Filed 2/15/19; Modified and Certified for Pub. 3/7/19 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                             DIVISION THREE
SID LANDAU,

    Petitioner,

         v.                                                        G056050

THE SUPERIOR COURT OF ORANGE                                       (Super. Ct. No. M9094-1)
COUNTY,
                                                                   OPINION
    Respondent;

THE PEOPLE,

    Real Party in Interest.



                  Original proceedings; petition for a writ of mandate to challenge an order of
the Superior Court of Orange County, Richard M. King, Judge. Petition denied.
                  Sharon Petrosino, Public Defender, and Miles David Jessup, Deputy Public
Defender, for Petitioner.
                  Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney
General, Arlene A. Sevidal, Meredith S. White and Minh U. Le, Deputy Attorneys
General, for Real Party in Interest.
                  No appearance for Respondent.
                                       *                 *               *
                In 2009, a jury found petitioner Sid Landau to be a sexually violent
predator (SVP) within the meaning of the Sexually Violent Predator Act (SVPA).
                                       1
(Welf. & Inst. Code, § 6600 et seq.) The trial court subsequently committed Landau to
the custody of the State Department of State Hospitals (SDSH) for an indeterminate term.
We have filed three prior opinions regarding these matters. Landau has filed a petition
for unconditional discharge or conditional release (outpatient treatment), which is
currently set for an evidentiary hearing in the trial court (essentially a retrial).
                Effective January 1, 2016, the Legislature amended the SVPA as follows:
“Notwithstanding any other law, the evaluator performing an updated . . . evaluation shall
include with the evaluation a statement listing all records reviewed by the evaluator . . . .
The court shall issue a subpoena, upon the request of either 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 subject to this article. The attorneys may use the records
in proceedings under this article and shall not disclose them for any other purpose.”
                          2
(§ 6603, subd. (j)(1).)
                Here, in advance of the retrial, the Orange County District Attorney served
a subpoena duces tecum (SDT) on Coalinga State Hospital to obtain Landau’s records.
The SDSH complied with the SDT and forwarded Landau’s records to the trial court.
Landau moved to quash the subpoena; the court denied the motion. Landau has now filed
a petition for a writ of mandate in this court in order to challenge the lower court’s ruling.
                We find that section 6603 (j) explicitly authorizes a district attorney to
subpoena and use an SVP’s medical records in proceedings under the SVPA. Thus, we
deny Landau’s petition for a writ of mandate.



1
    All further undesignated statutory references are to the Welfare and Institutions Code.
2
    Hereinafter referred to without the word “subdivision” and the No. “(1).”

                                                2
                                               I
                       FACTS AND PROCEDURAL BACKGROUND
                In 1982, Landau was convicted of two counts of orally copulating a child
and was sentenced to six years in prison. In 1988, Landau was convicted of 18 counts of
committing a lewd act on a child and was sentenced to 17 years in prison. Prior to his
release date, the prosecution filed an SVP petition. In 2009, a jury found that Landau met
the criteria under the SVPA and the court ordered an indefinite commitment. We
                                                                            3
affirmed the judgment. (People v. Landau (2013) 214 Cal.App.4th 1, 8.)
                In August 2010, Landau filed a petition for discharge or conditional release.
The trial court summarily denied the petition. We reversed and remanded the matter.
(People v. Landau (2011) 199 Cal.App.4th 31, 35.) On remand, a jury found that Landau
continued to meet the criteria for a SVPA commitment; however, due to the admission of
prejudicial hearsay evidence, we again reversed and remanded the matter. (People v.
Landau (2016) 246 Cal.App.4th 850.)


The Instant Proceedings
                On December 14, 2017, the district attorney served an SDT on the
custodian of records at Coalinga State Hospital. The SDT sought Landau’s treatment
plans, test results, and other records relied on by two SDSH doctors “in forming their
expert opinions as stated in their evaluations.” Landau filed a motion to quash the
                                                                                            4
subpoena; the district attorney filed an opposition, relying in part on section 6603 (j).
                On February 16, 2018, the trial court conducted a hearing on the motion to
quash the subpoena. The court told the parties that: “The hospital has delivered the
documents to the court.” After hearing argument from both sides the court denied the

3
    The filing date was delayed due to issues unrelated to this writ proceeding.
4
    We reject Landau’s argument that the People’s reliance on section 6603 (j) is waived.

