Y.C. v. Super. Ct.

Filed 12/6/21 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
Y.C.,
Petitioner, A162063
v. (San Mateo County
THE SUPERIOR COURT OF SAN Super. Ct. No. 20JW0474)
MATEO COUNTY,
ORDER MODIFYING OPINION;
Respondent; AND DENYING PETITION FOR
THE PEOPLE, REHEARING
[NO CHANGE IN JUDGMENT]
Real Party in Interest.
THE COURT:
Petitioner’s petition for rehearing, filed November 23, 2021, is denied.
Justice Streeter dissents from this denial and would have granted
Petitioner’s request.
It is ordered that the opinion filed November 8, 2021, be modified as
follows:
1. On page 12 of the opinion, following the final full sentence, insert
as footnote number 5 the following text, and renumber all subsequent
footnotes accordingly:
Citing Cramer v Tyars (1979) 23 Cal.3d 131, 137, Y.C. also argues
that the Fifth Amendment gives him a right not to be called as a

Pollak, P.J., Streeter, J., Tucher, J. participated in the decision.
1
witness in a criminal case. This is true but irrelevant, as Y.C. has not
claimed he was, or will be, called as a witness in any court proceeding.
2. On page 17 of the opinion: Delete the final sentence (which
carries over to page 18) and subsequent citation, which read:
Separately, CMIA also authorizes a provider of health care to
disclose medical information to a probation officer “or any other person
who is legally authorized to have custody or care of a minor for the
purpose of coordinating health care services and medical treatment
provided to the minor.” (Civ. Code, § 56.103, subd. (a).)
Modifications to Justice Streeter’s Concurrence and Dissent:
1. On page 6 of Justice Streeter’s concurrence and dissent, in the
first full paragraph (which begins: To the extent we are reaching the
merits, . . .) immediately after the seventh full sentence (which reads: In my
view, BHRS—a public health agency that delivers mental health services to
juveniles—is clearly a “covered entity” since it is a “health care provider.”),
insert as footnote number 6 the following text, and renumber all subsequent
footnotes accordingly:
6 At pages 31 and 32 of the brief supporting Y.C.’s writ petition,
he cites and provides Web addresses for four judicially noticeable
government records (Evid. Code, § 452, subd. (c)) as proof of this. One of
these documents, published by BHRS and entitled “Mental Health Plan
Outpatient Provider Manual,” is addressed to BHRS’s contracted
clinicians for a number of different types of its health services,
including “assessment services,” which are described as “clinical
analysis of the history and current status of the client’s mental,
emotional or behavioral condition.” (San Mateo County Health System
Behavioral Health & Recovery Services, Mental Health Plan
Outpatient Provider Manual (Dec. 2017) [as of Dec. 3, 2021].) As an orientation to
its policies, BHRS advises these clinicians as follows: “It is essential
that in your practice you develop, communicate and utilize forms,
policies and procedures that are in compliance with HIPAA. We
2
recommend that you take a HIPAA training at least every two years.
[¶] The HIPAA for BHRS Mental Health e-learning course is available
free on the county Health System internet site http://smchealth.org.”
(Ibid.) Whether the substance of any of these statements is true and
accurate is not what is noteworthy about them. Their significance is in
the fact that they contradict the Attorney General’s position that
HIPAA does not apply here. They also explain why, when asked about
her practices in keeping assessments confidential, Ms. Johnson
testified that “there’s HIPAA involved.”
2. On page 14 of Justice Streeter’s concurrence and dissent, in the
first full paragraph, delete the first sentence and the citation following it: If
Y.C. had been ordered to participate in a psychological assessment interview
(§ 711), he would have enjoyed full use and derivative immunity for any
statements made to Ms. Johnson. (People v. Jablonski, supra, 37 Cal.4th at
p. 803.)
In place of the deleted text indicated above, begin the paragraph with
the following substitute language:
If Y.C. had been referred by the juvenile court for psychological
evaluation by a licensed mental health professional (§ 712, subd. (a)(2)),
he would have had the right, “with the approval of his or her counsel,”
to decline the evaluation (§ 711, subd. (b)), and if he had declined to be
evaluated, the preparation of the social study for the court in advance
of the dispositional hearing would have had to proceed without such an
evaluation. (Ibid.) It cannot be right that the power the Attorney
General now claims Ms. Johnson had—to ask for Y.C.’s consent to a
psychological evaluation that would ultimately be provided to the court,
without first giving Y.C. the opportunity to obtain the assistance of
counsel in deciding whether to proceed—exceeds the power of the court
itself.
3. On page 14 of Justice Streeter’s concurrence and dissent, in the
first full paragraph, in the sentence immediately following the newly inserted
language indicated in item 2 above and continuing in the same paragraph,
3
insert the phrase, “on his own” after the words, “Y.C. may have chosen” so
that the sentence reads:
Y.C. may have chosen on his own to participate in the
interview—under duress, and without adequate warning that his
statements could be used against him—but unless we recognize his
participation as effectively compelled, he was not entitled to full
immunity from the use of his statements, “either directly or as a lead to
other evidence, to bolster the prosecution’s case against the defendant.”
There is no change in the Judgment.
Dated: _________________________
TUCHER, P.J.*
Y.C. v. Superior Court for the County of San Mateo (A162063)
Presiding Justice of the Court of Appeal, First Appellate District,
*
Division Three, sitting by assignment pursuant to article VI, section 6 of the
California Constitution.
4
Trial Court: San Mateo County Superior Court
Trial judge: Honorable Susan Jakubowski
Counsel for petitioner: Michelle May Peterson
Lana M. Kreidie
Counsel for amicus curiae on behalf Abigail Trillin, Executive Director
of petitioner Legal Services for Children
Jesse Hahnel, Executive Director
National Center for Youth Law
Meredith Desautels, Staff Attorney
Youth Law Center
Counsel for respondent: No appearance
Counsel for real party in interest: Xavier Becerra and Rob Bonta
Attorneys General of California
Matthew Rodriquez
Acting Attorney General of
California
Lance E. Winters
Chief Deputy Attorney General
Jeffrey M. Laurence
Senior Assistant Attorney General
Seth K. Schalit
Supervising Deputy Attorney
General
Eric D. Share
Supervising Deputy Attorney
General
Filed 11/8/21 (see concurring opn.; see concurring & dissenting opn.)
(unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
Y.C.,
Petitioner,
v.
THE SUPERIOR COURT OF SAN A162063
MATEO COUNTY,
(San Mateo County
Respondent;
Super. Ct. No. 20JW0474)
THE PEOPLE,
Real Party in Interest.
After being detained on assault and firearm charges, 17-year-old Y.C.
agreed to participate in a mental health assessment conducted by a family
therapist, pursuant to an established protocol of the Juvenile Services
Division of the San Mateo County Probation Department. The therapist
provided a summary of her interview to the probation department, which
included the summary in a report provided to the juvenile court at Y.C.’s
detention hearings. In this writ proceeding, Y.C. contends the disclosure of
the assessment interview to the probation department and juvenile court,
and its use at his detention hearings, violated his constitutional right against
self-incrimination and his right to counsel, as well as various privacy rights
and privileges.
1
Because, during the pendency of this writ proceeding, Y.C. entered a
change of plea and was released from detention, we dismiss his petition as
moot to the extent it seeks relief relating to the detention order or to evidence
considered at the detention hearings. In all other respects, we deny the
petition.
BACKGROUND
A. The Charges
On November 10, 2020, the juvenile court issued an arrest warrant for
Y.C., then 17 years old. On the same day, the People filed a wardship petition
charging Y.C. with three felonies: assault with a firearm (Pen. Code, § 245,
subd. (a)(2)); carrying a loaded firearm (Pen. Code, § 25850, subd. (c)(4)); and
possession of a firearm by a minor (Pen. Code, § 29610). The first count
included a firearm-use enhancement (Pen. Code, § 12022.5, subd. (a)).
According to the detention report, Y.C. was alleged to have shot a suspected
rival gang member in the leg.
Arrested on November 11, 2020, Y.C. was taken to the Juvenile
Assessment Center (Assessment Center), where he met with a probation
officer and invoked his rights under Miranda v. Arizona (1966) 384 U.S. 436.
The probation officer spoke to Y.C.’s mother, who told the probation officer
she had been concerned with Y.C.’s behavior. Y.C.’s mother reported that
several months earlier, she had approached the Burlingame Police
Department for assistance controlling Y.C.’s behavior. The mother indicated
to police that she had noticed a “ ‘black flat thing, that is part of a gun’ ” in
the family home, reprimanded Y.C., and told him to get it out of the house.
B. The Assessment Center Interview
San Mateo County created its Assessment Center in response to the
need for “comprehensive early intervention with at-risk first-time offenders.”
2
The Assessment Center is part of a collaborative effort of the San Mateo
County Juvenile Justice Coordinating Council, which brings together the
county’s probation department, Behavioral Health and Recovery Services
(BHRS) agency, sheriff’s department, district attorney’s office, private
defender’s office, and judges of the juvenile court.
