PEOPLE v. GONZALES

Respondent's Reply Brief on the Merits

Cal.November 28, 2011

COPY Jn the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. RAMIRO GONZALES, Defendant and Appellant. Case No. S191240 Sixth Appellate District, CaseNo. H032866 Santa Clara County Superior Court, Case No. 211111 The Honorable Alfonso Fernandez, Judge REPLY BRIEF ON THE MERITS SUPREME COURT riLeD NOV 2 8 2011 rederick K. Ohich Clark KAMALAD, HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General SETH K. SCHALIT Supervising Deputy Attorney General BRIDGET BILLETER Deputy Attorney General State Bar No. 183758 455 Golden Gate Avenue,Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-1340 Fax: (415) 703-1234 Email: Bridget.Billeter@doj.ca.gov Attorneysfor Respondent a DeGaN TABLE OF CONTENTS Page Argument sesesecsueceeessaeeeceenecssaceneseseeeceseeseeeeesanecesecssnseseseneeeeesesauseceeeesesnaeerenes 1 I. Appellant’s reliance on the lack of a knowing and intelligent waiver is misplaced .........c.ccccsessscesscessesseeetseesereees 1 Il. Appellant has not demonstrated a violation of his federal constitutional right to informational privacy............. 7 III. Appellant has not demonstrated prejudice under any Standard Of reVICW..........ceccesecsesseseeeesecsscsseeceneceseesesaeeeenseeses 12 CONCLUSION 0... ss eeesesteeseseeneencsssesseensseensatenneseenesessesssesesssasssesesseasecsesensenss 14 TABLE OF AUTHORITIES Page CASES Caesar vy. Mountanos (9th Cir. 1976) 542 F.2d 1064 oo. ecccccsessesscssseseesesseesesecsecsecsecsesasseceeate 11 Chambers v. Mississippi © (1973) 410 U.S. 284.0cececcescesseesseesseneessesaeeessecsecseceesessssecsesatsseseesaseaees 10 Chapman y. California (1967) 386 U.S. 18... ccc cececeseeseeesseeeesecsesseeesseessesseeeseseceseaees 7, 12, 13, 14 Henry v. Kernan (9th Cir. 1999) 197 F.3d 102] woe ceececceesessessesseesseseessesseseesesesseesesesseeeesseas 9 In re Christopher M. (2005) 127 Cal.App.4th 684 occeccessesesesecseesessessesesseeseeseeseeaees 2,4, 5,8 In re Edward D. (1976) 61 Cal.App.3d 10ccccsesssscnesscseceeecssecsesscseeseeessesessseesesseesesees 11 In re Jaime P. (2006) 40 Cal. 4th 128oecccceeseetseseeeeeeesesssseesesseseceesesecsuesesesesaseaeseeees 5 In re Kristine W. (2001) 94 Cal.App.4th 521 oo... cccccccccsessesscssecsseescseesessessecscssscsesssaserennes 4,6 In re Pedro M. (2000) 81 CalApp.4th 550 oo.cccccsccsecsesseeseceseeecsecsecessessessecsessesesseeres 4,6 In re Tyrell J. (1994) 8 Cal. 4th 68 ooceeccsscssesesecsensnseseeeeessesecsssassecseseessseseeseesseeeets 5 Jaffee v. Redmond (1996) 518 U.S. Lieecceccsecesceecesecseeseeecesesescessessseaeeeessseeesecseeseees 9, 12, 13 Jaffee v. Redmond (7th Cir. 1995) 51 F.3d 1346 ooo eccccccsccsessessesescescsecsecsecsscsecsecscsessseeeeesees 13 Manela vy. Superior Court (2009) 177 Cal.App.4th 1139 oo cccccccccsesessessessesesecseessesssseeseseeesatsecseeenes 8 li New York Times Co. v. Gonzales (S.D.N.Y. 2005) 382 F.Supp. 2d 457.0... ceeccscessecseeseeseeeseeeeessseeeeseeseesneenees 9 Parle v. Runnels (9th Cir. 2007) 505 F.3d 922 oo ecceesssnessecseeeeeeceeeeeeenereaeseerseseeeseeses 9, 10 Parle v. Runnels (N.D.Cal. 1996) 448 F.Supp.2d 1158 oo... ccc ecceessesesseesseeteeeseesseseeeeeeeeees 10 People v. Alvarez (2002) 27 Cal.4th 1161 occcccseecsecssceesseeeeseeesessessesssersssseessesseseaeseeaeees 10 People v. Corona - (2008) 160 CalApp.4th 315 oo.ecccsessesssecssssssessssesssssssssssssssessserdy Jy 4 People v. Watson (1956) 46 Cal.2d 818 oo ceccccessesseceeseteeneeseeesesseeseeseseesesseteaseesseens 12, 13, 14 San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083 oo... cccccccssesseessesscsscsesseescseeeseseseeseceseseesesaees 1 Seaton v. Mayberg (9th Cir. 2010) 610 F.3d 530 woe cccccseecsseeecsseesssseseessesessessesseseeseessens 10, 11 United States v. Mazzola (D.Mass. 2003) 217 F.R.D. 840... ccccsccsscsseeseecensessecsessesecseessesecseeeeseneaeaes 8 United States v. Squillacote (4th Cir. 2000) 221 F.3d 542 woe ccccsccssseessssseseeeesssecsessesecssesescsecsesseseneeecees 9 . STATUTES Evidence Code SOLQeceeceeseesscessessesscseceseessessessessasesee eestesceecceaeeseeseeesseseeeaeens 3,4,7 § LOTeeeeeseeeceneesesecsessecsesseesesseseessesesssessesecsecsessssesesscsessesecsussesecesees 1 § OBoesceeeeseseeteesetsessessesesseesseesssseeesessssecseseseecsscsseseneeneeneceess 5,6 SOQeeeceseeeeeeseesssessesesesaessessscsessssecseceassasaesevacsecsesassecacsesscsessesssesaees 1 8 1024ecceeseeteesseeeeeeeeneesseneeeaeeeceeeeteneeeeneteatenses seaeeeeeeeeeeessenetaeesenes 3,11 § 1027eeeeseesenerseeseeseeseesenesseescesscsesseessessesecssecsecsesscassseesscssssssacesecsesecessess 1 Penal Code § 3053, SUbdIVISION (4)... .ecceseeceeesesssssessessesssssecsecsesscsecstesesescssesecseeecertenees 3 CONSTITUTIONAL PROVISIONS United States Costitution First Amendment .0..........cccccccessccceseccccecsscceeessceccececsesestecececessseceausecerssceensace 9 ii COURT RULES Federal Rule of Evidence § SOL. ceecescesssesscceescesseeseseesesseessseeseseceecsecesseseceseeeasesessesecssacecsaeeeascesteanes 13 iv ARGUMENT I, APPELLANT’S RELIANCE ON THE LACK OF A KNOWING AND INTELLIGENT WAIVER IS MISPLACED In our opening brief, respondent argued that appellant’s parole- mandated therapy records werenotprivileged for purposes of SVP proceedings following a violation of parole. (RBOM 6-17.) In response, appellant argues that he did not knowingly andintelligently waive his rights to confidentiality in his therapy sessions at the Atkinson Center. However, his focus on “waiver” conflates two distinct issues—whether a waiver was obtained and whether an exception to the general privilege applied. (See San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1092 [“Evidence Code section 1024 creates an exception to the privilege rather than anything akin to a waiverof the privilege”’].) Respondent does not claim that appellant expressly waived his confidentiality rights in his parole-mandated therapy records. If appellant had waived confidentiality, this case would not be before this court. The issue, instead, is whether, despite appellant’s assertion of the privilege as to communications with his therapist, the statutory schemeprovides an exception that precludes that assertion. Asdiscussed in respondent’s opening brief, the statutory scheme provides express exceptions to the privilege. (See Evid. Code, §§ 1017- 1027.)' There is no requirement of an express waiver before these exceptions apply. For example, section 1021 provides an exception to the privilege “fas to a communication relevant to an issue concerning the intention of a patient, now deceased, with respect to a deed of conveyance, - will, or other writing, executed by the patient, purporting to affect an ' Unless otherwise noted, all further references are to the Evidence Code. interest in property.” Pursuant to that section, the privilege would not apply to the relevant communications even though the deceased patient never expressly waived his confidentiality rights before his death. The statutory schemeprovides the exception to the privilege, regardless of the wishes of the patient. Appellant cites People v. Corona (2008) 160 Cal.App.4th 315 and Jn re Christopher M. (2005) 127 Cal.App.4th 684, to support his contention that “a waiver of confidential communicationsis required before any disclosure can be made.” (ABOM 13.) But if a waiver were required before any disclosures could be made, the exceptions in the Evidence Code would be rendered meaningless. The cases cited by appellant do not support such a sweeping proposition. In People v. Corona, the defendantwasplaced on parole with the following conditions: “1. You shall attend Parole Outpatient Clinic (POC) for an initial evaluation and remain in that treatment program as directed by your POC clinician and parole agent. “2. You shall actively participate in any programsspecific to your criminal offense history or behavior, as directed by your parole agent. “3. Youshall participate in a psychiatric treatment program as approved by yourparole agent. “4. You shall actively participate in any programsspecific to the High Risk Sexual Offender/High Control/Sexual Habitual Offender/Sexually Violent Predator Program as directed by P&CSD[Parole and Community Services Division]. “5. You must submit to any psychological or physiological assessmentto