People v. Superior Court (Broderick), D014253

• Decision Date: 21 June 1991
• Docket Number: No. D014253,D014253
• Citation: 282 Cal.Rptr. 418,231 Cal.App.3d 584
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; Elizabeth Anne BRODERICK, Real Party in Interest.

Page 418

282 Cal.Rptr. 418

231 Cal.App.3d 584

The PEOPLE, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent Elizabeth Anne BRODERICK, Real Party in Interest.

No. D014253.

Court of Appeal, Fourth District, Division 1, California.

June 21, 1991.

[231 Cal.App.3d 586] Edwin L. Miller, Jr., Dist. Atty., Thomas F. McArdle and Craig E. Fisher, Deputy Dist. Attys., for petitioner.

No appearance for respondent.

Jack M. Earley, Newport Beach, for real party in interest.

HUFFMAN, Associate Justice.

The People seek a writ of mandate or prohibition after the court quashed subpoenas duces tecum seeking records from various mental health professionals (doctors) ¹ who had treated or tested Elizabeth Anne Broderick (Betty). ² The court quashed the People's subpoenas on the grounds they violated Betty's state constitutional privilege against self-incrimination. We issued the order to show cause. Because we conclude the self-incrimination privilege does not extend to the documents sought, we grant the petition. However, because we conclude the court should have more closely examined whether specific material from each doctor was protected under Betty's psychotherapist-patient privilege, we remand the matter to the superior court for further hearing.

BACKGROUND

Betty is charged with two counts of murder in connection with the shooting deaths of her former husband, Daniel Broderick (Daniel), and his new wife, Linda Broderick (Linda). Betty's first trial ended in a mistrial when the jury was unable to reach unanimous verdicts. A second jury trial is scheduled for August 1991.

Before Daniel's and Linda's deaths, Betty and Daniel had been involved in an acrimonious dissolution and dispute over custody of their children. In the domestic proceedings various doctors testified about Betty's mental status. In their testimony the doctors referred to and relied upon input of additional doctors.

During the first criminal trial the defense admitted Betty had shot the victims but presented expert witnesses who testified as to Betty's mental state at the time of and before the killings. The defense argued Betty's responsibility for the killings should be mitigated or excused. Some of the defense experts testified that in arriving at their opinions they relied on the work of other doctors who had examined or treated Betty in the past.

After the mistrial, the People caused subpoenas duces tecum to issue to the mental health professionals upon whom Betty's expert witnesses in the first criminal trial had relied. The subpoenas directed the professionals to deliver to the clerk of the court all "psychological/psychiatric" records contained in their files for Betty from the date of first contact through November 1990.

The People filed points and authorities in support of the subpoenas arguing the psychotherapist-patient privilege had been waived and the attorney- and work product were inapplicable. The defense moved to quash subpoenas duces tecum on the grounds the service of the doctors was untimely under CODE OF CIVIL PROCEDURE SECTION 1987³, subdivision (c), and defense counsel had not been served with copies of the subpoenas pursuant to sections 1985.3 and 1987.5.

The court at oral argument did not see the issues raised by the parties as being crucial. Rather the court felt the "crux of the issue" was whether requiring the doctors to turn over their records would impermissibly lighten the prosecution's burden as prohibited by In re Misener (1985) 38 Cal.3d 543, 213 Cal.Rptr. 569, 698 P.2d 637. The court assumed arguendo that Betty had waived the psychotherapist-patient privilege and quashed the subpoenas on the basis of the right against self-incrimination under In re Misener. The court indicated it would reconsider the matter if the People filed additional points and authorities.

The People filed supplemental points and authorities arguing the discovery of incriminating information from third parties does not violate a defendant's state or federal right against self-incrimination. The defense filed opposition arguing that Betty had not waived the psychotherapist-patient privilege and that compelled production of Betty's psychological records would constitute a violation of her Fifth Amendment protections.

