PEOPLE v. S.C.

Real Party in Interest, Richard Anthony Smith, Reply Brief on the Merits

Cal.December 24, 2015

COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, : Supreme Court Case No. $225562 Petitioner, V. Court of Appeal Case No. G050827 ORANGE COUNTY SUPERIOR Orange County Superior Court COURT, Case No. M-9531; The Honorable Respondent; Kimberly Menninger, Judge. SUPREME COURT RICHARD ANTHONY SMITH, FILED Real Party in Interest. DEC*2 4 2015 Frank A. McGuire Clerk REPLY /SUPPLEMENTALBRIEF ON THE MERITS Deputy OFFICE OF THE ORANGE COUNTY PUBLIC DEFENDER FRANK OSPINO Public Defender SHARON PETROSINO Chief Deputy Public Defender *MARK S. BROWN Senior Assistant Public Defender State Bar No. 156849 14 Civic Center Plaza Santa Ana, California 92701-4029 Mark.Brown@pubdef.ocgov.com (714) 834-2144 Attorneysfor Real Party in Interest IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Petitioner, Vv. ORANGE COUNTY SUPERIOR COURT, Respondent; Supreme Court Case No. 8225562 Court of Appeal Case No. G050827 Orange County Superior Court Case No. M-9531; The Honorable Kimberly Menninger, Judge. RICHARD ANTHONYSMITH, RealParty in Interest. REPLY / SUPPLEMENTAL BRIEF ON THE MERITS OFFICE OF THE ORANGE COUNTY PUBLIC DEFENDER FRANK OSPINO Public Defender SHARON PETROSINO Chief Deputy Public Defender *MARK S. BROWN Senior Assistant Public Defender State Bar No. 156849 14 Civic Center Plaza Santa Ana, California 92701-4029 Mark.Brown@pubdef.ocgov.com (714) 834-2144 Attorneysfor Real Party in Interest TABLE OF CONTENTS Table of Authorities occceecceeeeecccccescescesecessecessseseceessesessssececccesecceseecees li Argument Summary .......sececccesssssesssessessssescsssseessessssscssesasensescsasssesacuerecsees 1 ALQUMENE oo.eectseceeeeeceseseeesesssaesevssesesscsseveesusesesessuseusessecessasessacaesees 3 IL. II. IV. NEWLY ADDED SECTION 6603, SUBDIVISION (j)(1), VIOLATES FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO EQUAL PROTECTION UNDER THE LAW AND THUS CANNOT BE IMPLEMENTED. EVEN IF NEWLY ADDED SECTION 6603, SUBDIVISION (j)), CAN BE CONSTITUTIONALLY IMPLEMENTED, IT MAY ONLY BE APPLIED PROSPECTIVELY; THEREFORE THE DISTRICT ATTORNEY MAY ONLY ACCESS TREATMENT RECORDS GENERATEDINTHE COURSEOF SERVICES PROVIDED ON OR AFTER JANUARY1, 2016. NEWLY ADDED SECTION 6603, SUBDIVISION (j)(1), DOES NOT PROVIDE THE DISTRICT ATTORNEY WITH ACCESS TO ALL INFORMATION AND RECORDS OBTAINED IN THE COURSE OF PROVIDING SERVICES. AN EXPERT RETAINED BY THE DISTRICT ATTORNEY IN A PROCEEDING UNDER THE SVP ACT IS NOT ALLOWED TO REVIEW OTHERWISE CONFIDENTIAL TREATMENT INFORMATION UNDER WELFARE AND INSTITUTIONS CODE SECTION 5328. COMnclusiOn...........ccccssscsessscseccesseccecsscceccesescsecesecesseeevessssssustusessecsseccecccccecceeees 12 Word Count Certification.......ccccccccccccccccccsscsessecceccsesstsecesscestessessessecesecceseee 13 Declaration of Service .........cccccscccccsessscccecsscessessesscseesssssssecstcssecseceseccececscees 14 TABLE OF AUTHORITIES Cases Aetna Casualty & Surety Co. v. Industrial Acci. Com. (1947) 30 Cal.2d 388.00... eccsecsccsssesscesesssenseesseeesseesssessessessessnssecssvsanensees 5 Albertson v. Superior Court (2001) 25 Cal4th 796 ooo.ccc eseescccssssesesecsecsseeeseeseseeseeseessens 3, 8, 11, 12 Cooley v. Superior Court (2002) 29 Cal.4th 228 oooceescescssesecsesssesesseessssessenseseestssessecessecesensens 4 Gilbert v. Superior Court (2014) 224 CalApp.4th 376..........cccccccccssesscssessessecsseessesassnesserscsnsvasseas 8, 12 In re Calhoun (2004) 121 Cal.App.4th 1315.0... cscssssseseeeeessseseeeseesesesecsssessscesseaeas 5 Inre Estrada (1965) 63 Cal.2d 740...ee ceseseecseceesenseeeecssesecseeeseessecsecseeeusscaseeneusseesesens 6 In re Greenshields (2014) 227 Cal.App.4th 1284.0... ccccesecssesssssesessesessessesesecseseceuseeeneeees 5 Inre ML. (2012) 210 CalApp.4th 1457 ooo. ecscsssssestesseeseeessessessessseseseseeneeees 10 In re Smith (2008) 42 Cal.4th 1250 occceeccccseesseeeeeteeeseveseeeseessseseessesesenneennesseens 4 People v. Gonzales (2013) 56 Cal.4th 353 occeccecsceseeserseeseeesseeseesessateeeresaesseaeseees 6, 8, 11, 12 People v. Landau (2013) 214 Cal. App. 4th Loiceccssssescsssessecsessssssssssrsesesseesrsesseees 12 People v. Martinez (2001) 88 Cal. App. 