1

Filed 8/27/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

T.M.,

Petitioner,

v.

THE SUPERIOR COURT OF 

CONTRA COSTA COUNTY,

Respondent;

THE PEOPLE 

Real Party in Interest.

 A169823

 (Contra Costa County Super. Ct. 

 No. J23-00247)

In a juvenile wardship proceeding, counsel for the minor declared a 

doubt as to the minor’s competency to stand trial. The juvenile court 

suspended the wardship proceedings and referred the minor for a competency 

evaluation. The court’s protocol required the disclosure of the minor’s mental 

health records to the expert appointed by the court to evaluate the minor’s 

competency. The minor objected to this requirement on the ground that

those records are protected from disclosure by the psychotherapist-patient 
2

privilege. (Evid. Code, § 1014.)

1 The court overruled the objection and 

ordered the disclosure of the minor’s mental health records to the courtappointed expert. The minor then filed this writ petition, challenging the 

compelled disclosure of his mental health records, and we issued an order to 

show cause (OSC). We now find that section 1016 renders the 

psychotherapist-patient privilege inapplicable in any juvenile competency 

proceeding initiated after a minor’s counsel declares a doubt as to the minor’s

competency. We therefore deny the petition.

BACKGROUND

The Contra Costa County District Attorney’s Office (District Attorney) 

filed a juvenile wardship petition against petitioner T.M. (Welf. & Inst. Code, 

§ 602, subd. (a).) The petition alleged that T.M., who was 14 at the time, 

committed: (1) sodomy by use of force on a minor under 14 years of age (Pen. 

Code, § 286, subd. (c)(2)(B); counts 1, 5, 7, 9); (2) forcible lewd acts upon a 

child (id., § 288, subd. (b)(1); counts 2, 6, 10); (3) attempted sodomy by use of 

force on a minor under 14 years of age (id., §§ 286, subd. (c)(2)(B) & 664; 

counts 3, 4); and (4) criminal threats (id., § 422; count 8). 

Over seven months after the filing of the petition, T.M.’s counsel 

declared a doubt as to T.M.’s competency. Following the Contra Costa 

County juvenile competency protocol (Protocol), the juvenile court suspended 

the wardship proceeding and transferred T.M.’s competency determination 

“to the court designated to handle juvenile competency proceedings.”

Under the Protocol, the designated court selects an expert evaluator 

who “possess[es] qualifications consistent with [Welfare and Institutions 

Code] [s]ection 709[, subdivision] (b)(2) and [California Rules of Court,] [r]ule 

1 All further statutory references are to the Evidence Code unless 

otherwise indicated.
3

5.645(b).” The probation officer then “gather[s] the documents necessary to 

provide to the evaluator, including but not limited to: all petitions, police 

reports, probation reports, prior delinquency history, and school records,” and

“forward[s]” those documents “to the evaluator.” “Pursuant to [Welfare and

Institutions Code] [s]ection[] 709[, subdivisions] (b)(3) and (b)(5), the 

medical/mental health treatment provider of the service shall [also] forward 

their records to the evaluator.” (Boldface omitted.) Finally, the Protocol 

prohibits the use of any “[s]tatements made to the appointed expert during 

the youth’s competency evaluation . . . , and any fruits of these 

statements, . . . in any other hearing against the youth in either juvenile or 

adult court.” 

T.M. objected in writing to the compelled disclosure of his mental 

health records under the Protocol.2 According to T.M., before December 2021, 

the Protocol made defense counsel “ ‘responsible for releasing any medical or 

mental health records they wish[ed] to have made a part of the evaluation.’ ”

But the Protocol was amended in 2021 to compel the disclosure of a minor’s 

mental health records to the expert evaluator. He contended that this 

compelled disclosure was prohibited by certain privacy statutes, the

California Constitution (Cal. Const., art. I, § 1 [right to privacy]), and the 

psychotherapist-patient privilege (§ 1014). The District Attorney did not file 

an opposition, choosing to rely solely on the Protocol. 

The juvenile court overruled T.M.’s objection. According to the court, 

Welfare and Institutions Code section 709 “is clear on its face” and permits 

the compelled disclosure of “ ‘all of the available records provided.’ ” The 

court further concluded that section 1025 “clearly states that there’s no 

2 T.M. also objected to the evaluation of his dangerousness under the 

Protocol but does not appeal from the juvenile court’s ruling on that objection. 
4

[psychotherapist-patient] privilege in a proceeding to establish competence.” 

Finally, the court rejected T.M.’s request for a stay so he could seek appellate 

review.3 Upon appointing an expert to evaluate T.M.’s competency to stand 

trial, the court ordered “that any entity or person in possession and control of 

responsive records shall make available to the expert any and all available 

records described in [Welfare and Institutions Code] [s]ection 709[, 

subdivision] (b)(3) in their possession and control pertaining to” T.M. 

T.M. filed this writ petition and request for stay (writ petition or 

petition), challenging the disclosure of his mental health records. In the 

petition, T.M. contended that those records are protected from disclosure by 

the psychotherapist-patient privilege (§ 1014)—which was not abrogated by

Welfare and Institutions Code section 709. He further contended that the 

exception to the privilege codified in section 1025 did not apply. 