                                               3
motion, but “stayed the dissemination of records” in order “to allow [Landau] to file a
writ.”
              On March 6, 2018, Landau filed a petition for writ of mandate in this court,
which we summarily denied.
              On June 27, 2018, the California Supreme Court granted review and
returned the matter to this court. We complied with the Supreme Court’s directions by
                                                                    5
vacating our previous order and issuing an order to show cause.


                                              II
                                        DISCUSSION
              Landau argues that the trial court “erred when it refused to quash” the
district attorney’s subpoena, which sought his “confidential mental health and other
medical records” from the SDSH for use at the retrial. We disagree for reasons we shall
explain, but we will start with a brief overview of the SVPA.
              Generally, the SVPA provides for indefinite civil commitments of persons
who are found beyond a reasonable doubt to be an SVP. An SVP is a person convicted
of a sexually violent offense against one or more victims, and who has been diagnosed
with a mental disorder that renders them a danger to public safety because they are likely
to reoffend and commit additional sexually violent acts. (§§ 6600, subd. (a)(1), 6603,
subd. (d), 6604.) At the commitment hearing, the alleged SVP has the right to a trial by
jury, the assistance of counsel, the right to retain experts, and “access to all relevant
medical and psychological records and reports.” (§ 6603, subd. (a).)



5
  After oral argument, the California Supreme Court filed its opinion in People v.
Superior Court (Smith) (2018) 6 Cal.5th 457, which presented issues similar to those in
this case. The Supreme Court generally held that the SVPA allows a court to provide a
defendant’s mental health records to a district attorney, and the district attorney is not
barred from sharing those records with a retained expert. (Id. at pp. 465-469.)

                                               4
              Once a person has been found to be an SVP, the SDSH must conduct
annual mental health examinations. The SDSH must report to the court whether the
person currently meets the definition of an SVP, and whether unconditional discharge or
conditional release (to a less restrictive alternative that would adequately protect the
community) is in the person’s best interest. (§ 6604.9.) If the SDSH director does not
recommend release, the SVP may nonetheless petition for release. The SVP must make a
showing that they would not be a danger to others while under supervision and treatment
in the community. (§ 6608, subd. (g).)
              An SVP is entitled to an evidentiary hearing if the petition is not frivolous.
The trial “court shall endeavor whenever possible to review the petition and determine if
it is based upon frivolous grounds and, if so, shall deny the petition without a hearing.”
(§ 6608, subd. (a).) If the court finds probable cause to believe the petition has merit, it
must set a hearing date. (§ 6605, subd. (a)(2).) At that evidentiary hearing, the SVP is
entitled to all of the constitutional protections provided for at the initial commitment
hearing (e.g., trial by jury). The state has the burden to prove beyond a reasonable doubt
that the committed person remains an SVP. (§ 6605, subd. (a)(3).)


A. Section 6603 (j) allows both parties to subpoena otherwise confidential records.
              SVPA matters are special proceedings of a civil nature. (Moore v. Superior
Court (2010) 50 Cal.4th 802, 815.) Discovery procedures in SVPA proceedings are
governed by the Code of Civil Procedure. (People v. Superior Court (Cheek) (2001) 94
Cal.App.4th 980, 989.) All civil litigants generally have the right to subpoena relevant
documents as part of discovery proceedings. (See Code Civ. Proc., §§ 1985-1985.8.)
              We generally review discovery orders for an abuse of discretion. (People
Ex Rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1552.) However, statutory
interpretation is a question of law, which we review de novo. (John v. Superior Court
(2016) 63 Cal.4th 91, 95-96.) Our task is to ascertain the intent of the Legislature.

