Filed 2/24/15 P. v. Superior Court CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Petitioner,

         v.                                                            G050827

THE SUPERIOR COURT OF ORANGE                                           (Super. Ct. No. M9531)
COUNTY,
                                                                       OPINION
     Respondent;

RICHARD ANTHONY SMITH,

     Real Party in Interest.



                   Original proceedings; petition for a writ of mandate and/or prohibition to
challenge an order of the Superior Court of Orange County, Kimberly Menninger, Judge.
Petition granted.
                   Tony Rackauckas, District Attorney, and Elizabeth Molfetta, Deputy
District Attorney, for Petitioner.
                   No appearance for Respondent.
               Frank Ospino, Public Defender, Sharon Petrosino, Chief Deputy Public
Defender, and Mark S. Brown, Assistant Public Defender, for Real Party in Interest.
                                  *           *          *
                                      INTRODUCTION
               The issue presented by this writ proceeding is whether a mental health
expert retained by the petitioner in an action brought under the Sexually Violent Predator
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Act, Welfare and Institutions Code section 6600 et seq. (SVPA), may review the
lawfully obtained evaluations of the alleged sexually violent predator and the mental
health records and documents supporting those evaluations. Under the facts presented
here, we resolve that issue in the affirmative.
               Richard Anthony Smith is the subject of a commitment petition filed
pursuant to the SVPA. The district attorney brought a motion seeking an order to allow a
retained expert to review evaluations of Smith conducted under section 6603,
subdivision (c)(1) (section 6603(c)(1)) and to review the records and documents
supporting those evaluations. Based on a prior unpublished opinion in this matter, the
respondent court denied the motion. The respondent court stated, “the district attorney
will not be able to hire an expert and will not be able to utilize the documents that are
subpoenaed for the expert’s independent review.”
               The district attorney brought a petition for writ of mandate and/or
prohibition to overturn the respondent court’s order. In January 2015, we issued a notice
pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 (Palma) and
invited Smith to file a supplemental informal response to address the advisability of
issuing a peremptory writ in the first instance. Smith filed a supplemental informal
response. We grant the petition and direct the issuance of a peremptory writ of mandate
in the first instance.

 1
     Code references are to the Welfare and Institutions Code unless otherwise indicated.

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                                      DISCUSSION
              In Smith v. Superior Court (Mar. 28, 2012, G045119) (nonpub. opn.),
review granted June 27, 2012, S202338 (Smith I), we granted Smith’s petition for writ of
mandate and directed the respondent court to dismiss the SVPA commitment petition
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because the two post-Ronje evaluators concluded Smith no longer met the criteria for
commitment as a sexually violent predator. (Smith I, supra, G045119.) Because we
directed the dismissal of the SVPA commitment petition, we also directed the respondent
court to vacate its order compelling Smith to undergo a mental evaluation by the district
attorney’s retained expert—a mental examination made irrelevant by the dismissal.
(Ibid.) We also concluded: “Smith cannot be compelled to undergo another mental
evaluation because the SVPA Petition must be dismissed. Evaluations by independent
mental health professionals under section 6601, subdivision (e) are not authorized
because the initial two post-Ronje evaluators concluded Smith no longer met the criteria
for commitment as a sexually violent predator.” (Ibid.) The retained expert could not
have access to Smith’s state hospital records because they were sought as part of the
prohibited mental examination. (Ibid.)
              The California Supreme Court granted review of Smith I, then, after issuing
its decision in Reilly v. Superior Court, supra, 57 Cal.4th 641, transferred the matter to us
for reconsideration in light of that decision. In Smith v. Superior Court (Jan. 14, 2014,
G045119) (nonpub. opn.) (Smith II), we concluded, “[u]nder the Supreme Court’s
opinion in Reilly, we must deny Smith’s writ petition requesting that we direct the
respondent court to grant his plea in abatement.” We granted a writ of mandate as to the
respondent court’s order granting the district attorney’s motion to compel Smith to
undergo a mental examination and to allow access to Smith’s state hospital records.
 2
  In re Ronje (2009) 179 Cal.App.4th 509, 516-517, disapproved in Reilly v. Superior
Court (2013) 57 Cal.4th 641, 655.

