Menendez v. Superior Court

• Decision Date: 27 August 1992
• Docket Number: No. S017206,S017206
• Citation: 3 Cal.4th 435,834 P.2d 786,11 Cal.Rptr.2d 92
• Court: California Supreme Court
• Parties: , 834 P.2d 786 Erik Galen MENENDEZ et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent. The PEOPLE, Real Party in Interest.

Page 92

11 Cal.Rptr.2d 92

3 Cal.4th 435, 834 P.2d 786

Erik Galen MENENDEZ et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent.

The PEOPLE, Real Party in Interest.

No. S017206.

Supreme Court of California,

In Bank.

Aug. 27, 1992.

As Modified on Denial of Rehearing Nov. 12, 1992.

Leslie H. Abramson, Los Angeles, Howard W. Gillingham, North Hollywood, Lewis A. Wenzell, San Diego, Gerald L. Chaleff, Santa Monica, Jill D. Lansing, Los Angeles, Gigi Gordon, Santa Monica, and Michael N. Burt, San Francisco, for petitioners.

Milgrim, Thomajan & Lee, Daniel H. Willick, Los Angeles, Hogan & Hartson, Clifford D. Stromberg, Jeffrey G. Schneider, Washington, D.C., Brobeck, Phleger & Harrison, George A. Cumming, Jr., San Francisco, and Thomas M. Peterson, San Francisco, as amici curiae on behalf of petitioners.

No appearance for respondent.

Ira Reiner, Dist. Atty., Harry B. Sondheim, Donald J. Kaplan and Brent Riggs, Deputy Dist. Attys., for real party in interest.

MOSK, Associate Justice.

We granted review in this matter to consider a claim of the psychotherapist-patient privilege. For the reasons stated below, we conclude that the claim must be sustained in part and rejected in part.

I

On August 20, 1989, Jose and Mary Louise Menendez were killed in their Beverly Hills residence. The incident was reported shortly after its occurrence by their sons Joseph Lyle (Lyle) and Erik Galen (Erik) Menendez (collectively sometimes the Menendezes or the brothers), who were then apparently 21 and 18 years of age, respectively.

On March 7, 1990, a magistrate in the Municipal Court of the Beverly Hills Judicial District of Los Angeles County issued a search warrant, pursuant to Penal Code section 1524, authorizing a search of the offices and residence of Leon Jerome Oziel, Ph.D., a clinical psychologist who was Lyle's and Erik's psychotherapist, and seizure of specified items if found therein, including audiotape recordings containing information relating to the killings. It seems that at or about the time of issuance, the magistrate appointed a special master pursuant to subdivision (c) of Penal Code section 1524 to accompany those who would serve the warrant. ¹

On March 8, 1990, accompanied by the special master, among others, officers of the Beverly Hills Police Department served the search warrant. The special master informed Dr. Oziel of the items sought. Dr. Oziel provided the materials. Claiming the psychotherapist-patient privilege on behalf of the Menendezes, he stated that none of the items should be disclosed because all were within the scope of the protection. The special master sealed the materials for a subsequent hearing in the superior court. Among the items in question were three audiotape cassettes (and certain copies thereof): one contains Dr. Oziel's notes relating to sessions with Lyle and Erik on October 31 and November 2, 1989; one contains Dr. Oziel's notes relating to a session with Erik on November 28, 1989; and one contains an actual session Dr. Oziel conducted with Lyle and Erik on December 11, 1989. ² Lyle and Erik were subsequently arrested and placed in custody.

On March 12, 1990, a felony complaint was filed on behalf of the People against the Menendezes in the Municipal Court of the Beverly Hills Judicial District of Los Angeles County.

Count I charged the brothers with the murder of their father. (Pen.Code, § 187.) As to this offense, it alleged, inter alia, the special circumstances of intentional murder for financial gain (id., § 190.2, subd. (a)(1)) and intentional murder while lying in wait (id., § 190.2, subd. (a)(15)).

Count II charged the brothers with the murder of their mother. As to this offense, it alleged, inter alia, the special circumstances of intentional murder for financial gain and intentional murder while lying in wait.

The complaint separately alleged the special circumstance of multiple murder. (Pen.Code, § 190.2, subd. (a)(3).)

II

On March 19, 1990, Dr. Oziel filed a motion in the Los Angeles Superior Court under Penal Code section 1524, subdivision (c), effectively claiming for the Menendezes the psychotherapist-patient privilege, as established by Evidence Code section 1014, ³ as to the items seized pursuant to the search warrant.

The Menendezes successfully moved to intervene. They filed papers in support of the privilege.

