant was not an SVP. Moreover, neither psychologist accepted the jury’s previous and contrary finding or explained why, despite that determination, the facts were sufficiently different to support their conclusions that the defendant was likely to reoffend. (Id. at pp. 1050-1054, 1062-1063.)
The defendant claimed the expert testimony was not enough to show probable cause and argued that the district attorney was trying to relitigate the previous SVP petition. The court rejected this claim, and the defendant sought writ relief. The reviewing court held that the district attorney was barred from relitigating the issue of whether the defendant was likely to reoffend in 2001. That issue had been determined by the jury. Rather, the issue was whether defendant was likely to reoffend in 2002. (Turner, supra, 105 Cal.App.4th at pp. 1059-1060) Thus, “to establish probable cause in the subsequent proceeding, the district attorney must present evidence of a change of circumstances, i.e., that despite the fact the individual did not possess the requisite dangerousness in the earlier proceeding, the circumstances have materially changed so that he now possesses that characteristic. In requiring the district attorney to present evidence of changed circumstances, we are not suggesting that historical information is no longer relevant. It clearly is. A mental health professional cannot be expected to render opinions as to current status without fully evaluating background information. However, where an individual has been found not to be an SVP and a petition is properly filed after that finding, the professional cannot rely solely on historical information. The professional must explain what has occurred in the interim to justify the conclusion the individual currently qualifies as an SVP.” (Id. at p. 1060, italics added.) The court concluded that the expert opinion testimony, which was not based on new facts or changed circumstances, failed to support a finding of probable cause. (Id. at pp. 1061-1063.)
Turner is distinguishable. Here, both MacSpeiden and Vognsen acknowledged and accepted the jury’s 2004 determination that defendant was not an SVP. Moreover, both specifically based their conclusions on defendant’s post-2004 parole violations, which together represented a far more significant change of circumstances from the prior jury determination than the single violation of curfew in Turner because defendant’s violations involved drinking and being around children. Indeed, the evidence strongly suggested that defendant was allowed to drink at his mother’s home, where his sister had moved with her children.
V. Instruction on Mental Retardation
Defendant contends that the court erred in refusing his request to give the following special instruction: “You are hereby instructed that you may not use mental retardation as the required diagnosed mental disorder for purposes of satisfying criteria 2 in the definition of a sexually violent predator.” In essence, defendant claims that for the purposes of an SVP commitment, mental retardation cannot be considered a “diagnosed mental disorder.” (§ 6600, subd. (a)(1).)
Section 6600, subdivision (a)(1) provides, “ ‘Sexually violent predator’ means a person who has been convicted of a sexually violent offense against one or more victims and who had a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” (Italics added.)
In support of his claim, defendant cites Heller v. Doe (1993) 509 U.S. 312, where the court rejected an equal protection challenge to a law that made it easier to involuntarily commit mentally retarded persons than it was under other laws to commit persons suffering from a mental illness. The court explained that because there is an objective difference between mental retardation and mental illness, there was a rational basis to treat the two groups differently. (Id. at pp. 321-328.) Defendant notes that California likewise has different service delivery systems and commitment procedures for those with developmental disabilities, including mental retardation, and those with mental illnesses.
He next points out that the distinction between mental retardation and mental illness is reflected in the statutes concerning competency to stand trial, which treat those suffering from each condition differently. (See Pen. Code, §§ 1367, 1367.1, 1370, 1370.1, 1370.01.) Defendant asserts that these statutes show that the Legislature knows how to differentiate between the two groups when it intends to do so. Defendant invokes the rule of construction that where one statute has a specific provision on a subject, the omission of such a provision in a similar statute concerning a related subject may reflect a different legislative intent. (See In re Jennings (2004) 34 Cal.4th 254, 273.) He argues that since the SVP law applies only to those with “diagnosed mental disorders” and, unlike the competency statutes, does not expressly include those with developmental disorders, the omission reflects a legislative intent to prevent the use of developmental disabilities, including mental retardation, as a “diagnosed mental disorder” for the purpose satisfying that criteria in the definition of an SVP.
Defendant’s analysis does not convince us that the Legislature intended to exclude mental retardation from the definition a “diagnosed mental disorder.” Indeed, the opposite conclusion is perhaps more reasonable.