4th 474.00ecessessessesseeeeeseeesesssesessesssseseceeserees 11 People v. McKee (2010) 47 Cal.4th 1172 occcecesesceseteesceseeescseessessesassecsessessesseaenes 4.5 il TABLE OF AUTHORITIES (continued) Sporich v. Superior Court (2000) 77 Cal.App.4th 422.00. cceseecsesesseeseressecseeseesesseecanersesneenes 11 Wilke & Holzheiser, Inc. v. Department ofAlcoholic Beverage Control (1966) 65 Cal.2d 349.eeeceeeecseeeseeeeeseeessseeesseessesssesseeseresseasseeeeees 5 Statutes Welfare and Institutions Code section 5328 ........ccceecscssseseeesesseeensens passim Welfare and Institutions Code section 5330, subd. (A) ..ececsecstecensseceeseeeeeeeenes 6 Welfare and Institutions Code section 5330, subd.(b) ...........eeceeeeeeeeee 6 Welfare and Institutions Code section 6601, subd. (d)...........cccccssesesseeees 10 Welfare and Institutions Code section 6601, subd. (€) .........cceeeeeeeeeeee 10 Welfare and Institutions Code section 6603, subd. (c)............. 2, 3, 8, 10, 11 Welfare and Institutions Code section 6603, subd. (j)...........:sesscee passim Other Authorities Senate Bill No. 507 uu... cceecccssssseceesssecessessrsesesensssneseeeeeseessenenenseses 1, 2, 8,9 ili ARGUMENT SUMMARY On October 7, 2015, Senate Bill No. 507 was approved by the Governor and filed with the Secretary of State. The bill added subdivision (j)(1)! to section 6603 ofthe Welfare and Institutions Code. This newly added provision directly impacts the second “Question Granted Review” in this matter. On page 3 of its Answer Brief on the Merits (Answer), the district attorney asserts that newly added section 6603, subdivision (j)(1), “provides that the district attorney shall have full and complete access to the State Hospital information that is otherwise confidential under section 5328.” As discussed in greater detail below, the district attorney is wrong. First, newly added section 6603,subdivision (j)(1), violates the Equal Protection guarantees of the California Constitution and the United States Constitution and thus cannot be constitutionally implemented. Second, even if newly added section 6603, subdivision (j)(1), can be constitutionally implemented, it does not apply retroactively; therefore, newly added section 6603, subdivision (j)(1), providesthe district attorney with copies of only information and records obtained in the course ' Section 6603, subdivision (j)(1), states: “Notwithstanding any other law, the evaluator performing an updated evaluation shall include with the evaluation a statementlisting all records reviewed by the evaluator pursuant to subdivision (c). The court shall issue a subpoena, uponthe requestofeither party, for a certified copy of these records. The records shall be provided to the attorney petitioning for commitment and the counsel for the person subjectto this article. The attorneys may usethe records in proceedings under this article and shall not disclose them for any other purpose.” The second “Question Granted Review”states: “Is the district attorney entitled to review medical and psychological treatment records or is access limited to confidential treatment information contained in an updated mental evaluation conducted under Welfare and Institutions Code section 6603, subdivision (c)(1)?” of providing services performed on or after January 1, 2016. Third, newly added section 6603, subdivision (j)(1), does not provide the district attorney with “full and complete access” to an alleged SVP’s records; rather it expressly provides the district attorney with access to only those records reviewedby the evaluators appointed by the Department of State Hospitals (DSH)to conduct updated or replacement evaluations. Senate Bill No. 507 also included a provision? which discusses the first “Question Granted Review.”4 On page 4 of its Answer, the district attorney asserts that in passing Senate Bill No. 507 (in its final form) the Legislature “declined to provide a statutory resolution to that question.” As discussed in greater detail below, the district attorney is wrong. The legislature has provided a statutory resolution. First, the legislature enacted section 5328 which prohibits the disclosure of confidential treatment information to the district attorney’s retained expert. Second, in