assist in treatment planning and/or parole supervision due to CCCMS[Correctional Clinical Case ManagementServices] or EOP [Enhanced Outpatient Program] status.” (160 Cal.App.4th at p. 318.) While on parole, the defendant underwent, and paid for, sessions with a private therapist. His parole agent required him to sign a waiver of confidentiality so the agent could monitor his treatment with the private therapist. (/bid.) The state contendedthatit could revoke parole for the defendant’s refusal to sign the waiver. (Jd.atp. 320.) The Court of Appeal held that the defendant’s parole could not be revoked for failing to sign the waiver because the condition was not reasonably related to parole supervision. (People v. Corona, supra, 160 Cal.App.4th at pp. 320-321; Pen. Code, § 3053, subd. (a).) It further concluded that the statutory language of sections 1012 and 1024 did not justify the attempt to compel the waiver. (/d.at p. 322.) Appellant’s reliance on Corona is misplaced. First, as appellant recognizes, Corona’s holding was limited to the records generated by a private therapist, not a therapist hired by the state to provide parole- mandated therapy. Conversely, the disclosures in this case involved a therapist hired by the state to provide therapy in connection with state program—parole. Whether a court could ordera private therapist, hired by appellant, to disclose his or her recordsis not the issue before this court. More important, nothing in Corona suggests that pursuantto section 1012, the superior court could not have ordered the disclosure ofthe state- mandated parole therapy records in order to monitor the defendant’s progress on parole. Indeed, the Court of Appeal’s acceptance ofthe fact that, as “a required part of his supervision,” the defendant hadto “agree[] to a waiverofthe psychotherapist-patient privilege for the state-reimbursed group therapy program” demonstrates the difference betweenstate- mandated therapy and private therapy. (160 Cal.App.4th at p. 319.) Appellant claims that the “waiver obtained in Corona reinforces the notion that a waiveris not automatic, presumed, or unnecessary due simply to one’s status of being a parole[e] subject to sex offender treatment conditions.” (ABOM 10.) However, as discussed above, the existence of a waiverand the existence of an exception permitting disclosureare distinct concepts. The Corona court did not address whetherdisclosure of the state-mandated therapy records would have been permitted absent the defendant’s waiver. As we discussed in our opening brief, based on the statutory language of section 1012 and the holdings in In re Pedro M. (2000) 81 Cal.App.4th 550 and Jn re Kristine W. (2001) 94 Cal.App.4th - 521, such disclosureis permitted for purposes of an SVP proceeding following a parole revocation. (RBOM 7-17.) In In re Christopher M., supra, the minor challenged a probation condition which requiredthat all treatment recordsrelating to his court- ordered counseling programs be made available to the court and probation department. (127 Cal.App.4th at p. 691.) The Court of Appeal rejected the minor’s contentionsthat: (1) the condition was not reasonablyrelated to his reformative and rehabilitative needs(id. at pp. 693-694); (2) that the condition violated the minor’s state constitutional right to privacy(id.at p. 695); and (3) that the condition violated the statutory psychotherapist- patientprivilege (id. at pp. 695-696). As to the latter claim, the court held that the probation condition did not violate the privilege because the disclosure was permitted under section 1012. (/d. at p. 696.) The court did not, however, indicate that the agreement by the minorto the probation condition (or an otherwise knowingandintelligent waiverof the privilege by the minor) was required in orderto justify the condition. The condition wasjustified—tregardless of the minor’s consent—bythe “express exception to the psychotherapist-patient privilege that permits disclosure of otherwise privileged communications between patient and psychotherapist to third person to whom disclosure is reasonably necessary to accomplish the purpose for which the psychotherapist