As part of the Assessment Center program, a multidisciplinary team
consisting of a probation officer, nurse practitioner, and psychiatric social
worker or therapist makes an intake assessment of a minor taken into
custody to determine the minor’s risk to the community and whether he or
she is in danger. Pursuant to this program, the probation officer referred Y.C.
to Linda Johnson, a licensed marriage and family therapist with San Mateo
County’s BHRS team. The purpose of the referral was for Johnson to assess
Y.C.’s needs, formulate a recommendation for a further mental health or
substance abuse evaluation, and potentially suggest future treatment.
On November 12, Johnson contacted Y.C. by telephone. At the
beginning of the call, Johnson informed Y.C. that he did not have to speak
with her and that if he did, the interview would not be confidential and would
be disclosed to the probation department and the court. Johnson also told
Y.C. that if he chose not to participate, she would report that fact to the
probation department and court. Y.C., without counsel, agreed to proceed
with the interview.
Johnson spoke with Y.C. for approximately two hours. They did not
discuss the charges against Y.C., and no reference to the circumstances
leading to his arrest appears in the report Johnson submitted to the
probation department. Johnson’s report summarized the substance of the
interview, discussing Y.C.’s physical and mental health history, including his
history of substance abuse. The report described Y.C.’s educational and
3
employment history, and his relationship with his family and friends.
Johnson recommended a psychological evaluation to “aid the Court in
determining an appropriate disposition and treatment plan” for Y.C. The
probation department included Johnson’s report in the detention report it
submitted to the juvenile court.
C. The Detention Hearings
Counsel for Y.C. first appeared in juvenile court on November 13, 2020,
for Y.C.’s initial detention hearing. Counsel objected to the court’s
consideration of Johnson’s report, but the court overruled the objection and
ordered continued detention for Y.C., determining detention was reasonably
necessary for the protection of the person or property of another and that
placement in Y.C.’s home was contrary to his welfare. (Welf. & Inst. Code,
§ 636, subd. (a).)1 The record does not reflect the factual underpinnings of the
court’s findings.
The court invited Y.C.’s attorney to file a formal motion to suppress and
seal Johnson’s report, and scheduled a further hearing to reconsider
detention. Counsel then filed a written motion, arguing that the statements
Y.C. made to Johnson were obtained in violation of his constitutional rights
to counsel and against self-incrimination, and that the inclusion of his
statements in the detention report violated the federal Health Insurance
Portability and Accuracy Act (HIPAA) and state “privacy rights.” Y.C.
requested that the court “order the statements excluded from the detention
report and that they not be used against [Y.C.] by the government.” He also
requested that the court seal the detention report and direct the preparation
1 All further undesignated statutory references are to the Welfare and
Institutions Code.
4
of a new detention report without the inclusion of Johnson’s interview with
Y.C.
At the December 22, 2020 hearing on the motion, Y.C. called Johnson
as witness. Johnson testified that her role with the BHRS team is to meet
with minors upon their arrival at the Assessment Center “to gather a
biopsychosocial history so that we can determine the needs for this youth and
their families.” Johnson explained, “The things that I look for are treatment
issues, resources that they need, history of abuse or neglect. My goal is to
help youth who potentially would fall through the cracks otherwise.” Johnson
said the probation department refers a minor to her for an assessment
generally within 24 hours after the minor has first been detained. In most
cases, the probation department informs Johnson of a minor’s name and date
of birth but provides no other details, including the reason for the minor’s
detention. For minors over 15 years old, Johnson did not contact counsel
before conducting an assessment; nor did she inquire whether the probation
department had contacted counsel. This was Assessment Center policy at the
time of Y.C.’s detention although, as discussed below, that policy changed
after an intervening change in state law.
Johnson meets with a minor alone2; the probation department does not
participate. Johnson begins an assessment by introducing herself and
informing the minor that she is to conduct an assessment in order to
formulate a recommendation to the juvenile court regarding the need for a
further mental health or substance abuse evaluation, and to make
suggestions for future treatment. She reads a list of disclosures to the minor,
Prior to March 2020, Johnson would meet with minors in person at
2
the Assessment Center. Beginning in March 2020, Johnson began contacting
minors by telephone due to restrictions on in-person contact brought on by
the COVID-19 pandemic.
5
including (1) that the information provided by the minor can and will be
shared with the probation department and juvenile court, (2) that as a result
of the assessment, the BHRS team “will formulate a recommendation to the
Court regarding the need for further mental health or alcohol and other drug
evaluation, and . . . may make suggestions for future treatment,” (3) that the
minor may refuse to participate in the assessment, but any refusal must be
made known to the probation department and juvenile court; and (4) that the
minor may change his mind about participating at any time and refuse to
answer specific questions. Johnson does not read a minor his Miranda rights
and is not informed by the probation department whether the minor has
previously invoked his Miranda rights.
If a minor chooses to participate, Johnson’s interview covers a wide
range of categories, including education, family, social history, mental health,
physical health, abuse, neglect, trauma history, and alcohol and drug history.
Johnson does not ask about the nature of the charged crimes and, if a minor
attempts to speak about the charges, Johnson tells the minor to stop.
After interviewing the minor, Johnson formulates a working clinical
interpretation that can lead to a provisional diagnosis and additional
treatment. She also prepares a written summary of her assessment and
provides it to the probation department for inclusion in the detention report.
The probation department has no input on the contents of Johnson’s
summary. Johnson reviews her summary after it has been included in the
detention report to ensure its accuracy.
In Y.C.’s case, Johnson explained that she went through the standard
disclosures with Y.C., and that he agreed to proceed with the assessment.
Johnson testified that Y.C. was “surprisingly forthcoming and open” during
the interview and had “good insight for a youth with his history.”
6
Following Johnson’s testimony and the parties’ arguments, the juvenile
court denied Y.C.’s motion to seal and suppress. The court observed that the
Welfare and Institutions Code “specifically requires that probation do an
investigation and provide information to the court and that that investigation
includes the circumstances of the minor and the facts surrounding his or her
being taken into custody. Part of the way that is done is through the
interview” by BHRS. The court explained that the interview with Johnson
was “not an interrogation” because not “on an inculpatory basis,” and it
concluded there was no Fifth Amendment or Miranda violation, no due
process violation, and no “[S]ixth [A]mendment violation of the right to
counsel.” Further, the court concluded that because the interview was
“provided after an extensive discussion with the minor about how it was
going to be used, who was going to see it, and what was going to be done for
it,” there was no HIPAA violation.
After denying the motion to seal or suppress, the court considered
Y.C.’s motion to be released from the Assessment Center pending the
disposition of his case. Y.C.’s mother and a family friend both testified on
Y.C.’s behalf, explaining that each had a strong relationship with Y.C., that
Y.C. was a loving person who had made some poor choices, and that they
would work with him to provide necessary care if the court were to release
him. The court nonetheless determined, in an order dated December 23,
2020, that detention remained necessary for the protection of the person or
property of another, and that placement in the home of Y.C.’s mother would
be contrary to Y.C.’s welfare.
D. Court of Appeal proceedings
On February 22, 2021, Y.C. filed a petition for writ of mandate in this
court seeking to vacate the orders denying his motions to seal and suppress
7
and for immediate release. Y.C. also filed a separate motion to seal Johnson’s
report pending our review of the writ petition. After receiving preliminary
briefing, we issued an order to show cause. We denied the motion to seal
pending our review of the petition, but observed that the report of Johnson’s
interview remained confidential pursuant to section 827, which allows only
specified persons and entities access to a juvenile case file.
The County of San Mateo filed an application to appear as a real party
in interest. We denied the county’s application but accepted its proposed
opposition to Y.C.’s writ petition as an amicus curiae brief.3
On May 5, 2021, the Attorney General filed a motion to dismiss Y.C.’s
writ petition as moot. The Attorney General reported that two days earlier
Y.C. had pleaded no contest to possession of a firearm by a minor and battery
with serious bodily injury, and he was awaiting a dispositional hearing on
May 17. The Attorney General argued that Y.C.’s petition was moot because
we could no longer grant relief from Y.C.’s pre-adjudication detention. Y.C.
opposed the motion and we denied it.
We have since been advised that Y.C. received a disposition of 240 days
of confinement, which after application of predisposition credits resulted in
further confinement of four days. Y.C. was then released home on juvenile
probation subject to ankle monitoring.
3 We overrule Y.C.’s objections to exhibits attached to the amicus brief.
Although not considered by the juvenile court, the county resolution creating
the BHRS team’s Assessment Center procedure, the documents issued by
federal agencies regarding application of privacy rules in light of the COVID-
19 pandemic, and an executive order from Governor Newsom addressing
changes to privacy laws in light of the pandemic, though of limited relevance,
are properly subject to judicial notice.
