ARMANDO ANDRADE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
No. B097651
Second Dist., Div. Seven
June 28, 1996
46 Cal. App. 4th 1609
Michael P. Judge, Public Defender, Albert J. Menaster, John Haveson and Jack T. Weedin, Deputy Public Defenders, for Petitioner.
No appearance for Respondent.
Gil Garcetti, District Attorney, Patrick D. Moran and William Woods, Deputy District Attorneys for Real Party in Interest.
JOHNSON, J.—The issue is whether a defendant in a criminal case can be compelled under the reciprocal discovery statutes to supply the prosecution with his statements about the offense made to and relied upon by a psychotherapist for the purpose of preparing a report for the defense. We conclude these statements are covered by the attorney-client privilege and are exempt from discovery under the provisions of
Armando Andrade is charged with murder. At his request, the court appointed a psychologist to examine him pursuant to
Pursuant to an order by the trial court, the defense supplied Dr. Castellano‘s report to the prosecution. However, before doing so the defense redacted certain portions of the report which, it claimed, contained statements the defendant made to Dr. Castellano regarding the charged offense. The defense contended these statements to the psychologist were not subject to discovery because they were protected by the attorney-client and psychotherapist-patient privileges and by the work product rule. The prosecution rejected this contention and demanded the full, unredacted psychological report including defendant‘s statements regarding the charged offense.
At a hearing on the prosecution‘s demand for the full report the trial court ruled that to the extent the psychologist used defendant‘s statements regarding the offense to form her opinions about his mental state, those statements had to be turned over to the prosecution.2
Defendant then filed a petition for a writ of mandate asking us to direct the trial court to vacate its order requiring the defense to supply the prosecution with defendant‘s statements to the psychologist. We stayed enforcement of the trial court‘s order and issued an order to show cause why the relief defendant sought should not be granted. Having reviewed the record and considered the arguments of the parties, we grant the writ.
DISCUSSION
Defendant acknowledges his statutory duty to supply the prosecution with reports prepared by experts designated as trial witnesses. (
The facts in Rodriguez v. Superior Court, supra, are very similar to those in the case before us. Rodriguez, who was charged with several crimes including murder, retained a psychologist, Dr. LaCalle, for the purpose of evaluating his mental condition to see if any mental defenses should be raised. After reviewing LaCalle‘s report, defendant notified the prosecution he intended to call LaCalle as a witness at trial. Defendant provided the prosecution with a copy of LaCalle‘s report but redacted the portion which contained statements by defendant regarding the charged offenses. The prosecution moved to compel production of the complete, unedited report. Rodriguez opposed the motion, arguing the deleted portion of the psychologist‘s report was protected from disclosure by the attorney-client and psychotherapist-patient privileges and the privilege against self-incrimination. The trial court rejected defendant‘s argument and ruled that if defendant intended to call the psychologist then defendant‘s statement “in its entirety” must be turned over to the prosecution. The Court of Appeal granted defendant a writ of mandate vacating the trial court‘s order.
The court held Rodriguez‘s statements to the psychologist regarding the charged offenses were covered by the attorney-client privilege because the psychologist was acting as the agent of Rodriguez‘s attorney for purposes of preparing a psychological evaluation for the defense. (14 Cal.App.4th at pp. 1265-1266.) As was stated in City & County of S.F. v. Superior Court (1951) 37 Cal.2d 227, 236, “[W]hen communication by a client to his attorney regarding his physical or mental condition requires the assistance of a physician to interpret the client‘s condition to the attorney, the client may submit to an examination by the physician without fear that the latter will be compelled to reveal the information disclosed.”
The court further held the attorney-client privilege is not waived merely because the defendant intends to call the psychologist as a defense witness at trial. This is so even if the psychologist “may be testifying concerning statements [defendant] made to him concerning the event and . . . his opinion could, conceivably, be based, in part on those statements.” (14 Cal.App.4th at p. 1267.) This result is unavoidable when
Finally, the Rodriguez court held the attorney-client privilege was not waived by partial disclosure of the psychologist‘s report. The court noted the disclosure was not voluntary in that it was done pursuant to court order and, in any event, waiver of privilege as to one aspect of a protected relationship does not necessarily waive the privilege as to other aspects of the privileged relationship. (14 Cal.App.4th at p. 1270, citing In re Lifschutz (1970) 2 Cal.3d 415, 434-436, among other cases.) The court also expressed the view that from a public policy standpoint it would be unfair to declare the privilege waived when defendant was simply making a good faith attempt to comply with the discovery provisions of
Rather than relying on Rodriguez, a case directly on point, the trial court relied instead on Woods v. Superior Court (1994) 25 Cal.App.4th 178, even though it acknowledged the case was not on point. In Woods, the issue was whether the defense was required to supply the prosecution with the defendant‘s responses to standardized psychological tests where the psychologist, who was identified as a defense witness, relied on the tests in reaching his conclusions, referred to the responses in his report and the report was voluntarily provided to the People. (Id. at p. 183.)
