1

Filed 12/6/21 (unmodified opinion attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Y.C.,

Petitioner,

v.

THE SUPERIOR COURT OF SAN 

MATEO COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

A162063

(San Mateo County

Super. Ct. No. 20JW0474)

ORDER MODIFYING OPINION; 

AND DENYING PETITION FOR 

REHEARING 

 [NO CHANGE IN JUDGMENT]

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 



 Pollak, P.J., Streeter, J., Tucher, J. participated in the decision.
2

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 
3

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, 
4

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.*

Y.C. v. Superior Court for the County of San Mateo (A162063)

* 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.
Trial Court: San Mateo County Superior Court

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
1

Filed 11/8/21 (see concurring opn.; see concurring & dissenting opn.)

(unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Y.C.,

Petitioner,

v.

THE SUPERIOR COURT OF SAN 

MATEO COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

A162063

(San Mateo County

Super. Ct. No. 20JW0474)

After being detained on assault and firearm charges, 17-year-old Y.C. 

agreed to participate in a mental health assessment conducted by a family 

therapist, pursuant to an established protocol of the Juvenile Services 

Division of the San Mateo County Probation Department. The therapist 

provided a summary of her interview to the probation department, which 

included the summary in a report provided to the juvenile court at Y.C.’s 

detention hearings. In this writ proceeding, Y.C. contends the disclosure of 

the assessment interview to the probation department and juvenile court, 

and its use at his detention hearings, violated his constitutional right against 

self-incrimination and his right to counsel, as well as various privacy rights 

and privileges. 
2

Because, during the pendency of this writ proceeding, Y.C. entered a 

change of plea and was released from detention, we dismiss his petition as

moot to the extent it seeks relief relating to the detention order or to evidence 

considered at the detention hearings. In all other respects, we deny the 

petition. 

BACKGROUND

A. The Charges

On November 10, 2020, the juvenile court issued an arrest warrant for 

Y.C., then 17 years old. On the same day, the People filed a wardship petition

charging Y.C. with three felonies: assault with a firearm (Pen. Code, § 245, 

subd. (a)(2)); carrying a loaded firearm (Pen. Code, § 25850, subd. (c)(4)); and 

possession of a firearm by a minor (Pen. Code, § 29610). The first count 

included a firearm-use enhancement (Pen. Code, § 12022.5, subd. (a)).

According to the detention report, Y.C. was alleged to have shot a suspected 

rival gang member in the leg.

Arrested on November 11, 2020, Y.C. was taken to the Juvenile 

Assessment Center (Assessment Center), where he met with a probation 

officer and invoked his rights under Miranda v. Arizona (1966) 384 U.S. 436. 

The probation officer spoke to Y.C.’s mother, who told the probation officer 

she had been concerned with Y.C.’s behavior. Y.C.’s mother reported that 

several months earlier, she had approached the Burlingame Police 

Department for assistance controlling Y.C.’s behavior. The mother indicated 

to police that she had noticed a “ ‘black flat thing, that is part of a gun’ ” in 

the family home, reprimanded Y.C., and told him to get it out of the house.

B. The Assessment Center Interview

San Mateo County created its Assessment Center in response to the 

need for “comprehensive early intervention with at-risk first-time offenders.” 
3

The Assessment Center is part of a collaborative effort of the San Mateo 

County Juvenile Justice Coordinating Council, which brings together the 

county’s probation department, Behavioral Health and Recovery Services 

(BHRS) agency, sheriff’s department, district attorney’s office, private 

defender’s office, and judges of the juvenile court. 

As part of the Assessment Center program, a multidisciplinary team 

consisting of a probation officer, nurse practitioner, and psychiatric social 

worker or therapist makes an intake assessment of a minor taken into 

custody to determine the minor’s risk to the community and whether he or 

she is in danger. Pursuant to this program, the probation officer referred Y.C.

to Linda Johnson, a licensed marriage and family therapist with San Mateo 

County’s BHRS team. The purpose of the referral was for Johnson to assess 

Y.C.’s needs, formulate a recommendation for a further mental health or 

substance abuse evaluation, and potentially suggest future treatment.