8
DISCUSSION
I. Mootness
The disposition of Y.C.’s delinquency case does not moot the petition
before us, but it does substantially narrow the issues we must decide. Y.C.
has asked this court to vacate the juvenile court’s orders at his detention
hearings that deny: (1) the sealing and suppression of statements he made to
Johnson, and (2) his release from custody. We agree with the Attorney
General that, with Y.C.’s plea of no contest and his release from custody, this
court can no longer grant “effectual relief” from the detention order, and
Y.C.’s challenge to the order detaining him is accordingly moot. (Sturgell v.
Department of Fish & Wildlife (2019) 43 Cal.App.5th 35, 43.) Y.C.’s challenge
to the sealing and suppression order is, for the same reason, partially moot.
To the extent Y.C. argues the statements he made to Johnson should not
have been used in deciding whether to detain him, that issue is moot now
that he is no longer detained. But the juvenile court’s order addressed
sealing, as well as suppression, and there the analysis is different.
To the extent Y.C. asks that the report containing his statements to
Johnson be sealed, returned, or destroyed to protect his privacy, that issue is
not moot. As the United States Supreme Court held in Church of Scientology
of California v. United States (1992) 506 U.S. 9, 13, when the Government
has obtained materials unlawfully, a court can “effectuate relief by ordering
the Government to return the records.” Although only “a partial remedy,” the
possibility of an order requiring such relief prevents a case from being moot.
(Ibid.)
Courts sometimes have discretion to decide an issue even when it is
moot, but we decline to do so in this case. A court has the power “to resolve an
issue rendered moot by subsequent events if the question to be decided is of
9
continuing public importance and is a question capable of repetition, yet
evading review.” (People v. Alsafar (2017) 8 Cal.App.5th 880, 883, 886.)
Courts may review the legality of pretrial detention on this theory because
“ ‘ “[p]retrial detention is by nature temporary, and it is most unlikely that
any given individual could have his constitutional claim decided on appeal
before he is either released or convicted.” ’ ” (Alfredo A. v. Superior Court
(1994) 6 Cal.4th 1212, 1219.) But in this case we are skeptical that the moot
issues regarding Y.C.’s pretrial detention are likely to recur because of recent
changes to state law and to the policy of the San Mateo County probation
department.
When Y.C. was first detained in November 2020, section 625.6
protected only minors who were younger than Y.C. The statute provided:
“Prior to a custodial interrogation, and before the waiver of any Miranda
rights, a youth 15 years of age or younger shall consult with legal counsel in
person, by telephone, or by video conference. The consultation may not be
waived.” (Former § 625.6, subd. (a).)
Consistent with the former statute, the policy of the San Mateo County
probation department was to contact counsel for youths before referring them
to BHRS only if a minor was 15 years of age or younger. That changed on
January 1, 2021 because the Legislature amended section 625.6 so that it
applies to all minors. (§ 625.6, subd. (a).) Beginning on January 1, 2021, the
probation department amended its policy so that it contacts counsel for all
minors, including 16- and 17-year-olds, before referring them to BHRS. Given
this change in the probation department’s policy, it is unlikely that other
youths will raise similar challenges to the inclusion of BHRS interview
summaries with their detention reports. We accordingly decline to address
those aspects of Y.C.’s petition that are moot.
10
II. Constitutional Claims
Y.C. argues that use of his assessment center interview for any purpose
other than health care services violates his Fifth Amendment right against
self-incrimination and Sixth Amendment right to counsel.4 To the extent Y.C.
is using these arguments to challenge his detention order or to argue that
Johnson’s report should not have been considered at the detention hearings,
those issues are moot since Y.C. is no longer detained. And to the extent Y.C.
is using these arguments to have the summary of his interview with Johnson
sealed, returned, or destroyed to protect his privacy, that form of relief is not
available for either alleged violation.
The Fifth Amendment guarantees that no person “shall be compelled in
any criminal case to be a witness against himself.” (U.S. Const., 5th Amend.)
Compelled statements “of course may not be used against a defendant at
trial, [citation], but it is not until their use in a criminal case that a violation
of the Self–Incrimination Clause occurs.” (Chavez v. Martinez (2003) 538 U.S.
760, 767 (plur. opn. of Thomas, J.); see also id., at pp. 777-779 (conc. opn. of
Souter, J.); New York v. Quarles (1984) 467 U.S. 649, 686 (Marshall, J.,
dissenting).) Because the privilege is focused on the use of statements during
a criminal case, the privilege “does not protect against the nonpenal adverse
use of officially compelled answers.” (Speilbauer v. County of Santa Clara
4 While the parties have focused their arguments on the Sixth
Amendment’s right to counsel, the right to counsel in delinquency
proceedings is derived from principles of due process rather than the Sixth
Amendment. (In re Gault (1967) 387 U.S. 1, 41.) We will presume the right to
counsel applies to minors in delinquency proceedings in the same manner as
to adult defendants in criminal cases. (See In re Elijah C. (2016) 248
Cal.App.4th 958, 964, fn. 5; but see In re William F. (1974) 11 Cal.3d 249, 254
[“[t]he right of counsel in juvenile proceedings” is “not necessarily as broad as
the right to counsel in criminal proceedings”] disapproved on another point in
People v. Bonin (1988) 46 Cal.3d 659, 695, fn. 4.)
11
(2009) 45 Cal.4th 704, 715.) Thus, in Spielbauer, the Supreme Court held
that “a public employee may be compelled, by threat of job discipline, to
answer questions about the employee’s job performance, so long as the
employee is not required, on pain of dismissal, to waive the constitutional
protection against criminal use of those answers.” (Id. at p. 710, italics
omitted.) The Fifth Amendment does not prevent compelling an employee’s
statements, the Court explained. “It simply forbids use of the compelled
statements, or the fruits thereof, in a criminal prosecution against the
employee.” (Id. at p. 727.)
Similarly, in People v. Elizalde (2015) 61 Cal.4th 523, the Supreme
Court held that an un-Mirandized statement from a defendant about his
gang affiliation, elicited during jail booking, was not admissible in the
prosecution’s case-in-chief, but also observed that it remains “permissible to
ask arrestees” questions about gang affiliation during the booking process.
(Id. at p. 541.) The Court recognized, “[j]ail officials have an important
institutional interest in minimizing the potential for violence within the jail
population,” and they “retain substantial discretion to devise reasonable
solutions to the security problems they face. [Citation.] We simply hold that
defendant’s answers to the unadmonished gang questions posed here were
inadmissible in the prosecution’s case-in-chief.” (Ibid.)
What these authorities make clear is that eliciting an unwarned, even
an involuntary, statement from a person in custody is not itself a Fifth
Amendment violation. It is the use in court proceedings of such a statement
that offends the Fifth Amendment. Here, the simple fact of Johnson’s
interview of Y.C. did not violate the Fifth Amendment, even if use of the
interview report during the detention hearing would have (an issue we do not
decide because it is moot). The Fifth Amendment is therefore unavailable as
12
a vehicle to order the sealing or destruction of any reference to Y.C.’s
statements to Johnson in his case file.
We reach the same result with respect to Y.C.’s right-to-counsel
argument, albeit for slightly different reasons. Once Sixth Amendment rights
attach, a violation of the right to counsel “occurs when the uncounseled
interrogation is conducted.” (Kansas v. Ventris (2009) 556 U.S. 586, 592.) The
right to counsel “renders inadmissible in the prosecution’s case in chief
statements ‘deliberately elicited’ from a defendant without an express waiver
of the right to counsel.” (Michigan v. Harvey (1990) 494 U.S. 344, 348.) But a
statement that is inadmissible as part of the prosecution’s case-in-chief may
be used for other purposes. For example, a statement obtained in violation of
the right to counsel can be used to impeach the defendant’s testimony.
(Ventris, at p. 594.) In addition, because the right to counsel is “offense
specific,” a defendant’s statements “regarding offenses for which he had not
been charged [are] admissible notwithstanding the attachment of his Sixth
Amendment right to counsel on other charged offenses.” (Texas v. Cobb (2001)
532 U.S. 162, 168.) An uncounseled statement may even be considered at a
juvenile disposition hearing, as “there is no statutory or constitutional
prohibition on the consideration of illegally obtained evidence at a juvenile
delinquency disposition hearing,” as long as the evidence is reliable, not
obtained as a result of gross or shocking misconduct, and not obtained for
purposes of influencing the sentencing court. (In re Michael V. (1986) 178
Cal.App.3d 159, 172–173.)
Because there are permissible uses of a statement taken in violation of
the right to counsel, it would, once again, be inappropriate to seal or destroy
records of such statements so that they could never be considered for any
purpose. We do not here decide whether Y.C.’s statements to Johnson could
13
be used in any particular circumstance, as no other use of the statements is
before the court. We simply conclude, now that the challenge to the juvenile
court’s pretrial detention order is moot, that relief is no longer available for
any alleged violation of Y.C.’s right to counsel. Since neither this claim nor
Y.C.’s Fifth Amendment claim provides a vehicle for granting the sealing or
destruction relief he seeks, we deny (to the extent not dismissed) Y.C.’s writ
petition as to both federal constitutional claims.
