People v. Superior Court of Orange Cnty. , 6 Cal. 5th 457 ( 2018 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Petitioner,
v.
THE SUPERIOR COURT OF ORANGE COUNTY,
Respondent;
RICHARD ANTHONY SMITH,
Real Party in Interest.
S225562
Fourth Appellate District, Division Three
G050827
Orange County Superior Court
M-9531
December 13, 2018
Justice Cuéllar authored the opinion of the court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Kruger, and Segal* concurred.
*
Associate Justice of the Court of Appeal, Second Appellate
District, Division Seven assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
PEOPLE v. SUPERIOR COURT (SMITH)
S225562
Opinion of the Court by Cuéllar, J.
In California, mental health professionals and law
enforcement personnel endeavor to identify and treat
individuals likely to engage in sexually violent criminal
behavior because of a mental disorder. (Welf. & Inst. Code, §§
6600-6609.3, SVPA or Act; see Hubbart v. Superior Court (1999)
19 Cal.4th 1138, 1143.) Although designation as a sexually
violent predator (SVP) is not a punitive measure, individuals so
designated are subject to a variety of serious consequences,
including civil commitment. (§ 6604.)
Whether someone qualifies as an SVP is determined by a
judge or jury at a trial. (Ibid.) Key to that determination are
the opinions of the mental health professionals designated by
the State Department of State Hospitals (SDSH) to examine the
alleged SVP and to consider, among other things, the factors
known to be associated with the risk of reoffending. (§ 6601,
subd. (c).) We granted review in this case to decide whether the
district attorney prosecuting a civil commitment petition under
the SVPA may obtain copies of the treatment records supporting
the updated or replacement evaluators’ opinions about an
individual’s suitability for designation as an SVP. We must also
resolve whether those records may be shared with a mental
health expert retained by the district attorney to assist in the
prosecution of the SVP petition.
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What we conclude is that a recent amendment to the
SVPA, enacted after we granted review, allows the district
attorney to obtain those otherwise confidential records. The
district attorney may then disclose those records to its retained
expert, subject to an appropriate protective order, to assist in
the cross-examination of the SDSH evaluators or mental health
professionals retained by the defense and, more generally, in
prosecuting the SVP petition. We therefore affirm the Court of
Appeal.
I.
A.
The SVPA defines an SVP as “a person who has been
convicted of a sexually violent offense against one or more
victims and who has 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.” (Welf. & Inst. Code § 6600, subd. (a)(1); all further
undesignated statutory references are to this code.) Once the
Department of Corrections and Rehabilitation determines an
inmate nearing release from prison may be an SVP, the SDSH
designates two psychiatrists or psychologists to examine the
person using a standardized assessment protocol. The protocol
requires an “assessment of diagnosable mental disorders, as
well as various factors known to be associated with the risk of
reoffense among sex offenders.” (§ 6601, subd. (c).) If the
evaluators concur that the person qualifies as an SVP, then the
Director of State Hospitals must forward a request that a
petition for commitment be filed in the superior court of the
county that imposed the sentence the person is currently
serving. (Id., subds. (d), (i).) The petition is filed by either the
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Opinion of the Court by Cuéllar, J.
district attorney or the county counsel, whichever has been
designated by the county board of supervisors to assume
responsibility for SVP proceedings, if the designated counsel
concurs with the SDSH determination. (Id., subd. (i).) In this
instance, the proceedings are being handled by the district
attorney, so we will refer to the designated counsel as the
district attorney throughout.
Because resolution of the SVP petition often stretches over
months or years, the district attorney may request that SDSH
evaluators perform an updated evaluation of the alleged SVP.
(§ 6603, subd. (c)(1); see Albertson v. Superior Court (2001) 25
Cal.4th 796, 805, fn. 7 (Albertson).) If the original evaluator is
no longer available to testify, the district attorney may also
request that the SDSH appoint someone to perform a
replacement evaluation. (§ 6603, subd. (c)(1).)
The SVPA provides that following the initial evaluation,
“[c]opies of the evaluation reports and any other supporting
documents shall be made available” to the district attorney.
(§ 6601, subd. (d).) Thereafter, copies of any updated or
replacement evaluations shall likewise be provided to the
district attorney (§ 6603, subd. (c)(1)), along with “all records”
reviewed by “the evaluator performing an updated evaluation,”
if requested. (Id., subd. (j)(1).)