is consulted.” (/bid.) Appellant argues that the juvenile court in Christopher M. required the minor to waive the right of confidentiality which “reinforces the notion that a waiver of confidential communicationsis required before any disclosure can be made.” (ABOM 13.) However, the probation condition in Christopher M. simply provided that the treatment records would be madeavailable; there was no requirement of an express waiver by the minor. Indeed, because a ward, unlike an adult probationer, cannot refuse a probation condition, the ward cannotbe said to have voluntarily waived the right to confidentiality. (See Jn re Tyrell J. (1994) 8 Cal. 4th 68, 83, [“Because a minorhas no choice whetheror not to accept a condition of probation that subjects him to a warrantless search, we cannotfind that he consented to the condition”], overruled on another ground in Jn re Jaime P. (2006) 40 Cal. 4th 128.) Thus, appellant’s contention that the “exception” described in Christopher M.“still requires a waiver,”is erroneous. (ABOM 13.) Moreover, as discussed above, his contention conflates two distinct concepts. If a waiver is required before an exception to the privilege can apply, then the exceptions are rendered meaningless. Under appellant’s understanding of the law, a psychotherapist who learnsthat a patient soughthis services to “escape detection or apprehension after the commission of a crime” (§ 1018) could not disclose any information to the authorities withoutfirst getting a knowing and voluntary waiver from the patient. Appellant provides no authority for such a counterintuitive (not to mention counterproductive) interpretation of the privilege. Appellant requests this court take judicial notice of a publication entitled “Sex Offender Treatment Program Certification Requirements,” which specifies the requirements for certifying sex offender treatment programs and was promulgated by the California Sex Offender Management Board (CASOMB).” Includedin thecertification standardsis the requirementthat the treatment provider obtain a signed waiver of the psychotherapeutic-patient privilege. (Sex Offender Treatment Program Certification Requirements (SOTPCR), at p. 6.) The waivershall include “the supervising officer and all members of the Containment Team.” (Ibid.) Appellant contends that inclusion of the waiver requirementreflects the recognition by the CASOMBthatthe “parole status of a sex offender doesnotitself strip a personof the rights to privacy and confidentiality, and that a waiver is required.” (ABOM 15.) The SOTPCR mandatesa certified treatment provider obtain a waiverin order to be approvedbythestate as a qualified service provider. It does not state or imply that a waiveris legally required before any disclosures can be made. Certainly, obtaining a waiver is a sensible administrative choice to avoid litigation, as in Pedro M. and Kristine W., about the manner and extent of legally permissible disclosures. If a defendant has waived his rights, then litigation regarding what disclosures are “reasonably necessary” would be avoidable. But, according to appellant, the absence of a waiver also makes suchlitigation unnecessary because no disclosure can be made without a waiver. Again, appellant’s contention improperly conflates two distinct concepts and is not supported by the statutory or case law. * We have no objection to the court granting appellant’s request for judicial notice. * The “Containment Team”is defined as “the collaborators who work together to provide various specialized functions and services to ‘contain’ each identified sex offender living in the community underdirect criminal justice system supervision.” (SOTPCRat p. 2.) The containment team includes, butis not limited to, “the supervising probation officer or parole agent or similar representative ofjudicial authority; .. . the provider o[f] specialized sex offender treatment services; [and]... polygraph examiner.” (Jbid.) Finally, appellant’s focus on the concept of waiver, as opposedto the exception codified in section 1012, reflects a misunderstanding of respondent’s argument. We do not suggest “that fundamental rights to privacy and