III. Federal and State Privacy Laws
Y.C. asserts that disclosure of his assessment interview violated
(1) HIPAA and state regulations requiring compliance with HIPAA;
(2) California’s Confidentiality of Medical Information Act (CMIA); (3) the
state constitutional right to privacy; (4) the psychotherapist-patient privilege;
and (5) state laws governing informed consent of medical decisions. He asks
that we “ensure all documents relating to the Assessment Center interview,
and copies thereof, are returned to respondent court without being further
read or consulted.” He also requests that we order the juvenile court to “seal
or destroy those documents.”
A. HIPAA and CMIA
HIPAA “prohibits the unauthorized disclosure or sharing of a person’s
medical information and imposes civil and criminal penalties on those who
do.” (County of San Diego v. Mason (2012) 209 Cal.App.4th 376, 382.) When it
enacted HIPAA, “Congress expressed its concern for protecting the integrity
and confidentiality of personal medical records, and for preventing the
unauthorized use or disclosure of such records. (42 U.S.C. § 1320d-2(d)(2).)”
(Bugarin v. Chartone, Inc. (2006) 135 Cal.App.4th 1558, 1561–1562.)
Similar to HIPAA, CMIA “is intended to protect the confidentiality of
individually identifiable medical information obtained from a patient by a
14
health care provider, while at the same time setting forth limited
circumstances in which the release of such information to specified entities or
individuals is permissible.” (Loder v. City of Glendale (1997) 14 Cal.4th 846,
859.) “To provide such protection, the act specifies that ‘[n]o provider of
health care shall disclose medical information regarding a patient of the
provider without first obtaining an authorization . . .’ (Civ. Code, § 56.10,
subd. (a)), and then sets forth, in some detail, the requirements of a valid
authorization for the release of medical information ‘by a provider of health
care’ (id., § 56.11) or by an employer (id., § 56.21).” (Loder, at pp. 859–860.)
Y.C. argues that Johnson failed to follow the authorization and notice
requirements in HIPAA and CMIA, rendering disclosure of the assessment in
the detention report unlawful under both laws. Specifically, Y.C. argues that
Johnson failed to obtain signed, written authorization, as required by both
statutes (see 45 C.F.R. § 164.508(c)(1); Civ. Code, § 56.11), and that he was
not provided with a “Notice of Privacy Practices” or the opportunity to object
to disclosure of the assessment, as required by HIPAA’s regulations. (See 45
C.F.R. §§ 164.510, 164.520.) As to CMIA, Y.C. claims that BHRS conditioned
its services on his allowing disclosure of the information to the probation
department and court, in contravention of Civil Code section 56.37.
But Y.C. has not addressed key aspects of HIPAA and CMIA.
Y.C. asserts that BHRS is “plainly a HIPAA covered entity” based on a
BHRS policy memorandum describing BHRS’s procedure for complying with
HIPAA. However, Y.C. overlooks and does not address the portion of the
same memorandum stating that disclosure of protected health information by
BHRS is mandatory “[t]o the courts, (e.g., to the Juvenile Judge), as
necessary for the administration of justice, in accordance with federal and
California law.” (BHRS memorandum, Confidentiality/Privacy of Protected
15
Health Information (PHI), Feb. 25, 2003, p. 4
[as
of Nov. 8, 2021].) More importantly, Y.C. does not address HIPAA’s definition
of a “Covered entity” set out in title 45 of the Code of Federal Regulations,
part 160.103: a covered entity is a “health plan,” a “health care
clearinghouse,” and a “health care provider who transmits any health
information in electronic form in connection with a transaction covered by
[HIPAA’s regulations].” (45 C.F.R. § 160.103.) These terms each have their
own definition under HIPAA, and Y.C. does not attempt to establish that any
of them encompasses the San Mateo County probation department or BHRS.
We see no way the probation department or BHRS could be considered a
“health plan” or “health care clearinghouse.”5 And assuming, without
deciding, that the probation department or BHRS is a “health care provider,”
we see no indication that either transmitted health information “in
connection with a transaction” covered by HIPAA’s regulations. The
5 “Health plan” is defined as “an individual or group plan that provides,
or pays the cost of, medical care.” The definition provides a non-exclusive list
of 17 types “health plans,” such as a group health plan, a health insurance
issuer, an HMO, and a variety of government programs such as Medicare and
Medicaid. A “Health care clearinghouse” is a “public or private entity,
including a billing service, repricing company, community health
management information system or community health information system,
and ‘value-added’ networks and switches, that does either of the following
functions: [¶] (1) Processes or facilitates the processing of health information
received from another entity in a nonstandard format or containing
nonstandard data content into standard data elements or a standard
transaction[;] [¶] (2) Receives a standard transaction from another entity and
processes or facilitates the processing of health information into nonstandard
format or nonstandard data content for the receiving entity.” Nothing in the
record before us suggests the probation department and BHRS satisfies these
definitions. (45 C.F.R. § 160.103.)
16
regulations define “Transaction” as the “transmission of information between
two parties to carry out financial or administrative activities related to
health care” (45 C.F.R. § 160.103), which is not something Y.C. claims
occurred in this case. We decline to wade further into the regulatory thicket
in search of arguments Y.C. might have made to support his HIPAA claim. It
is enough to observe that he fails to carry his burden of establishing that the
trial court erred when it found no HIPAA violation. (See Denham v. Superior
Court (1970) 2 Cal.3d 557, 564.)
As for CMIA, it contains a number of exceptions that seem to permit
disclosure of Y.C.’s assessment interview to the probation department,
juvenile court, and other parties participating in Y.C.’s treatment and care.
CMIA permits disclosure of medical information when “specifically
authorized by law” (Civ. Code, § 56.10, subd. (c)(14)), a provision that
“legitimizes a myriad of situations the Legislature may not have cared to
spell out.” (Shaddox v. Bertani (2003) 110 Cal.App.4th 1406, 1414.)
Disclosure of the assessment interview in this case appears authorized by the
Welfare and Institutions Code provision requiring a probation officer to
“investigate the circumstances of the minor” (§ 628, subd. (a)), and to provide
a report to the juvenile court, which the court must consider with any other
evidence (Cal. Rules of Court, rule 5.760(a)). Similarly, applicable regulations
require the administrator of a juvenile facility to “develop and implement
written policies and procedures for assessment and case planning,” that allow
“for the multi-disciplinary sharing of health information,” and “for providing
information to the court, child supervision staff and to probation.” (Cal. Code
Regs., tit. 15, §§ 1355, 1407(a).) Separately, CMIA also authorizes a provider
of health care to disclose medical information to a probation officer “or any
other person who is legally authorized to have custody or care of a minor for
17
the purpose of coordinating health care services and medical treatment
provided to the minor.” (Civ. Code, § 56.103, subd. (a).)
Even if HIPAA or CMIA were violated in the manner asserted by Y.C.,
the “Right to Truth-in-Evidence” provision found in article I, section 28 of our
state Constitution prohibits the juvenile court from sealing or destroying the
summary of Johnson’s interview with Y.C. This constitutional provision
provides, in relevant part: “relevant evidence shall not be excluded . . . in any
trial or hearing of a juvenile for a criminal offense, whether heard in juvenile
or adult court.” (Cal. Const., art. I, § 28, subd. (f)(2).) Our Supreme Court has
explained that this provision “was intended to permit [the] exclusion of
relevant, but unlawfully obtained evidence, only if exclusion is required by
the United States Constitution.” (In re Lance W. (1985) 37 Cal.3d 873, 890.)
Neither HIPAA nor CMIA authorizes a court to exclude otherwise relevant
evidence as part of a juvenile delinquency proceeding. (See Elder-Evins v.
Casey (N.D.Cal., July 3, 2012, No. C 09-05775 SBA (LB)) 2012 U.S. Dist.
Lexis 92467, p. *28 [2012 WL 2577589, p. *8] [“HIPAA’s general penalty
provision, 42 U.S.C. § 1320d-5(a)(1), does not include a suppression remedy,”
but rather “a civil penalty that can be assessed only against covered entities
and their business associates”]; United States v. Streich (9th Cir. 2009) 560
F.3d 926, 935 (conc. opn. of Kleinfeld, J.) [“HIPAA does not provide any
private right of action, much less a suppression remedy”]; cf. Civ. Code,
§ 56.35 [listing compensatory damages, punitive damages, and attorney fees
as remedy for CMIA violation, in addition to any other remedies available at
law].) Nor has Y.C. cited authority holding that the federal Constitution
requires exclusion of information obtained in violation of HIPAA or CMIA.