                                              5
(People v. Jefferson (1999) 21 Cal.4th 86, 94.) Generally, we first look at the words of
the statute applying their “‘usual and ordinary meanings.’” (People v. Lawrence (2000)
24 Cal.4th 219, 230-231.) If the meaning of the words is unambiguous, then the plain
meaning of the language governs. (People v. Coronado (1995) 12 Cal.4th 145, 151.)
              An SVP has a right to privacy in his SDSH records, but that right is not
absolute. (§ 5328; People v. Martinez (2001) 88 Cal.App.4th 465, 478-479.) An SVP’s
right to privacy is balanced against the state’s interest in protecting the public. (People v.
Allen (2008) 44 Cal.4th 843, 866.) Further, the justice system has an interest in providing
evidence to assist the trier of fact in determining whether an SVP continues to meet the
requirements under the SVPA. (People v. Leonard (2000) 78 Cal.App.4th 776, 792-793.)
              In 2001, the Supreme Court interpreted the relevant statutes and held that
“in an SVPA proceeding . . . the district attorney may obtain access to otherwise
confidential treatment information concerning an alleged SVP to the extent such
information is contained in an updated evaluation.” (Albertson v. Superior Court (2001)
25 Cal.4th 796, 807.) And again, as we stated in the introduction, the Legislature
amended the SVPA, effective January 1, 2016: “Notwithstanding any other law, the
evaluator performing an updated [SVP] evaluation shall include with the evaluation a
statement listing all records reviewed by the evaluator pursuant to subdivision (c)
[updated and replacement evaluations]. The court shall issue a subpoena, upon the
request of either 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
subject to this article. The attorneys may use the records in proceedings under this article
and shall not disclose them for any other purpose.” (§ 6603 (j).)
              In this case, as one of the two parties in the civil litigation, the district
attorney is authorized to subpoena relevant records under the Code of Civil Procedure.
Further, the recently amended statute—section 6603 (j)—gives the district attorney the
explicit authority to subpoena Landau’s otherwise confidential medical records, which

                                               6
formed the basis of the SVP evaluations. Moreover, section 6603 (j) also gives the
district attorney the limited ability to use those subpoenaed records at SVPA proceedings.
The Legislature’s language and intent is clear and unambiguous. There is no indication
that the district attorney intends to use Landau’s subpoenaed medical records for
unauthorized purposes. Therefore, the trial court did not abuse its discretion when it
denied Landau’s motion to quash the district attorney’s subpoena.
              Landau argues that section 6603 (j) applies strictly to an “updated” SVP
evaluation done under section 6603 (the state’s petition for an original commitment),
rather than under section 6605 (an SVP’s petition for an unconditional discharge), or
section 6608 (an SVP’s petition for a conditional release). We disagree.
              When construing statutes, we consider the language of the entire statutory
scheme “‘so as to harmonize its various elements without doing violence to its language
or spirit.’” (People v. Garcia (1999) 21 Cal.4th 1, 6.) This rule of statutory construction
is known as the harmonious-reading canon. (See Scalia & Garner, Reading Law: The
Interpretation of Legal Texts (2012) pp. 180-182 [“there can be no justification for
needlessly rendering provisions in conflict if they can be interpreted harmoniously”].)
              The SVPA encompasses 24 statutes within the Welfare and Institutions
Code, Division Six, Part Two, Chapter Two, Article Four. (§§ 6660-6609.3.) The first
statute under the SVPA defines certain terms; the statute does not define the term
“updated.” (§ 6600.) Under the statute describing the procedures for the initial SVPA
commitment hearing, “[i]f the attorney petitioning for commitment under this article
determines that updated evaluations are necessary to properly present the case for
commitment, the attorney may request the [SDSH] to perform updated evaluations.
(§ 6603, subd. (c)(1), italics added.) Under the statute describing the procedures for a
petition for unconditional discharge, “[t]he attorney designated by the county . . . shall
have the right to demand a jury trial and to have the committed person evaluated by
experts chosen by the state.” (§ 6605, subd. (a)(3).) And under the statute describing the