We stayed the portion of the juvenile court’s order “requiring the 

disclosure to the appointed expert of ‘any and all available records described 

in [Welfare and Institutions Code] [s]ection 709[, subdivision] (b)(3) in their 

possession and control pertaining to the Minor’ ” and requested further 

briefing from the parties.

On the same day we issued the stay, the juvenile court received the 

court-appointed expert’s written report evaluating T.M.’s competency to 

stand trial. Because of our order, the court did not review the report to 

determine if the expert “received and/or relied on any privileged material in 

preparing the report and [did] not distribute[] the report to the parties . . . .” 

After reviewing the requested briefing, we issued an OSC. In a 

subsequent order, we asked for additional briefing addressing “the following 

3 In a subsequent hearing regarding the appointment of the expert 

evaluator, the juvenile court denied T.M.’s renewed request for a stay. 
5

questions: [¶] 1. In light of . . . section 1023, does the psychotherapistpatient privilege apply in adult competency proceedings under Chapter 6 [of 

Title 10 of Part 2] of the Penal Code? And if so, when? [¶] 2. Assuming for 

purposes of argument that the psychotherapist-patient privilege does not 

apply in certain adult competency proceedings in light of . . . section 1023, 

does . . . section 1016 preclude the application of the psychotherapist-patient 

privilege in juvenile competency proceedings under Welfare & Institutions 

Code section 709 (see Cal. Law [Revision] Com. com., 29B pt. 3B West’s Ann. 

Evid. Code (2009 ed.) foll. § 1023, p. 43 [‘Section 1023 is included to make it 

clear that the psychotherapist-patient privilege does not apply when the 

defendant raises the issue of his sanity at the time of trial. The section is 

probably unnecessary because the exception provided by Section 1016 is broad 

enough to cover this situation,’ italics added])? And if so, when?” 

DISCUSSION

I.

Juvenile Competency Proceedings

“The constitutional right to due process of law prohibits the trial of a 

mentally incompetent criminal defendant. [Citations.] Due process 

principles further require trial courts to employ procedures to guard against 

the trial of an incompetent defendant.” (In re R.V. (2015) 61 Cal.4th 181, 188 

(R.V.).) In adult criminal proceedings, chapter 6 of title 10 of part 2 of the 

Penal Code (Pen. Code, §§ 1367―1376) (chapter 6) describes the procedure for 

determining whether a defendant is competent to stand trial. Chapter 6 does 

not, however, apply in juvenile proceedings. (R.V., at p. 189.) 

A minor facing the potential loss of liberty has the same right to due 

process as a defendant in an adult criminal proceeding. (In re Gault (1967) 
6

387 U.S. 1, 30 (Gault), overruled on other grounds by Allen v. Illinois (1986) 

478 U.S. 364, 372-273.) Thus, a “minor who is the subject of a wardship 

petition under Welfare and Institutions Code section 601 or section 602 has, 

like an adult facing criminal prosecution, a due process right not to be tried 

while mentally incompetent.” (R.V., supra, 61 Cal.4th at p. 185, fn. omitted.)

Guided by this principle, the Court of Appeal in James H. v. Superior 

Court (1978) 77 Cal.App.3d 169, 173―174 (James H.) held that a minor has

the right to “effective counsel” in a juvenile wardship proceeding. This, in 

turn, means that a minor has the right to “a hearing as to his competency to 

cooperate with that counsel.” (Id. at p. 174.) The failure to afford the minor

that hearing “deprives [him] of his constitutional right to a fair trial.” (Id. at 

p. 175.)

Acknowledging “the absence of [then-]existing statutory procedures for 

juvenile competency determinations” (R.V., supra, 61 Cal.4th at p. 189), the 

Court of Appeal in James H. concluded that juvenile courts “have the 

inherent power to create new forms of procedure” for those determinations 

(James H., supra, 77 Cal.App.3d at pp. 175). At the time James H. was 

decided, “juvenile courts appear to have been making use of adult competency 

procedures in wardship proceedings . . . .” (R.V., at p. 189.) Consistent with 

this practice, the court in James H. “fashioned a Penal Code section 1368-like 

procedure for juvenile courts making competency determinations.” (R.V., at 

p. 190). It did not, however, determine whether certain features of 

competency determinations in adult criminal proceedings—such as “the 

presumption of competency or burden of proof”—applied in juvenile wardship 

proceedings. (Ibid.)
7

“In 1999, the Judicial Council added former rule 1498 to the California 

Rules of Court in order to establish statewide procedures for conducting a 

hearing to determine the competency of a juvenile subject to a wardship 

proceeding . . . . The rule was intended to, and largely did, conform to the 

procedures described in the James H. decision . . . .” (R.V., supra, 61 Cal.4th 

at p. 190.) 

A decade later, “the Legislature enacted [Welfare and Institutions 

Code] section 709, codifying some of the standards and procedures that had 

been established in the rules of court, and modifying or adding others 

consistently with the holdings in” various appellate decisions. (R.V., supra, 

61 Cal.4th at pp. 190―191.) Under Welfare and Institutions Code section 

709, subdivision (a)(2), “A minor is incompetent . . . if the minor lacks 

sufficient present ability to consult with counsel and assist in preparing the 

minor’s defense with a reasonable degree of rational understanding, or lacks 

a rational as well as factual understanding of the nature of the charges or 

proceedings against them. Incompetency may result from the presence of any 

condition or conditions, including, but not limited to, mental illness, mental 

disorder, developmental disability, or developmental immaturity.”