Because, as far as we are aware, Y.C. remains on juvenile probation and
under the jurisdiction of the juvenile court, the Right to Truth-in-Evidence
18
provision counsels against the court sealing or destroying relevant evidence
in his case file. Whether such evidence could be used in any future court
proceeding should remain for decision another day.
Finally, we note that section 827 restricts access to juvenile case files to
specified persons and entities, balancing the Legislature’s belief “that
juvenile court records, in general, should be confidential” with its intent “to
provide for a limited exception to juvenile court record confidentiality to
promote more effective communication among juvenile courts, family courts,
law enforcement agencies, and schools to ensure the rehabilitation of juvenile
criminal offenders.” (§ 827, subd. (b)(1); see also § 827, subd. (a)(1); In re Gina
S. (2005) 133 Cal.App.4th 1074, 1081.) Tellingly, Y.C. has cited no authority
stating that the protections of section 827 are insufficient to protect a youth’s
privacy rights during or after juvenile court proceedings.
B. Right to privacy, psychotherapist-patient privilege, and
informed consent
Y.C. also argues that the disclosure of Johnson’s assessment to the
probation department and juvenile court violated his state constitutional
right to privacy, the psychotherapist-patient privilege, and state laws
governing informed consent.
We disagree that the disclosure violated Y.C.’s constitutional right to
privacy. The California Constitution does recognize a right of privacy (Cal.
Const., art. I, § 1), but the party asserting the right must establish “an
objectively reasonable expectation of privacy in the given circumstances.”
(Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) Y.C. could not
reasonably have expected that information he provided during the
assessment interview would not be disclosed to the probation department or
the juvenile court because Johnson explicitly advised Y.C. that any
information he shared would be disclosed to the probation department and
19
juvenile court. Johnson also reminded Y.C. that he could stop participating at
any time. We recognize that within a short span of time Y.C. was arrested by
police, detained at the Assessment Center, brought before a probation officer,
and then referred to Johnson for an assessment interview—all undoubtedly
stressful for any youth. However, we cannot agree that any uncertainty Y.C.
may have had concerning the consequences of participating in the assessment
interview changes this basic fact: he had no objectively reasonable
expectation that the interview would not be shared with the probation
department and the juvenile court.
For similar reasons, we disagree with Y.C. that his interview with
Johnson was protected by the psychotherapist-patient privilege. The
psychotherapist-patient privilege grants a patient the right to refuse to
disclose, and to prevent others from disclosing, a confidential communication
between himself and a psychotherapist. (Evid. Code, § 1014.) But Johnson’s
interview with Y.C. cannot be considered a completely confidential
communication. She informed Y.C., without qualification, that “[a]ny
information disclosed by you during this Assessment can and will be shared
with Probation and the Court.” She also informed him that she was a
mandated reporter, so that if she “suspected that you pose a danger to
yourself or others I am also required to report those concerns to the
appropriate persons and/or agencies.” To the extent that Johnson told Y.C. in
advance she would share his statements, those statements are not protected
by the psychotherapist privilege. (Accord People v. Henderson (1977) 19
Cal.3d 86, 97–98 [defendant interview with jail psychotherapist not
confidential when defendant advised of constitutional rights and informed
interview was being conducted at request of district attorney], overruled on
other grounds by People v. Flood (1998) 18 Cal.4th 470, 484.)
20
Last, we conclude that the doctrine of informed consent has no bearing
on whether the contents of Johnson’s interview should be sealed or destroyed.
The doctrine of informed consent “imposes a duty on the physician to provide
material information about any proposed treatment, such as risks and
alternative procedures.” (Conte v. Girard Orthopaedic Surgeons Medical
Group, Inc. (2003) 107 Cal.App.4th 1260, 1267.) Y.C. claims Johnson failed to
inform him about what use the probation department would make of the
information he supplied, and failed to explain what rights he had to
alternative mental health services or legal assistance. But even if Y.C. could
establish that Johnson breached a duty to provide him material
information—an issue we do not decide—that breach would not entitle Y.C.
to the sealing order he seeks. Y.C. points to the black-letter principle that
breach of a professional’s obligation to obtain informed consent renders any
purported consent void. (Citing Sheppard, Mullin, Richter & Hampton, LLP
v. J-M Manufacturing Co., Inc. (2018) 6 Cal.5th 59, 87.) But Y.C. fails to
explain how this principle translates into a right to the relief he seeks.
Nothing in our analysis presupposes that Y.C. provided informed consent to
Johnson’s interview, so Y.C.’s effort to nullify such consent is beside the
point. Although we have established that once Johnson advised Y.C. the
contents of his interview would be disclosed to the probation department and
juvenile court, it was not objectively reasonable for Y.C. to believe otherwise,
that is a different matter.
In sum, none of Y.C.’s statutory or state constitutional claims entitle
him to the sealing or destruction order he sought from the juvenile court.
DISPOSITION
To the extent petitioner seeks relief from the juvenile court’s detention
order or the court’s consideration of the challenged statements during the
21
detention hearings, the petition for writ of mandate is dismissed as moot. In
all other respects, the petition for writ of mandate is denied.
TUCHER, P.J.*
I CONCUR:
POLLAK, P.J.
*Presiding Justice of the Court of Appeal, First Appellate District,
Division Three, sitting by assignment pursuant to article VI, section 6 of the
California Constitution.
22
POLLAK, P.J. — I concur but write separately to emphasize that although
we do not decide the constitutional issues raised by Y.C. because they are
moot as to him, we do not imply that we would agree with his contentions
were we to decide them. To the contrary, the constitutional provisions cited
by Y.C. are designed to prevent the forced or uninformed disclosure of
incriminating information. (See, e.g., Rhode Island v. Innis (1980) 446 U.S.
291, 301, fn. 5; United States v. A.R. (3d Cir. 1994) 38 F.3d 699, 703–705;
United States v. Mitchell H. (1999) 182 F.3d 1034, 1035.) Here, in my view,
there is no indication that Y.C.’s participation in the interview with a
therapist from the county’s Behavioral Health and Recovery Services was
either compelled or lacking in informed consent,1 and the interview was
designed and implemented to avoid discussion of Y.C.’s alleged offenses or of
any potentially incriminating information. The therapist’s interview was no
more than an extension of the probation officer’s interview, designed “not to
elicit evidence of guilt — the function of police questioning — but to assist the
probation officer in deciding at the outset of the case whether the minor need
be further detained pending a court hearing,” which our Supreme Court
approved in In re Wayne H. (1979) 24 Cal.3d 595, 601. There the Supreme
Court held that statements made during such an interview “are not
admissible as substantive evidence, or for impeachment, in any subsequent
1 The advisement that failure to participate would be reported to the
court was hardly a threat. The therapist never stated or implied Y.C. would
receive less favorable treatment from the court if he declined to participate,
or suggested that he would receive more favorable treatment if he did
participate. (See People v. Holloway (2004) 33 Cal.4th 96, 116.) Indeed, the
therapist could be faulted only if she had failed to make that disclosure. In
addition, the therapist interview with Y.C. has no resemblance to the coercive
and threatening questioning that was present in other cases in which a
minor’s statement was found involuntary. (See In re T.F. (2017) 16
Cal.App.5th 202, 221; In re Elias V. (2015) 237 Cal.App.4th 568, 583–584.)
1
proceeding to determine criminal guilt, whether juvenile or adult,” but “may,
of course, be admitted and considered in hearings on the issues of detention
and fitness for juvenile treatment.” (Id. at p. 602.)
As to the asserted violation of the Health Insurance Portability and
Accountability Act (HIPAA), which I agree does not apply, I would add one
observation. Even were the statute applicable, neither the therapist nor the
court ran “roughshod” over Y.C.’s rights under its provisions as Y.C.
contends. The therapist’s failure to obtain a signed, written authorization
from Y.C. was a consequence of restrictions on in-person contact at the
Juvenile Assessment Center caused by the COVID-19 pandemic. Although
the therapist interviewed Y.C. over the telephone, her admonishments
covered HIPAA’s principal requirements for a valid authorization, including
an advisement of the purpose of the interview and identification of the
persons to whom disclosure of information would be made. (See 45 C.F.R.
§ 164.508(c)(1).) Under the circumstances, there was substantial compliance
with the HIPAA safeguards.
In short, and without belaboring the arguments, the approach adopted
by the San Mateo County Probation Department is well designed to
accomplish its legitimate purpose without compromising the minor’s rights or
violating any statutory or constitutional restrictions. Prompt evaluation of
the mental health of a minor taken into custody is to be desired. The
therapist in this case breached no duty of loyalty or confidentiality, was fully
cognizant of her obligation to avoid eliciting potentially incriminating
information from Y.C., and complied with that obligation.
POLLAK, P. J.
2
STREETER, J., Concurring and Dissenting.