On November 12, Johnson contacted Y.C. by telephone. At the 

beginning of the call, Johnson informed Y.C. that he did not have to speak 

with her and that if he did, the interview would not be confidential and would 

be disclosed to the probation department and the court. Johnson also told

Y.C. that if he chose not to participate, she would report that fact to the 

probation department and court. Y.C., without counsel, agreed to proceed 

with the interview.

Johnson spoke with Y.C. for approximately two hours. They did not 

discuss the charges against Y.C., and no reference to the circumstances

leading to his arrest appears in the report Johnson submitted to the 

probation department. Johnson’s report summarized the substance of the 

interview, discussing Y.C.’s physical and mental health history, including his 

history of substance abuse. The report described Y.C.’s educational and
4

employment history, and his relationship with his family and friends.

Johnson recommended a psychological evaluation to “aid the Court in 

determining an appropriate disposition and treatment plan” for Y.C. The 

probation department included Johnson’s report in the detention report it

submitted to the juvenile court.

C. The Detention Hearings

Counsel for Y.C. first appeared in juvenile court on November 13, 2020,

for Y.C.’s initial detention hearing. Counsel objected to the court’s 

consideration of Johnson’s report, but the court overruled the objection and

ordered continued detention for Y.C., determining detention was reasonably 

necessary for the protection of the person or property of another and that 

placement in Y.C.’s home was contrary to his welfare. (Welf. & Inst. Code, 

§ 636, subd. (a).)1 The record does not reflect the factual underpinnings of the 

court’s findings.

The court invited Y.C.’s attorney to file a formal motion to suppress and 

seal Johnson’s report, and scheduled a further hearing to reconsider 

detention. Counsel then filed a written motion, arguing that the statements 

Y.C. made to Johnson were obtained in violation of his constitutional rights 

to counsel and against self-incrimination, and that the inclusion of his 

statements in the detention report violated the federal Health Insurance 

Portability and Accuracy Act (HIPAA) and state “privacy rights.” Y.C. 

requested that the court “order the statements excluded from the detention 

report and that they not be used against [Y.C.] by the government.” He also 

requested that the court seal the detention report and direct the preparation 

1 All further undesignated statutory references are to the Welfare and 

Institutions Code.
5

of a new detention report without the inclusion of Johnson’s interview with 

Y.C.

At the December 22, 2020 hearing on the motion, Y.C. called Johnson 

as witness. Johnson testified that her role with the BHRS team is to meet 

with minors upon their arrival at the Assessment Center “to gather a 

biopsychosocial history so that we can determine the needs for this youth and 

their families.” Johnson explained, “The things that I look for are treatment 

issues, resources that they need, history of abuse or neglect. My goal is to 

help youth who potentially would fall through the cracks otherwise.” Johnson

said the probation department refers a minor to her for an assessment 

generally within 24 hours after the minor has first been detained. In most 

cases, the probation department informs Johnson of a minor’s name and date 

of birth but provides no other details, including the reason for the minor’s 

detention. For minors over 15 years old, Johnson did not contact counsel

before conducting an assessment; nor did she inquire whether the probation 

department had contacted counsel. This was Assessment Center policy at the 

time of Y.C.’s detention although, as discussed below, that policy changed 

after an intervening change in state law.

Johnson meets with a minor alone2; the probation department does not 

participate. Johnson begins an assessment by introducing herself and 

informing the minor that she is to conduct an assessment in order to 

formulate a recommendation to the juvenile court regarding the need for a 

further mental health or substance abuse evaluation, and to make 

suggestions for future treatment. She reads a list of disclosures to the minor, 

2 Prior to March 2020, Johnson would meet with minors in person at 

the Assessment Center. Beginning in March 2020, Johnson began contacting 

minors by telephone due to restrictions on in-person contact brought on by 

the COVID-19 pandemic.
6

including (1) that the information provided by the minor can and will be 

shared with the probation department and juvenile court, (2) that as a result 

of the assessment, the BHRS team “will formulate a recommendation to the 

Court regarding the need for further mental health or alcohol and other drug 

evaluation, and . . . may make suggestions for future treatment,” (3) that the

minor may refuse to participate in the assessment, but any refusal must be 

made known to the probation department and juvenile court; and (4) that the 

minor may change his mind about participating at any time and refuse to 

answer specific questions. Johnson does not read a minor his Miranda rights 

and is not informed by the probation department whether the minor has 

previously invoked his Miranda rights. 