The statute also includes protections for alleged SVPs. An
alleged SVP is “entitled to a trial by jury, to the assistance of
counsel, to the right to retain experts or professional persons to
perform an examination on his or her behalf, and to have access
to all relevant medical and psychological records and reports.”
(§ 6603, subd. (a).) Civil commitment is authorized under the
SVPA only if the trier of fact determines beyond a reasonable
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Opinion of the Court by Cuéllar, J.
doubt that the person in question is an SVP. (§ 6604.) A person
found to be an SVP “shall be committed for an indeterminate
term to the custody of the [SDSH] for appropriate treatment and
confinement in a secure facility . . . .” (Ibid.) While the person
is confined, the SDSH must conduct an examination at least
once a year to determine whether the person currently meets
the definition of an SVP and whether conditional release to a
less restrictive alternative or an unconditional discharge is
appropriate. (§ 6604.9, subds. (a), (b).)
B.
In March 2002, the Orange County District Attorney filed
a petition to commit Richard Anthony Smith, then a prison
inmate with a parole date later that month, as an SVP.
Attached to the petition were evaluations by mental health
professionals Dana Putnam, Ph.D., and Charles Jackson, Ph.D.,
conducted earlier that year. After a long series of continuances
stipulated to or requested by Smith or his attorney, the district
attorney in 2006 requested that the SDSH perform updated and
replacement evaluations under section 6603, subdivision (c)(1).
After another series of stipulated continuances, the trial court
granted Smith’s request for a new set of updated evaluations.
In February 2011, Nancy Rueschenberg, Ph.D., and Dr. Putnam
evaluated Smith, and each concluded that he no longer qualified
as an SVP. Based on the updated evaluations, Smith filed a
motion to enter a plea in abatement and dismiss the petition,
which the trial court denied. The Court of Appeal, though,
granted Smith’s writ petition in an unpublished opinion and
directed the trial court to enter a new order dismissing the SVP
petition. This court subsequently granted review, holding the
matter pending our decision in Reilly v. Superior Court (2013)
57 Cal.4th 641, and thereafter transferred the matter back to
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Opinion of the Court by Cuéllar, J.
the Court of Appeal for reconsideration. The Court of Appeal
subsequently denied the writ petition insofar as it sought entry
of a plea in abatement and dismissal of the SVP petition.
In 2014, the district attorney requested yet another
updated evaluation from Dr. Putnam. The district attorney also
asked the court for an order permitting his retained expert,
Dawn Starr, Ph.D., to review the SDSH evaluations as well as
the documentation and records on which the evaluators had
relied. The trial court denied the request, but the Court of
Appeal directed the trial court to vacate its prior order and enter
a new order granting the request.
What the appellate court observed at the outset is that the
documents on which the experts relied were already in the
lawful possession of the district attorney, citing sections 6601,
subdivision (h) and 6603, subdivision (c)(1). The court then
weighed Smith’s privacy interest against the government’s
interest in protecting the public from SVPs (as well as the
judicial system’s interest in providing accurate information to
the trier of fact who is making the SVP determination). Its
assessment led the court to conclude that “the district attorney’s
retained expert should be able to review Smith’s section
6603(c)(1) evaluations and the mental health records and
documents relied upon by the evaluators and Smith’s retained
experts,” with an appropriate protective order.
We granted Smith’s petition for review to decide whether
the district attorney is entitled to review the confidential
medical and psychological records on which the evaluators had
relied, and, if so, whether those records may be shared with an
expert who has been retained by the district attorney for the
purpose of assisting with the SVP proceeding.
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II.
We begin by resolving whether the alleged SVP’s mental
health records may be provided to the district attorney.
Generally, such records are confidential. (§ 5328, subd. (a).) But
certain exceptions apply.
One such exception applies when the mental health
professionals designated by the Director of State Hospitals
evaluate an individual and agree that the individual qualifies as
an SVP. When this occurs, “[c]opies of the evaluation reports
and any other supporting documents shall be made available to
the attorney designated by the county . . . who may file a petition
for commitment.” (§ 6601, subds. (d), (h)(1), italics added.)
Shortly after the Legislature amended the SVPA in 2000,
allowing the district attorney to request updated or replacement
evaluations, we concluded that the statutory scheme granted
the district attorney “access to treatment record information”
insofar as that information was contained in an updated or
replacement evaluation. (Albertson, supra, 25 Cal.4th at p. 805;
see also People v. Gonzales (2013) 56 Cal.4th 353, 380, fn. 11.)