The collaborative, multidisciplinary approach San Mateo County took
to establishing its Juvenile Assessment Center (the Assessment Center or the
Center) appears to have been well intentioned. But no matter how well
intentioned in concept, in practice the Assessment Center carries out two
functions that are at war with each other. The Center offers detained youth
mental health services while at the same time, through the required sharing
of information among its constituent members—specifically in this case, the
dissemination to a probation officer of a psychologist’s assessment of a 17-
year-old youth held in custody, charged with felony offenses—it also supports
the prosecutorial function carried out by the probation department and the
district attorney. Whether Linda Johnson, the department of Behavioral
Health and Recovery Services (BHRS) psychologist who conducted the
assessment, understood this conflict is beside the point. Wittingly or not, the
fact is that her professional duties of loyalty and confidentiality to her young
patient were compromised.
If the BHRS saw fit to accommodate some kind of protocol of the
probation department by sharing Ms. Johnson’s clinical assessment, that
does not excuse the resulting violations of law. Nor does the fact that the
probation department is a constituent member of the Assessment Center
transform the BHRS into an arm of the probation department. Indeed, in her
testimony at the detention hearing, Ms. Johnson emphasized that she does
not work for the probation department. She said she is “part of the BHRS
forensic team.” By embedding a clinical psychologist in a collaborative body
that also includes the probation department, San Mateo County cannot
render inoperative the obligations of confidentiality that arise out of the
1
psychologist’s professional responsibility to her patient. Ms. Johnson had the
obligation to recommend mental health treatment for Y.C., if warranted; the
probation officer had the obligation to pursue his prosecution, if warranted.
Because these professional roles are fundamentally incompatible with each
other, it was up to Ms. Johnson to level with Y.C. about the potential
jeopardy she was putting him in, or at least put him in a position to
understand that disclosure of her assessment summary to the probation
department might not be in his best interests. For a lawyer in comparable
circumstances, we would never tolerate this kind of conflict absent full
disclosure and knowing waiver, even for sophisticated clients.
The issues raised in this case are not unique to San Mateo County, or
to California. Commentators with expertise in this specialty area have
surveyed the problems arising in psychological assessment interviews of
minors at the intake stage of juvenile justice systems across the country.1
One of the unfortunate aspects of the way in which these issues have arisen
1 Lore, Pretrial Self-Incrimination in Juvenile Court: Why a
Comprehensive Pretrial Privilege Is Needed to Protect Children and Enhance
the Goal of Rehabilitation (2009) 47 U. Louisville L.Rev. 439, 442–443,
fn. omitted (“Often, children will make self-incriminating statements during
the pre-adjudication stage of a juvenile court case while being evaluated or
receiving rehabilitative or therapeutic services. . . . [¶] The issue of children
making self-incriminating statements at the pre-adjudication stage has
grown in importance recently because of the trend within the juvenile justice
system to provide earlier screening and assessment . . . , often immediately
after arrest, but prior to any official court or attorney involvement. At an
initial screening, where children are often assessed for any immediate needs
such as mental health or substance abuse problems, [they] are generally
unrepresented. This lack of counsel increases the likelihood that they may
make self-incriminating statements that could drastically impact their
lives.”); see Rosado, Outside the Police Station: Dealing with the Potential for
Self-Incrimination in Juvenile Court (2012) 38 Wash. U. J.L. & Pol’y 177,
182–183.
2
here is that the objective of making sure psychological assessments are
undertaken as an adjunct to the probation department’s reporting
responsibility to the court—as the lead opinion puts it, to “ ‘aid the Court in
determining an appropriate disposition and treatment plan’ ” (lead opn., ante,
at p. 4)—could just as easily be carried out by the Assessment Center as a
collaborative endeavor after the detention hearing, the point in time when
Y.C. was guaranteed the assistance of counsel by statute. (Welf. & Inst.
Code,2 § 634.)3 Ms. Johnson admitted in her testimony that any urgent need
for mental health services prior to the detention hearing can be handled
independently, without consulting a probation officer. She also testified that
a court order is unnecessary for the provision of urgent services at that point.
Thus, it is the timing of the collaboration between BHRS and the probation
department that is most problematic here, not the fact of it.
Because only a slight timing adjustment would have brought the
Assessment Center into compliance with governing law at no cost to the
prompt delivery of mental health services to juvenile arrestees, the issues
that have arisen here could have been avoided quite easily. Why all the
controversy surrounding this writ proceeding then? That seems plain to see. I
would have thought that, by now, all these years after Miranda v. Arizona
2All subsequent statutory references, as in the lead opinion, are to the
Welfare and Institutions Code, unless otherwise noted.
3 Indeed, for youths like Y.C., who the court finds are beyond effective
parental control and thus for whom immediate return to their parents is not
a viable option, that is exactly what the statutory scheme contemplates.
(§ 636.1, subd. (a) [“When a minor is detained pursuant to Section 636
following a finding by the court that continuance in the home is contrary to
the minor’s welfare and the minor is at risk of entering foster care, the
probation officer shall, within 60 calendar days of initial removal, or by the
date of the disposition hearing, whichever occurs first, complete a case
plan.”].)
3
(1966) 384 U.S. 436 (Miranda) and In re Gault (1967) 387 U.S. 1, it would be
beyond debate that a juvenile accused of a felony has the right to counsel
during any custodial interrogation. But apparently not. Although counsel
must be appointed for all juvenile arrestees at their detention hearings, for a
brief period prior to that point these young arrestees sit in jail unrepresented.
At stake here is whether the San Mateo County Probation Department,
indirectly through BHRS psychologists, may be given access to uncounseled
juvenile arrestees before a lawyer enters the picture.4
Which highlights another unfortunate aspect of the case: Because Y.C.
has now been released pursuant to an agreed disposition, and because a
recent amendment to section 625.6 gives all minors a mandatory, unwaivable
right to consult with counsel before submitting to any type of interrogation
while in custody,5 any endorsement of the Center’s past practices appears to
be pointless. I therefore join the lead opinion in concluding that the case is at
least partially moot, and to the extent it is moot, in further concluding that
we should decline to apply the recurring-but-evading-review exception to the
mootness doctrine. I would go further, however. I think the entire case is
4 The fact that Y.C. was an apparently fully capable 17 year old is of no
moment. He was a minor. In 2011, the United States Supreme Court drew
attention to how the psychological pressures of custodial interrogation that it
warned against in Miranda can be especially powerful in breaking the will of
a juvenile. (J.D.B. v. North Carolina (2011) 564 U.S. 261, 272.) The Court’s
sensitivity to this issue is not new. (See Gallegos v. Colorado (1962) 370 U.S.
49, 53–55; Haley v. Ohio (1948) 332 U.S. 596, 599–601 (plur. opn. of Douglas,
J.).)
5 Section 625.6, subdivision (a) (“Prior to a custodial interrogation, and
before the waiver of any Miranda rights, a youth 17 years of age or younger
shall consult with legal counsel in person, by telephone, or by video
conference. The consultation may not be waived.”). Until January 1, 2021,
only youths 15 years of age or younger were covered by this statute.
4
moot and that we should say so, without more. I do not think Church of
Scientology of California v. United States (1992) 506 U.S. 9, which addresses
Article III mootness in the federal courts, compels a contrary conclusion. That
case involved a taxpayer’s request for return of its own records. The high
court observed that “[t]axpayers have an obvious possessory interest” in their
records. (Church of Scientology of California, supra, at p. 13.) The document
at issue here is a detention report prepared by the San Mateo County
Probation Department. What gave rise to all of Y.C.’s objections, and
ultimately to this writ proceeding, is that Ms. Johnson authored a section of
the probation department’s detention report. I fail to see how that could
possibly have given Y.C. a possessory interest in the detention report itself.
He could complain about the probation department’s use of the detention
report, which is what he did via his motion to suppress, but he could not
demand it back or have it treated like it was his property, since it was never
his.
Because I see no possible basis for any return, sealing, or destruction of
records, I do not think we should be issuing what amounts to an advisory
opinion on the claims requesting those remedies, since we cannot award
effective relief on them. I will say, though, that having concluded we still
have a live controversy here to an extent, Presiding Justice Tucher has done
an admirable job setting forth an analysis that deftly tacks back and forth
from merits discussion to mootness discussion, while keeping our merits
rulings relatively narrow. I appreciate that, though I am concerned about the
clarity of what we say here, since, at least as to some of the claims, the
analysis seems to suggest both that we are rejecting them on the merits and
that we deem them moot. For an opinion that seeks to garner agreement from
two colleagues with polar opposite views on this particular case, as our
5
separate opinions surely demonstrate, I suppose some opaqueness is to be
expected.
To the extent we are reaching the merits, explicitly or impliedly, I must
dissent. I will comment briefly on only two sections of the lead opinion. First,
I would find a violation of the Health Insurance Portability and
Accountability Act of 1996 (HIPAA) (42 U.S.C. § 1320d et seq.) on this record.