                                              7
procedures for a petition for conditional release, “[t]he attorney designated [by the county
of domicile] shall represent the state and may have the committed person evaluated by
experts chosen by the state.” (§ 6608, subd. (g).)
              Again, section 6603 (j) provides: “Notwithstanding any other law, the
evaluator performing an updated evaluation shall include with the evaluation a statement
listing all records reviewed by the evaluator pursuant to subdivision (c).” (Italics added.)
Subdivision (c) specifies these records: “available medical and psychological records,
including treatment records, consultation with current treating clinicians, and interviews
of the person being evaluated, either voluntarily or by court order.” (§ 6603, subd.
(c)(1).) Section 6603 (j) then goes on to provide: “The court shall issue a subpoena,
upon the request of either 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
subject to this article. The attorneys may use the records in proceedings under this
article and shall not disclose them for any other purpose.” (Italics added.)
              We find that by using the phrase “under this article,” the Legislature
intended that when various “updated” SVP evaluations occur, the underlying SDSH
records can be subpoenaed (by both parties) for any applicable evidentiary hearings or
trials. This interpretation is based on the plain meaning of section 6603 (j), and makes
reasonable sense under the SVPA. Regardless of the particular type of evidentiary
hearing, the prosecution needs access to an SVP’s medical records in order to meet their
burden before the trier of fact. Similarly, the attorney for the respondent (the SVP or
alleged SVP) also needs access to these same records.
              In short, in order to harmonize the intent of the Legislature across the entire
SVPA (“under this article”), we find that section 6603 (j) applies to evidentiary hearings
under section 6603 (original commitments), section 6605 (petitions for unconditional
discharge), and section 6608 (petitions for conditional release).



                                             8
B. Section 6603 (j) is not being applied retroactively.
              Landau argues that section 6603 (j), is improperly being applied
retroactively, arguing that “the newly added . . . subdivision (j), applies only to records
reviewed by a DSH evaluator . . . , and in conjunction with an updated evaluation issued
on or after January 1, 2016.” We disagree.
              Generally, all laws are to be applied prospectively. (In re Estrada (1965)
63 Cal.2d 740, 746.) Nonetheless, “a law addressing the conduct of trials still addresses
conduct in the future. This is a principle that courts in this state have consistently
recognized. Such a statute ‘is not made retroactive merely because it draws upon facts
existing prior to its enactment.’” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 288.)
Rather, the effect of such statutes “‘is actually prospective in nature since they relate to
the procedure to be followed in the future.’ [Citations.]” (Ibid.)
              Section 6603 (j) clarifies discovery procedures in order to obtain a person’s
previously existing SDSH medical records (through the use of SDTs), and their
subsequent disclosure for purposes of SVP proceedings. The statute plainly applies to
any SVPA proceedings that were to occur after January 1, 2016.
              Here, the district attorney’s SDT, the release of Landau’s SDSH records to
the parties, and the retrial on Landau’s petition for release will all have occurred after
January 1, 2016. Thus, section 6603 (j) is being applied prospectively, not retroactively.
              Landau also argues that section 6603 (j) “cannot invade records that
predated the law and were confidential when generated, without involuntariness issues.”
(Original boldfacing omitted.) But Landau’s concern regarding “voluntariness” is an
evidentiary determination of a preliminary fact. (See Evid. Code, §§ 402, 405
[determination of foundational and other preliminary facts]; see also People v. Smith
(2007) 40 Cal.4th 483, 501 [“Whether a statement is voluntary depends upon the totality
of the circumstances surrounding the interrogation”].)



                                              9
              In this case, Landau’s retrial has not taken place and the trial court has
made no evidentiary rulings. Thus, issues regarding “voluntariness” and admissibility are
premature and are not ripe for review in this writ proceeding.