June 2000, the legislature enacted section 6603, subdivision (c), which created an exception to section 5328’s general rule of confidentiality. However, this legislative exception permits only the DSH evaluators appointed to conduct updated or replacement evaluations to access confidential treatment 3 Section 2 of Senate Bill No. 507 states: “Nothing in this act is intendedto affect the determination by the Supreme Court of California, in People v. Superior Court (Smith) (Docket No. $225562), whether an expert retained by the district attorney in a proceeding under the Sexually Violent Predator Act (Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code) is entitled to review otherwise confidential treatment information under Section 5328 of the Welfare and Institutions Code.” * The first “Question Granted Review”states: “Is an expert retained by the district attorney in a proceeding under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) allowed to review otherwise confidential treatment information under Welfare and Institutions Code section 5328?” 2 information. (Albertson v. Superior Court (2001) 25 Cal.4th 796, 805-807.) This exception does not authorize the disclosure of confidential treatment to the district attorney’s retained expert. ARGUMENT L NEWLY ADDED SECTION 6603, SUBDIVISION (j)(1), VIOLATES FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO EQUAL PROTECTION UNDER THE LAW AND THUS CANNOT BE IMPLEMENTED. Asdiscussed in greater detail in the Opening Brief on the Merits, section 5328 (1) reflects the legislative recognition that disclosing confidences impairs effective treatment of the mentally ill, and thus is contrary to the best interests of society, and (2) prohibits the disclosure of an alleged SVP’s treatment records to the district attorney or the district attorney’s retained expert. However, as also noted in the Opening Brief on the Merits, effective September 13, 2000, the Legislature created an exception to section 5328’s generalrule of confidentiality for alleged SVPs. Morespecifically, the Legislature amended section 6603, subdivision (c), to permit Department of State Hospital (DSH)evaluators, who are appointed to conduct updated or replacement evaluations, to review an alleged SVP’s treatment records. (Albertson v. Superior Court (2001) 25 Cal.4th 796, 805- 807 (Albertson).) Effective January 1, 2016, the Legislature attempted to create another SVP exception to section 5328’s general rule of confidentiality. More specifically, the Legislature added section 6603, subdivision (j)(1), which grants the district attorney access to the confidential therapy records of alleged SVPs, but not to the confidential therapy records of any other recipient of these services, including similarly situated mentally disordered offenders (MDOs) and mentally disordered sex offenders (MDSOs). This 3 disparate treatment of SVPs violates federal and state constitutional rights to equal protection under the law. (People v. McKee (2010) 47 Cal.4th 1172.) Thus, newly added section 6603, subdivision (j)(1), cannot be lawfully implemented. A meritorious claim under the equal protection clause requires a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) The inquiry is not whether personsare similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. (/bid.) In In re Smith (2008) 42 Cal.4th 1251, 1266-1267, this court summarized the relevant principles for applying equal protection analysis to civil commitmentstatutes as follows: “(1) generally speaking, no individual or group when being civilly committed may be denied substantive or procedural protections that are provided to the population as a whole; (2) on the other hand, the Legislature may makereasonable distinctions betweenits civil commitment statutes based on a showing that the persons are not similarly situated, meaning that those who are reasonably determined to represent a greater danger may be treated differently from the general population; (3) in particular, those whoare criminally convicted, and those indicted of criminal charges but incompetent to stand trial, may be distinguished, at least initially, from the general population for civil commitment purposes, because their criminal acts demonstrate