The Mentally Disordered Offender (MDO) Act (Pen.Code, § 2960 et seq.) is a civil commitment statute that is more akin to the SVP act than the statutes governing a defendant’s competency to stand trial. One of the criteria making offenders eligible for an MDO commitment is that they have a severe mental disorder that is not in remission or cannot be kept in remission without treatment (Pen.Code, § 2962, subd. (a)). The MDO Act defines a “ ‘severe mental disorder’ ” as “an illness or disease or condition that substantially impairs the person’s thought, perception of reality, emotional process, or judgment; or which grossly impairs behavior; or that demonstrates evidence of an acute brain syndrome for which prompt remission, in the absence of treatment, is unlikely. The term ‘severe mental disorder’ as used in this section does not include a personality or adjustment disorder, epilepsy, mental retardation or other developmental disabilities, or addiction to or abuse of intoxicating substances.” (Pen.Code, § 2962, subd. (a).)
The MDO Act indicates that when the Legislature defines a term like “mental disorder” broadly using language that can include developmental disabilities and mental retardation, it knows how to exclude those conditions if it does not intend for them to be included.
Section 6600, subdivision (c) defines a “ ‘[d]iagnosed mental disorder’ ” to include any “congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of society.” This broad language reasonably includes a developmental disability and mental retardation. Thus, the very rule of construction invoked by defendant supports argument that the lack of an express exclusion for developmental disabilities like that in the MDO Act reflects the Legislature’s intent to include them within the broad definition of a “diagnosed mental disorder.”
However, we need not decide whether mental retardation may qualify as a “diagnosed mental disorder” because even assuming it may not and, therefore, that defendant’s pinpoint instruction was appropriate and warranted, any error in refusing to give it was harmless.
In essence, defendant argues that without his pinpoint instruction, jurors could have misunderstood the court’s more general instruction reiterating the statutory definition of a “diagnosed mental disorder” and erroneously found that his mental retardation, by itself, qualified him as an SVP.
There was no evidence remotely suggesting that mental retardation predisposes one to commit sexual offenses, and none of the four psychological experts implied that mental retardation was itself a mental disorder or that mental retardation could, or did, qualify defendant as an SVP. On the contrary, all of them testified that retardation, by itself, was not enough to qualify. Moreover, Abbot testified that defendant did not suffer from pedophilia, which was the only sexually-related mental disorder identified by MacSpeiden and Vognsen. And Derning said that retardation, not a mental disorder like pedophilia, was a more appropriate diagnosis and explanation for defendant’s misconduct.
Furthermore, the prosecutor expressly relied only on pedophilia as the disorder that qualified defendant as an SVP. The prosecutor argued, “The definition in the law that you will be given is that the diagnosed mental disorder has to be one that affects the congenital or acquired condition, either born with it or you get it, [that ] affects his emotional or volitional capacity, essentially his willpower, his ability to control what he is doing, in such a way [that it] predisposes him to commit sexually criminal acts. No one is suggesting that mild mental retardation does that.... [¶] This man has this affliction. It’s sad. It’s broken. I wish it wasn’t true, but it is. And the affliction is pedophilia.”(Italics added.)
The court instructed the jury using the statutory definition of a “diagnosed mental disorder.”
Given the expert testimony and the argument of counsel, we find no reasonable likelihood that jurors thought they could, or did, base a finding that defendant suffered from a “diagnosed mental disorder” solely on evidence that he suffered mental retardation. (E.g., People v. Kelly (2007) 42 Cal.4th 763, 791; People v. Coffman (2004) 34 Cal.4th 1, 123; People v. Cain (1995) 10 Cal.4th 1, 36, 40; People v. Kelly (1992) 1 Cal.4th 495, 525-527.) Accordingly, we do not find it reasonably probable defendant would have obtained a more favorable result had the pinpoint instruction been given. (People v. Hughes (2002) 27 Cal.4th 287, 362-363; People v. Earp (1999) 20 Cal.4th 826, 887.)
VI. Constitutional Challenges to the SVP Act
In September 2006, the Governor signed into law Senate Bill 1128 (SB 1128), which amended the SVP Act to increase the length of a commitment term from two years to an indeterminate term. The bill was enacted as an urgency measure, effective immediately. (Stats. 2006, Ch. 337, § 55, effective Sept. 20, 2006.)