Both “[t]he minor’s counsel or the court may express a doubt as to the 

minor’s competency.” (Welf. & Inst. Code, § 709, subd. (a)(3).) “If the court 

has a doubt that a minor who is subject to any juvenile proceedings is 

competent, the court shall suspend all proceedings . . . .” (Id., subd. (a)(1).) 

“The question of the minor’s competency shall be determined at an 

evidentiary hearing unless there is a stipulation or submission by the parties 

on the findings of the expert that the minor is incompetent.” (Id., subd. (c).) 
8

A minor is presumed to be competent, “unless it is proven by a preponderance 

of the evidence that the minor is mentally incompetent.” (Ibid.)

Welfare and Institutions Code section 709 also describes the process to 

be used by a juvenile court to evaluate a minor’s competency to stand trial. 

After suspending all further proceedings, the court must appoint an expert 

evaluator (Welf. & Inst. Code, § 709, subd. (b)(1)), who has “expertise in child 

and adolescent development and forensic evaluation of juveniles for purposes 

of adjudicating competency,” is “familiar with competency standards and 

accepted criteria used in evaluating juvenile competency,” has “received 

training in conducting juvenile competency evaluations,” and is “familiar 

with competency remediation for the condition or conditions affecting 

competence in the particular case” (id., subd. (b)(2)). 

The court-appointed expert must “personally interview the minor” and 

“consult with the minor’s counsel and any other person who has provided 

information to the court regarding the minor’s lack of competency.” (Welf. & 

Inst. Code, § 709, subd. (b)(3).) The expert must also “review all of the 

available records provided, including, but not limited to . . . mental health . . .

records, and any other relevant information that is available.” (Ibid.) But

“[i]f any information is unavailable to the expert, the expert shall note . . . the 

efforts to obtain that information.” (Ibid.) And “[s]tatements made to the 

appointed expert during the minor’s competency evaluation . . . , and any 

fruits of these statements, shall not be used in any other hearing against the 

minor in either juvenile or adult court.” (Id., subd. (b)(5).) 

After completing the competency evaluation, the expert must prepare a 

“written report.” (Welf. & Inst. Code, § 709, subd. (b)(3).) In that report, the 

expert must, among other things, “opine whether the minor has the sufficient 
9

present ability to consult with the minor’s counsel with a reasonable degree 

of rational understanding and whether the minor has a rational and factual 

understanding of the proceedings against them” and “state the basis for these 

conclusions.” (Ibid.) 

Finally, Welfare and Institutions Code section 709, subdivision (b)(4) 

tasks the Judicial Council with “develop[ing] and adopt[ing] rules for the 

implementation of the . . . requirements in this subdivision.”

4 To this end, 

the Judicial Council has adopted rule 5.645 of the California Rules of Court. 

As relevant here, that rule requires that: (1) the court-appointed expert 

“review all the records provided as required by [Welfare and Institutions 

Code] section 709” (Cal. Rules of Court, rule 5.645(d)(1)); and (2) “[t]he 

written protocol” established by the juvenile court “include a description of 

the process for obtaining and providing the records to the expert to review, 

including who will obtain and provide the records to the expert” (id., rule 

5.645(d)(2)).

II.

Psychotherapist-patient Privilege

Section 1014 codifies the psychotherapist-patient privilege. It states in 

relevant part that a “patient . . . has a privilege to refuse to disclose, and to 

prevent another from disclosing, a confidential communication between 

patient and psychotherapist . . . .” The privilege protects “information, 

including information obtained by an examination of the patient, transmitted 

4 Welfare and Institutions Code section 709, subdivision (i) also 

requires that each juvenile court, together with other interested 

stakeholders, “develop a written protocol describing the competency process 

and a program to ensure that minors who are found incompetent receive 

appropriate remediation services.”
10

between a patient and his psychotherapist in the course of that relationship 

and in confidence” (§ 1012), and “applies in both civil and criminal cases”

(Story v. Superior Court (2003) 109 Cal.App.4th 1007, 1014 (Story)).

The psychotherapist-patient privilege recognizes “that an environment 

of confidentiality of treatment is vitally important to the successful operation 

of psychotherapy.” (In re Lifschutz (1970) 2 Cal.3d 415, 422 (Lifschutz).) 

“Confidential communications between psychotherapist and patient are 

protected in order to encourage those who may pose a threat to themselves or 

to others, because of some mental or emotional disturbance, to seek 

professional assistance.” (People v. Stritzinger (1983) 34 Cal.3d 505, 511

(Stritzinger).) The privilege is “an aspect of the patient’s constitutional right 

to privacy.”