The trial court purported to find dictum in Woods indicating any information a designated expert uses to form his or her opinions, including statements by the defendant about the offense, is discoverable. The trial court did not say where in the opinion it found this dictum and we have not been able to identify it. The closest language we have found is a statement by the appellate court the attorney-client privilege is waived where “the expert is identified, a substantial portion of his otherwise privileged evaluation is disclosed in his report, and the report is released.” (25 Cal.App.4th at p. 187.) This language is obiter dictum because discoverability of the defendant‘s interview with the psychologist was not at issue, the defendant had waived the attorney-client privilege issue by not raising it in his writ petition (id. at p. 187) and, in any event, the defendant in the case before us did not voluntarily disclose the contents of his interview to the prosecution.
To summarize, we find the reasoning of Rodriguez persuasive and therefore conclude the trial court erred in ordering the defendant in this case to disclose privileged material to the prosecution. Even though Dr. Castellano may have relied in part on this material in forming her opinion about defendant‘s mental state,
In the return to the petition in this matter, the prosecution does not even attempt to defend the trial court‘s discovery order. Instead, the prosecution‘s response to the petition is to suggest defendant “has possibly removed information” from Dr. Castellano‘s report which “was not privileged” and “perhaps items were redacted from the report which were properly subject to discovery under Rodriguez.” The issue raised by the prosecution is outside the scope of this petition for writ of mandate. If the prosecution believes defendant has not produced information or materials which are discoverable under
DISPOSITION
Let a writ of mandate issue directing the superior court to vacate its previous order directing defendant to supply the prosecution with those
Lillie P. J., concurred.
WOODS, J., Dissenting.—After receiving full disclosure from the prosecutor (
Everyone agrees that when defendant talked to the psychologist, at the direction of his attorney, his communications were privileged. (
Everyone also agrees that if defendant had chosen not to call the psychologist as a defense trial witness, those communications would remain privileged and immune from prosecutor discovery.
Further, no one contests that when defendant calls the psychologist as a trial witness and she testifies to opinions based upon what defendant told her, then her unredacted report containing defendant‘s statements must be given to the prosecutor. (People v. Coleman (1989) 48 Cal.3d 112, 151-152.)
The question is whether the reciprocal discovery statute (
It would certainly appear that the statute itself says such delay is not required. It states: “This chapter shall be interpreted to give effect to all of the following purposes: [¶] (a) To promote the ascertainment of truth in trials by requiring timely pretrial discovery. [¶] . . . To save court time in trial and avoid the necessity for frequent interruptions and postponements . . . .” (
These purposes are accomplished by requiring a defendant to disclose sooner only what he would have to disclose later. If privileged information would never have to be disclosed by a defendant then it, of course, cannot be discoverable “sooner.” A defendant determines whether or not such privileged information is discoverable. So long as he does not intend to call
This “accelerate[d] . . . timing” of disclosure has been held not to infringe on the
I agree with Woods v. Superior Court (1994) 25 Cal.App.4th 178, 187: “. . . while communications with an expert retained to assist in the preparation of a defense may initially be protected by the attorney-client privilege, the privilege is waived where as here the expert is identified, a substantial portion of his otherwise privileged evaluation is disclosed in his report, and the report is released.”
As to Rodriguez, I find it no more persuasive than did my Fourth District colleagues (Justices Huffman, Benke, and Froehlich) in Woods v. Superior Court.
Rodriguez failed to construe the reciprocal discovery statutes “so as to effectuate the purpose of the law.” (West Pico Furniture Co. v. Pacific Finance Loans (1970) 2 Cal.3d 594, 607-608.) By its interpretation Rodriguez would thwart the statute‘s clearly expressed purposes of requiring “timely pretrial discovery . . . [and] avoid[ing] the necessity for frequent interruptions and postponements.” (
Rodriguez is also flawed by its seemingly inconsistent characterization of what information the psychologist, Dr. LaCalle, obtained from defendant and whether he relied upon that information. As the majority noted, Rodriguez states: “. . . petitioner does not deny that Dr. LaCalle may be testifying concerning statements petitioner made to him concerning the event and that his opinion could, conceivably, be based, in part, on those statements.” (Rodriguez v. Superior Court, supra, 14 Cal.App.4th 1260, 1267.)
As the majority does not note, Rodriguez also states: “A review of Dr. LaCalle‘s report does not demonstrate any reference to or reliance on petitioner‘s statement regarding the offense. Therefore, nothing contained in the report can be construed as necessitating disclosure of petitioner‘s statement in order to understand the balance of the report. In effect, real party is
As to how Rodriguez would regard disclosure if—as in the instant case—the psychologist had relied on defendant‘s statements, the court observed: “Our perspective might be different had petitioner voluntarily disclosed Dr. LaCalle‘s conclusions as to petitioner‘s mental status at the time of the crime and said conclusions were based on petitioner‘s version of events.” (14 Cal.App.4th at p. 1270.)
For these reasons I would deny the writ.