Menendez v. Superior Court (People)

• Decision Date: 28 March 1991
• Docket Number: No. B052293,B052293
• Citation: 279 Cal.Rptr. 521,7 Cal.App.4th 147
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 228 Cal.App.3d 1320, 235 Cal.App.3d 200, 7 Cal.App.4th 147 228 Cal.App.3d 1320, 235 Cal.App.3d 200, 7 Cal.App.4th 147 Erik Galen MENENDEZ and Joseph Lyle Menendez, Petitioners, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent. PEOPLE of the State of California, Real Party in Interest.

Page 521

279 Cal.Rptr. 521

Previously published at 228 Cal.App.3d 1320, 235 Cal.App.3d 200, 7 Cal.App.4th 147

228 Cal.App.3d 1320, 235 Cal.App.3d 200, 7 Cal.App.4th 147

Erik Galen MENENDEZ and Joseph Lyle Menendez, Petitioners, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent PEOPLE of the State of California, Real Party in Interest.

No. B052293.

Court of Appeal, Second District, Division 5, California.

March 28, 1991.

As Modified April 3, 1991.

Rehearing Denied April 22, 1991.

Review Granted June 27, 1991.

[228 Cal.App.3d 202] [7 Cal.App.4th 149] Leslie H. Abramson, Los Angeles, Howard W. Gillingham, North Hollywood, and Lewis A. Wenzell, San Diego, for petitioner Erik Galen Menendez.

Gerald L. Chaleff, Santa Monica, and Jill D. Lansing, Los Angeles, for petitioner Joseph Lyle Menendez.

No appearance for respondent.

Ira Reiner, Dist. Atty., Harry B. Sondheim, Head Deputy Dist. Atty. and Brent Riggs, Deputy Dist. Atty., for real party in interest.

Milgrim, Thomajan & Lee and Daniel H. Willick, Los Angeles, for amicus curiae Cal. Psychiatric Ass'n.

[7 Cal.App.4th 150] [228 Cal.App.3d 203] ASHBY, Acting Presiding Justice.

INTRODUCTION

On August 20, 1989, Jose and Maria ("Kitty") Menendez were murdered in their Beverly Hills home. Petitioners, the victims' sons, are charged with committing the murders.

For a period of time before and after the murders, petitioners were patients of Dr. L. Jerome Oziel, a Beverly Hills psychotherapist. On March 9, 1990, pursuant to a search warrant, a number of items were seized from Dr. Oziel's safe deposit box. ¹ Among these items were audio tapes of notes made by Dr. Oziel during psychotherapy sessions with petitioners on October 31, November 2 and November 28, 1989, and one tape of an actual session with petitioners on December 11, 1989. Some of the tapes contain "confidential communications," as that term is defined in Evidence Code section 1012, ² and thus, unless an exception applies, are protected by the psychotherapist-patient privilege (Evid.Code, § 1014). Petitioners, as the holders of the privilege (Evid.Code, § 1013), may refuse to disclose, or prevent others from disclosing, these confidential communications.

One of the statutory exceptions to the psychotherapist-patient privilege is Evidence Code section 1024, the so-called "dangerous patient" exception, which provides: "There 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." During the October 31 and November 2 sessions, petitioners made statements to Dr. Oziel which he perceived to be threats against his life and the lives of others. These threats prompted Dr. Oziel to reveal the substance of these two sessions to the persons whose lives he believed were in danger.

With respect to the first two sessions, the issue is whether section 1024 exempts any of petitioners' communications from the privilege. We resolved this issue with little difficulty after reviewing Dr. Oziel's notes of the October 31 and November 2 sessions: petitioners made statements which even the most naive observer would conclude were threats against the life of Dr. Oziel. Dr. Oziel reasonably concluded that because of those threats, certain persons who were close to him were also in danger, and that he had to disclose certain communications in order to insure those parties' safety. The respondent court ruled, and we agree, that section 1024 applies to those communications which the psychotherapist reasonably believes he must necessarily disclose in order to prevent the threatened danger. We hold that the section 1024 exception applies to the October 31 and November 2 sessions.

We further find that the latter two sessions are not privileged because, contrary to what the respondent court found, these sessions were not "for the purpose of therapy." Dr. Oziel's main objective was to insure his own safety in the face of petitioners' threats. To petitioners, Dr. Oziel's primary role was not that of a therapist who could provide treatment for their emotional problems, but an individual who, if he could be trusted, could portray them from a sympathetic viewpoint if they were arrested and tried for the murders. We hold that the privilege did not attach to the latter two sessions, since the communications were not made in the course of a psychotherapist-patient relationship. Thus, whether the dangerous patient exception might also apply need not be determined.