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(Ibid.) We explained: “The district attorney’s motion to compel Smith to undergo a
mental examination and to give the district attorney’s retained expert access to Smith’s
state hospital records was prompted by the post-Ronje evaluations and was not authorized
under the SVPA. Smith and the People retain their rights to obtaining further
examinations and evaluations permitted by the SVPA.” (Ibid.) The district attorney
maintained the right to obtain updated or replacement evaluations under
section 6603(c)(1).
              Our conclusions in Smith I and Smith II were narrow. In neither Smith I nor
Smith II did we address whether the district attorney could retain a mental health expert
under the Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.), nor did we address
whether the district attorney could subpoena Smith’s section 6603(c)(1) evaluations and
supporting records and documents for review by that expert. We concluded only that
Smith could not be compelled to undergo an evaluation by that expert. For that reason,
no purpose would have been served at that time by permitting the expert to review
Smith’s evaluations and mental health records. The final sentence in Smith II was: “Our
decision is without prejudice to Smith and the People exercising their statutory rights.”
(Smith II, supra, G045119.)
              Those statutory rights include the right to retain an expert witness and the
right to subpoena documents. (See Code Civ. Proc., §§ 1985-1985.8 [subpoena duces
tecum], 2034.210-2034.310 [exchange of expert witness information].) The Civil
Discovery Act applies to SVPA proceedings “on a case-by-case basis” (People v.
Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 994), and, in this case, there was
good cause for the district attorney to retain a mental health expert and to subpoena
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Smith’s mental health records. The evaluators who conducted the section 6603(c)(1)

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   The respondent court commented the district attorney would not be able to hire an
expert, but the district attorney’s motion raised only the issue whether the retained expert
could look at Smith’s evaluations and the supporting documents.

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evaluations used those same documents and records in preparing their evaluations of
Smith, as did Smith’s own retained experts. As the district attorney asserts, “the
documents upon which Mr. Smith’s experts relied upon are in the lawful possession of
the People obtained pursuant to sections 6603, subdivision (c)(1) and 6601,
subdivision (h).”
              Although Smith has a privacy interest in the section 6603(c)(1) evaluations
and his mental health records, his interest is not absolute. (People v. Martinez (2001) 88
Cal.App.4th 465, 478.) Smith’s privacy interest must be balanced against the
government’s interest in protecting the public from sexually violent predators (People v.
Allen (2008) 44 Cal.4th 843, 866) and the interest of the justice system in providing
reliable information to assist the trier of fact in determining whether the person being
tried is a sexually violent predator (see People v. Leonard (2000) 78 Cal.App.4th 776,
792-793). Balancing those interests leads us to conclude the district attorney’s retained
expert should be able to review Smith’s section 6603(c)(1) evaluations and the mental
health records and documents relied upon by the evaluators and Smith’s retained experts.
              Smith argues our decisions in Smith I and Smith II are inconsistent with
People v. Landau (2013) 214 Cal.App.4th 1, 24-26, in which a panel of this court
concluded that under the Civil Discovery Act an alleged sexually violent predator may be
compelled to undergo an examination by the district attorney’s retained mental health
expert. We need not address whether there is a conflict because the district attorney is
not seeking to compel Smith to submit to another examination: The only issue presented
in this proceeding is whether the district attorney’s retained mental health expert may
look at Smith’s section 6603(c)(1) evaluations and supporting records and documentation
lawfully obtained through discovery. In People v. Landau, supra, 214 Cal.App.4th at
page 24, counsel for the alleged sexually violent predator conceded the district attorney’s
retained expert “may review otherwise confidential records and interview an alleged
[sexually violent predator] if good cause for the evaluation exists.”

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                               DISPOSITION AND ORDER
              Having complied with Palma, we conclude the petition and the opposition
adequately address the issue, no factual disputes exist, and additional briefing following
the issuance of an alternative writ would be unnecessary to disposition of the petition.
(Palma, supra, 36 Cal.3d at p. 178.) The petition for writ of mandate/prohibition is
granted. Let a peremptory writ of mandate in the first instance issue directing the
respondent court to (1) vacate its order denying the district attorney’s motion for court
order to release records to retained expert and protective order and (2) enter a new order
granting that motion. This court’s stay order of October 10, 2014, is lifted upon finality
of this opinion as to this court.




                                                  FYBEL, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



BEDSWORTH, J.




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