THE PEOPLE, Pеtitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; RICHARD ANTHONY SMITH, Real Party in Interest.
S225562
IN THE SUPREME COURT OF CALIFORNIA
December 13, 2018
Fourth Appellate District, Division Three, G050827; Orange County Superior Court, M-9531
December 13, 2018
Justice Cuéllar authored the opinion of the court, in which Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu, Kruger, and Segal* concurred.
PEOPLE v. SUPERIOR COURT (SMITH)
S225562
Opinion of the Court by Cuéllar, J.
Whether someonе qualifies as an SVP is determined by a judge or jury at a trial. (
PEOPLE v. SUPERIOR COURT (SMITH)
Opinion of the Court by Cuéllar, J.
What we conclude is that a recent amendment to the SVPA, enacted after we granted review, allows the district attorney to obtain those otherwise confidential records. The district attorney may then disclose those records to its retained expert, subject to an appropriate protective order, to assist in the cross-examination of the SDSH evaluators or mental health professionals retained by the defense and, more generally, in prosecuting the SVP petition. We therefore affirm the Court of Appeal.
I.
A.
The SVPA defines an SVP as “a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” (
PEOPLE v. SUPERIOR COURT (SMITH)
Opinion of the Court by Cuéllar, J.
district attorney or the county counsel, whichever has been designated by the county board of supervisors to assume responsibility for SVP proceedings, if the designated counsel concurs with the SDSH determination. (
Because resolution of the SVP petition often stretches over months or years, the district attorney may request that SDSH evaluators perform an updated evaluation of the alleged SVP. (
The SVPA provides that following the initial evaluation, “[c]opies of the evaluation reports and any other supporting documents shall be made available” to the district attorney. (
The statute also includes protections for alleged SVPs. An alleged SVP is “entitled to a trial by jury, to the assistance of counsel, to the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports.” ( PEOPLE v. SUPERIOR COURT (SMITH) Opinion of the Court by Cuéllar, J. doubt that the person in question is an SVP. ( In March 2002, the Orange County District Attorney filed a petition to commit Richard Anthony Smith, then a prison inmate with a parole date later that month, as an SVP. Attached to the petition were evaluations by mental health professionals Dana Putnam, Ph.D., and Charles Jackson, Ph.D., conducted earlier that year. After a long series of continuances stipulated to or requested by Smith or his attorney, the district attorney in 2006 requested that the SDSH perform updated and replacement evaluations under PEOPLE v. SUPERIOR COURT (SMITH) Opinion of the Court by Cuéllar, J. the Court of Appeal for In 2014, the district attorney requested yet another updated evaluation from Dr. Putnam. The district attorney also asked the court for an order permitting his retained expert, Dawn Starr, Ph.D., to review the SDSH evaluations as well as the documentation and records on which the evaluators had relied. The trial court denied the request, but the Court of Appeal directed the trial court to vacate its prior order and enter a new order granting the request. What the appellate court observed at the outset is that the documents on which the experts relied were already in the lawful possession of the district attorney, citing We granted Smith‘s petition for review to decide whether the district attorney is entitled to review the confidential medical and psychological records on which the evaluators had relied, and, if so, whether those records may be shared with an expert who has been retained by the district attorney for the purpose of assisting with the SVP proceeding. PEOPLE v. SUPERIOR COURT (SMITH) Opinion of the Court by Cuéllar, J. We begin by resolving whether the alleged SVP‘s mental health records may be provided to the district attorney. Generally, such records are confidential. ( One such exception applies when the mental health professionals designated by the Director of State Hospitals evaluate an individual and agree that the individual qualifies as an SVP. When this occurs, “[c]opies of the evaluation reports and any other suppоrting documents shall be made available to the attorney designated by the county... who may file a petition for commitment.” ( The appellate courts split following our decision in Albertson. The crux of their disagreement was whether the records subject to discovery were limited to the specific excerpts contained in an updated or replacement evaluation, or whether the district attorney could instead be “granted direct access to the records” themselves. (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 507 (2015-2016 Reg. Sess.) as amended July 2, 2015, p. 4; see id. at p. 8 [” ‘In the last few years, Los Angeles courts have denied requests for subpoenas for state hospital records when requested by the People. A review of California counties revealed that courts in every other PEOPLE v. SUPERIOR COURT (SMITH) Opinion of the Court by Cuéllar, J. California county surveyed grant the People access to these records’ “].) The Legislature addressed the conflict after we granted review in this case. It addеd subdivision (j) to We are unpersuaded by Smith‘s efforts to evade the amended statute. He argues first that the amended statute cannot apply to the records supporting his 2011 evaluations, which predated the amendment to PEOPLE v. SUPERIOR COURT (SMITH) Opinion