People v. Memro

GRODIN, J., Concurring and Dissenting.

I concur in the majority’s holding that the trial court erred in denying appellant’s discovery motion. I withhold my approval, however, from that portion of the majority opinion pertaining to the discovery of psychiatric or psychological statements or reports which may be found in officers’ personnel files. (Ante, at pp. 687-689.) Moreover, I dissent from the majority’s apparent holding that appellant is entitled to unqualified reversal and a new trial no matter what is revealed by the discovery which will now occur. If that discovery reveals no relevant and admissible evidence bearing upon the voluntariness of his confession, a new trial would be unnecessary and wasteful. In that event, and subject to evaluation of appellant’s other assertions of error, his judgment of conviction could and should be affirmed.

I.

In the course of providing guidance for the trial court on retrial, the opinion undertakes to determine “whether discovery of statements of psychiatrists or psychologists contained in the officers’ personnel files” is proper. Although the only two Court of Appeal decisions which have considered similar Pitchess (Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305]) requests for psychiatric records have found such discovery inappropriate (see Lemelle v. Superior Court (1978) 77 Cal.App.3d 148 [143 Cal.Rptr. 450]; Arcelona v. Municipal Court (1980) 113 Cal.App.3d 523 [169 Cal.Rptr. 877]), the majority proposes to adopt the reasoning and conclusion of Justice Tamura’s dissent in Lemelle, directing the trial court to examine the psychiatric records of the four interrogating officers in camera and permitting disclosure if the court finds that the records are not protected by the psychotherapist-patient privilege by virtue of the exception to the privilege embodied in Evidence Code section 1024.

The majority’s analysis and conclusion raise a number of questions in my mind. First, although recognizing that the examination of psychiatric records involves privacy concerns of a different nature than other personnel records, the majority imposes no heightened “good cause” requirement for obtaining review of such records but appears to suggest that in camera examination is routinely appropriate so long as the examination is limited to the psychiatric records of the officers directly involved in the alleged police misconduct. Does this mean that whenever a criminal defendant claims that a police officer used excessive force, the officer’s psychiatric records will be subject to in camera scrutiny by the trial court, even if there is no indication that the officer has ever engaged in violent conduct previously and there is nothing else to support the defendant’s allegation? Before we sanction such broad intrusion into these private records, should not we first determine if the disclosure of the less-private personnel records provides a justification for probing into the officer’s psychiatric background?

Second, I have some question whether the exception to the psychotherapist-patient privilege embodied in section 1024 was really intended to authorize the type of discovery that the majority permits. Section 1024 provides that “[tjhere is no privilege under this article if the psychotherapist has reasonable cause to believe that the patient is in such 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.” A number of authorities have recognized that this section was designed “to enable the therapist to initiate commitment proceedings and to testify in those proceedings when he determines the patient may present a danger to himself or others.” (Mavroudis v. Superior Court (1980) 102 Cal.App.3d 594, 603 [162 Cal.Rptr. 724].)

It is difficult to see how this purpose fits into the Pitchess discovery context. The majority—quoting from Justice Tamura’s dissent in Lemelle — states that “the peril to which the public is exposed by a police officer who is suffering from a mental or emotional condition which renders him violence prone or causes him to demonstrate racial bias is a danger of sufficient gravity to justify the invocation of the exception provided by Evidence Code section 1024.” I would imagine, however, that in almost any psychiatric session a patient may reveal something about his mental or emotional condition that may suggest that he could be “violence prone” or a danger to others under some circumstances. Does not the majority’s application of section 1024 suggest that a police officer’s therapy sessions—whether included in police files or not—could be routinely scrutinized for disclosures of such violent tendencies? And if this interpretation of section 1024 is valid, why would this exception not apply to psychiatric sessions of all persons generally, permitting civil plaintiffs in assault actions routinely to have a trial court examine in camera all psychiatric records of the defendant to determine if there are any revelations which demonstrate that he is violence prone?

I think there is a danger in adopting Justice Tamura’s suggestion without a fuller consideration of the potential consequences.¹ At the very least we should insist upon some threshold showing before sanctioning wholesale invasion of privacy.

II.

