When he was 18, petitioner Dominique John Whitehair pled guilty to misdemeanor charges that he annoyed or molested a child while “motivated by an unnatural or abnormal interest in the minor.” The court ordered him to register as a sex offender. Sixteen years later, his conviction was expunged. Shortly thereafter, he petitioned the court to terminate his sex offender status.

The District Attorney (DA) refused, arguing that the safety of the community would be “significantly enhanced” by his continued registration. To support his denial, the DA wanted to subpoena Whitehair’s 16-year-old psychiatric and medical records from Atascadero State Hospital, where he had been committed after serving a sentence for burglary. Whitehair moved to quash the subpoena. San Diego Superior Court Judge David M. Rubin denied the motion on June 1, 2023, and Whitehead filed a writ of mandate to the Court of Appeal.

Division One of California’s Fourth District Court of Appeal took the matter under submission in April 2023. In a 2-1 decision, written by Judge Frank L. Berchak on July 20, the appellate court disagreed with the trial court’s decision to grant the DA’s subpoena and deny Whitehair’s subsequent motion for reconsideration. The petitioner’s psychiatric and medical records will not be allowed in as evidence in Whitehead’s effort to expunge his sex offender status.

Berchak’s opinion noted that the case was a matter of first impression on the issue of whether a sex offender, who meets the requirements for termination of registration under the State’s Penal Code, can claim a psychotherapist-patient privilege that will prevent the DA from obtaining his records. He explained that California’s sex offender registration requirement was restructured in 2021, with the new law creating three different tiers of registration depending on the length of the conviction. According to California Penal Code Section 290.5, “Tier 1 is for ten years or less, tier 2 is for ten to 20 years, and tier three is for life.” Whitehair is a tier 1 offender.

The opinion also restated the reason for the tiers, which “set criteria” for termination from the sex offender registry. He wrote that “…The prosecution may request a hearing and present evidence” in an effort to establish that “community safety would be significantly enhanced by requiring continued registration.’” He stressed that this was the intent of the Legislature, which enacted Penal Code Section 290.5 to assure that “persons convicted of the crimes shall be readily available for police surveillance at all times” because of the possibility they are likely to commit similar offenses in the future.

Berchak then applied the Code section to Whitehair, who is not in custody, not on parole, and not on probation or supervised release. But for the DA’s request for a hearing, the trial court would have “been statutorily required” to grant Whtehair’s petition. But the hearing was requested. So the court was required to consider “the nature and facts of the registerable offense, the age and number of victims,” whether the victim was a stranger, and other factors, including whether the offender successfully completed a recognized treatment program.

After considering these and other relevant factors, the Court of Appeal concluded “there is no implied waiver of the psychotherapist-patient privilege by a tier one offender who is not on probation.” He further explained that while the Penal Code does not mention the relevant privilege, it does describe a “unified strategy for sex offender management known as the “Containment Model.” This Model distinguished sexually violent predators from offenders such as Whitehair, who was only a tier one offender.

There was another reason that Berchak had concerns about the psychotherapist-patient privilege. He said not waiving the privilege “could also have the unintended effect of causing tier one registrants to avoid seeking psychological treatment and/or causing them to be reluctant to ‘make full disclosure upon which diagnosis and treatment…depends.”

The court also had to consider which party raised the issue of Whitehair’s mental health. Here, it was the DA, not Whitehair, who first put forth the issue. It is therefore “the prosecution’s burden to establish that the petitioner (is) a current risk.” In this case, Berchak wrote, the trial court “is statutorily mandated to terminate registration… unless the prosecution satisfies its burden to establish the petitioner poses a current risk by producing evidence” that termination raises the threat to society because the petitioner is likely to reoffend.”

The burden was not met. And a “fishing expedition” by the DA was not the way to meet it, the Judge wrote.

Berchak said, “Section 290.5 cannot be interpreted to permit an unfettered fishing expedition into defendant’s privileged records based on speculation to support the prosecution’s opposition to a 290.5 petition filed by a tier one offender who is not on probation.” He also said other than pursuing subpoenas of privileged records from 16 years ago, the DA was free to use any other evidence at the hearing that is not protected by the psychotherapist-patient privilege.

The Court of Appeal issued a writ of mandate that directed the Superior Court to vacate its previous order that denied the motion to quash the DA’s subpoena for the privileged records from the state’s mental hospital, as well as granting Whitehair’s motion for reconsideration. Whitehair will now get another chance to get his name removed from the state’s sex offender registry.