The appellate courts split following our decision in
Albertson. The crux of their disagreement was whether the
records subject to discovery were limited to the specific excerpts
contained in an updated or replacement evaluation, or whether
the district attorney could instead be “ ‘granted direct access to
the records’ ” themselves. (Assem. Com. on Public Safety,
Analysis of Sen. Bill No. 507 (2015-2016 Reg. Sess.) as amended
July 2, 2015, p. 4; see id. at p. 8 [“ ‘In the last few years, Los
Angeles courts have denied requests for subpoenas for state
hospital records when requested by the People. A review of
California counties revealed that courts in every other
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California county surveyed grant the People access to these
records’ ”].)
The Legislature addressed the conflict after we granted
review in this case. It added subdivision (j) to section 6603 “to
ensure that the prosecuting attorney has access to all the
records on which the evaluators have based their evaluations.”
(Assem. Com. on Public Safety, Analysis of Sen. Bill No. 507,
supra, as amended July 2, 2015, p. 7.) The statute now provides:
“Notwithstanding any other law, the evaluator performing an
updated evaluation shall include with the evaluation a
statement listing all records reviewed by the evaluator pursuant
to subdivision (c). The court shall issue a subpoena, upon the
request of either party, for a certified copy of these records. The
records shall be provided to the attorney petitioning for
commitment and the counsel for the person subject to this
article. The attorneys may use the records in proceedings under
this article and shall not disclose them for any other purpose.”
(§ 6603, subd. (j)(1), italics added.)
We are unpersuaded by Smith’s efforts to evade the
amended statute. He argues first that the amended statute
cannot apply to the records supporting his 2011 evaluations,
which predated the amendment to section 6603. Because
section 6603, subdivision (j)(1) “does not apply retroactively,” it
entitles the district attorney (in Smith’s view) only to
“information and records obtained in the course of providing
services performed on or after January 1, 2016,” the
amendment’s effective date. Yet Smith cites nothing to support
his contention that application of the expanded discovery rule to
the current SVP proceeding would qualify as “retroactive.” And,
in general, the law is otherwise: “[C]hanges to rules governing
pending litigation, for example, frequently have been designated
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as prospective, because they affect the future; that is, the future
proceedings in a trial.” (Quarry v. Doe I (2012) 53 Cal.4th 945,
956.)
At the core of Smith’s “retroactivity” argument appears to
be a belief that his pre-2016 communications with mental health
professionals were completely confidential. Smith contends that
it would be unfair to change the rules after he had already
participated in treatment. Although a measure of
confidentiality in this context may be valuable, it is not clear
why Smith assumed his conversations with these professionals
would necessarily remain forever confidential. Before section
6603 was amended, appellate courts were divided on the
question whether the attorney prosecuting an SVP petition
could obtain the records underlying an updated or replacement
evaluation. Even if Smith had relied on the line of cases barring
a prosecuting attorney from subpoenaing the underlying
records, he would have had reason to know that the prosecuting
attorney could nonetheless obtain that same information insofar
as those communications or other information were set forth in
an updated or replacement evaluation. (See Albertson, supra,25 Cal.4th at p. 805.) Accordingly, Smith had no assurance that
any individual communication in connection with his treatment
would be protected from disclosure to the prosecuting attorney
— even before section 6603 was amended.
Indeed, we applied newly amended provisions governing
discovery to a pending SVP proceeding involving closely
analogous circumstances in Albertson. The issue presented
there was whether the SVPA authorized an updated mental
health evaluation and the disclosure of the confidential
treatment records underlying such an evaluation. (Albertson,
supra, 25 Cal.4th at p. 798.) After we granted review, the
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Legislature enacted urgency legislation authorizing updated
and replacement evaluations as well as disclosure of the alleged
SVP’s treatment records in certain circumstances. (Ibid.) We
held that the amended statute could and did apply “to any future
pretrial and/or trial proceedings in this litigation.” (Id. at p.
804.) The same is true here. Even though the treatment records
might have been created before section 6603 was amended, the
statute now allows copies of those records to be disclosed to the
district attorney to the extent they were reviewed as part of an
updated or replacement evaluation. (§ 6603, subd. (j)(1).)