that they potentially pose a greater danger to society than those not in the criminal justice system.” Here, the legislature has denied only SVPs the right to keep their treatment records confidential from prosecutors. The legislature did not deny similarly situated MDOs and MDSOsthe right to keep their treatment 4 records confidential from prosecutors. (See, for example, People v. McKee, supra, 47 Cal.4th at p. 1203 [concluding that MDOs and SVPsaresimilarly situated.]; (in re Calhoun (2004) 121 Cal.App.4th 1315, 1353 [concluding that, for forcible treatment with antipsychotic medication, MDOs and SVPs are similarly situated.]; Jn re Greenshields (2014) 227 Cal.App.4th 1284, 1293 [concluding that, for forcible treatment with antipsychotic medication, MD0Os, SVPsand persons found not guilty by reason of insanity (NGIs) are similarly situated.].) By doing so, the legislature has denied SVPs the opportunity to meaningfully participate in the treatment afforded other similarly situated MDOs and MDSOs. Furthermore, the government has not shown why only SVPs should lose the right to keep their treatment records confidential from prosecutors. Accordingly, this disparate treatment of SVPs violates federal and state constitutional rights to equal protection under the law. Thus, newly added section 6603, subdivision (j)(1), cannot be lawfully implemented. Il. EVEN IF NEWLY ADDED SECTION 6603, SUBDIVISION (j(1), CAN BE CONSTITUTIONALLY IMPLEMENTED, IT MAY ONLY BE APPLIED PROSPECTIVELY; THEREFORE THE DISTRICT ATTORNEY MAY ONLY ACCESS TREATMENT RECORDS GENERATEDIN THE COURSE OF SERVICES PROVIDED ON OR AFTER JANUARY1, 2016. Even if newly added section 6603, subdivision (j)(1), can be constitutionally implemented, it may only be applied prospectively. Legislative changes do not apply retroactively unless the Legislature expresses its intention that they should do so. (Wilke & Holzheiser, Inc. v. DepartmentofAlcoholic Beverage Control (1966) 65 Cal.2d 349, 371; Aetna Casualty & Surety Co. v. Industrial Acci. Com. (1947) 30 Cal.2d 388, 393.) [T]he generalrule of construction, coming to us from the commonlaw, that 5 when there is nothing to indicate a contrary intent in a statute it will be presumed that the Legislature intended the statute to operate prospectively and not retroactively.” (In re Estrada (1965) 63 Cal.2d 740, 746.) Therefore, the district attorney may only access treatment records generated in the course of services provided on or after January 1, 2016. Additionally, newly added section 6603, subdivision (j)(1), may not be applied to retroactively waive the confidentiality provisions in section 5328 (even if the Legislature had intended retroactive application). At the time the treatment services were provided to Mr. Smith, the Legislature provided that his communications would be confidential,> his treatment records would not bedisclosed to the district attorney (or an expert retained by the district attorney), and disclosure to the district attorney (or an expert retained by the district attorney) was unlawful.° The Legislature cannot make these promises of confidentiality to coax Mr. Smith to openly participate in treatment and thenretroactively revoke its promise and disclose his communications and treatment records to the district attorney. Furthermore, Mr. Smith must be given the opportunity to decide whether, in light of the legislative changes, he wants to continue his participation in > For example, in People v. Gonzales (2013) 56 Cal.4th 353, 379,this court held that “neither section 1024 [of the Evidence Code] nor any other provision renders the psychotherapist-patient privilege inapplicable in an SVPAproceeding.” 