FACTS

On the evening of October 30, 1989, approximately two months after the Menendez murders, Dr. Oziel received a call from petitioner Erik Menendez ("Erik"), who stated that he urgently needed to see Dr. Oziel. Dr. Oziel made an appointment with Erik for the next afternoon.

Dr. Oziel had spent several days with petitioners after the murders and suspected (but "did not want to believe") that petitioners had committed the crimes. Sensing that Erik might want to confess to the killings, Dr. Oziel concluded that he was about to be the recipient of information which could expose him to some danger. He arranged for his business associate and paramour, Judalon Smyth, to sit in his waiting room (posing as a patient) during Erik's session, so that she could call the police if trouble arose.

Dr. Oziel met with Erik late in the afternoon of October 31. After talking for awhile in the office, they took a walk in a nearby park, during which Erik confessed that he and his brother Lyle (petitioner Joseph Lyle Menendez) had murdered their parents. Erik revealed in detail the planning and execution of the crime, including petitioners' fabricated alibi defense.

Since Lyle did not yet know that Erik had confessed to Dr. Oziel, Erik stated that he planned to reveal his confession to Lyle during an upcoming Caribbean vacation. However, Dr. Oziel, who considered Lyle to be by far the more dangerous of the two brothers, felt it was imperative for him to observe Lyle's demeanor upon learning that Erik had confessed. With Erik's consent, Dr. Oziel called Lyle and asked him to come to the office as soon as possible. ³

Soon after Lyle arrived, Smyth went back into the hallway to eavesdrop on the conversation in Dr. Oziel's office. She overheard Lyle tell Erik: "I can't believe you did this! I can't believe you told him! I don't even have a brother now! I could get rid of you for this! Now I hope you know what we are going to do. I hope you realize what we are going to have to do. We've got to kill him and anyone associated to him." Smyth heard Erik, who was sobbing, reply, "I can't stop you [Lyle] from what you have to do, but ... I can't kill anymore." ⁴ Dr. Oziel's notes of this session reflect that Lyle was "very, very unhappy and he would have to think about what to do with this situation." Dr. Oziel "clearly was getting the message that ... Lyle was telling me that he was considering killing me, and ... it was very clear from Erik that Erik had the same feeling."

Dr. Oziel told Lyle that he found Lyle "to be personally menacing to me, and he glared at me and made comments that related to how he didn't want to have anybody looking over his shoulder and controlling him, and that's why he murdered his parents to begin with ..."

The session ended when Erik left the office, still crying. Lyle, followed by Dr. Oziel, walked past Smyth and summoned the elevator. While waiting for the elevator, Lyle told the doctor, "I can understand Erik, but he shouldn't have done this." When Dr. Oziel asked if Lyle was threatening him, Lyle shook the doctor's hand and said, "Good luck, Dr. Oziel."

Dr. Oziel perceived this as a threat and concluded that he and his loved ones were in grave danger. Since petitioners knew where Dr. Oziel lived, he telephoned his wife and told her that petitioners had confessed to the murder of their parents, and that he feared for his life, her life, and the lives of their children. He instructed Mrs. Oziel to leave the house with the children, which she did. Dr. Oziel also concluded that Smyth might be in danger, since she was in his company a great deal of the time. After warning his wife, Dr. Oziel went to spend the night at Smyth's home. At that time, he repeated his fears and related the details of his session with petitioners. ⁵

Fearing for his life, but concerned about the ethical implications of revealing petitioners' threats, Dr. Oziel consulted several other therapists and a number of attorneys and presented the facts of this case in hypothetical form. Dr. Oziel was advised that the communications were no longer confidential once threats were made. The comments made by these individuals were not comforting. One individual advised Dr. Oziel to leave the country; another stated, "You're dead. There's no way out of this, they are going to kill you, I'm glad that was not my patient!" Smyth also called several private detective agencies to see about arranging a bodyguard for Dr. Oziel.

Dr. Oziel took other precautions as well. From November 1 through November 3, the Oziel family stayed at a local hotel, rather than return to their home. On November 6, Dr. Oziel bought three shotguns (one for himself, one for his wife, and one for Smyth). He also had the broken security system at his home repaired.

Dr. Oziel concluded that the best way he could mitigate the danger to himself and others was to convince petitioners that he was their ally, and if they continued to see him, his possession of the information they revealed "could potentially be helpful ... in the event they were brought to trial for their parents' murder, that I might be able to piece together some of the events in their family constellation that led to them having hatred and ... abuse, most particularly from their fat...