Defendant contends that his indeterminate commitment under the revised SVP Act violates his constitutional rights to equal protection, due process, and to seek redress from the courts, the constitutional proscription against ex post facto laws, and the double jeopardy clause of the Fifth Amendment.
Due Process, Ex Post Facto, Equal Protection
After briefing was completed in this case, the California Supreme Court issued its decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee), where the court addressed and resolved similar due process, equal protection, and ex post facto claims. We need not reiterate the court’s analyses and conclusions, which are binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) It suffices to say that the court rejected the due process and ex post facto claims. (McKee, supra, 47 Cal.4th at pp. 1191-1193 [due process]; 1193-1195 [ex post facto].)
Concerning the equal protection claim, defendant argues that while the SVP Act subjects him to an indeterminate commitment, the commitment of an MDO (Pen. Code, §§ 2960, 2972), the commitment of an individual found not guilty by reason of insanity (NGI) (Pen. Code, §§ 1026, 1026.5 et seq.), the commitment of an MDSO (former § 6316.2, subd. (f)), the commitment of juvenile offenders (§ 1802), and the conservatorship of a gravely disabled person under the Lanterman-Petris-Short Act (§§ 5350, 5361, 5362) may be extended for only one or two years at a time. He claims that because he and those subject to commitment under these provisions are similarly situated, his harsher treatment under the SVP Act denies him equal protection.
Facing the same claim, the court in McKee determined that SVP’s and MDO’s are similarly situated for equal protection purposes because they have been involuntarily committed for purposes of treatment and the protection of the public. (McKee, supra, 47 Cal.4th at p. 1202.) The court also determined that SVP’s have “different and less favorable procedural protections” than MDO’s because “SVP’s under the amended [SVP Act] are given indeterminate commitments and thereafter have the burden to prove they should be released (unless the [Department of Mental Health] authorizes a petition for release). In contrast, an MDO is committed for one-year periods and thereafter has the right to be released unless the People prove beyond a reasonable doubt that he or she should be recommitted for another year.” (Ibid.)
The McKee court further found that SVP’s and NGI’s are also similarly situated and a “comparison of the two commitment regimes raises similar equal protection problems....” (McKee, supra, 47 Cal.4th at p. 1207.) Consequently, the court agreed with the defendant “that, as with MDO’s, the People have not yet carried their burden of justifying the differences between the SVP and NGI commitment statutes.” (Ibid.)
However, the McKee court did not rule that the defendant had succeeded in establishing that the amended SVP Act violates the equal protection clause. The court explained that it “did not conclude that the People could not meet its burden of showing the differential treatment of SVP’s is justified. We merely conclude that it has not yet done so. Because neither the People nor the courts below properly understood this burden, the People will have an opportunity to make the appropriate showing on remand. It must be shown that, notwithstanding the similarities between SVP’s and MDO’s, the former as a class bear a substantially greater risk to society, and that therefore imposing on them a greater burden before they can be released from commitment is needed to protect society.” (McKee, supra, 47 Cal.4th at pp. 1207-1208.)
Under the circumstances, we too shall remand the matter to allow the district attorney to demonstrate “the constitutional justification for imposing on SVPs a greater burden than is imposed on MDO’s and NGI’s in order to obtain release from commitment.” (McKee, supra, 47 Cal.4th at pp. 1208-1209, fn. omitted.)
Double Jeopardy
The McKee court did not resolve or discuss a claim that the indeterminate commitment violates the double jeopardy clause. However, in rejecting the ex post facto claim, the court concluded that the amendments to the SVP Act were not punitive and did not make the SVP Act punitive in nature or increase the punishment for acts committed prior to the amendment. (McKee, supra, 47 Cal.4th at pp. 1193-1195.)
The double jeopardy clause of “[t]he Fifth Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment (Benton v. Maryland (1969) 395 U.S. 784, 793-796, ...), protects defendants from repeated prosecution for the same offense [citations], by providing that no person shall ‘be subject for the same offense to be twice put in jeopardy of life or limb....’ ” (People v. Batts (2003) 30 Cal.4th 660, 678.) It “protects only against the imposition of multiple criminal punishments for the same offense....” (Hudson v. U.S. (1997) 522 U.S. 93, 99, italics added.) “The Ex Post Facto Clause, which ‘ “forbids the application of any new punitive measure to a crime already consummated, ” ’ has been interpreted to pertain exclusively to penal statutes. [Citation.]” (Kansas v. Hendricks (1997) 521 U.S. 346, 370.) A judicial determination that a law is not punitive “removes an essential prerequisite” for both double jeopardy and ex post facto claims. (Id. at p. 369.)