confidentiality disappear simply because a person is on parole.” (ABOM 15; ABOM 7 [“Put simply, the Attorney General’s - position is that a person whoreceives treatment on parole does not have a privilege”’].) We contend instead that where an individual who undergoes state-mandated sex offender therapy as a condition ofparole, has subsequently violated parole, and, as a result, is subjected to an SVP proceeding, the disclosure of parole-mandated therapy recordsis “reasonably necessary” to determine whetherthe parole violatoris successfully reintegrating into society, or whether he posesa future danger of reoffending, necessitating a need for more intensive therapies and more restrictive conditions and placement. IJ. APPELLANT HAS NOT DEMONSTRATED A VIOLATIONOF HIS FEDERAL CONSTITUTIONAL RIGHT TO INFORMATIONAL PRIVACY Appellant contends, as the Court of Appeal held, that the violation of a State statutory privilege violates his federal constitutionalright to informational privacy, thereby requiring Chapman harmlesserror review. Appellant spends considerable effort in brief arguing the existence of a federal right to informational privacy. (ABOM 16-19.) However, even assuming the existence of the federal constitutional right, appellant has not - established the necessary correlation—thata violation of the privilege, in and ofitself, establishes a federal constitutional (or even a state constitutional) violation. As discussed in respondent’s opening brief (see RBOM 27-32), whetherthe release of information violates an evidentiary privilege or violates a state or federal constitutional right to privacy are distinct concepts. This distinction was highlighted in Manela v. Superior Court (2009) 177 Cal.App.4th 1139. That case was a custody dispute in which the mother sought to subpoenathe father’s medical records to prove that he suffered from a seizure disorder that hamperedhis caretaking abilities. (Zd. at p. 1144.) The mother subpoenaed records from a physician (Dr. Cohen) whom the mother and father had seen together, as well as records from a physician (Dr. Morrison) whom the father had seen when he was 11 years old. (Ud. at p. 1145.) The Court of Appeal found that father had waived the physician- patient privilege with respect to Dr. Cohen because the mother had been | present for the examination. However,the court held that the privilege applied to cover Dr. Morrison’s medical records and upheld thetrial court’s order quashing the subpoenadirected to that physician. (Manela, supra, 177 Cal.App.4th at pp. 1146-1147.) After determining that Dr. Cohen’s records were not privileged, the court turned to the issue of whether, despite the waiverofprivilege, the father’s federal and state constitutional rights to privacy prevented the mother from obtaining those records. (dd.at p. 1150.) The court applied a balancing test and determinedthatthe state’s compelling need in determiningthe best interests of the child outweighed the father’s privacy rights. (/d. at p. 1151.) Manela demonstrates that medical records that are not statutorily privileged may nevertheless be protected by a constitutionalright to privacy. Conversely, the erroneous disseminationofstatutorily privileged information may notnecessarily violate the state or federal constitutional right to informational privacy. (See also In re Christopher M., supra, 127 _Cal.App.4th at pp. 695-696 [whether probation condition requiring release of court-mandated psychotherapeutic records violated the minor’s state constitutional night to privacy analyzed separately from whether condition violated state statutory privilege]; United States v. Mazzola (D.Mass. 2003) 217 F.R.D. 84, 88 [“Because a federal commonlaw privilege does not apply, it becomes necessary to address whether Joseph Mazzola has a privacy privilege rooted in the Constitution protecting the medical records at issue’’].) . Appellant disagrees with ourreliance on Jaffee v. Redmond(1996) ~ $18 US.1, noting “the constitutional issue was not even discussed in Jaffee.” (ABOM 19.) It is the fact that the constitutional issue was not discussed which supports our contention that the federal evidentiary privilege