Smith argues next for a narrow reading of section 6603,
subdivision (j)(1). In his view, the statute should be read to
authorize access only to the records reviewed by an evaluator
performing an updated evaluation, not to those records reviewed
by an evaluator performing a replacement evaluation.1 Smith
correctly points out that section 6603’s new subdivision (j)(1)
refers only to “the evaluator performing an updated evaluation”
and does not mention replacement evaluations — and that
subdivision (c)(1), by contrast, refers distinctly to “updated
evaluations” and “replacement evaluations.” He infers from this
that the Legislature reasonably expected the district attorney
would have access to the underlying treatment records only
when there has been an updated — not a replacement —
evaluation.
True: Courts often presume that a word used in more than
one provision of a statute has precisely the same meaning
1
In this proceeding, Dr. Putnam evaluated Smith in 2002
in connection with the SVP petition and provided an updated
evaluation in 2011. Due to Dr. Jackson’s unavailability, Dr.
Rueschenberg provided a replacement evaluation in 2011.
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throughout –– a logical inference rooted not only in how people
ordinarily use language, but also in how one generally might
expect legislative bodies to draft statutory provisions. (People v.
Hernandez (1981) 30 Cal.3d 463, 468.) Yet this is merely a
presumption, not an inflexible rule. (People v. Jones (1988) 46
Cal.3d 585, 595.) Just as people sometimes use the same word
to convey different meanings even in the same sentence, so too
have we held that certain statutes are sometimes best read in
context to assign different meanings to the same word used in
different portions of a statute. (See, e.g., Jones, at pp. 594-595
[assigning different meanings for the word “crimes” in Pen. Code
§ 667.6, subds. (c) and (d)].) Our interpretive task is not
necessarily to slavishly assign a word precisely the same
meaning every time it is used in a statute — regardless of the
context — but to accord it the meaning best suited to
effectuating the statute’s intended purpose. (Hernandez, at p.
468.) When we take account of the relevant provisions and
structure of the law, and the SVPA’s broad purpose of
identifying dangerous sex offenders so that they may receive
treatment, we conclude that the best understanding of “an
updated evaluation” within the meaning of section 6603,
subdivision (j)(1) encompasses all evaluations that update
previous SDSH evaluations.
Consider, for instance, the similar roles of updated and
replacement evaluations. A replacement evaluation, like an
updated evaluation, is triggered by the district attorney’s
request. (§ 6603, subd. (c)(1).) In both instances, the SDSH
performs the evaluations and forwards them to the petitioning
attorney and the attorney for the alleged SVP. (Ibid.) Both
types of evaluations are required to include a review of the same
medical and psychological records. (Ibid.) Neither a
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replacement nor an updated evaluation may be ordered “except
as necessary to update one or more of the original evaluations
or to replace the evaluation of an evaluator who is no longer
available to testify for the petitioner in court proceedings.”
(Ibid.) In short, both types of evaluations originate in similar
circumstances, are governed by the same rules, and serve
similar purposes — to present the trier of fact with the most up-
to-date assessment of the alleged SVP’s mental condition. In
this sense, both types of evaluations serve to update the
information provided in earlier evaluations.
The legislative history also supports the conclusion that
the term “updated evaluation” in subdivision (j)(1) of section
6603 encompasses both types of the evaluations authorized by
subdivision (c)(1). Bill analyses repeatedly described the
amendment as providing that “the prosecutor and the attorney
for an alleged SVP shall have access to records considered by an
expert who performed replacement or updated evaluations . . . .”
(Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished
Business Analysis of Sen. Bill No. 507 (2015-2016 Reg. Sess.) as
amended July 2, 2015, p. 1, italics added; see Assem. Com. on
Public Safety, Analysis of Sen. Bill No. 507, supra, as amended
July 2, 2015, p. 7 [“This bill seeks to ensure that the prosecuting
attorney has access to all the records on which the evaluators
have based their evaluations” (italics added)]; Sen. Rules Com.,
Office of Sen. Floor Analyses, 3d reading analysis of Sen. Bill
No. 507 (2015-2016 Reg. Sess.) as amended June 2, 2015, p. 1
[“the prosecutor or county attorney petitioning for commitment
. . . shall have access to records considered by the expert
evaluators who performed replacement or updated evaluations”
(italics added)]; see generally Judicial Council of Cal., Summary
of Court-Related Legislation (Nov. 2015) p. 10 [Sen. Bill No. 507
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Opinion of the Court by Cuéllar, J.
provides that “the prosecutor and the attorney for an alleged
SVP shall have access to the records that were reviewed by the
expert who performed replacement or updated evaluations”
(italics added)].) Accordingly, the best reading of the phrase “the
evaluator performing an updated evaluation” in section 6603,
subdivision (j)(1) is that it includes both the evaluators who are
updating their own prior evaluations as well as the evaluators
who are updating evaluations performed by a prior evaluator
who is no longer available.