Thus, by unavoidable implication, the holding in McKee that an indeterminate commitment is not punitive for purposes of an ex post facto claim necessarily leads us to reject defendant’s double jeopardy claim.
First Amendment
The First Amendment to the United States Constitution provides, in relevant part, “Congress shall make no law... abridging... the right of the people... to petition the Government for a redress of grievances.” This prohibition is applicable to the states through the Fourteenth Amendment. (Catholic Charities of Sacramento Inc. v. Superior Court (2004) 32 Cal.4th 527, 542.)
Defendant claims the amended SVP Act violates this prohibition because it “denies SVP detainees of a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.” In particular, defendant complains that under section 6605, subdivision (b), an SVP may petition for release only with the concurrence of the director of the DMH. He further complains that although an SVP may petition the court for conditional release without the director’s concurrence under section 6608, such a petition does not provide “meaningful access to the courts” because it does not provide for the “appointment of medical experts.” Moreover, he notes that under section 6608, subdivisions (a) and (i), the trial court may summarily deny the petition without a hearing if it concludes that the petition is frivolous; and at a hearing, the petitioner bears the burden of proof by a preponderance of the evidence.
Defendant argues that together these provisions “deny SVP detainees the opportunity to have [a] hearing on the merits in court in which the State has to justify its continued incarceration of the detainee.”
Sections 6605 and 6608, whether considered individually or together, do not, however, impair the constitutional right of committed persons to petition the government for redress of grievances. Section 6605’s pre-authorization requirement is not equivalent to the administrative regulation held unconstitutional in Ex Parte Hull (1941) 312 U.S. 546, which defendant cites in support of his claim. The petitioner in Hull was a state prisoner. A prison official refused to notarize Hull’s petition for writ of habeas corpus and accept it for mailing, and prison guards confiscated the petition after Hull had delivered the papers to his father for mailing outside the prison. (Id. at pp. 547-548.) Hull was eventually able to pass a document to the Supreme Court through his father. (Id. at p. 548.) In response to the Supreme Court’s order to show cause why leave to file a petition for writ of habeas corpus should not be granted, the state prison warden invoked a regulation that provided: “ ‘All legal documents, briefs, petitions, motions, habeas corpus proceedings and appeals will first have to be submitted to the institutional welfare office and if favorably acted upon be then referred to Perry A. Maynard, legal investigator to the Parole Board, Lansing, Michigan. Documents submitted to Perry A Maynard, if in his opinion are properly drawn, will be directed to the court designated or will be referred back to the inmate.’ ” (Id. at pp. 548-549.)
The Supreme Court in Hull held that the prison regulation was invalid because “the state and its officers may not abridge or impair petitioner's right to apply to a federal court for a writ of habeas corpus.” (Ex Parte Hull, supra, 312 U.S. at p. 549.) The court stated: “Whether a petition for writ of habeas corpus addressed to a federal court is properly drawn and what allegations it must contain are questions for that court alone to determine. [Citations.]” (Ibid.)
Here, no administrative regulation limits an SVP’s right to apply for habeas corpus relief in federal or state court. (See § 7250 [any person who has been committed to a state hospital for the mentally disordered is entitled to a writ of habeas corpus upon proper application].)
Section 6605 creates a conditional statutory right for committed persons to petition the court for conditional release or an unconditional discharge based upon the outcome of their mandatory annual mental health examination. A petition under section 6605 must be authorized by the director of the DMH following a determination by the DMH that “either: (1) the person’s condition has so changed that the person no longer meets the definition of a sexually violent predator, or (2) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community....” (§ 6605, subd. (b).) Section 6605 is not an administrative rule or regulation, and it does not interfere with access to habeas corpus relief.
Section 6608 similarly creates a conditional statutory right for an SVP to petition the court for conditional release or an unconditional discharge, but without the recommendation or concurrence of the DMH. It likewise does not impede petitions for writ of habeas corpus.