5 (Ibid.) As a result, the privilege “ ‘is to be liberally construed in 

favor of the patient’ ” (People v. Yang (2021) 67 Cal.App.5th 1, 47 (Yang)), and

exceptions to the privilege are to be “narrowly construed” (Story, supra, 109

Cal.App.4th at p. 1014). “Once the claimant [of the privilege] establishes the 

preliminary facts of a psychotherapist-patient relationship” (id. at p. 1015), 

5 More recently, the California Supreme Court has questioned the 

federal constitutional basis for the psychotherapist-patient privilege. In 

People v. Gonzales (2013) 56 Cal.4th 353, 384 (Gonzales), our high court 

explained: “Although over 40 years have elapsed since our decision in 

Lifschutz, the United States Supreme Court itself has not yet definitively 

determined whether the federal Constitution embodies even a general right 

of informational privacy.” (Italics omitted.) It therefore assumed, “without 

deciding,” that such a right exists. (Gonzales, at p. 385, original italics.) 

Because no court has overruled the relevant holdings of Lifschutz and 

Stritzinger and because the California Constitution protects the right to 

informational privacy (see Hill v. National Collegiate Athletic Assn. (1994) 7 

Cal.4th 1, 35 [“Informational privacy is the core value furthered by” article I, 

section 1 of the California Constitution]), we too will assume that the 

privilege has a constitutional basis (see Auto Equity Sales, Inc. v. Superior 

Court (1962) 57 Cal.2d 450, 455).
11

“[t]he prosecution bears the burden of establishing a statutory exception 

applies” (Yang, at p. 47).

Nevertheless, “ ‘the psychotherapist-patient privilege is not absolute.’ ” 

(Fish v. Superior Court (2019) 42 Cal.App.5th 811, 818.) The Legislature has 

“adopted numerous explicit statutory exceptions to the privilege that limit 

the circumstances in which the privilege is applicable.” (Gonzales, supra, 56 

Cal.4th at p. 372.) These exceptions establish circumstances where the policy 

favoring the protection of psychotherapist-patient communications must yield 

to other important state interests. (See, e.g., Lifschutz, supra, 2 Cal.3d at p. 

432 [psychotherapist-patient privilege may yield to the “state interest of 

facilitating the ascertainment of truth in connection with legal proceedings”]; 

McGovern v. BHC Fremont Hospital, Inc. (2022) 87 Cal.App.5th 181, 198 

[psychotherapist-patient privilege may yield to the state interest in 

“ ‘avert[ing] danger to others’ ”].) 

III.

Mootness

The People contend the petition is moot because the court-appointed 

expert sent his report to the juvenile court on the same day we issued the 

stay. But the completion of that report does not preclude us from granting 

any relief. (See Hernandez-Valenzuela v. Superior Court (2022) 75 

Cal.App.5th 1108, 1121 (Hernandez-Valenzuela) [“ ‘The pivotal question in 

determining if a case is moot is . . . whether the court can grant the plaintiff 

any effectual relief’ ”].) Although we cannot undo any disclosure of privileged 

communications to that expert, we may still remand for a report from an 

expert who has not seen or considered any such communications.

The People also contend the petition is moot because there is no 

evidence that the expert received or considered any privileged 
12

communications. According to the People, T.M. failed to meet his burden of 

showing that the psychotherapist-patient privilege is implicated here. But 

the People forfeited this claim “by failing to raise it below.” (In re David H. 

(2008) 165 Cal.App.4th 1626, 1637.) We must therefore assume that 

privileged communications were disclosed to the expert pursuant to the 

juvenile court’s order.

Finally, even if the petition is moot, we would not dismiss it. The issue

before us—the applicability of the psychotherapist-patient privilege in 

juvenile competency proceedings—is an issue “of significant public interest”

that is “likely to recur.” (Hernandez-Valenzuela, supra, 75 Cal.App.5th at p. 

1122.) We therefore resolve it now.

IV.

Applicability of the Psychotherapist-patient Privilege in Juvenile 

Competency Proceedings.

The parties disagree over whether a statutory exception to the 

psychotherapist-patient privilege applies here.6 Resolving that disagreement

in part, we find that section 1016 precludes the application of the privilege in 

6 We reject the People’s suggestion in their response that section 1016 

does not apply because the competency evaluation is not a proceeding. (See 

§ 910 [“the provisions of this division apply in all proceedings”].) A juvenile 

competency proceeding under Welfare and Institutions Code section 709 is 

undoubtedly a proceeding subject to the Evidence Code. (See People v. 

Lawley (2002) 27 Cal.4th 102, 131 [“Although it arises in the context of a 

criminal trial, a competency hearing is a special proceeding”].) Because the 

competency evaluation is part of that proceeding, the privileges established 

by the Evidence Code apply absent an applicable statutory exception. (See 

Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 161―162 

[psychotherapist-patient privilege applies absent a statutory exception].)
13

this competency proceeding because T.M., through his counsel, tendered the 

issue of his competency to stand trial to the juvenile court.

7 

Section 1016, known as “the patient-litigant exception to the 

psychotherapist-patient privilege” (Lifschutz, supra, 2 Cal.3d at p. 433),

states in relevant part: “There is no [psychotherapist-patient] privilege . . . as 

to a communication relevant to an issue concerning the mental or emotional 

condition of the patient if such issue has been tendered by: [¶] (a) The 

patient . . . .” (§ 1016, italics added.) T.M.’s competency to stand trial 

undoubtedly presents an “issue concerning [his] mental or emotional 

condition . . . .” (Ibid.; see Welf. & Inst. Code, § 709, subd. (a)(2)

[“Incompetency may result from the presence of . . . mental illness, mental 

disorder, developmental disability, or developmental immaturity”].) Indeed, 

T.M. does not argue otherwise. Thus, in determining whether section 1016 

precludes the application of the psychotherapist-patient privilege in this

competency proceeding, the sole issue is whether that issue “has been 

tendered by” T.M.

