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San Diego Superior Court Appellate Division:
Man Petitioning to Be Relieved of Registration As Sex Offender Does Not Waive Privilege
By a MetNews Staff Writer
A man who pled guilty in 1995 to a misdemeanor involving annoying or molesting a child and has had the conviction expunged does not, by petitioning for an order relieving him of the obligation to register as a sex offender, impliedly waive the privilege against disclosure of his psychiatric and medical records, the Appellate Division of the San Diego Superior Court held in an opinion posted yesterday.
The opinion was filed June 1 and publicly released after Div. One of the Fourth District Court of Appeal opted on July 20 not to transfer the case to itself.
Having been convicted of a misdemeanor sex offense, Dominique John Whitehair is classed as a “tier one” offender. The Office of San Diego District Attorney, in opposing Whitehair’s petition, subpoenaed his records from Atascadero State Hospital where Whitehair had been committed in 2006.
Whitehair moved to quash the subpoenas, San Diego Superior Court Judge David M. Rubin denied that motion, and Whitehair sought a writ in the Appellate Division.
Judge Frank L. Birchak authored the opinion granting a writ, in which Judge Brad A. Weinreb joined. Albert T. Harutunian III presiding judge of the Appellate Division, dissented.
Majority Opinion
Birchak wrote:
“The issue raised by this writ proceeding is a matter of first impression: whether a tier one sex offender who meets the requirements for termination pursuant to Penal Code section 290, subdivision (e) and is not on probation waives the psychotherapist-patient privilege…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.’ ”
The judge set forth:
“[W]e observe that the Legislature has expressly provided for a sex offender’s waiver of the psychotherapist-patient privilege as a term of probation….
“Mr. Whitehair is not a probationer subject to the Penal Code section 1203.067 limited waiver of the psychotherapist-patient privilege, nor is he a ‘sexually violent predator’ subject to the ‘dangerous patient’ exception to the psychotherapist-privilege privilege set forth in Evidence Code section 1024….
“We must presume that the Legislature was aware of Section 1230.067 and Evidence Code section 1024, and its failure to include an express waiver of the psychotherapist-patient privilege in 290.5 reflects the intent that the filing of a petition for relief does not constitute a waiver of the psychotherapist-patient privilege.”
He remarked that if tier one offenders are subject to a discovery of their psychiatric records, it could deter them from seeking treatment.
Birchak declared that the patient-litigant exception to the psychotherapist-patient, contained in Evidence Code §1016 and §1023 of that code, because petitioning under §290 does not entail “a defense or a claim raised by a defendant in the underlying criminal case whereby the defendant places his mental or emotional condition at issue.”
Harutunian’s Dissent
In his dissent, Harutunian said:
“There is a fundamental issue whether a petitioner ‘tenders’ his mental health by filing a Penal Code section 290.5 petition. Unlike the majority, I believe Petitioner’s filing of such a petition does squarely place into question whether ‘community safety’ necessitates continued sex-offender registration. If Petitioner had not filed the petition, his mental health records would not have been sought. Petitioner knew that filing the petition could result in a court hearing about whether he is a danger to the community, which is an issue that logically and obviously implicates his sexual impulses and self-control.”
He continued:
“The courts deal every day with cases where mental health professionals consider past conduct and treatment of an individual in opining on their current level of dangerousness to society….Initiating a court process that could lead to determining whether Petitioner is currently a danger to community safety puts him on notice that his past mental health records may be relevant and examined.”
Harutunian said he believes the matter should be remanded for an in-camera inspection of the records, with unredacted portions that are relevant to the proceeding turned over to the prosecution.
The case is Whitehair v. Superior Court (People), 37-2022-00031761.
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