Finally, we reject Smith’s contention that granting the
district attorney access to his treatment records would violate
his right to equal protection of the law under the state and
federal Constitutions. Smith contends that the amended SVPA
gives the district attorney access “to the confidential therapy
records of alleged SVPs, but not to the confidential therapy
records of any other recipient of those services, including
similarly situated mentally disordered offenders (MDOs) and
mentally disordered sex offenders (MDSOs)” — yet “the
government has not shown why only SVPs should lose the right
to keep their treatment records confidential from prosecutors.”
Smith does not identify in what way, if any, the statutory
schemes associated with designation as either an MDO or
MDSO operate differently from the SVPA with respect to
discovery of these types of records. His submission thus fails to
satisfy “the required threshold” for an equal protection claim —
i.e., “a credible showing of different treatment.” (United States
v. Armstrong (1996) 517 U.S. 456, 470.) Whether the particular
dangers posed by SVPs relative to those posed by MDOs or
MDSOs warrant differential treatment is not an issue we need
to address here.
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III.
Smith argues next that even if the district attorney may
lawfully access the relevant treatment records, section 5328
bars the government from sharing those records with its
retained expert. We disagree.
Under new subdivision (j)(1) of section 6603, attorneys for
either side “may use the records in proceedings under this
article and shall not disclose them for any other purpose.” So
long as attorneys do not disclose the confidential records for any
other purpose, subdivision (j)(1) at the very least suggests that
attorneys may disclose them “in proceedings under this article.”
(§ 6603, subd. (j)(1).) Given the “critical” importance of expert
testimony in an SVP proceeding (People v. McKee (2010) 47
Cal.4th 1172, 1192) — and the likelihood that counsel will need
expert assistance to grasp the scientific nuances underlying
another expert’s opinion — the disclosure most needed by each
party “in proceedings under this article” (§ 6603, subd. (j)(1))
would almost certainly be to its retained expert.
Yet this recently enacted statutory change contains its
own share of nuances. We must read the text of section 6603,
subdivision (j)(1) in conjunction with the rest of Senate Bill No.
507, including its uncodified section. Somewhat cryptically, this
uncodified section provides: “Nothing in this act is intended to
affect the determination by the Supreme Court of California, in
People v. Superior Court (Smith) (Docket No. S225562), whether
an expert retained by the district attorney in a proceeding under
the Sexually Violent Predator Act (Article 4 (commencing with
Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare
and Institutions Code) is entitled to review otherwise
confidential treatment information under Section 5328 of the
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Welfare and Institutions Code.” (Stats. 2015, ch. 576, § 2.) The
Legislature’s explicit reference to this case in the uncodified
section evinces an awareness that we had already granted
review to consider these issues. (See Assem. Com. on Public
Safety, Analysis of Sen. Bill No. 507, supra, as amended July 2,
2015, p. 10.) What it does not imply is that we should ignore the
legislative changes underlying section 6603, subdivision (j)(1) in
resolving them.
Before we granted review, an earlier version of the bill
included a paragraph in subdivision (j) providing that “[t]his
subdivision does not create any new rights or limitations
regarding the retention of an expert witness by either party or
access to records by an expert retained or sought to be retained
by either party. The attorney petitioning for commitment shall
not provide access to the records obtained under paragraph (1)
to any third party, including an expert retained or sought to be
retained by that attorney, without the consent of the court upon
noticed motion.” (Sen. Bill No. 507 (2015-2016 Reg. Sess.) as
amended Apr. 30, 2015, § 1; see Sen. Rules Com., Office of Sen.
Floor Analyses, 3d reading analysis of Sen. Bill No. 507, supra,
as amended June 2, 2015, p. 1 [“This bill . . . prohibits the
prosecutor from disclosing the records to a retained expert”].)
This paragraph was deleted in a subsequent amendment, after
we granted review in this case. We are left to garner what
insight we can about the Legislature’s purpose in crafting the
uncodified section above.