In resolving this issue, “ ‘we are guided by familiar canons of statutory 

construction. “[I]n construing a statute, a court [must] ascertain the intent of 

the Legislature so as to effectuate the purpose of the law.” [Citation.] In 

determining that intent, we first examine the words of the respective 

statutes: “If there is no ambiguity in the language of the statute, ‘then the 

Legislature is presumed to have meant what it said, and the plain meaning of 

the language governs.’ [Citation.] ‘Where the statute is clear, courts will not 

7 Because we find that section 1016 precludes the application of the 

psychotherapist-patient privilege here, we do not address the other potential 

exceptions raised by the People, including Welfare and Institutions Code 

section 709, subdivision (b)(3) and Evidence Code sections 1012 and 1025.
14

“interpret away clear language in favor of an ambiguity that does not exist.”

[Citation.]’ ” [Citation.] If, however, the terms of a statute provide no 

definitive answer, then courts may resort to extrinsic sources, including the 

ostensible objects to be achieved . . . .’ ” (People v. Olay (2023) 98 Cal.App.5th 

60, 65 (Olay), quoting People v. Coronado (1995) 12 Cal.4th 145, 151.) Courts 

may also “examine the context in which the [statutory] language appears, 

adopting the construction that best harmonizes the statute . . . with related 

statutes” (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 

192―193, internal quotations omitted), as well as consider “public policy” (Big 

Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1153, 

internal quotations omitted). The end goal is to “select the construction that 

comports most closely with the apparent intent of the Legislature, with a 

view to promoting rather than defeating the general purpose of the statute, 

and avoid an interpretation that would lead to absurd consequences.” (Olay, 

at p. 65, internal quotations omitted.)

Applying these canons, we conclude that the issue of T.M.’s competency 

was “tendered by” T.M. for purposes of section 1016. Under its “plain and 

commonsense meaning” (Davis v. Fresno Unified School Dist. (2023) 

14 Cal.5th 671, 687, internal quotations omitted), the word “tender” means 

“to present for acceptance” or to “offer.” (<https://www.merriamwebster.com/dictionary/tender#dictionary-entry-2> [as of Aug. 27, 2024]; see 

also (<https://www.dictionary.com/browse/tender#american-tender-1-verbused-with-object> [as of Aug. 27, 2024] [“tender” means “to present formally 

for acceptance,” to “make formal offer of,” or “to offer or proffer”].) By 

declaring a doubt as to T.M.’s competency, T.M.’s counsel undoubtedly 

“tendered” the issue of his mental or emotional condition by presenting or 
15

offering that issue to the juvenile court for its consideration. (§ 1016.) And 

once T.M.’s counsel did so, the issue is deemed to have been tendered by T.M. 

himself. (See Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 500 & 

fn. 6 (Baqleh) [the petitioner himself “raised the issue of [his] competency to 

stand trial” when his counsel declared a doubt as to his competency].) 

That T.M.’s counsel, rather than T.M. himself, raised the issue of his

competency to stand trial does not render section 1016 inapplicable. “When 

evidence indicates that the defendant may be [incompetent] it should be 

assumed that he is unable to act in his own best interests.” (People v. Hill 

(1967) 67 Cal.2d 105, 115, fn. 4 (Hill).) “[I]t is [therefore] contradictory to 

argue that a defendant may be incompetent, and yet knowingly or 

intelligently “ ‘waive’ ” his right to have the court determine his capacity to 

stand trial.” (Pate v. Robinson (1966) 383 U.S. 375, 384 (Pate).) Indeed, it 

would be absurd to expect an accused who “lacks a rational” and “factual 

understanding of the nature of the charges or proceedings” or lacks the 

“reasonable degree of rational understanding” needed to assist in his defense 

(Welf. & Inst. Code, § 709, subd. (a)(2)), to declare a doubt as to his own 

competency (see Olay, supra, 98 Cal.App.5th at p. 65 [must avoid 

interpretations that “ ‘ “would lead to absurd consequences” ’ ”]). Thus, the 

issue of an accused’s competency, as a practical matter, must always be 

tendered by someone other than the accused himself. As a result, “[w]e 

cannot accept the suggestion that an accused whose lawyer has doubts about 

his or her competency to stand trial and fulfills the legal and ethical 

responsibility to call such doubts to the attention of the court can be deemed 

not to have himself or herself raised the issue of competency . . . .” (Baqleh, 

supra, 100 Cal.App.4th at p. 500, fn. 6.)
16

That a minor “ ‘does not voluntarily place his competency in issue’ ” 

also makes no difference for purposes of section 1016. Competency 

proceedings seek “only to protect the accused.” (People v. Bye (1981) 

116 Cal.App.3d 569, 577 (Bye), original italics.) This is because “[s]ociety’s 

greater concern . . . is that no defendant shall ever be convicted of a criminal 

charge when he was incapable of understanding or assisting during the trial 

of his alleged guilt.” (Ibid., original italics.) “Even when a defendant resists 

this protection by opposing the evidence of incompetency, it would be unfair 

to deny him the benefit of treatment for his condition before subjecting him to 

a potential loss of life or liberty in the criminal proceeding.” (Id. at p. 576.) 