6 Anyone who knowingly violates section 5328 by releasing confidential information without authorization is subject to a civil action with damages equivalent to the greater of $ 10,000 or treble the amount of actual damages. (§ 5330, subdivision (a).) Anyone who negligently violates section 5328 faces damages equivalent to $ 1,000 plus actual damages. (§ 5330, subdivision (b).) treatment. Therefore, the district attorney may only access treatment records generated in the course of services provided on or after January 1, 2016. fil. NEWLY ADDED SECTION 6603, SUBDIVISION (j)(1), DOES NOT PROVIDE THE DISTRICT ATTORNEY WITH ACCESS TO ALL INFORMATION AND RECORDS OBTAINED IN THE COURSE OF PROVIDING SERVICES. On page 3 of its Answer Brief on the Merits (Answer), the district attorney asserts that newly added section 6603, subdivision (j)(1), “provides that the district attorney shall have full and complete access to the State Hospital information that is otherwise confidential under section 5328.” The district attorney is wrong. First, subdivision (j)(1) does not apply retroactively (see Section II above). Second, subdivision (j)(1) does not provide the district attorney with access to all information and records obtained in the courseofproviding services to either voluntary or involuntary recipients of services under the Sexually Violent Predator (SVP) Act. Rather it expressly providesthe district attorney with access to only those “records reviewed” by the DSH evaluators appointed to conduct updated (not replacement) evaluations. Furthermore, this statutory provision should be read to provide the district attorney with access to only those records reviewed by and relied upon the DSH evaluators. Records that the DSH evaluators did not rely upon should not be provided to the district attorney. Furthermore, by its express terms, newly added section 6603, subdivision (j)(1), applies only to records reviewed by a DSH evaluator on or after January 1, 2016, and in conjunction with an updated evaluation issued on or after January 1, 2016. Subdivision (j)(1) expressly states “the evaluator performing an updated evaluation shall include with the evaluation a statementlisting all records reviewed by the evaluator...” and requires the 7 court to issue a subpoenafor those records and then provide a copy ofthose records to the district attorney. Before January 1, 2016, evaluators were not required to include a “statementlisting all records reviewed by the evaluator” and the court was not required to issue a subpoena for those records nor required to provide a copy of those records to the district attorney. IV. AN EXPERT RETAINED BY THE DISTRICT ATTORNEY IN A PROCEEDING UNDER THE SVP ACT IS NOT ALLOWED TO REVIEW OTHERWISE CONFIDENTIAL TREATMENT INFORMATION UNDER WELFARE AND INSTITUTIONS CODE SECTION5328. On page 4 of its Answer, the district attorney asserts that in passing Senate Bill No. 507 (in its final form) the Legislature “declined to provide a statutory resolution to that question.” The district attorney is wrong. The Legislature has provided a statutory resolution. First, the legislature enacted section 5328 which,as discussed in greater detail in the Opening Briefon the Merits, prohibits the disclosure of confidential treatment information to the district or an expert retained by the district attorney. Second, in June 2000, the legislature enacted section 6603, subdivision (c), which created an exception to section 5328’s generalrule of confidentiality. (Albertson, supra, 25 Cal.4th at pp. 805-807.) This legislative exception permits only the DSH evaluators appointed to conduct updated or replacementevaluations to access confidential treatment information. This exception “authorizes review of such records only by the [DSH] evaluators...” (People v. Gonzales (2013) 56 Cal.4th 353, 379, footnote 11, citing Albertson, supra, 25 Cal.4th at p. 807; see also Gilbert v. Superior Court (2014) 224 Cal.App.4th 376, 380.) Thus, the district attorney’s retained expert is not allowed to review any of Mr. Smith’s treatment records’ (and maynot be provided with accessto those portions of the DSH evaluators’ reports which include information from Mr. Smith’s treatment records®). Furthermore, the Legislature expressly declined to enact amendments to section 6603 which would have explicitly permitted the district attorney to disclose the confidential treatment records to its retained expert. For example, the April 30, 2015, and June 2, 2015, versions of Senate Bill 507 included a provision that would have permitted the district attorney to disclose an alleged SVP’s treatment records to the district attorney’s retained expert after seeking consent from the court.” However, this provision was eliminated from thefinal version ofthe bill. On page 22 of its Answer, the district attorney asserts “expert testimony is critical in an SVPtrial, and without the assistance of an expert the State is unable to meaningfully rebut the alleged SVP’s experts. The district attorney, therefore, must be given a fair opportunity to meets its 7 DSH hasalso taken this position. For example, in a declaration under penalty of perjury and dated February 25, 2015, Sophie Cabrera, the Chief of the Department of State Hospital’s Forensic Services, stated “only evaluators designated by DSH for a specific case should be permitted to conduct an evaluationortestify for the [district attorney].” 