If a minor chooses to participate, Johnson’s interview covers a wide 

range of categories, including education, family, social history, mental health, 

physical health, abuse, neglect, trauma history, and alcohol and drug history. 

Johnson does not ask about the nature of the charged crimes and, if a minor 

attempts to speak about the charges, Johnson tells the minor to stop. 

After interviewing the minor, Johnson formulates a working clinical 

interpretation that can lead to a provisional diagnosis and additional 

treatment. She also prepares a written summary of her assessment and 

provides it to the probation department for inclusion in the detention report. 

The probation department has no input on the contents of Johnson’s 

summary. Johnson reviews her summary after it has been included in the 

detention report to ensure its accuracy.

In Y.C.’s case, Johnson explained that she went through the standard 

disclosures with Y.C., and that he agreed to proceed with the assessment. 

Johnson testified that Y.C. was “surprisingly forthcoming and open” during 

the interview and had “good insight for a youth with his history.”
7

Following Johnson’s testimony and the parties’ arguments, the juvenile 

court denied Y.C.’s motion to seal and suppress. The court observed that the 

Welfare and Institutions Code “specifically requires that probation do an 

investigation and provide information to the court and that that investigation 

includes the circumstances of the minor and the facts surrounding his or her 

being taken into custody. Part of the way that is done is through the 

interview” by BHRS. The court explained that the interview with Johnson 

was “not an interrogation” because not “on an inculpatory basis,” and it 

concluded there was no Fifth Amendment or Miranda violation, no due 

process violation, and no “[S]ixth [A]mendment violation of the right to 

counsel.” Further, the court concluded that because the interview was 

“provided after an extensive discussion with the minor about how it was 

going to be used, who was going to see it, and what was going to be done for 

it,” there was no HIPAA violation.

After denying the motion to seal or suppress, the court considered

Y.C.’s motion to be released from the Assessment Center pending the 

disposition of his case. Y.C.’s mother and a family friend both testified on 

Y.C.’s behalf, explaining that each had a strong relationship with Y.C., that 

Y.C. was a loving person who had made some poor choices, and that they 

would work with him to provide necessary care if the court were to release 

him. The court nonetheless determined, in an order dated December 23, 

2020, that detention remained necessary for the protection of the person or 

property of another, and that placement in the home of Y.C.’s mother would 

be contrary to Y.C.’s welfare.

D. Court of Appeal proceedings

On February 22, 2021, Y.C. filed a petition for writ of mandate in this

court seeking to vacate the orders denying his motions to seal and suppress 
8

and for immediate release. Y.C. also filed a separate motion to seal Johnson’s 

report pending our review of the writ petition. After receiving preliminary

briefing, we issued an order to show cause. We denied the motion to seal 

pending our review of the petition, but observed that the report of Johnson’s 

interview remained confidential pursuant to section 827, which allows only 

specified persons and entities access to a juvenile case file.

The County of San Mateo filed an application to appear as a real party 

in interest. We denied the county’s application but accepted its proposed 

opposition to Y.C.’s writ petition as an amicus curiae brief.3

On May 5, 2021, the Attorney General filed a motion to dismiss Y.C.’s 

writ petition as moot. The Attorney General reported that two days earlier 

Y.C. had pleaded no contest to possession of a firearm by a minor and battery 

with serious bodily injury, and he was awaiting a dispositional hearing on 

May 17. The Attorney General argued that Y.C.’s petition was moot because 

we could no longer grant relief from Y.C.’s pre-adjudication detention. Y.C. 

opposed the motion and we denied it.

We have since been advised that Y.C. received a disposition of 240 days 

of confinement, which after application of predisposition credits resulted in 

further confinement of four days. Y.C. was then released home on juvenile 

probation subject to ankle monitoring. 