HIPAA prohibits a “covered entity” from using or disclosing protected health
information. (45 C.F.R. § 164.502(a) (2020).) Covered entities include a
“health plan,” a “health care clearinghouse,” and a “health care provider who
transmits any health information in electronic form in connection with a
transaction” under HIPAA. (45 C.F.R. § 164.104(a) (2020).) The disclosure of
“psychotherapy notes” is specifically mentioned in the regulations as a
disclosure for which authorization is required. (45 C.F.R. § 164.508 (2020).)
In my view, BHRS—a public health agency that delivers mental health
services to juveniles—is clearly a “covered entity” since it is a “health care
provider.” It violated HIPAA because the information gathered by its
employee, Ms. Johnson, was “health information” (42 U.S.C. § 1320d(4)), the
disclosure of which was prohibited (42 U.S.C. § 1320d-6) absent patient
consent (45 C.F.R. § 164.508 (2020). Patient consent is governed by strict
regulatory standards. (See 45 CFR 160.102(a)(3) (2020) [applicability of
regulatory standards to a “healthcare provider”].) Ms. Johnson failed to
secure Y.C.’s consent in the form of a “valid authorization” written in “plain
language” advising Y.C. of the purpose of the disclosure, describing in
“specific and meaningful fashion” the information to be disclosed, telling Y.C.
his right to treatment was not conditioned on consent to disclosure, and
warning Y.C. of the prospect that any disclosed information could lose its
protected status under HIPAA. (45 C.F.R. § 164.508(c)(1)(i), (iv), (vi) and
6
(c)(3) (2020).) Nor is there any basis for excusing the failure to obtain an
effective consent. The exception for disclosures made in connection with
judicial and administrative proceedings—which appears to be what the
mandatory governmental disclosure proviso in BHRS’s policy memorandum
is about—does not apply in the absence of a court order, subpoena or
assurance that steps have been taken to secure a protective order. (45 C.F.R.
§ 164.512(e) (2020).)6
Second, under the due process principles enunciated in In re Gault,
supra, 387 U.S. 1, I think Y.C.’s assessment interview violated Y.C.’s
privilege against self-incrimination (Estelle v. Smith (1981) 451 U.S. 454,
468–469) and right to counsel (Massiah v. United States (1964) 377 U.S. 201,
205–206), which means it was error to admit into evidence and consider at
the detention hearing the portion of the detention report that set forth Ms.
Johnson’s summary of Y.C’s psychological assessment, just as it would have
been error to consider it in the state’s affirmative case at a jurisdictional
hearing or subsequent criminal proceedings on the same charges. In re Wayne
H. (1979) 24 Cal.3d 595, a key case relied upon by the Attorney General, and
cited by Presiding Justice Pollak as well, is not to the contrary. The appellant
in Wayne H. received a Miranda warning and made a considered choice to
6 Obviously, the BHRS cannot declare an exemption that is broader
than the governing regulations allow. And to the extent the lead opinion
suggests the BHRS is not covered at all by HIPAA—which is of course
inconsistent with BHRS’s own policy memorandum concerning its HIPAA
compliance practices—I read 45 Code of Federal Regulations part 160.103
(2020) to be directed toward the handling of billing and other support
functions carried out by entities that provide services to a “health care
provider.” That regulation does not govern the core confidentiality standards
applicable directly to a “health care provider.” Reading the regulations as a
whole to apply only to “financial or administrative activities related to
healthcare,” as the lead opinion apparently does (lead opn., ante, at p. 17),
has the effect of gutting the statute.
7
participate in a section 628 interview after being advised of his right to
counsel. Y.C. never had that opportunity. Under Miranda, supra, 384 U.S.
436, unwarned statements in a custodial interrogation are presumed to have
been coerced.
There is no question here that Ms. Johnson’s interview of Y.C. took
place in a custodial setting. Nor can there be any genuine question about
whether the interview qualifies as an “interrogation” for Fifth Amendment
purposes. “Interrogation” simply means “questioning” (Miranda, supra, 384
U.S. at p. 461), and even without an expressly communicated inquiry, may
include “any words or actions” the examiner should know “are reasonably
likely to elicit an incriminating response from the suspect.” (Rhode Island v.
Innis (1980) 446 U.S. 291, 301, fn. omitted.) The Fifth Amendment privilege
“not only permits a person to refuse to testify against himself at a criminal
trial in which he is a defendant, but also ‘privileges him not to answer official
questions put to him in any other proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in future criminal
proceedings.’ ” (Minnesota v. Murphy (1984) 465 U.S. 420, 426, italics added.)
The Sixth Amendment guarantee of counsel is equally applicable. Once
charges are filed accusing a person of a crime (People v. Bustamante (1981)
30 Cal.3d 88, 106–107), there is a Sixth Amendment right to counsel at any
“stage of the proceedings [that is] a critical one from [the] defendant’s
standpoint.” (People v. Horton (1995) 11 Cal.4th 1068, 1136.) A “critical stage”
includes any pretrial event “at which crucial decisions affecting [the
defendant’s] defense [are] to be made, and where his counsel could [take]
steps” toward “protect[ing] and further[ing] [his] substantial rights” (ibid.).
8
For Y.C.—from his standpoint—I believe Ms. Johnson’s interview was a
“critical stage” of the proceedings against him.7
A significant thrust of the Attorney General’s argument in opposition to
Y.C.’s Fifth Amendment and Sixth Amendment claims, echoed in Presiding
Justice Pollak’s concurrence, is that Ms. Johnson’s assessment interview was
part of the probation officer’s fact-gathering process under section 628, and
that, as a result, Wayne H. not only bars the use of any statements in the
interview to prove guilt at the jurisdictional hearing but expressly permits
their use at the detention hearing. The detention hearing, the Attorney
General argues, was a neutral proceeding that did not bear upon guilt. He
cites by analogy United States v. A.R. (3d Cir. 1994) 38 F.3d 699 and United
States v. Mitchell H. (9th Cir. 1999) 182 F.3d 1034. These federal cases are
problematic for a number of reasons (see Commonwealth v. Brown (2011)
26 A.3d 485, 501–502), but the premise of this line of argument collapses if
there is no Wayne H. use immunity. I say that because Wayne H. has no
constitutional foundation. Because Wayne H. is based solely on an
interpretation of section 628 and the statutory scheme of which that
provision is part, I doubt its rule of use immunity survived the passage of
article I, section 28, subdivision (f )(2) (formerly subdivision (d)) of the
7 When Ms. Johnson visited Y.C., the stakes for him at the detention
hearing turned out to be more consequential than he could possibly have
known without the assistance of counsel. When finally released, still without
a jurisdictional hearing, he had spent six months behind bars, far beyond the
presumptive maximum period of 15 judicial days’ temporary detention
contemplated by the statutory scheme. (§ 657, subd. (a)(2).) That is one of the
most troubling aspects of this case. In the circumstances Y.C. faced—whether
because of the alleged use of a gun, the alleged involvement of gangs, or some
concern about his family ties to a foreign country—he was entitled to counsel
to advise him of the potential that he might be deemed a flight risk and a
danger to public safety, and kept behind bars for an extended period of time
before his case came on for trial.
9
California Constitution, passed as Proposition 8 in 1982. (Cf. Ramona R. v.
Superior Court (1985) 37 Cal.3d 802, 806–811 [use immunity for juvenile’s
transfer hearing testimony and statements to probation officer in advance of
that hearing is founded on article 1, section 15 of the California Constitution
and is therefore valid under Proposition 8 by virtue of the savings clause for
constitutionally based privileges in Evid. Code, § 940].)
It is not the case that, because the questioning at Ms. Johnson’s
assessment interview concerned only matters relating to Y.C.’s personal life
and mental health, we may conclude that nothing Y.C. said in the interview
was potentially incriminating. The felony assault and weapons charges in
this case alleged that Y.C. shot a gang member. Without revealing any
clinical diagnoses or recommendations for treatment set forth in
Ms. Johnson’s assessment interview summary, suffice it to say that the
interview covered a variety of topics concerning Y.C.’s personal background,
including his family’s immigrant story and some information concerning the
nature of his friendships. Together with independent evidence coming from
his mother that Y.C. may have been involved with drugs and might have
been in possession of a gun, it is not difficult to see how Y.C.’s statements to
Ms. Johnson could have been used against him in a case alleging gang
involvement.
The issue here is whether there was an incriminatory hazard, not
whether there was actual incrimination. “An ordinary witness need not
actually prove the existence of an incriminatory hazard, as that would
surrender the very protection which the privilege against self-incrimination
was designed to guarantee. Instead, the privilege forbids compelled
disclosures which could serve as a ‘link in a chain’ of evidence tending to
establish guilt of a criminal offense; in ruling upon a claim of privilege, the
10
trial court must find that it clearly appears from a consideration of all the
circumstances in the case that an answer to the challenged question[s]
cannot possibly have a tendency to incriminate the witness.” (Prudhomme v.
Superior Court (1970) 2 Cal.3d 320, 326, disapproved on other grounds in
Izazaga v. Superior Court (1991) 54 Cal.3d 356, 371–372; see Hoffman v.