is not rooted in the constitutional right to privacy. In Jaffee, the proponentofthe privilege made no argumentthat her therapy records were not discoverable because the dissemination of those records would violate her federal right to informational privacy, nor did she argue that the federal rules of evidence should recognize an evidentiary privilege because to do otherwise would violate her constitutional rights. Moreover, as discussed in respondent’s openingbrief, subsequent caseshave recognizedthat Jaffee’s recognition of an evidentiary privilege was not constitutionally- based. (See Henry v. Kernan (9th Cir. 1999) 197 F.3d 1021, 1031; United States v. Squillacote (4th Cir. 2000) 221 F.3d 542, 559-560; New York Times Co. v. Gonzales (S.D.N.Y. 2005) 382 F.Supp. 2d 457, 484-508 [recognition of a qualified reporter’s privilege with respect to confidential sources analyzed separately under the First Amendment and common law privileges pursuant to Jaffee].) Indeed, appellant recognizesthat the Ninth Circuit, in Henry v. Kernan,supra, 197 F.3d at pages 1031, specifically rejected a habeas petitioner’s claim that a violation of a state evidentiary privilege, in and of itself, constitutes a federal constitutional violation. (ABOM 23.) However, he suggests that the subsequent decision in Parle v. Runnels (9th Cir. 2007) 505 F.3d 922, in which this office conceded a federal constitutional violation as the result of a violation of the privilege, should carry more weight. (ABOM 24.) Appellant questions whether our desire “not to be bound by the concession”is based on the difference between criminal cases and civil SVP cases. (ABOM 24.) However,the distinction betweencivil cases and criminal cases has no bearing on our claim. As discussed in respondent’s opening brief, we are simply-not bound bya concession in another case, and we ultimately disagree with Parle—based on a concession or not—to the extent it holds that a violation ofthe statutory privilege constitutes a per se federal constitutional violation. Moreover, the actual issue addressed by the Ninth Circuit and the federal district court (see Parle v. Runnels (N.D.Cal. 1996) 448 F.Supp.2d 1158), was whether the cumulative effect of the erroneous admission of the psychotherapist’s testimony along with othertrial errors “violated due process” and “render[ed] the resulting criminaltrial fundamentally unfair” pursuant to Chambers vy. Mississippi (1973) 410 U.S. 284. (505 F.3d at p. 927; 448 F.Supp.2d at p. 1162.) Neither case specifically analyzed whether the single error in admitting evidence in violation of the privilege constituted an independentfederal constitutional violation, because the issue was whether the cumulative effect of all the errors violated the petitioner’s right to due process. “[I]t is axiomatic that cases are not authority for propositions not considered.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.) Further, in Seaton v. Mayberg (9th Cir. 2010) 610 F.3d 530, the Ninth Circuit recognized that, in SVP proceedings, the disclosure of medical * Indeed, the Ninth Circuit recognized that “the right to privacy ofa patient’s communications with his psychotherapist is groundedin the federal and state constitutions,” but clarified that “[t]his nght to privacy exists in addition to the statutory protection of confidential communications between patient and psychotherapist. Cal. Evid. Code § 1014.” (505 F.3d at p. 930, fn. 11, italics added.) 10 records generated while a defendant wasin prison orat the state hospital for an SVP evaluation did not violate the defendant’s right to privacy. Appellant distinguishes Seaton on the groundthat appellant’s records were generated while he wasonparole,not in prison orat the state hospital. (ABOM 23.) However, we did not cite Seaton for the proposition that appellant’s parole-generated medical records were necessarily comparable to records generated in prison or the state hospital. We cited Seaton for the proposition that in order to establish a violation of appellant’s federal constitutional right to informationalprivacy,it is not enough to prove only that the state statutory privilege was violated. Appellant