8 Mr.Smith asserts section 5328 prohibits the DSH evaluators from including in their written reports confidential information from Mr. Smith’s treatment records. * The proposed provision stated: “This 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 soughtto be retainedby that attorney, without the consent ofthe court upon noticed motion.” 9 a M a e t G P b a burden ofproof.” This assertion is misleading and fails to acknowledgethat the Legislature expressly provided the district attorney with the assistance of multiple experts. As discussed in greater detail in the Opening Brief on the Merits, the SVP Act requires DSH to appoint two psychiatrists or psychologists to evaluate the prisoner. (Welf. & Inst. Code, § 6601, subdivision (d).) If the two initial evaluators do not agree that the prisoneris an SVP, DMHis required to appoint two independent professionals to evaluate the prisoner as an SVP. (Welf. & Inst. Code, § 6601, subdivision (e).) And when the district attorney requests replacement evaluations, DSH must appoint new evaluators to perform replacement evaluations. (Welf. & Inst. Code, § 6603, subdivision (c)(1).) In truth, the district attorney is simply not happy the DSH evaluators have determined that Mr. Smith is not an SVP. Furthermore,there is no statutory or case-based exception warranting disclosure or admissibility of treatment records made confidential pursuant to section 5328 simply because the district attorney would otherwise be unable to meet its burden ofproof. (In re M.L. (2012) 210 Cal.App.4th 1457, 1470-1471 [the government bore the burden in a dependency proceeding of proving the mother had a mentalillness and needed her psychiatric records to do so.].) “Were this the only test to be applied in order to disclose and admit such documents at trial, the result would substantially erode the psychotherapist-patient privilege and chill a patient’s feeling of freedom in expressing herselfduring therapy, because any such disclosures could readily be used againsther in the future.” (/bid.) On pages 27-29 of its Answer, the district attorney asserts that since the DSH evaluators have accessto an alleged SVP’s treatmentrecords, there is no real harm in further disclosing those records to the expert retained by the district attorney. This argumentfails to take into account the Legislature’s 10 measured diminution of the confidentiality of an alleged SVP’s treatment records. Morespecifically, in section 6603, subdivision (c), the Legislature permitted only neutral DSH evaluators to look at an alleged SVP’s treatment records. (People v. Gonzales, supra, 56 Cal.4th at p. 379, footnote 11 [This exception “authorizes review of such records only by the [DSH] evaluators...”], citing Albertson, supra, 25 Cal.4th at p. 807.) The district attorney’s argumentalsofails to take into accountthefact the district attorney is not a neutral party like a DSH evaluator; rather the district attorney is the advocate directly responsible for seeking a lifetime commitment of the alleged SVP. In addition, the district attorney’s reliance on People v. Martinez (2001) 88 Cal. App. 4th 474 (Martinez) is misplaced. In Martinez, the court only equivocally held the prosecutor’s examination of psychological records did not violate the alleged SVP’s constitutional right of privacy. However, to the extent Martinez holds section 5328 (as opposed to the constitutional right to privacy) does not prohibit disclosure of confidential treatment records to an expert retained by the district attorney, this court should overrule Martinez. On pages 29-32 of its Answer, the district attorney asserts