United States (1951) 341 U.S. 479, 486–488.) I am not convinced we can say
the assessment interview of Y.C. could not “possibly have a tendency to
incriminate” him. That interpretation of the record accepts on faith
Ms. Johnson’s professed desire only to help this young man, while ignoring
the fact that the prosecutor might react to the information in her assessment
summary in a wholly different way, and use it to build a case against him.
The lead opinion relies on a line of cases holding there is no Fifth
Amendment protection beyond the “core” privilege not to have incriminating
statements used adversely in later criminal proceedings. (Spielbauer v.
County of Santa Clara (2009) 45 Cal.4th 704, 714–715, 727; Chavez v.
Martinez (2003) 538 U.S. 760, 767–773 (plur. opn. of Thomas, J.); see Chavez,
at pp. 777–778 (conc. opn. of Souter, J.).) Even under this analysis, the
central contention Y.C. makes in this case, that the assessment interview
summary should have been excluded at the detention hearing—a contention
we say is moot in light of Y.C.’s release, but not moot in light of his request
for affirmative relief—qualifies as an attack on a later use of his statements
that posed an incriminatory hazard at the detention hearing. At that hearing,
Y.C. faced a significant threat to his physical liberty, and along with it the
potential stigma of extended incarceration. Gault traches that those things
are by no means neutral or rehabilitative. (In re Gault, supra, 387 U.S. at
pp. 49–55.) The fact that there may be other, “permissible uses” (lead opn.,
11
ante, at pp. 13–14) of Y.C.’s statements to Ms. Johnson does not erase the
underlying Fifth Amendment violation.
Notably, moreover, Spielbauer and Chavez are civil cases in which the
prospect of criminal exposure was not immediately in view. Gault definitively
rejected the idea that juvenile delinquency proceedings are “civil” in nature
and thus that there is no possibility of criminal exposure warranting
application of the Fifth Amendment. (In re Gault, supra, 387 U.S. at pp. 49–
55.) And in any event, to the extent the narrow Spielbauer and Chavez
conception of the Fifth Amendment applies in a scenario where criminal
charges are pending, our Supreme Court has invoked those cases only where
a defendant who knowingly waived his Fifth Amendment privilege had yet to
face any questions at all. (See Maldonado v. Superior Court (2012) 53 Cal.4th
1112, 1127–1128 [where represented criminal defendant made strategic
choice to put his mental state in issue, protective order entered in advance of
mental examination sought by prosecution not justified by the Fifth
Amendment since scope of defendant’s waiver could only be determined at
the examination].)
There was no knowing waiver on this record. (See Miranda, supra,384 U.S. at p. 475 [“this Court has always set high standards of proof for the
waiver of constitutional rights”]; Johnson v. Zerbst (1938) 304 U.S. 458, 464–
469 [“intelligent waiver” requires “intentional relinquishment or
abandonment of known right or privilege”].) Where there is no waiver and
there is clear criminal exposure—or its equivalent, a pending trial in
delinquency proceedings—the prophylactic sweep of the Fifth Amendment
under Miranda extends beyond simple prohibition on direct evidentiary use
of compelled statements in the state’s case-in-chief on the issue of guilt at
12
trial. It also prohibits the use of such statements outside the courtroom to
build a case for guilt.8
The lead opinion’s citation to People v. Elizalde (2015) 61 Cal.4th 523,
is no more illuminating than Spielbauer and Chavez. If anything, that case
tends to support Y.C.’s claim of a Fifth Amendment violation here. Elizalde
holds that, in a case involving gang allegations, the collection of information
about gang affiliation, even if gathered for permissible purposes—there, the
questions were asked at jail intake in order to ensure the safety of inmates
and staff—does violate the Fifth Amendment. (Elizalde, at pp. 530–532.)
“Any number of questions posed to arrestees, such as whether they are
injured or under the influence of drugs or alcohol, and how they came to be
so, may be both necessary and highly incriminating. In-custody defendants
generally retain their Fifth Amendment protections even if the police have
good reasons for asking un-Mirandized questions,” the court explained. (Id. at
p. 536, italics added.) The remedy for this violation, the court held, was
suppression of the defendant’s “unadmonished answers” at trial (id. at
p. 540), though the failure to do so in that case was not prejudicial (id. at
p. 542). My colleagues appear to confuse the issue of whether there was a
violation of the Fifth Amendment with the issue of remedy. In this case, it is
enough to say that Y.C. is not entitled to the remedy he seeks. Instead, we
hold, incorrectly I believe, that there was no violation at all. (Lead opn., ante,
8 This is why courts distinguish use immunity from derivative use
immunity. See, e.g., People v. Jablonski (2006) 37 Cal.4th 774, 803 (holding
that the rule of judicially declared immunity for statements made in a
compelled mental competency examination fully protects a defendant against
any nonevidentiary uses of statements obtained from the defendant during
the competency hearing to the same extent he or she is protected by the
privilege against self-incrimination).
13
at p. 12 [“the simple fact of Johnson’s interview of Y.C. did not violate the
Fifth Amendment”].)
If Y.C. had been ordered to participate in a psychological assessment
interview (§ 711), he would have enjoyed full use and derivative immunity for
any statements made to Ms. Johnson. (People v. Jablonski, supra, 37 Cal.4th
at p. 803.) Y.C. may have chosen to participate in the interview—under
duress, and without adequate warning that his statements could be used
against him—but unless we recognize his participation as effectively
compelled, he was not entitled to full immunity from the use of his
statements, “either directly or as a lead to other evidence, to bolster the
prosecution’s case against the defendant.” (Maldonado v. Superior Court,
supra, 53 Cal.4th at p. 1125.) The Attorney General cannot have it both ways
on this issue. If, as the Attorney General contends, Y.C.’s participation in the
assessment interview was voluntary, he enjoyed at most a narrow, statutorily
derived use immunity under Wayne H. prohibiting the prosecution from
seeking later admission of any incriminating statements he made to
Ms. Johnson as substantive evidence of guilt of a criminal offense. But
Wayne H. does not shield him from indirect, nonevidentiary use of anything
else that might have bolstered the prosecution’s case against him in a later
proceeding. And, worse, if the pure use immunity conferred by Wayne H. is no
longer valid, as I have suggested above is likely the case, then he had no
protection at all—even in this juvenile proceeding. These may seem like
subtleties, but ultimately they explain why Y.C. faced a significant risk of
incrimination in answering questions that seemed both necessary and
benign, as the defendant in Elizalde did, not just at the detention hearing,
but at the jurisdictional hearing and beyond. Y.C. may not have confessed at
the assessment interview, but he supplied information that the state was free
14
to use either in building a case for guilt or in arguing he was dangerous
enough to justify an extended period behind bars.9
STREETER, J.
9 In light of that risk, had there not been an agreed disposition in this
case—which moots the issue—I would have favored granting some form of
writ relief designed to give Y.C. use and derivative use immunity,
affirmatively barring the prosecution from nonevidentiary use of
Ms. Johnson’s assessment summary in any further investigation of whether
he committed the offenses charged against him. The statutory confidentiality
and sealing to which he is automatically entitled under section 827 and
rule 5.552 of the California Rules of Court do not provide sufficiently broad
protection to accomplish that. I mention this in closing because I suspect
there is an 800-pound gorilla in the room here: an unstated concern on the
part of the BHRS and the probation department that, if counsel for juvenile
arrestees were involved, that would disrupt psychological assessment
interviews of the kind at issue in this case. A similar concern has been
recognized and taken into account by our Supreme Court in comparable
circumstances. (People v. Pokovich (2006) 39 Cal.4th 1240, 1252.) Going
forward here, I see no reason why full use and derivative use immunity could
not be conferred by a negotiated protective order applicable to assessment
interviews. If that level of protection were granted, the BHRS and the
probation department may be surprised to find that defense counsel—who
surely understand their paramount duty to protect the welfare of their young
clients, as do all other professionals involved in juvenile delinquency
proceedings—would not impede or stand in the way of these interviews.
15
Trial Court: Contra Costa County Superior Court
Trial judge: Honorable Susan Jakubowski
Counsel for petitioner: Michelle May Peterson
Lana M. Kreidie
Counsel for amicus curiae on behalf Abigail Trillin, Executive Director
of petitioner Legal Services for Children
Jesse Hahnel, Executive Director
National Center for Youth Law
Meredith Desautels, Staff Attorney
Youth Law Center
Counsel for respondent: No appearance
Counsel for real party in interest: Rob Bonta
Attorney General of California
Matthew Rodriquez
Acting Attorney General of
California
Lance E. Winters
Chief Deputy Attorney General
Jeffrey M. Laurence
Senior Assistant Attorney General
Seth K. Schalit
Supervising Deputy Attorney
General
Eric D. Share
Supervising Deputy Attorney
General
Y.C. v. Superior Court for the County of San Mateo (A162063)
16