must provethat the balanceofhis interest in confidential therapeutic communications against the state’s compelling interest in protecting the public tips in his favor. (See RBOM 27-29.) | In addressing the requisite balancing test, appellant ignores the compelling state interests in protecting the public from dangerous sexual predators, and in insuring “that truth is ascertained in legal proceedings in its courts of law.” (Caesar v. Mountanos (9th Cir. 1976) 542 F.2d 1064, 1069.) Appellant focuses only on the proposition that his reasonable expectation of privacy was not completely abrogated by his being on parole, a point which we have neverdisputed. (See ABOM 25-26.) As discussed in respondent’s openingbrief, the limited disclosure of the therapeutic records to the state for purposes of an SVP proceeding does not violate appellant’s federal right to informational privacy; however, we do not suggestthat his right to privacy would not protect the confidentiality of the therapeutic records “as between appellant and the world generally.” (Wn re Edward D. (1976) 61 Cal.App.3d 10, 15.) Appellant also contends that the dangerouspatient exception in section 1024 is sufficient to protect the state’s compelling interest in ensuring public safety. (ABOM 26.) However, appellant, like the Court of 11 Appeal, conflates the issues of whether a disclosure of confidential informationis statutorily privileged and whetherit is independently protected by the Constitution. That the Legislature has provided certain statutory exceptionsto the privilege does not meanthat any disclosure not falling within those exceptions necessarily violates an individual’s federal right to informational privacy. In short, appellant has not demonstrated that the violation of state statutory privilege constitutes a per se constitutional violation. Nor has he demonstrated that in balancing the competing interests, disclosure of his therapeutic records in SVP proceedingsviolates his constitutional right to informational privacy. III. APPELLANT HAS NOT DEMONSTRATED PREJUDICE UNDER ANY STANDARD OF REVIEW Appellant argues that the admission of McAndrew’s testimony was prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836 or Chapman v. California (1967) 386 U.S. 18, 24. First, we note that appellant points out that in Jaffee, “once the Court of Appeals found there had been a violation of the psychotherapist-patient privilege which had not been abrogated by a greater compelling interest, the court reversed the judgment and ordered a new trial without further consideration . . . and this reversal was upheld by the Supreme Court.” (ABOM 28.) Weare unclearasto whatpoint appellant is making with reference to Jaffee. If he is claiming that no harmless error analysis need be done,i.e., any violation of the privilege is structural error, he cites no authority stating such a proposition. And to the extent he claims that because the violation of the privilege in Jaffee resulted in a reversal, so must a violation of the privilege in this case result in reversal, such a claim ignores the case-specific nature of harmless error analysis. 12 In any event, the trial court in Jaffee ordered disclosure of the civil defendant’s therapeutic records, and when the defendant refused to disclose the records,the trial court instructed the jury that it could presumethat the records would be unfavorable to the defendant. (Jaffee v. Redmond (7th Cir. 1995) 51 F.3d 1346, 1351.) The Court of Appeal considered the claim that the instruction was erroneous, but noted that “[r]eversal is warranted only if a jury instruction misguided the jury to a litigant’s prejudice.” (d. at p. 1353.) The Court of Appeal foundtheinstruction erroneousbecauseit determinedthat Federal Rule of Evidence section 501 encompassed a psychotherapist-patient privilege which protected the challenged records from disclosure. (/d. at pp. 1354-1358.) Implicit in the court’s reversal wasthe determination that the erroneous instruction was prejudicial to the litigant. However, because Jaffee wasa civil case in federal court, it provides no further guidance on whether Chapman or Watson harmless error