Modification: Y.C. v. Superior Court (People)

Y.C.,

Petitioner,

v.

THE SUPERIOR COURT OF SAN MATEO COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

No. A162063

(San Mateo County

Super. Ct. No. 20JW0474)

California Courts of Appeal

First Appellate District

Division Four

Filed December 6, 2021

ORDER MODIFYING OPINION; AND DENYING PETITION FOR REHEARING

[NO CHANGE IN JUDGMENT]

Trial judge: Honorable Susan Jakubowski

Counsel for petitioner:

Counsel for amicus curiae on behalf of petitioner Michelle May Peterson

Lana M. Kreidie

Abigail Trillin, Executive Director

Legal Services for Children

Jesse Hahnel, Executive Director National Center for Youth Law

Meredith Desautels, Staff Attorney

Youth Law Center

Counsel for respondent: No appearance

Counsel for real party in interest: Xavier Becerra and Rob Bonta

Attorneys General of California

Matthew Rodriquez

Acting Attorney General of California

Lance E. Winters

Chief Deputy Attorney General

Jeffrey M. Laurence

Senior Assistant Attorney General

Seth K. Schalit

Supervising Deputy Attorney General

Eric D. Share

Supervising Deputy Attorney General

THE COURT^*:

Petitioner's petition for rehearing, filed November 23, 2021, is denied. Justice Streeter dissents from this denial and would have granted Petitioner's request.

It is ordered that the opinion filed November 8, 2021, be modified as follows:

1. On page 12 of the opinion, following the final full sentence, insert as footnote number 5 the following text, and renumber all subsequent footnotes accordingly:

Citing Cramer v Tyars (1979) 23 Cal.3d 131, 137, Y.C. also argues that the Fifth Amendment gives him a right not to be called as a witness in a criminal case. This is true but irrelevant, as Y.C. has not claimed he was, or will be, called as a witness in any court proceeding.

2. On page 17 of the opinion: Delete the final sentence (which carries over to page 18) and subsequent citation, which read:

Separately, CMIA also authorizes a provider of health care to disclose medical information to a probation officer "or any other person who is legally authorized to have custody or care of a minor for the purpose of coordinating health care services and medical treatment provided to the minor." (Civ. Code, § 56.103, subd. (a).)

Modifications to Justice Streeter's Concurrence and Dissent:

1. On page 6 of Justice Streeter's concurrence and dissent, in the first full paragraph (which begins: To the extent we are reaching the merits, . . .) immediately after the seventh full sentence (which reads: In my view, BHRS---a public health agency that delivers mental health services to juveniles---is clearly a "covered entity" since it is a "health care provider."), insert as footnote number 6 the following text, and renumber all subsequent footnotes accordingly:

⁶ At pages 31 and 32 of the brief supporting Y.C.'s writ petition, he cites and provides Web addresses for four judicially noticeable government records (Evid. Code, § 452, subd. (c)) as proof of this. One of these documents, published by BHRS and entitled "Mental Health Plan Outpatient Provider Manual," is addressed to BHRS's contracted clinicians for a number of different types of its health services, including "assessment services," which are described as "clinical analysis of the history and current status of the client's mental, emotional or behavioral condition." (San Mateo County Health System Behavioral Health & Recovery Services, Mental Health Plan Outpatient Provider Manual (Dec. 2017) <https://www. smchealth.org/sites/main/files/file-attachments/provider_ manual_ppn_12.26.17_0.pdf> [as of Dec. 3, 2021].) As an orientation to its policies, BHRS advises these clinicians as follows: "It is essential that in your practice you develop, communicate and utilize forms, policies and procedures that are in compliance with HIPAA. We recommend that you take a HIPAA training at least every two years. [¶] The HIPAA for BHRS Mental Health e‑learning course is available free on the county Health System internet site http://smchealth.org." (Ibid.) Whether the substance of any of these statements is true and accurate is not what is noteworthy about them. Their significance is in the fact that they contradict the Attorney General's position that HIPAA does not apply here. They also explain why, when asked about her practices in keeping assessments confidential, Ms. Johnson testified that "there's HIPAA involved."

2. On page 14 of Justice Streeter's concurrence and dissent, in the first full paragraph, delete the first sentence and the citation following it: If Y.C. had been ordered to participate in a psychological assessment interview (§ 711), he would have enjoyed full use and derivative immunity for any statements made to Ms. Johnson. (People v. Jablonski, supra, 37 Cal.4th at p. 803.)

In place of the deleted text indicated above, begin the paragraph with the following substitute language:

If Y.C. had been referred by the juvenile court for psychological evaluation by a licensed mental health professional (§ 712, subd. (a)(2)), he would have had the right, "with the approval of his or her counsel," to decline the evaluation (§ 711, subd. (b)), and if he had declined to be evaluated, the preparation of the social study for the court in advance of the dispositional hearing would have had to proceed without such an evaluation. (Ibid.) It cannot be right that the power the Attorney General now claims Ms. Johnson had---to ask for Y.C.'s consent to a psychological evaluation that would ultimately be provided to the court, without first giving Y.C. the opportunity to obtain the assistance of counsel in deciding whether to proceed---exceeds the power of the court itself.

3. On page 14 of Justice Streeter's concurrence and dissent, in the first full paragraph, in the sentence immediately following the newly inserted language indicated in item 2 above and continuing in the same paragraph, insert the phrase, "on his own" after the words, "Y.C. may have chosen" so that the sentence reads:

Y.C. may have chosen on his own to participate in the interview---under duress, and without adequate warning that his statements could be used against him---but unless we recognize his participation as effectively compelled, he was not entitled to full immunity from the use of his statements, "either directly or as a lead to other evidence, to bolster the prosecution's case against the defendant."

There is no change in the Judgment.

Dated:

TUCHER, P.J.^*

* Pollak, P.J., Streeter, J., Tucher, J. participated in the decision.

* Presiding Justice of the Court of Appeal, First Appellate District, Division Three, sitting by assignment pursuant to article VI, section 6 of the California Constitution.