We have been unable to find another instance in which a
statute included a provision declaring an intent not to influence
the pending judicial resolution of the issue presented. Even so,
nothing in the uncodified section or elsewhere in the statute
conveys a categorical bar on considering subdivision (j)(1) of
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section 6603 in resolving the matter before us. We can further
observe that the Legislature adopted two different strategies to
address the two separate issues presented in this case.
On the question of making treatment records available to
the district attorney, the Legislature addressed the issue
directly. It provided a straightforward answer through an
explicit legislative provision governing these records. In
contrast, the Legislature refrained from providing a direct
answer to the question whether the district attorney’s retained
expert could review those records. Yet the Legislature did not
include an explicit provision rendering the amendment entirely
irrelevant to the latter question. Nor does it seem likely, given
how the amendment was drafted and what we know about its
history, that the Legislature wanted us to completely ignore the
2015 amendments to section 6603 — that is, to pretend that the
district attorney might not have access to these otherwise
confidential records and therefore could not possibly share
information that it did not possess. So we shall instead construe
the uncodified section’s declaration of intent as cautioning us
that while section 6603, subdivision (j)(1) may be relevant to the
question whether the government can share these records with
its retained expert, it cannot alone be dispositive of the issue
before us.
We therefore broaden our analysis to encompass the text,
structure, and purpose of the entire SVPA as well as section
5328, which makes confidential the information and records
obtained in the course of providing services to an alleged SVP.
The purpose of the SVPA is to identify, confine, and treat those
persons who have mental disorders that render them “a danger
to the health and safety of others in that they are likely to
engage in acts of sexual violence.” (Stats. 1995, ch. 763, § 1,
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p. 5921; see People v. Yartz (2005) 37 Cal.4th 529, 540.) The
primary mechanism for identifying an SVP is assessment of the
person by psychiatrists or psychologists using a standardized
protocol. (§ 6601, subds. (c), (d).) Although the SVP
determination requires proof that the person has been convicted
of a sexually violent offense, the bulk of the evidence at trial
typically focuses on whether the person has a diagnosed mental
disorder that makes it likely he or she will engage in sexually
violent behavior. (See § 6600, subd. (a).) Accordingly, the civil
commitment trial usually turns on the quality and credibility of
the expert witnesses and the extent to which their evaluations
are persuasive. (See People v. McKee, supra, 47 Cal.4th at p.
1192; see generally People v. Murtishaw (1981) 29 Cal.3d 733,
772 [“expert prediction, unreliable though it may be, is often the
only evidence available to assist the trier of fact”]; Ake v.
Oklahoma (1985) 470 U.S. 68, 81 (Ake) [“psychiatrists disagree
widely and frequently on what constitutes mental illness, on the
appropriate diagnosis to be attached to given behavior and
symptoms, on cure and treatment, and on likelihood of future
dangerousness”].)
Unfortunately, as the legislative history suggests, the
SDSH “ ‘has not ensured that it conducts these evaluations in a
consistent manner’ ” and sometimes “ ‘evaluators did not
demonstrate that they considered all relevant information.’ ”
(Sen. Com. on Public Safety, Analysis of Sen. Bill No. 507 (2015-
2016 Reg. Sess.) as amended Apr. 30, 2015, p. 3, quoting Cal.
State Auditor, Cal. Dept. of State Hospitals Report No. 2014-125
(Mar. 2015) p. 1.) A key way in which one party counters an
opposing expert’s opinion is to uncover and challenge the expert
about the bases for his or her opinion. (See People v. Smith
(2007) 40 Cal.4th 483, 509; People v. Visciotti (1992) 2 Cal.4th 1,
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81.) This is particularly true for a mental health professional’s
assessment of whether an individual qualifies as an SVP.
Because an evaluator exercises professional judgment within
the legal framework specified by the SVPA, the evaluator’s
“legally accurate understanding of the statutory criteria is
crucial to the Act’s proper operation.” (People v. Superior Court
(Ghilotti) (2002) 27 Cal.4th 888, 910.)
Cross-examination may assist the trier of fact in
determining whether the evaluator has “accurately understood
the statutory criteria.” (Ibid.) But that opportunity would be a
hollow one if the district attorney does not have the assistance
of an expert to interpret and explain the significance of the
specialized information at issue. (See Bonds v. Roy (1999) 20
Cal.4th 140, 146-147; accord, Addington v. Texas (1979) 441 U.S.