analysis should apply in this case. Asto the specific facts of his case, appellant claims that “the only significant developmentbetweenthefirst jury trial where appellant was found not to meet the commitmentcriteria and the secondtrial was the highly prejudicial and inflammatory disclosure” of appellant’s treatment records and the testimony of McAndrews. (ABOM 27.) Not so. The most significant development betweenthefirst trial and the second wasthat appellant, when released after the first trial, violated his parole. As discussed in respondent’s opening brief, the primary disputed issue was the experts’ interpretation of the importance of the parole violations. (See RBOM 32-36.) Appellant, like his witnessesat trial, focuses on the fact that his parole violations did not involve new criminal acts. He points out that there was no evidence that he wasat the park for any improper reason, and that his isolation and “guilessness” explained his failure to report the fact that his 13 sister and her children were present during his visits to his mother’s home. (ABOM27.) He also notes that when contacted byhis parole officer, he was notin close proximity to his sister’s children. (ABOM 27.) Despite appellant’s “innocent” explanationsfor his parole violations, both prosecution experts found appellant’s behavior on parole to constitute significantly changed circumstances in determininghis likelihood of reoffense. (1 RT 78-79; 4 RT 734-735.) Both doctors believed that appellant’s four parole violations since 2004 demonstrated his decreasing control over his behavior. (1 RT 162; 4 RT 740.) The jury assessed the credibility of that testimony and adopted the opinion of the prosecution experts that the parole violations were material changesin the circumstances that demonstrated an increasedlikelihood of reoffense. Moreover, as discussed in respondent’s brief, both prosecution experts concluded, without reviewing the Atkinson Center records, that appellant met the SVP criteria. (RBOM 35.) The one prejudicial statement—that appellant had molested 16 children—was extensively attacked as unreliable, and the jury was otherwise awarethat appellant had been previously convicted of child molestation on more than one occasion. Any error was harmless undereither the Chapman or Watson standard. CONCLUSION Accordingly, respondent respectfully requests that the judgmentof the Court of Appeal be reversed. 14 Dated: November 21,2011 SF2011200819 10780247.doc Respectfully submitted, KAMALAD., HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General SETH K. SCHALIT Supervising Deputy Attorney General 2 ) : PUT —— BRIDGET BILLETER Deputy Attorney General Attorneysfor Respondent 15 CERTIFICATE OF COMPLIANCE I certify that the attached REPLY BRIEF ON THE MERITSusesa 13 point Times New Romanfont and contains 4,078 words. Dated: November 21, 2011 KAMALAD. HARRIS Attorney General of California bag. &— BRIDGET BILLETER Deputy Attorney General Attorneysfor Respondent DECLARATIONOF SERVICEBYU.S. MAIL Case Name: People v. Ramiro Gonzales No.: $191240 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. Iam familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On November21, 2011, I served the attached REPLY BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Jean Matulis Attn: Executive Director Attorney at Law Sixth District Appellate Program P.O. Box 1237 100 North Winchester Blvd., Suite 310 Cambria, CA 93428 Santa Clara, CA 95050 (2 copies) Sixth Appellate District County of Santa Clara Court of Appeal of the State of California Criminal Division - Hall of Justice 333 West Santa Clara Street, Suite 1060 Superior Court of California San Jose, CA 95113 Attention: Criminal Clerk's Office 191 North First, Street The Honorable Jeffrey F. Rosen San Jose, CA 95113-1090 District Attorney Santa Clara County District Attorney's Office 70 W. HeddingStreet San Jose, CA 95110 I declare under penalty of perjury under the laws of the State of California the foregoingis true and correct and that this declaration was executed on November 21, 2011, at San Francisco, California. Tan Nguyen AaMyVg4Une | Declarant Sighaturp | SF201 1200819 20560108.doc