C. Section 6603 (j) does not violate the federal or state equal protection clauses.
              Landau argues that section 6603 (j) violates his constitutional right to equal
protection under the law. He argues that “the Legislature has denied only SVPs the right
to keep their treatment records confidential from prosecutors. The Legislature did not
deny similarly situated MDOs [(mentally disordered offenders)] and MDSOs [(mentally
disordered sexual offenders)] the right to keep their treatment records confidential from
                             6
prosecutors.” We disagree.
              When analyzing equal protection claims: “We first ask whether the two
classes are similarly situated with respect to the purpose of the law in question, but are
treated differently.” (People v. Lynch (2012) 209 Cal.App.4th 353, 358.) MDOs and
SVPs have been found to be similarly situated in other contexts. (See People v. McKee
(2010) 47 Cal.4th 1172, 1203 (McKee I); see also In re Calhoun (2004) 121 Cal.App.4th
1315, 1351-1352 [“Both have been convicted of a serious or violent felony. At the end of
their prison terms, both have been civilly committed to the Department of Mental Health
for treatment of their disorders. Furthermore, the purpose of the MDO Act and the SVPA
is the same: to protect the public from dangerous felony offenders with mental disorders
and to provide mental health treatment for their disorders”].)
              In an equal protection review, if the groups are sufficiently similar with
respect to the law being challenged, we then ask whether disparate treatment of the

6
  The California Supreme Court declined to address a similar equal protection argument.
(People v. Superior Court (Smith), supra, 6 Cal.5th at p. 468 [“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”].) But read nothing within the opinion
that would forestall our consideration of Landau’s equal protection argument.

                                             10
groups is justified. (McKee I, supra, 47 Cal.4th at p. 1207.) “Unless the law treats
similarly situated persons differently on the basis of race, gender, or some other criteria
calling for heightened scrutiny, we review the legislation to determine whether the
legislative classification bears a rational relationship to a legitimate state purpose.”
(People v. Moreno (2014) 231 Cal.App.4th 934, 939.) “However, a law that interferes
with a fundamental constitutional right or involves a suspect classification, such as race
or national origin, is subject to strict scrutiny requiring a compelling state interest.”
(People v. Lynch, supra, 209 Cal.App.4th at p. 358.)
              The Supreme Court has identified two types of interests protected by the
right to privacy: 1) the right to autonomous decision making, and 2) the right to
nondisclosure of intimate personal information (confidentiality). (Whalen v. Roe (1977)
429 U.S. 589, 599-600.) The interest in autonomy is recognized as a fundamental right
and is thus accorded the utmost constitutional protection; this right involves issues related
to marriage, procreation, family relationships, child rearing and education. (Id. at p. 600,
fn. 26.) However, confidentiality has not been recognized as a fundamental right. (See
People v. Gonzales (2013) 56 Cal.4th 353, 385 [disclosing therapy records in SVPA
commitment proceedings does not violate a fundamental constitutional right].)
              Here, Landau’s equal protection challenge is to section 6603 (j), which
concerns access (by both parties) to a person’s otherwise confidential SDSH medical
records. To start our analysis, we find that SVPs are similarly situated to MDOs and
MDSOs for the purposes of analyzing access to medical records. (See McKee I, supra,
47 Cal.4th 1172.) Further, under section 6603 (j), the People have an arguably greater
level of access to the medical records of SVPs as compared to MDOs and MDSOs.
              We now turn to the justification for the disparate treatment of these
similarly situated groups. Again, all persons who are civilly committed do not have a
fundamental right to the privacy of their medical records. (See People v. Gonzales,