of the Court by Cuéllar, J. as prospective, because they affect the future; that is, the future proceedings in a trial.” (Quarry v. Doe I (2012) 53 Cal.4th 945, 956.) At the Indeed, we applied newly amended provisions governing discovery to a pending SVP proceeding involving closely analogous circumstances in Albertson. The issue presented there was whether the SVPA authorized an updated mental health evaluation and the disсlosure of the confidential treatment records underlying such an evaluation. (Albertson, supra, 25 Cal.4th at p. 798.) After we granted review, the PEOPLE v. SUPERIOR COURT (SMITH) Opinion of the Court by Cuéllar, J. Legislature enacted urgency legislation authorizing updated and replacement evaluations as well as disclosure of the alleged SVP‘s treatment records in certain circumstances. ( Smith argues next for a narrow reading of True: Courts often presume that a word used in more than one provision of a statute has precisely the same meaning PEOPLE v. SUPERIOR COURT (SMITH) Opinion of the Court by Cuéllar, J. throughout — a logical inference rooted not only in how people ordinarily use language, but also in how one generally might expect legislative bodies to draft statutory provisions. (People v. Hernandez (1981) 30 Cal.3d 463, 468.) Yet this is merely a presumption, not an inflexible rule. (People v. Jones (1988) 46 Cal.3d 585, 595.) Just as people sometimes use the same word to convey different meanings even in the same sentence, so too have we held that certain statutes are sometimes best read in context to assign different meanings to the same word used in different portions of a statute. (See, e.g., Jones, at pp. 594-595 [assigning different meanings for the word “crimes” in Consider, for instance, the similar roles of updated and replacement evaluations. A replacement evaluation, like an updated evaluation, is triggered by the district attorney‘s request. ( PEOPLE v. SUPERIOR COURT (SMITH) Opinion of the Court by Cuéllar, J. replacement nor an updated evaluatiоn may be ordered “except as necessary to update one or more of the original evaluations or to replace the evaluation of an evaluator who is no longer available to testify for the petitioner in court proceedings.” ( The legislative history аlso supports the conclusion that the term “updated evaluation” in PEOPLE v. SUPERIOR COURT (SMITH) Opinion of the Court by Cuéllar, J. provides that “the prosecutor and the attorney for an alleged SVP shall have access to the records that were reviewed by the expert who performed replacement or updated evaluations” (italics added)].) Accordingly, the best reading of the phrase “the evaluator performing an updated evaluation” in Finally, we reject Smith‘s contention that granting the district attorney access to his treatment records would violate his right to equal protection of the law under the state and federal Constitutions. Smith contends that the amended SVPA gives the district attorney access “to the confidential therapy records of alleged SVPs, but not to the confidential therapy records of any other recipient of those services, including similarly situated mentally disordered offenders (MDOs) and mentally disordered sex offenders (MDSOs)” — yet “the government has not shown why only SVPs should lose the right to keep their treatment records confidential from prosecutors.” Smith does not identify in what way, if any, the statutory schemes associated with designation as either an MDO or MDSO operate differently from the SVPA with respect to discovery of these types of records. His submission thus fails to satisfy “the required threshold” for an equal protection claim — i.e., “a credible showing of different treatment.” (United States v. Armstrong (1996) 517 U.S. 456, 470.) Whether the particular dangers posed by SVPs relative to those posed by MDOs or MDSOs warrant differential treatment is not an issue we need to address here. PEOPLE v. SUPERIOR COURT (SMITH) Opinion of the Court by Cuéllar, J. Smith argues next that even if the district attorney may lawfully access the relevant treatment records, Under new Yet this recently enacted statutory change contains its own share of nuances. We must read the text of PEOPLE v. SUPERIOR COURT (SMITH) Opinion of the Court by Cuéllar, J. Welfare and Institutions Code.” (Stats. 2015, ch. 576, § 2.) The Legislature‘s explicit reference to this case in the uncodified section evinces an awareness that we had already granted review to consider these issues. (See Assem. Com. on Public Safety, Analysis of Sen. Bill No. 507, supra, as amended July 2, 2015, p. 10.) What it does not imply is that we should ignore the legislative changes underlying Before we granted review, an eаrlier version of the bill included a paragraph in subdivision (j) providing that “[t]his subdivision does not create any new rights or limitations regarding the retention of an expert witness by either party or access to records by an expert retained or sought to be retained by either party. The attorney petitioning for commitment shall not provide access to the records obtained under paragraph (1) to any third party, including an expert retained or sought to be retained by that attorney, without the consent of the court upon noticed motion.” (Sen. Bill No. 507 We have been unable to find another instance in which a statute included a provision declaring an intent not to influence the pending judicial resolution of the issue presented. Even so, nothing in the uncodified section or elsewhere in the statute conveys a categorical bar оn