Prisoner cases involving the right of petition and court access have focused on case preparation and filing of legal documents. The Supreme Court held in Bounds v. Smith (1977) 430 U.S. 817, which defendant relies on, that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” (Id. at p. 828, fn. omitted.) “The right that Bounds acknowledged was the (already well-established) right of access to the courts. [Citation.] In the cases to which Bounds traced its roots, [the Supreme Court] had protected that right by prohibiting state prison officials from actively interfering with inmates’ attempts to prepare legal documents [citation], or file them [citation]....” (Lewis v. Casey (1996) 518 U.S. 343, 350.) “It has not been held that there is any general obligation of the courts, state or federal, to appoint counsel for prisoners who indicate, without more, that they wish to seek post-conviction relief. [Citation.]” (Johnson v. Avery (1969) 393 U.S. 483, 484, 488; see Lewis v. Casey, supra, 518 U.S. at p. 354 [federal Constitution does not require the “permanent provision of counsel” to the prisoner population]; see also Pennsylvania v. Finley (1987) 481 U.S. 551, 555 [declining to hold “that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions”].)
In Lewis v. Casey, supra, 518 U.S. 343, the Supreme Court disclaimed statements in Bounds that “appear[ed] to suggest that the State must enable the prisoner to discover grievances, and to litigate effectively once in court.” (Id. at p. 354.)
Here, defendant has failed to cite any authority showing that the constitutional right of an involuntarily committed person to petition the government includes a right to present a wholly frivolous claim. Indeed, “[d]epriving someone of a frivolous claim... deprives him of nothing at all[.]” (Lewis v. Casey, supra, 518 U.S. at p. 353, fn. 3.)
Nor has defendant cited any pertinent or persuasive authority for the proposition that an SVP’s constitutional right to petition the government includes the right to receive the assistance of a medical expert in order to petition effectively. In addition, defendant has made no showing of actual injury. (Lewis v. Casey, supra, 518 U.S. at pp. 349 [“requirement that an inmate alleging a violation of Bounds must show actual injury derives ultimately from the doctrine of standing”], 351, [to establish a denial of meaningful access to the courts, an inmate must show actual injury, such as by demonstrating that “alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim”].)
Nevertheless, a committed person has a statutory right to an expert in connection with a hearing on a section 6605 petition: “The committed person also shall have the right... to have experts evaluate him or her on his or her behalf. The court shall appoint an expert if the person is indigent and requests an appointment.” (§ 6605, subd. (d).)
As Justice Powell observed in his concurring opinion in Bounds, the majority opinion “recognize[d] that a prison inmate has a constitutional right of access to the courts to assert such procedural and substantive rights as may be available to him under state and federal law, ” but it “does not purport to pass on the kinds of claims that the Constitution requires state or federal courts to hear.” (Bounds v. Smith, supra, 430 U.S. at p. 833 (conc. opn. of Powell, J.); see Christopher v. Harbury (2002) 536 U.S. 403, 415 [the constitutional right of access to courts is “ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court”].) The constitutional right to petition does not dictate what statutory rights must be provided to involuntarily committed persons wishing to obtain judicial review of their commitments.
In short, defendant does not convince us that the amended SVP Act denies, or even substantially interferes, with his First Amendment right to see redress of grievances from the government.
VII. Disposition
The order committing defendant to the custody of DMH is reversed, and the matter is remanded to the trial court for the limited purpose, as stated in McKee, supra, 47 Cal.4th 1172, of allowing the People to demonstrate “the constitutional justification for imposing on SVP’s a greater burden than is imposed on MDO’s and NGI’s in order to obtain release from commitment.” (Id. at pp. 1208-1209, fn. omitted.)
WE CONCUR: PREMO, J.ELIA, J.
Defendant’s mother testified that defendant visited her every week after his release on parole. She knew he was not supposed to drink or be in the house when children were present, but he did so anyway, and she felt she could not stop him.
Evidence Code section 1012 defines “ ‘confidential communication between patient and psychotherapist’ ” as “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.”
In November 2006, the electorate passed Proposition 83, the “Sexual Predator Punishment and Control Act, ” also known as “Jessica’s Law.” (Prop. 83; People v. Picklesimer(2010) 48 Cal.4th 330, 344.) Like Senate Bill 1128, the initiative made the commitment term for an SVP indeterminate. (Prop. 83, § 137.)
On March 25, 2008, the trial court in this case applied the new law and committed defendant to an indeterminate term.