Thus, our competency laws are designed to protect the incompetent minor 

from himself. Consistent with this purpose, those laws recognize that the 

minor’s counsel, who has a legal and ethical duty to act in the minor’s best 

interests, is in the best position to raise the issue of competency in the 

minor’s stead. (See Welf. & Inst. Code, § 709, subd. (a)(3) [expressly 

authorizing “[t]he minor’s counsel” to “express a doubt as to the minor’s 

competency”].) We therefore hold that T.M.’s counsel is deemed to be T.M. for 

purposes of section 1016 when she “tendered” the issue of T.M.’s competency

to the juvenile court.

Our holding comports with the “ostensible objects to be achieved” by

the patient-litigant exception. (Olay, supra, 98 Cal.App.5th at p. 65, internal 

quotations omitted.) Through a declaration of doubt, a minor “seeks to avoid 

the penal consequences of” his criminal conduct “by establishing his 

incompetency.” (Bye, supra, 116 Cal.App.3d at p. 573; see, e.g., Welf. & Inst. 

Code, § 709, subds. (f) [“If the minor is found to be incompetent and the 

petition contains only misdemeanor offenses, the petition shall be dismissed”] 
17

& (h)(4) [“If the court finds that the minor [charged with a felony offense] will 

not achieve competency . . . , the court shall dismiss the petition”].)8 Because 

a minor in a juvenile wardship proceeding may avoid culpability when his or 

her counsel claims incompetence, the minor, “in all fairness, . . . should not be 

permitted to establish [that] claim while simultaneously foreclosing inquiry 

into relevant matters.” (Lifschutz, supra, 2 Cal.3d at p. 433.) This 

“represents” the “judgment” made by the Legislature when it enacted section 

1016. (Lifschutz, at p. 433.)

Reading section 1016 in light of section 1023, another statutory 

exception to the psychotherapist-patient privilege, confirms that the privilege 

does not apply here. (See People v. Sinohui (2002) 28 Cal.4th 205, 213 

(Sinohui) [construing the spousal testimony privilege “in light of other 

exceptions to” that “privilege”].) Under section 1023, “[t]here is no 

[psychotherapist-patient] privilege . . . in a proceeding under [chapter 6]

initiated at the request of the defendant in a criminal action to determine his 

sanity”—i.e., his competency to stand trial.9 The Legislature adopted section 

8 For an incompetent minor who does not achieve competency within 

one year and has been charged with a felony offense (Welf. & Inst. Code, 

§ 709, subd. (h)(3)), the juvenile court may refer that minor for evaluation for 

confinement under the Lanterman-Petris-Short Act or Welfare and

Institutions Code section 6550 et seq. (Welf. & Inst. Code, § 709, subd. (h)(4)).

9 When the Legislature enacted section 1023 in 1965, the adult 

competency statutes used the terms “insane,” “sanity,” and “insanity.” (See, 

e.g., former Pen. Code, §§ 1367 [“A person cannot be tried, adjudged to 

punishment, or punished for a public offense, while he is insane” (italics 

added)] & 1368 [referencing the defendant’s “sanity” and “the issue of 

insanity” (italics added)].) In 1974, however, the Legislature substituted the 

phrases “mentally incompetent,” “mental competency,” and “mental 

incompetency” for the words “insane,” “sanity,” and “insanity” throughout 

chapter 6. (Stats. 1974, ch. 1511.) But in an apparent oversight, the 

Legislature did not amend section 1023 to do the same.
18

1023 “to make it clear that the psychotherapist-patient privilege does not 

apply when the defendant [in an adult criminal proceeding] raises the issue 

of his [competency] at the time of trial.” (Cal. Law Revision Com. com., 29B 

pt. 3B West’s Ann. Evid. Code (2009 ed.) foll. § 1023, p. 43.) Thus, whenever 

a defendant’s counsel raises the issue of competency by declaring a doubt, 

that counsel has “request[ed]” a competency hearing for purposes of section 

1023. And because an incompetent defendant cannot “act in his own best 

interests” (Hill, supra, 67 Cal.2d at p. 114, fn. 4) and cannot, in any 

meaningful way, declare a doubt as to his own competency (see, ante, at pp. 

15-16), we must deem that request to be a request by the defendant for 

purposes of section 1023 (see Baqleh, supra, 100 Cal.App.4th at p. 500 & 

fn. 6). Indeed, a contrary interpretation would render section 1023 wholly 

inoperative. (See Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 

709, 715―716 [precluding “judicial construction that renders part of the 

statute ‘meaningless or inoperative’ ”].) 

Apparently recognizing this conundrum, T.M. contends that 

section 1023 “cannot be meaningfully applied” because only a court may 

initiate a competency proceeding. (See People v. Pokovich (2006) 39 Cal.4th 

1240, 1245 (Pokovich) [“competency proceedings are initiated by the trial 

court, not the defendant”].) T.M., however, ignores the relevant language of 

section 1023—which does not require that the defendant initiate the 

competency proceeding. Rather, section 1023 only requires that the 

competency proceeding be “initiated at the request of the defendant. . . .” 