In discussing the question of the “consequence” of the trial court error in failing to grant discovery of the relevant personnel records, the majority characterizes the alternative disposition as “reversal” or “remand.” It then suggests that “reversal” is the appropriate remedy, relying on People v. Matos (1979) 92 Cal.App.3d 862 [155 Cal.Rptr. 293] and In re Valerie E. (1975) 50 Cal.App.3d 213 [123 Cal.Rptr. 242, 86 A.L.R.3d 1163], I believe the majority’s terminology and its reliance on Matos and Valerie E. is somewhat misleading.

I would not dispute that the trial court’s error in denying discovery does require the “reversal” of the judgment at this point. (Even in People v. Coyer (1983) 142 Cal.App.3d 839 [191 Cal.Rptr. 376]—where the Court of Appeal adopted what the majority terms “a remand procedure”—the court “reversed” the trial court judgment. (See 142 Cal.App.3d at p. 845.)) The real question, I believe, is what consequence should follow if it turns out after discovery is granted that the personnel files contain no evidence to support the defendant’s claim. In that event, should the trial court be permitted to reinstate the original judgment, or will the defendant be entitled to an entire new trial on the basis of the same evidence that was before the trial court the first time? Although the majority opinion does not specifically address the issue in these terms, my impression is that the majority contemplates that defendant will be entitled to a new trial under any circumstances, even if it should turn out that the trial court’s error in denying discovery could not have affected the judgment.

Neither Matos nor Valerie E.—the sole authorities on which the majority relies—supports this result. In the first place, there is no indication that the courts in either of those cases considered the alternatives of “reversal” or “remand” and consciously opted for “reversal”; thus, the cases cannot accurately be viewed as authority for the proposition that “reversal,” rather than “remand,” is the appropriate disposition. Furthermore, a close analysis of the dispositional language of both opinions reveals that neither disposition ruled out the possibility that the judgment might be reinstated if the discovery error—on full litigation—proved to be of no practical effect.²

Unlike Matos and Valerie E., which did not explicitly address the question of dispositional alternatives, Coyer did directly focus on this matter and its discussion—relying on a recent decision of the Pennsylvania Supreme Court—provides, I think, a persuasive case for a remand in those cases in which it is impossible to determine whether the denial of discovery was prejudicial or not. After recognizing that our cases establish that the improper denial of discovery is nót per se reversible, the Coyer court explained: “It is true that, on this record, application of traditional harmless error analysis would be ‘speculative’ as we do not know whether compliance with defendant’s request would have revealed any [relevant information], Nonetheless, a remedy exists. No material evidence has been destroyed. The information originally sought by appellant is still available to the prosecuting authorities. [Citation.] In Com. v. Slaughter (1978) 482 Pa. 538 [394 A.2d 453], the Supreme Court of Pennsylvania confronted an almost identical problem. There the trial court had committed error under Davis v. Alaska, [(1974)] 415 U.S. 308 [39 L.Ed.2d 347, 94 S.Ct. 1105], in denying defense counsel access to the juvenile records (if any) of a witness. Rather than reverse outright, Slaughter ordered the following disposition: ‘(The record does not even indicate whether or not Ragland, in fact, had a record of juvenile offenses, let alone whether that record, if it exists, would support appellant’s claim of bias.) We therefore remand the matter to the trial court with instructions that appellant, through his counsel, be given access to Ragland’s juvenile record. Counsel will then be able to argue to the trial court what, if any, use could have been made of that record had he been allowed to use it to cross-examine Ragland. If, in the court’s opinion, its original refusal to allow defense counsel to cross-examine Rag-land on the basis of this juvenile record prevented appellant from presenting to the jury evidence regarding Ragland’s possible bias, or other information which would bring the case within the requirements of Davis, supra, it shall vacate the judgment of sentence and order a new trial. If, on the other hand, Ragland has no juvenile record, or if in the court’s opinion, appellant has failed to assert any facts which would bring the case within the rationale of Davis, supra, it shall affirm its original order. Either party may then file an appropriate appeal.’ ” (142 Cal.App.3d at p. 844. See also United States v. Gaston (5th Cir. 1979) 608 F.2d 607, 614; United States v. Disston (7th Cir. 1978) 582 F.2d 1108, 1110-1112.)

