Whitehair v. The Superior Court
| Docket Number | 37-2022-00031761-CU-WM-CTL |
| Decision Date | 01 June 2023 |
| Parties | DOMINIQUE WHITEHAIR, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, THE PEOPLE, Real Party in Interest. |
| Court | United States Superior Court (California). California Appellate Division of the Superior Court |
Troy Britt, Office of the Public Defender, Attorney for Defendant and Appellant.
Kimberly Roth, Office of the District Attorney, for Plaintiff and Respondent.
Petitioner Dominique John Whitehair filed a petition for writ of mandate challenging the March 21, 2022 Order denying Defendant's Motion to Quash Supboenas Duces Tecum for Privileged and Immaterial Information relative to the records of Atascadero State Hospital and Dr. James Reavis and the May 9, 2022 Order denying Defendant's motion for reconsideration entered by the San Diego Superior Court, David M. Rubin Judge.[1] The issue raised by this writ proceeding is a matter of first impression: whether a tier one sex offender[2] who meets the requirements for termination pursuant to Penal Code section 290, subdivision (e) and is not on probation waives the psychotherapist-patient privilege (Evid. Code, §1014) when the district attorney requests a hearing pursuant to subdivision (a)(1) and subpoenas petitioner's records to "present evidence regarding whether community safety would be significantly enhanced by requiring continued registration." (Pen. Code, § 290.5, subd. (a)(3).) The resolution of the issue turns on statutory interpretation, which we review de novo.
In 1995, at the age of 18, Mr. Whitehair pled guilty to a misdemeanor violation of Penal Code section 647.6 (annoying/molesting a child) and was ordered to register as a sex offender pursuant to section 290. On September 2, 2011 his conviction was expunged pursuant to Penal Code section 1203.4.
On September 29, 2021, Mr. Whitehair filed a petition to terminate his obligation to register as a sex offender pursuant to Penal Code section 290.5. On November 9, 2021, the District Attorney filed a Response indicating their objection and requesting a court hearing as provided by Penal Code section 290.5, subdivision (a)(2) based on the assertion that community safety would be significantly enhanced by his continued registration.[3]
In preparation for the hearing, the District Attorney subpoenaed petitioner's psychiatric and medical records from Dr. James Reavis and Atascadero State Hospital, where petitioner was committed for a period of time in 2006 while serving a prison sentence in connection with a burglary conviction. Mr. Whitehair moved to quash the subpoenas.
In its March 21, 2022 ruling denying the motion to quash, the trial court relied upon Evidence Code section 998 relating to the physician-patient privilege noting that the physicianpatient privilege does not apply in criminal proceedings, rather than Evidence Code section 1014 governing the psychologist-patient privilege.[4] (See March 21, 2022 transcript, pp. 111-115.) After numerous hearings, the trial court ultimately denied the motion to quash the subpoenas and a subsequent motion for reconsideration.
On June 24, 2022, Mr. Whitehair filed a Petition for a Writ of Mandate and/or Prohibition with the Fourth District Court of Appeal, Division One. On July 12, 2022, the Fourth District Court of Appeal requested that the District Attorney file an informal response to the petition. The informal response was filed on July 22, 2022, and on August 2, 2022. the Fourth District Court of Appeal issued an order denying the writ petition without prejudice so that it could properly be refiled in the Appellate Division of the San Diego County Superior Court.
On August 10, 2022, Mr. Whitehair filed the petition for writ of mandate in the Appellate Division, and on August 11, 2022, this court issued an order inviting Real Party to file a preliminary opposition. Real Party filed a preliminary opposition on August 19, 2022.
On October 12, 2023, the Appellate Division issued an Order to Show Cause. Real Party in Interest filed a Return on November 1, 2022, and Petitioner filed a Reply on December 1, 2022. Following argument on April 19, 2023, before Appellate Division Presiding Judge Albert T. Harutunian III and Appellate Division Judges Frank L. Birchak and Brad A. Weinreb, this matter was taken under submission.
Commencing January 1, 2021, the sex offender registration requirement in California was restructured. Three tiers of registration were established (People v. Thai (2023) 90 Cal.App.5th 427,, 307 Cal.Rptr.3d 178, 181.) Penal Code section 290.5 became effective on July 1, 2021 and (People v. Thai, supra, at p. 181.)
The well-established rules of statutory construction require a reviewing court to ascertain the intent of the Legislature and adopt the construction that "best effectuates the purpose of the law." (Doe v. Brown (2009) 177 Cal.App.4th 408, 417, internal quotation marks omitted.)
"' "The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future." '" [Citation.] "In recent years, section 290 registration has acquired a second purpose: to notify members of the public of the existence and location of sex offenders so they can take protective measures." [Citation.] The purpose behind section 290.5 quite obviously is to relieve former sex offenders of the onerous registration requirement when they have demonstrated their rehabilitation and convinced the court that they no longer pose a threat to others necessitating the protective measure of registration.
(People v. Tuck (2012) 204 Cal.App.4th 724, 740-741(conc. opn.).) We begin with the statutory language. If a statute is amenable to two alternative interpretations, courts will follow the one that leads to the more reasonable result. (People v. Arias (2008) 45 Cal.4th 169, 177.) If a statute defining a crime or punishment is susceptible of two reasonable interpretations, courts will ordinarily adopt the interpretation more favorable to the defendant. (Id.)
Penal Code section 290.5, subdivision (a)(2) provides that if, after the registering law enforcement agency reports to the district attorney that a tier one offender has met the requirements for termination pursuant to subdivision (e) of Section 290, the district attorney does not request a hearing, "the petition for termination shall be granted if the court finds the required proof of current registration is presented in the petition, provided that the registering agency reported that the person met the requirement for termination pursuant to subdivision (e) of Section 290, there are no pending charges against the person which could extend the time to complete the registration requirements of the tier or change the person's tier status, and the person is not in custody or on parole, probation, or supervised release." Here, petitioner is not in custody or on parole, probation, or supervised release and is apparently otherwise eligible for termination - under these circumstances, had the district attorney not elected to request a hearing, the trial court would have been statutorily required to grant the termination petition.
"If the district attorney requests a hearing, the district attorney shall be entitled to present evidence regarding whether community safety would be significantly enhanced by requiring continued registration." (Pen. Code, §290.5, subd. (a)(3).) Subdivision (a)(3) goes on to provide the following express guidance to the parties and the trial court:
In determining whether to order continued registration, the court shall consider: the nature and facts of the registerable offense; the age and number of victims; whether any victim was a stranger at the time of the offense (known to the offender for less than 24 hours); criminal and relevant noncriminal behavior before and after conviction for the registerable offense; the time period during which the person has not reoffended; successful completion, if any, of a Sex Offender Management Board-certified sex offender treatment program; and the person's current risk of sexual or violent reoffense, including the person's risk levels on SARATSO static, dynamic, and violence risk assessment instruments, if available. Any judicial determination made pursuant to this section may be heard and determined upon declarations, affidavits, police reports, or any other evidence submitted by the parties which is reliable, material, and relevant.
The Court of Appeal in People v. Thai, supra, 90 Cal.App.5th 427, 307 Cal.Rptr.3d 178 observed that the phrase "community safety would be significantly enhanced" is not specifically defined but, noted that the underlying purpose of section 290 registration is to ensure police can surveil sex offenders at all times because they pose a "continuing threat to society." (Id. at p 181 citing People v. Sorden (2005) 36 Cal.4th 65 at p. 72-73 ["...
To continue reading
Request your trial