By contrast, the People, through the Los Angeles District Attorney, filed papers in opposition. They argued, inter alia, that the privilege was not available on its own terms. They also argued that certain exceptions operated. Most prominent was the exception for a "dangerous patient," as stated in Evidence Code section 1024. ⁴ Also cited was the exception for a "crime or tort" under Evidence Code section 1018. ⁵ Both sides addressed the question in light of our then recently decided case of People v. Clark (1990) 50 Cal.3d 583, 268 Cal.Rptr. 399, 789 P.2d 127.

Over several days between June 8 and August 3, 1990, the superior court conducted an evidentiary hearing on the claim of the psychotherapist-patient privilege as to the items seized.

At the inception, the People offered affidavits by certain persons, including Judalon Smyth, who had been Dr. Oziel's lover. The superior court received some of the documents in evidence, at least in part; it accepted others as offers of proof; it placed Smyth's affidavit into the latter group and not the former. ⁶

For the most part, on the Menendezes' motion pursuant to Evidence Code section 915 ⁷ and over the People's opposition, the superior court held the proceedings in camera in the presence of the brothers and their respective counsel without the People's representatives. At the hearing in camera, Dr. Oziel and Smyth were among those who testified. Exhibits submitted included the three audiotape cassettes as well as transcripts of their contents made at the direction of the Menendezes' counsel. The People filed a list of questions that they requested the court to ask Dr. Oziel. They also filed a request for a statement of decision, including resolution of certain specified issues.

On August 6, 1990, the superior court rejected the claim of the psychotherapist-patient privilege as to each and every one of the three audiotape cassettes. ⁸ In a statement of decision, it set out its findings of fact and conclusions of law. As pertinent here, those determinations are to the following effect.

With regard to each of the sessions--October 31, November 2, November 28, and December 11--the requirements for the psychotherapist-patient privilege were satisfied. Specifically, there were "confidential communication[s] between patient and psychotherapist...." (Evid.Code, § 1014.) Dr. Oziel was a psychotherapist and Lyle and Erik were his patients. Further, the "information" that passed among them was "transmitted ... in the course of [the psychotherapeutic] relationship and in confidence by a means which, so far as [Lyle and Erik] [were] aware, disclose[d] the information to no third persons" outside the scope of the protection. (Id., § 1012.) ⁹ Indeed, it was expressly found that "all of the sessions ... were intended by the parties thereto to be for the purpose of therapy." ¹⁰ It was impliedly found that the "crime or tort" exception was unavailable.

Next, neither Lyle nor Erik waived the privilege as to any of the communications made at any of the sessions. It was expressly found that there was no "intentional waiver"; it was impliedly found that there was no waiver by operation of law. ¹¹

As to the sessions of October 31 and November 2, however, the conditions of the "dangerous patient" exception were met. First, Dr. Oziel had reasonable cause to believe that Lyle and Erik were dangerous: they made threats of harm that were aimed at him alone but also collaterally endangered his wife, Laurel Oziel, and his lover, Judalon Smyth, because of their relationships. Second, he had reasonable cause to believe that disclosure of all the communications made at these sessions and reflected on audiotape was necessary to prevent any harm. Soon, he disclosed all these communications to the two women in separate warnings.

By contrast, as to the sessions of November 28 and December 11, one of the conditions of the "dangerous patient" exception was not met. Specifically, it was found that the evidence was insufficient to establish that Dr. Oziel had reasonable cause to believe that disclosure of any of the communications made at either of these sessions and reflected on audiotape was necessary to prevent any harm.

All the same, under Clark--which the superior court read to hold that the privilege requires the communication to be and remain "confidential"--the privilege could no longer be claimed because the communications were no longer "confidential."

The communications at the October 31 and November 2 sessions lost their "confidential" status when they were disclosed by Dr. Oziel not long afterwards to Laurel Oziel and Judalon Smyth in separate warnings. He had engaged each woman as an agent in his professional practice, although not to provide psychotherapy. But he made the disclosures to each outside the privilege--that is to say, not as his agent in his practice, but simply as a possible victim of the Menendezes.

Next, the communications at the November 28 and December 11 sessions lost their "confidential" status in part because they "were simply restatements ... and amplifications of" similar communications at the October 31 and November 2 sessions; in part because they had been rendered "nonconfidential," as it were, "before the fact" by the disclosure of similar communications from those earlier sessions; and in part because each and all of the communications at each and all of the sessions constituted but one "communication."

In addition, it was effectively found that the communications at all the sessions in their entirety lost their "confidential" status when ...