(Italics added.) In other words, the defendant need only request the 

proceeding for section 1023 to apply. Thus, the fact that the trial court, 
19

rather than the defendant, initiates the competency proceeding has no 

bearing on the applicability of section 1023.

Because section 1023 renders the psychotherapist-patient privilege 

inapplicable whenever a defendant’s counsel declares a doubt as to the 

defendant’s competency, the same must be true under section 1016 whenever 

a minor’s counsel does the same in a juvenile wardship proceeding. This is 

because, as conceded by T.M. and explained in the Law Revision Commission 

comment to section 1023, “section[s] 1016 and 1023 are largely coextensive 

with one another.” (See Cal. Law Revision Com. com., 29B pt. 3B West’s 

Ann. Evid. Code, supra, foll. § 1023, at p. 43 [§ 1023 “probably is unnecessary 

because the exception provided by Section 1016 is broad enough to cover this 

situation”].) 

A comparison of the relevant language in sections 1016 and 1023 

confirms this. A person’s mental or emotional condition is always at issue in 

a competency proceeding. (See Pen. Code, § 1367, subd. (a) [“A defendant is 

mentally incompetent . . . if, as a result of a mental health disorder or 

developmental disability, the defendant is unable to understand the nature of 

the criminal proceedings or to assist counsel in the conduct of a defense in a 

rational manner” (italics added)]; Welf. & Inst. Code, § 709, subd. (a)(2) 

[“Incompetency may result from the presence of any condition or conditions, 

including, but not limited to, mental illness, mental disorder, developmental 

disability, or developmental immaturity” (italics added)].) Thus, when a 

competency proceeding is “initiated at the request of the defendant in a 

criminal action” (§ 1023), the issue of that defendant’s “mental or emotional 

condition” has also been “tendered by: [¶] . . . [t]he patient” (§ 1016). And 

because section 1016 subsumes section 1023 (see Cal. Law Revision Com. 
20

com., 29B pt. 3B West’s Ann. Evid. Code, supra, foll. § 1023, at p. 43), when a 

defendant’s counsel declares a doubt as to the defendant’s competency, that

defendant has “tendered” that issue for purposes of section 1016 (see Baqleh, 

supra, 100 Cal.App.4th at p. 500, fn. 6). By parity of reasoning, a minor has 

“tendered” the issue of his “mental or emotional condition” for purposes of 

section 1016 whenever the minor’s counsel declares a doubt as to the minor’s

competency. 

“Our review of the relevant policy considerations provides additional 

support.” (Sinohui, supra, 28 Cal.4th at p. 213.) “The policy that a mentally 

incompetent person not be subjected to a trial has its roots in our 

constitutional, statutory, and common law. It is thus a policy of ancient and 

venerable origin, founded on the view that to subject the mentally 

incompetent to trial or to punishment is inhumane and cruel.” (Pokovich, 

supra, 39 Cal.4th at p. 1250.) Because “ ‘[c]ompetence to stand trial is 

rudimentary, for upon it depends the main part of those rights deemed 

essential to a fair trial’ ” (Cooper v. Oklahoma (1996) 517 U.S. 348, 354), 

there is a strong public policy interest in ensuring that courts have access to 

all information relevant to the competency determination. As noted in the 

legislative history of Welfare and Institutions Code section 709, this includes 

the mental health records of a minor: “ ‘research indicates that . . . mental 

health history and severity of diagnosis . . . are relevant in determining a 

minor’s trial competency . . . .’ ” (Assem. Com. on Public Safety, Analysis of 

Assem. Bill No. 2212 (2009―2010 Reg. Sess.) as amended Apr. 8, 2010, p. 7; 

see also Welf. & Inst. Code, § 709, subd. (b)(3) [“The expert shall 

personally . . . review all of the available records provided, 

including . . . mental health . . . records”].) Giving the expert appointed by 
21

the court to evaluate a minor’s competency access to the minor’s mental 

health records therefore “fits nicely” with the relevant policy considerations. 

(Sinohui, at p. 217.)

Contrary to T.M.’s assertion, Welfare and Institutions Code section 

317, subdivision (f) does not support a contrary conclusion. That section 

states in relevant part, “Either the child or counsel for the child . . . may 

invoke the psychotherapist-client privilege” in a juvenile dependency 

proceeding. (Italics added.) T.M. argues that section 1016’s failure to include 

a similar reference to “[t]he patient[’s]” counsel means that the Legislature 

did not intend for section 1016 to apply when the minor’s counsel tenders the 

issue of the minor’s competency. But Welfare and Institutions Code section 

317, subdivision (f) assumes that “the child” is capable of acting in his or her

best interest by personally invoking the psychotherapist-patient privilege. 

Indeed, it only allows “the child” to “waive” the privilege and expressly 

prohibits the child’s “counsel” from doing so. (Welf. & Inst. Code, § 317, subd. 

(f).) Thus, the “counsel for the child” cannot be deemed to be “the child” for 

purposes of invoking the psychotherapist-patient privilege under Welfare and

Institutions Code section 317, subdivision (f). 

