Story v. Superior Court
| Decision Date | 12 June 2003 |
| Docket Number | No. H024993.,H024993. |
| Citation | 135 Cal.Rptr.2d 532,109 Cal.App.4th 1007 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Gary Dean STORY, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent, The People of the State of California, Real Party in Interest. |
Petitioner Gary Dean Story seeks extraordinary relief from the order of respondent court denying his motion to quash the People's subpoena duces tecum and allowing release of his psychotherapy records. The petition raises an issue of first impression in the area of prosecutorial discovery: whether the records of psychotherapy ordered as a condition of probation are protected from disclosure in a subsequent criminal action where the prosecution seeks Evidence Code section 1108 evidence regarding the defendant's commission of a previous sexual offense. Petitioner contends that the psychotherapistpatient privilege set forth in Evidence Code section 1014 bars discovery of his psychotherapy records.1 The People respond that the psychotherapist-patient privilege did not attach because petitioner was not a patient within the meaning of the section 1011 definition of "patient," since petitioner's motivation in attending psychotherapy was to obtain probation, not treatment of his mental or emotional condition.
We agree with petitioner. The California Supreme Court has established that the motive for participating in psychotherapy is immaterial to determining whether the psychotherapist-patient privilege attaches. (Menendez v. Superior Court (1992) 3 Cal.4th 435, 454, 11 Cal.Rptr.2d 92, 834 P.2d 786.) Therefore, the fact that a defendant was motivated to participate in psychotherapy as a condition of probation does not bar application of the psychotherapist-patient privilege to the records of that psychotherapy. Because we conclude that the records sought by the People are privileged, we will issue a peremptory writ of mandate as requested by petitioner.
Defendant Gary Dean Story was indicted on one count of murder during the perpetration of and attempt to perpetrate rape and burglary. (Pen.Code § 187.) The murder allegedly took place on October 22, 1976, and the present writ proceeding concerns defendant's psychotherapy records from 1975. During the course of discovery, the People caused a subpoena duces tecum to issue to the Veterans Administration Hospital in Palo Alto for the following records: "All psychotherapy records dating from July 17, 1975 through the end of therapy for patient, Gary Dean Story, D.O.B. 12/11/47, including therapy administered by Dr. John Smolowe and any other member of the hospital staff."
Defendant underwent psychotherapy at the Veterans Administration Hospital as a condition of probation for his 1974 conviction for assault with a deadly weapon. Before ordering probation, the trial court committed defendant to the California Department of Corrections (CDC) for a 90-day observation period, after which the CDC submitted to the court a diagnostic study and recommendation dated December 18, 1974. The diagnostic study and recommendation were based in part on a psychiatric evaluation, and included the following summary of the 1974 offense:
CDC recommended that defendant be considered for probation on the conditions that he receive a suspended prison sentence, be required to attend outpatient psychotherapy, and pay restitution. The stated reasons for the recommendation were that
In 1976, defendant was arraigned for violation of probation, consisting of an arrest for an alleged murder and several reports of defendant's being involved in incidents similar to the 1974 assault and the murder. The December 16, 1976 probation report prepared in connection with the probation violation included a summary of Dr. Smolowe's December 1975 letter to the probation department confirming that defendant had attended weekly individual psychotherapy at the Veterans Administration Hospital from July 17, 1975, through November 13, 1975, as a condition of probation.
The probation department's report included a recommendation that probation be revoked and that defendant be committed to the California Medical Facility. No subsequent events, including the events that led to defendant's indictment in 2002 for alleged murder in 1976, are reflected in the record submitted in this writ proceeding.
After defendant was indicted, the People filed a motion for an order releasing all psychotherapy records submitted to the court pursuant to the subpoena duces tecum the People had caused to be issued to the Veterans Administration Hospital. The motion was supported by the prosecutor's declaration stating that the records sought contained relevant evidence on the issue of guilt or innocence. The People also submitted a supplemental declaration, which stated in more detail the prosecutor's belief that the psychotherapy records would include statements made by defendant concerning his mental state during the 1974 assault, including his "urges to force himself sexually upon non-consenting females by means of violence including choking or strangulation," and these statements would be relevant under section 1108 to prove the prior sexual assault as well as defendant's intent, motive and identity in committing the subsequent assault and murder in 1976.
Defendant filed opposition to the People's motion and moved to quash the subpoena duces tecum on the ground that the psychotherapist-patient privilege barred disclosure of his psychotherapy records. Defendant argued that the psychotherapist-patient privilege attached to the records under section 1012,2 because the records were the result of information that defendant had given his psychotherapist in confidence, and the prosecution had failed to rebut the section 9173 presumption of confidentiality. Defendant also contended that the psychotherapist-patient privilege was paramount to the prosecution's discovery interest. Alternatively, defendant objected to pretrial disclosure of his psychotherapy records as premature.
The People opposed the motion to quash. Their primary argument was that the psychotherapist-patient privilege did not apply to defendant's records because defendant was not a patient within the meaning of the section 10114 definition of patient, since his dominant purpose in participating in psychotherapy at Veterans Administration Hospital was to obtain probation, not treatment of a mental condition. In support of their contention, the People submitted copies of the 1975 probation order pertaining to the 1974 offense, the 1974 CDC diagnostic study and recommendation, and the 1976 probation report summarizing Dr. Smolowe's letter concerning defendant's 1975 psychotherapy. The People maintained that these documents showed that defendant had never participated in or expressed any interest in voluntary therapy, and that Dr. Smolowe doubted that further "enforced therapy" would be helpful.
At the hearing on the parties' discovery motions, the trial court found that the psychotherapy records sought by the prosecution were not privileged. Therefore, the court denied defendant's motion to quash the subpoena duces tecum and ordered release of the subpoenaed Veterans Administration Hospital records. Defendant petitioned this court for extraordinary relief from the trial court's order. We issued an order to show cause why the relief sought should not be granted, and stayed all trial court proceedings pending our writ review.
Writ review of discovery orders is appropriate where the order may undermine a privilege, "because appellate remedies are not adequate once the privileged information has been disclosed." (Kleitman v. Superior Court (1999) 74 Cal. App.4th 324, 330, 87 Cal.Rptr.2d 813.) "Writ review is also appropriate to address 'questions of first impression that are of general importance to the trial courts and to the [legal] profession, and where general guidelines can be laid down for future cases.'" (People v. Superior Court, (Mouchaourab) (2000) 78 Cal.App.4th 403, 413, 92 Cal.Rptr.2d 829, quoting Oceanside Union School Dist. v....
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