                                              11
supra, 56 Cal.4th at p. 385.) Therefore, we must evaluate Landau’s equal protection
challenge under a rational basis test.
              Under rational basis review, legislation is presumptively valid and is upheld
so long as there exists a rational relationship between the disparity of treatment and some
legitimate governmental purpose. (D’Amico v. Board of Medical Examiners (1974) 11
Cal.3d 1, 16.) Under this test, the burden is on the party challenging the legislation to
demonstrate the absence of any rational connection to a legitimate state interest. (Id. at
p. 17.) Indeed, “‘a court may engage in “‘rational speculation’” as to the justifications for
the legislative choice [citation]. It is immaterial for rational basis review “whether or
not” any such speculation has “a foundation in the record.’” [Citation.] To mount a
successful rational basis challenge, a party must ‘“negative every conceivable basis’” that
might support the disputed statutory disparity. [Citations.] If a plausible basis exists for
the disparity, courts may not second-guess its ‘“wisdom, fairness, or logic.’”
[Citations.]” (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.)
              Here, the SVPA provides for an indeterminate commitment term, while the
MDO and MDSO statutory schemes provide for limited commitments, which require the
state to file a new petition if the state seeks to extend the commitment. (See Pen. Code,
                        7
§ 2960 et seq.; § 6331.) Accordingly, the three different statutory schemes make minor
distinctions concerning the state’s access to the committed person’s SDSH medical
records. As to MDOs, the relevant statute provides that: “If requested by the district
attorney, the written evaluation shall be accompanied by supporting affidavits.” (Pen.
Code, § 2970, subd. (a).) As to MDSOs, former section 6316.2, subdivision (b), provided
that the hospital “director may submit such supporting evaluations and case file to the
prosecuting attorney who may file a petition for extended commitment in the superior

7
 MDSO laws were repealed January 1, 1982 (Stats. 1981, ch. 928, § 2), but persons
committed before that date may remain as an MDSO, subject to continuing jurisdiction
under the now-repealed statutes. (Baker v. Superior Court (1984) 35 Cal.3d 663, 667.)

                                             12
court which issued the original commitment.” And, as we have already discussed, when
it comes to updated SVP evaluations, the amended SVPA statute provides that both
parties may issue subpoenas, and obtain “all records reviewed by the evaluator” and that
both parties’ “attorneys may use the records in proceedings under this article and shall
not disclose them for any other purpose.” (§ 6603 (j).)
               In sum, we find that the relatively minor distinctions in the level of access
given to the SDSH medical records of persons committed as either an MDO, an MDSO,
or an SVP appear to be rationally related to each statutory scheme. Because an SVPA
commitment is indefinite and is not subject to annual review, it is rational to allow for
continuing annual evaluations. Further, it is rational to allow both parties to have access
to the underlying SDSH medical records, primarily for evidentiary purposes. (See Reilly
v. Superior Court (2013) 57 Cal.4th 641, 648.) Thus, we find that section 6603 (j) does
not violate Landau’s constitutional right to equal protection under the law.
               Finally, Landau argues that release of an SVP’s otherwise confidential
medical records for SVPA proceedings may risk the “destruction of patient trust,”
participation in therapy, and the “moral authority” of the SDSH. But these interrelated
privacy issues ultimately concern the wisdom of the statutory scheme and are essentially
questions of public policy, which we leave to the legislative branch. (See People v.
Allen, supra, 44 Cal.4th at p. 866 [an SVP’s privacy interests must be balanced against
the state’s interest in protecting the public].)




                                               13
                                           III
                                    DISPOSITION
             The petition for writ of mandate is denied. The previously issued stay is
hereby dissolved.



                                                 MOORE, J.


WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




                                           14
Filed 3/7/19

                              CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE
SID LANDAU,

    Petitioner,

        v.                                             G056050

THE SUPERIOR COURT OF ORANGE                           (Super. Ct. No. M9094-1)
COUNTY,
                                                       ORDER GRANTING REQUEST
    Respondent;                                        FOR PUBLICATION; AND
                                                       MODIFYING OPINION;
THE PEOPLE,                                            NO CHANGE IN JUDGMENT

    Real Party in Interest.




                 Pursuant to California Rules of Court, rule 8.1105(c), the request to publish
the opinion filed herein on February 15, 2019, is GRANTED. The opinion is ordered
published in the Official Reports. (Cal. Rules of Court, rule 8.1105(b).)
                 In addition, the opinion is hereby modified as follows:
                 1. On page 4, footnote 5, first sentence, delete the word “After” at the
beginning of the sentence and replace it with the word “Before.”
                 2. On page 10, footnote 6, delete the last sentence, and replace with the
following sentence:
                 But we read nothing within the opinion that would forestall our
consideration of Landau’s equal protection argument.
           These modifications do not change the judgment.




                                            MOORE, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




                                        2