By contrast, an incompetent minor is not capable of acting in his or her

best interest (Hill, supra, 67 Cal.2d at p. 115, fn. 4) and cannot waive the 

privilege (Pate, supra, 383 U.S. at p. 384). Thus, a minor’s counsel may and 

should be deemed the minor for purposes of section 1016 because that minor 

can only declare a doubt as to his or her competency through his or her 

counsel. (Baqleh, supra, 100 Cal.App.4th at p. 500, fn. 6.) It is therefore 

understandable why the Legislature did not use the more explicit language 

found in Welfare & Institutions Code section 317, subdivision (f) in section 
22

1016. (See People v. Connor (2004) 115 Cal.App.4th 669, 685 [Legislature’s 

failure to use “more explicit language” does not “reveal a legislative intent not

to accomplish a particular result” because “the legislative history” and 

“structure of the statute” suggest otherwise].)

For the same reason, T.M.’s reliance on People v. Blackburn (2015) 

61 Cal.4th 1113 is misplaced. Blackburn construed a provision of the 

Mentally Disordered Offender Act, requiring that “[t]he court . . . advise the 

person of the right to be represented by an attorney and of the right to a jury 

trial.” (Pen. Code, § 2972, subd. (a)(1).) In concluding that the court must 

advise “ ‘the person,’ ” and “not his or her attorney,” of those rights, our high 

court never questioned whether that person could understand his or her 

rights and act in his or her best interest. (Blackburn, at p. 1123.) The same 

is not true for an incompetent minor who cannot act in his or her best 

interest (see Hill, supra, 67 Cal.2d at p. 115, fn. 4) or waive the issue of his or 

her competency to stand trial (Pate, supra, 383 U.S. at p. 384).

Finally, our interpretation of section 1016 does not conflict with “[t]he 

strong public policy of confidentiality of juvenile proceedings and records” in 

light of other limits on the disclosure and use of any mental health records 

disclosed to the court-appointed expert. (In re Keisha T. (1995) 

38 Cal.App.4th 220, 231.) 

First, any mental health records disclosed to the court-appointed expert 

are still protected by other statutes that limit their disclosure, including

Welfare and Institutions Code sections 676 and 827. 

Second, section 1016 compels “disclosure of only those matters directly

relevant to” the competency evaluation. (Lifschutz, supra, 2 Cal.3d at p. 431.) 

Consistent with this limitation, the juvenile court only compelled the 
23

disclosure of T.M.’s mental health records to the court-appointed expert. That 

expert, in turn, may reveal in his written report and testimony only the 

portions of those records relevant to the competency evaluation. And to the 

extent that the records may be disclosed to any other participant in the 

competency proceeding, the juvenile court may and should take any other 

“necessary precautions to protect the confidentiality of” the records. (Id. at p. 

437, fn. 23.) 

Third, no statements made by T.M. “to the appointed expert during 

[his] competency evaluation” or “any fruits of these statements” may “be used 

in any other hearing against” him “in either juvenile or adult court.” (Welf. & 

Inst. Code, § 709, subd. (b)(5); see also Pokovich, supra, 39 Cal.4th at p. 1254 

[“statements that [the] defendant made during his mental competency 

evaluation” may not be used for impeachment]; People v. Arcega (1982) 

32 Cal.3d 504, 522 [neither the statements made by the defendant during his 

competency evaluation nor the fruits of those statements may be used to 

establish the defendant’s guilt].)

Considered altogether, these limits on disclosure and use of a minor’s 

mental health records in a juvenile competency proceeding “may provide a 

measure of reassurance to the prospective patient.” (Lifschutz, supra, 

2 Cal.3d at p. 427.) They also ensure that the minor’s constitutional right to 

privacy, to the extent it is implicated by the psychotherapist-patient 

privilege, is not infringed. (See id. at p. 423 [“under a properly limited 

interpretation, the litigant-patient exception to the psychotherapist-patient 

privilege . . . does not unconstitutionally infringe the constitutional rights of 

privacy of either psychotherapists or psychotherapeutic patients”].)
24

Accordingly, we hold that, under section 1016, the psychotherapistpatient privilege does not bar the disclosure of a minor’s mental health 

records to the court-appointed expert in a competency proceeding where, as 

here, the minor’s counsel declares a doubt as to the minor’s competency.

DISPOSITION

T.M.’s writ petition is denied. The partial stay of the juvenile court’s 

order shall be dissolved upon issuance of the remittitur. (Cal. Rules of Court, 

rule 8.490(d).)
25

CHOU, J.

WE CONCUR:

JACKSON, P.J.

BURNS, J.

T.M. v. Superior Court (A169823P)
26

Contra Costa County Superior Court

Hon. Wade Rhyne

Counsel: 

Ellen McDonnell, Public Defender, Joni Spears, Assistant Public Defender

and Jeremy Price, Deputy Public Defender for Petitioner.

No Appearance for Respondent.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Jeffery M. Laurence, Senior Assistant Attorney General, Bridget 

Billeter, Supervising Deputy Attorney General, Linda M. Murphy Deputy 

Attorney General on behalf of Real Party in Interest