I do not see why a similar disposition to that adopted in Coyer and Slaughter is not appropriate here. In my view, we will be creating an unfortunate precedent if we conclude that the improper denial of discovery requires a retrial regardless of what the grant of discovery would have disclosed. Such a disposition cannot help but provide defendants in future cases with a substantial incentive not to challenge the denial of discovery orders pretrial: after all, if they are successful in a pretrial writ and obtain discovery, the information may not prove all that helpful at trial, while if they forego pretrial writ review, they can obtain a reversal just by showing that the discovery might have been beneficial.

Such a disposition also runs counter to the constitutional command that no judgment be reversed in the absence of prejudice (Cal. Const., art. VI, § 13), and fails properly to take into account the very substantial costs and inconvenience, particularly in a case of this age and magnitude, which will be occasioned by an unnecessary retrial.

Penal Code section 1260 provides an appropriate mechanism for determining the actual prejudice that was engendered by the improper denial of discovery. Unless other arguments of appellant were found to require unconditional reversal—a question which I do not reach—I would reverse the judgment conditionally and remand to the trial court with directions to grant the motion for discovery, enforce compliance therewith, and entertain a renewed motion to exclude the evidence. If no such motion is made within the time specified by the trial court, or if the court determines that no additional admissible evidence supporting the assertion of involuntariness has been obtained as a result of respondent’s compliance with the discovery order the judgment should stand affirmed.

Kaus, J., and Lucas, J., concurred.

Respondent’s petition for a rehearing was denied August 1, 1985. Kaus, J., Grodin, J., and Lucas, J., were of the opinion that the petition should be granted.

1 In Mavroudis v. Superior Court, supra, 102 Cal.App.3d 594, the Court of Appeal considered the application of section 1024 in the context of a discovery request made by a plaintiff in a Tarasoff {Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166]) action. There, the Court of Appeal set forth a rather elaborate procedure for the trial court to follow before authorizing disclosure: (1) The trial court must first examine the psychiatric records in camera to determine if the material reveals that the plaintiff was “readily identifiable” as a victim of the patient; if the plaintiff was not a readily identifiable victim, discovery is to be denied. (2) If the records reveal that the plaintiff was a readily identifiable victim, the court should decide whether the psychiatrist had determined, or reasonably should have determined, that the patient posed a serious danger of violence to the plaintiff. The Court of Appeal recognized that in making this determination, the trial court might have to resort to expert testimony, and it directed the trial court to appoint its own expert if it could not conclude, as a matter of law, that the psychiatrist should not have made such a determination. (See 102 Cal.App.3d at pp. 605-606.)

If the Mavroudis application of section 1024 were applied in the context of a Pitchess request, it seems clear that discovery would almost invariably be denied, because a criminal defendant seeking discovery is unlikely to be the kind of “readily identifiable” potential victim of the police officer to give rise to a Tarasoff duty to warn. At the least, Mavroudis provides some indication of the complex problems posed in attempting to use section 1024 as a basis for discovery, rather than as an authorization for disclosure by a psychiatrist.

2 In Matos, the dispositive portion of the opinion states in full: “The judgment is reversed with directions to grant a motion by defendant for discovery of the complaints made against [the two named officers] and thereafter to proceed in a manner not inconsistent with this opinion.” (Italics added.) (92 Cal.App.3d at p. 869.) Reinstatement of the judgment if discovery proved of no value to the defendant would in no way be inconsistent with the Matos opinion.

In Valerie E., the Court of Appeal, after concluding that the trial court had erred in rejecting defendant’s discovery motion on the ground that the defendant had not made an adequate showing of the materiality of the personnel records that were sought, noted that because the trial court had rejected defendant’s motion on the threshold issue it had not passed on the People’s claim of privilege under Evidence Code section 1040. In its dispositive order, the Valerie E. court stated: “The judgment is reversed and the cause is remanded for a hearing on the applicability of the conditional privilege, if so raised. ” (50 Cal.App.3d at p. 220.) There is nothing in this language which suggests that the court intended to preclude the reinstatement of the judgment if—after full litigation of the privilege question— the trial court concluded that discovery should properly be denied.