considering PEOPLE v. SUPERIOR COURT (SMITH) Opinion of the Court by Cuéllar, J. On the question of making treatment records available to the district attorney, the Legislature addressed the issue directly. It provided a straightforward answer through an explicit legislative provision governing these records. In contrast, the Legislature refrained from providing a direct answer to the question whether the district attorney‘s retained expert could review those records. Yet the Legislature did not include an explicit provision rеndering the amendment entirely irrelevant to the latter question. Nor does it seem likely, given how the amendment was drafted and what we know about its history, that the Legislature wanted us to completely ignore the 2015 amendments to We therefore broaden our analysis to encompass the text, structure, and purpose of the entire SVPA as well as PEOPLE v. SUPERIOR COURT (SMITH) Opinion of the Court by Cuéllar, J. p. 5921; see People v. Yartz (2005) 37 Cal.4th 529, 540.) The primary mechanism for identifying an SVP is assessment of the person by psychiatrists or psychologists using a stаndardized protocol. ( Unfortunately, as the legislative history suggests, the SDSH ” ‘has not ensured that it conducts these evaluations in a consistent manner’ ” and sometimes ” ‘evaluators did not demonstrate that they considered all relevant information.’ ” (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 507 (2015-2016 Reg. Sess.) as amended Apr. 30, 2015, p. 3, quoting Cal. State Auditor, Cal. Dept. of State Hospitals Report No. 2014-125 (Mar. 2015) p. 1.) A key way in which one party counters an opposing expert‘s opinion is to uncover and challenge the expert about the bases for his or her opinion. (See People v. Smith (2007) 40 Cal.4th 483, 509; People v. Visciotti (1992) 2 Cal.4th 1, 81.) PEOPLE v. SUPERIOR COURT (SMITH) Opinion of the Court by Cuéllar, J. 81.) This is particularly true for a mental health professional‘s assessment of whether an individual qualifies as an SVP. Because an evaluator exercises professional judgment within the legal framework specified by the SVPA, the evaluator‘s “legally accurate understanding of the statutory criteria is crucial to the Act‘s proper operation.” (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 910.) Cross-examination may assist the trier of fact in determining whether the evaluator has “accurately understood the statutory criteria.” (Ibid.) But that opportunity would be a hollow one if the distriсt attorney does not have the assistance of an expert to interpret and explain the significance of the specialized information at issue. (See Bonds v. Roy (1999) 20 Cal.4th 140, 146-147; accord, Addington v. Texas (1979) 441 U.S. 418, 429 [“Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists“].) Without an expert‘s assistance in preparing the cross-examination of adverse witnesses, “the risk of an inaccurate resolution . . . is extremely high.” (See Ake, supra, 470 U.S. at p. 82.) An So it is not surprising to find that nothing in the text of the SVPA bars the government from sharing otherwise confidential information in its possession with the expert it has retained for the purpose of assisting in an SVP proceeding. Nor would sharing such information with an expert retained to assist in the SVP proceeding violate in particular PEOPLE v. SUPERIOR COURT (SMITH) Opinion of the Court by Cuéllar, J. Finally, we reject Smith‘s argument that access must be limited to avoid a conflict with In light of the legislative goals embodied in the SVPA, the role of confidentiality in this context is to “encourage[] persons with mental problems to seek, accept and undergo treatment and to be open and candid in treatment.” (State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 948.) It seems PEOPLE v. SUPERIOR COURT (SMITH) Opinion of the Court by Cuéllar, J. implausible that a person would be dissuaded from initiating or participating fully in treatment simply because his or her treatment records, in addition to being disclosed to the SDSH mental health professionals and the district attorney, might be disclosed to a mental health professional retained by the district attorney. Our society uses trials to advance the search for truth. That search generally work best when each side — and each side‘s experts — have access to the records and information on which the opposing side‘s experts rely. The Legislature adopted this reciprocal model in the current version of the SVPA. The judgment of the Court of Appeal is affirmed. CUÉLLAR, J. We Concur: CANTIL-SAKAUYE, C. J. CHIN, J. CORRIGAN, J. LIU, J. KRUGER, J. SEGAL, J.* See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Superior Court (Smith) Unpublished Opinion NP opn. filed 2/24/15 – 4th Dist., Div. 3 Original Appeal Original Proceeding Review Granted Rehearing Granted Opinion No. S225562 Date Filed: December 13, 2018 Court: Superior County: Orange Judge: Kimberly Menninger Counsel: Tony Rackauckas, District Attorney, and Elizabeth Molfetta, Deputy District Attorney, for Petitioner. No appearance for Respondent. Frank Ospino, Public Defender, Sharon Petrosino, Chiеf Deputy Public Defender, Dan Cook and Mark S. Brown, Assistant Public Defenders, for Real Party in Interest. Counsel who argued in Supreme Court (not intended for publication with opinion): Elizabeth Molfetta Deputy District Attorney 401 Civic Center Drive W Santa Ana, CA 92701 (714) 834-3600 Mark S. Brown Assistant Public Defender 14 Civic Center Plaza Santa Ana, CA 92701-4029 (714) 834-2144B.
II.