that the Civil Discovery Act supersedes section 5328 and permits disclosure of confidential treatment records to the expert retained by the district attorney. The district attorney is wrong. Although the Civil Discovery Act has application in the SVP context, trial courts “lack the power to embroiderthe discovery statute to provide greater discovery beyond those afforded by[the SVP Act].” (Sporich v. Superior Court (2000) 77 Cal.App.4th 422, 427; superseded on other grounds by § 6603, subdivision (c).) The SVP Act circumscribes, in detail, the number and timing of the psychological examinations of an alleged SVP (/d. at pp. 425-426) and section 6603, subdivision (c), authorizes review of confidential treatment records only by 11 the DSH evaluators, not an expert retained by the district attorney. (People v. Gonzales, supra, 56 Cal.4th at p. 379, footnote 11, citing Albertson, supra, 25 Cal.4th at p. 807; see also Gilbert v. Superior Court, supra, 224 Cal.App.4th at p. 380.) In addition, the district attorney’s reliance on People v. Landau (2013) 214 Cal. App. 4th 1 (Landau) is misplaced. In Landau, appellate counsel erroneously conceded that “an expert retained by the district attorney may review otherwise confidential records and interview an alleged SVP ifgood causefor the evaluation exists.” (/d., at p. 24.) Therefore, the Landau court never reached the issue presented here. However, to the extent Landau holds the Civil Discovery Act supersedes section 5328 and permits disclosure of confidential treatment records to the expert retained by the district attorney, this court should overrule Landau. CONCLUSION As discussed above and in the Opening Brief on the Merits, section 5328 prohibits the district attorney’s retained expert from reviewing Mr. Smith’s treatment records. In addition, newly added section 6603, subdivision (j)(1), violates federal and state constitutional rights to equal protection under the law and thus cannot be lawfully implemented. Accordingly, section 5328 also prohibits disclosure of an alleged SVP’s treatment records to the district attorney, except to the extent such information is contained in an updated or replacement mental evaluation. Dated: December 14, 2015 Respectfully submitted, FRANK OSPINO Public Defender SHARON PETROSINO Chief Deputy Public Defender MARKS.BROWN o-™ Senior Assistant Public Defender 12 WORD COUNT CERTIFICATION (California Rules of Court, Rules 8.204(c) and 8.520(c)(1) and (d)(2)) I, Mark S. Brown, declare as follows: I represent Mr. Smith in this matter pending before this court. This REPLY / SUPPLEMENTAL BRIEF ON THE MERITS wasprepared in Microsoft Word, and according to that program’s word count, it contains 3,652 words. I declare under penalty of perjury the above is true and correct. Executed on December 14, 2015, in Santa Ana, California. MARK S.BROWN =o™ Senior Assistant Public Defender 13 DECLARATION OF SERVICE People ofthe State ofCalifornia v. Orange County Superior Court, RichardAnthony Smith, Real Party in Interest - Case No. S225562 Court of Appeal Case No. G050827; O.C. Sup. Ct. No. M-9531 STATE OF CALIFORNIA) ) ss COUNTY OF ORANGE _) Angela Friedlander declares that sheis a citizen ofthe United States, over the age of 18 years, not a party to the above-entitled action and has a business address at 14 Civic Center Plaza, Santa Ana, California 92701. That on the 14th day of December 2015, I served a copy of the REPLY / SUPPLEMENTALBRIEF ON THE MERITSin the above- entitled action by depositing a copy thereof in a sealed envelope, postage thereon fully prepaid, in the United States Mail at Santa Ana, California. Said envelopes were addressed (without the telephone numbers) as follows: Orange County District Attorney Deputy County Clerk Attn: Elizabeth Molfetta Attn: Hon. Kimberly Menninger 401 Civic Center Drive Orange County Sup. Ct., Dept C-38 Santa Ana, CA 92701 Central Justice Center (714)347-8781 700 Civic Center Drive West Santa Ana, CA 92702 (657)622-5238 Office ofthe Attorney General 600 West Broadway,Suite 1800 San Diego, CA 92101 I declare under penalty of perjury that the foregoing is true and correct. Executed on this 14th day of December 2015, at Santa Ana, Wyle Pusllancle AngeldFriedlander Secretary 14