418, 429 [“Whether the individual is mentally ill and dangerous
to either himself or others and is in need of confined therapy
turns on the meaning of the facts which must be interpreted by
expert psychiatrists and psychologists”].) Without an expert’s
assistance in preparing the cross-examination of adverse
witnesses, “the risk of an inaccurate resolution . . . is extremely
high.” (See Ake, supra, 470 U.S. at p. 82.) An expert would also
need to examine the relevant records to offer an opinion about
the potential SVP’s mental health. (See People v. Burroughs
(2016) 6 Cal.App.5th 378, 402.)
So it is not surprising to find that nothing in the text of
the SVPA bars the government from sharing otherwise
confidential information in its possession with the expert it has
retained for the purpose of assisting in an SVP proceeding. Nor
would sharing such information with an expert retained to
assist in the SVP proceeding violate in particular section 6603,
subdivision (j)(1), which states in pertinent part, “The attorneys
17
PEOPLE v. SUPERIOR COURT (SMITH)
Opinion of the Court by Cuéllar, J.
may use the records in proceedings under this article and shall
not disclose them for any other purpose.”
Finally, we reject Smith’s argument that access must be
limited to avoid a conflict with section 5328. Smith argues that
a conflict with this section arises if the government’s retained
expert is granted access to the treatment records already
reviewed by the SDSH evaluators or by his own retained
experts. Section 5328 itself lists 25 separate exceptions,
including an exception for disclosure “[t]o the courts, as
necessary to the administration of justice.” (§ 5328, subd. (a)(6).)
Following section 5328 are more than a dozen separate statutes,
each allowing disclosure in various circumstances. (See
§ 5328.01 et seq.) In addition, section 6603 specifies still more
exceptions to the confidentiality of these records, including the
disclosure of the records used by the SDSH evaluators to the
attorney prosecuting the SVP petition. (See § 6603, subd. (j)(1).)
Nothing in section 5328 appears to contemplate limiting one
member of the prosecution team in an SVP proceeding from
sharing these otherwise confidential records with another
member of the prosecution team, provided an appropriate
protective order is in place. (Cf. People v. Garcia (2017) 2
Cal.5th 792, 811 [the effectiveness of the sex offender
management program “depends on ‘ “open and ongoing
communication” ’ among the professionals involved in
‘ “supervising, assessing, evaluating, treating, supporting, and
monitoring sex offenders” ’ ”].) That team includes paralegals,
secretaries, and retained experts. Confidential information that
is shared among that group for the purpose of furthering the
representation remains confidential. (See Evid. Code, § 952.)
In light of the legislative goals embodied in the SVPA, the
role of confidentiality in this context is to “encourage[] persons
18
PEOPLE v. SUPERIOR COURT (SMITH)
Opinion of the Court by Cuéllar, J.
with mental problems to seek, accept and undergo treatment
and to be open and candid in treatment.” (State Dept. of Public
Health v. Superior Court (2015) 60 Cal.4th 940, 948.) It seems
implausible that a person would be dissuaded from initiating or
participating fully in treatment simply because his or her
treatment records, in addition to being disclosed to the SDSH
mental health professionals and the district attorney, might be
disclosed to a mental health professional retained by the district
attorney.
IV.
Our society uses trials to advance the search for truth.
That search generally work best when each side — and each
side’s experts — have access to the records and information on
which the opposing side’s experts rely. The Legislature adopted
this reciprocal model in the current version of the SVPA. The
judgment of the Court of Appeal is affirmed.
CUÉLLAR, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
SEGAL, J.*
*
Associate Justice of the Court of Appeal, Second Appellate
District, Division Seven assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
19
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Superior Court (Smith)
__________________________________________________________________________________
Unpublished Opinion NP opn. filed 2/24/15 – 4th Dist., Div. 3
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S225562
Date Filed: December 13, 2018
__________________________________________________________________________________
Court: Superior
County: Orange
Judge: Kimberly Menninger
__________________________________________________________________________________
Counsel:
Tony Rackauckas, District Attorney, and Elizabeth Molfetta, Deputy District Attorney, for Petitioner.
No appearance for Respondent.
Frank Ospino, Public Defender, Sharon Petrosino, Chief Deputy Public Defender, Dan Cook and Mark S.
Brown, Assistant Public Defenders, for Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Elizabeth Molfetta
Deputy District Attorney
401 Civic Center Drive W
Santa Ana, CA 92701
(714) 834-3600
Mark S. Brown
Assistant Public Defender
14 Civic Center Plaza
Santa Ana, CA 92701-4029
(714) 834-2144