At a second hearing, the court ruled the psychotherapist-patient privilege had been waived because the doctors subject to the subpoenas had either testified in the dissolution proceedings or first criminal trial or, if they had not testified, their reports, test results, and clinical evaluations had been used by those experts who did testify. In finding waiver for those who had not testified, the court found crucial the fact Betty had an opportunity to object to their information being turned over to the testifying experts but rather than doing so she had actually provided the information for use in testimony. The court found a general waiver and did not deal with each doctor individually or hold in camera hearings to review the documents sought. The court reconfirmed its previous ruling that In re Misener prohibited disclosure of the information as it would tend to lighten the prosecution's burden and at the same time violate Betty's rights against self-incrimination.

DISCUSSION

I

We first address Betty's contention the court's action is not reviewable by this court by writ of mandate. "If the prosecution has not been granted by statute a right to appeal, review of any alleged error may be sought by a petition for writ of mandate only when a trial court has acted in excess of its jurisdiction and the need for such review outweighs the risk of harassment of the accused." (People v. Superior Court (Stanley) (1979) 24 Cal.3d 622, 625-626, 156 Cal.Rptr. 626, 596 P.2d 691, fn. omitted, emphasis in original.) "[M]andate will not issue to compel an inferior tribunal to exercise its discretion in a particular manner. However, mandate is appropriate when, under the circumstances, the lower tribunal was authorized to exercise its discretion in only one way." (People v. Municipal Court (Bonner) (1980) 104 Cal.App.3d 685, 694, 163 Cal.Rptr. 822.)

Since Stanley courts have generally taken a broad view of "jurisdiction" as it relates to a petition for writ of mandate by the prosecution. (See People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 531-532, 230 Cal.Rptr. 890 and cases cited therein.) "Orders denying an accused discovery to which he is entitled are considered in excess of jurisdiction and reviewable by writ. [Citations omitted.]" (Bonner v. Superior Court, supra, 104 Cal.App.3d at 695, 163 Cal.Rptr. 822.) The Bonner court concluded the People should be accorded a similar right to pretrial review when no support for the discovery order can be found in the record. (Ibid.) Here, the court determined the right against self-incrimination applied to quash the subpoenas when, as discussed below, there was no basis in the law for such a determination. The first prong of the Stanley test is met and the People are entitled to writ review as long as the need for review outweighs the risk of harassment to Betty.

If review is not accorded, the People may be deprived of discovery to which they are entitled. The denial of discovery would result in trial delays and increased cost if ultimately the People obtain the information sought at the time of trial. Allowing pretrial discovery will allow both parties to fully prepare for retrial. Conversely, the risk of harassment appears minimal. Retrial is not scheduled until August. Writ review of the order to quash could not result in retrial or double jeopardy problems. We conclude writ review is appropriate.

II

In determining whether the material sought was discoverable, the trial court considered the crucial issue to be whether discovery was precluded by Betty's right against self-incrimination. As explained below, we do not consider the self-incrimination privilege to be applicable under the facts of this case and instead view the crucial issue to be whether Betty has waived the psychotherapist-patient privilege as to each of the doctors.

Under Evidence Code sections 1010 et seq. a patient has a privilege to refuse to disclose, or to prevent another from disclosing, a confidential communication between the patient and a psychotherapist. The patient waives the privilege if, without coercion, he or she discloses or consents to another disclosing a significant part of the confidential communication. (Evid.Code, § 912.) This court has held the patient waives the privilege when he calls the psychotherapist as a witness in an unrelated trial and elicits information disclosing a significant part of the communications. (See People v. Garaux (1973) 34 Cal.App.3d 611, 110 Cal.Rptr. 119.) It is therefore clear that Betty may have waived the privilege with respect to some or all of the doctors in question. We are concerned, however, that the court, believing the self- incrimination privilege to apply, did not adequately address the psychotherapist-patient waiver. ⁴

In considering the psychotherapist-patient privilege the court at the second hearing made a general finding Betty had waived her privilege based on the doctors either having testified in earlier court proceedings or, if they did not testify, other doctors who did testify relying on their reports, test results, and clinical evaluations. The court did not make any inquiry whether the privilege had been waived as to specific doctors or as to all of the material sought from that doctor. While it may be that the privilege has been waived as to many if not all of the doctors and as to much if not all of the material, we consider the procedure followed by the court to be inadequate.

The subpoenas in question were extremely broad requesting all psychological/psychiatric records from the doctors first contact with Betty through November 1990. The waivers claimed by the People occurred with respect to different...