3 We overrule Y.C.’s objections to exhibits attached to the amicus brief. 

Although not considered by the juvenile court, the county resolution creating 

the BHRS team’s Assessment Center procedure, the documents issued by 

federal agencies regarding application of privacy rules in light of the COVID19 pandemic, and an executive order from Governor Newsom addressing 

changes to privacy laws in light of the pandemic, though of limited relevance, 

are properly subject to judicial notice. 
9

DISCUSSION

I. Mootness

The disposition of Y.C.’s delinquency case does not moot the petition 

before us, but it does substantially narrow the issues we must decide. Y.C. 

has asked this court to vacate the juvenile court’s orders at his detention 

hearings that deny: (1) the sealing and suppression of statements he made to 

Johnson, and (2) his release from custody. We agree with the Attorney 

General that, with Y.C.’s plea of no contest and his release from custody, this 

court can no longer grant “effectual relief” from the detention order, and 

Y.C.’s challenge to the order detaining him is accordingly moot. (Sturgell v. 

Department of Fish & Wildlife (2019) 43 Cal.App.5th 35, 43.) Y.C.’s challenge 

to the sealing and suppression order is, for the same reason, partially moot.

To the extent Y.C. argues the statements he made to Johnson should not 

have been used in deciding whether to detain him, that issue is moot now 

that he is no longer detained. But the juvenile court’s order addressed 

sealing, as well as suppression, and there the analysis is different.

To the extent Y.C. asks that the report containing his statements to 

Johnson be sealed, returned, or destroyed to protect his privacy, that issue is 

not moot. As the United States Supreme Court held in Church of Scientology 

of California v. United States (1992) 506 U.S. 9, 13, when the Government 

has obtained materials unlawfully, a court can “effectuate relief by ordering 

the Government to return the records.” Although only “a partial remedy,” the 

possibility of an order requiring such relief prevents a case from being moot.

(Ibid.) 

Courts sometimes have discretion to decide an issue even when it is 

moot, but we decline to do so in this case. A court has the power “to resolve an 

issue rendered moot by subsequent events if the question to be decided is of 
10

continuing public importance and is a question capable of repetition, yet 

evading review.” (People v. Alsafar (2017) 8 Cal.App.5th 880, 883, 886.)

Courts may review the legality of pretrial detention on this theory because 

“ ‘ “[p]retrial detention is by nature temporary, and it is most unlikely that 

any given individual could have his constitutional claim decided on appeal 

before he is either released or convicted.” ’ ” (Alfredo A. v. Superior Court

(1994) 6 Cal.4th 1212, 1219.) But in this case we are skeptical that the moot 

issues regarding Y.C.’s pretrial detention are likely to recur because of recent 

changes to state law and to the policy of the San Mateo County probation 

department.

When Y.C. was first detained in November 2020, section 625.6 

protected only minors who were younger than Y.C. The statute provided: 

“Prior to a custodial interrogation, and before the waiver of any Miranda

rights, a youth 15 years of age or younger shall consult with legal counsel in 

person, by telephone, or by video conference. The consultation may not be 

waived.” (Former § 625.6, subd. (a).)

Consistent with the former statute, the policy of the San Mateo County 

probation department was to contact counsel for youths before referring them 

to BHRS only if a minor was 15 years of age or younger. That changed on 

January 1, 2021 because the Legislature amended section 625.6 so that it 

applies to all minors. (§ 625.6, subd. (a).) Beginning on January 1, 2021, the 

probation department amended its policy so that it contacts counsel for all 

minors, including 16- and 17-year-olds, before referring them to BHRS. Given 

this change in the probation department’s policy, it is unlikely that other 

youths will raise similar challenges to the inclusion of BHRS interview 

summaries with their detention reports. We accordingly decline to address 

those aspects of Y.C.’s petition that are moot.
11

II. Constitutional Claims

Y.C. argues that use of his assessment center interview for any purpose 

other than health care services violates his Fifth Amendment right against 

self-incrimination and Sixth Amendment right to counsel.4 To the extent Y.C. 

is using these arguments to challenge his detention order or to argue that

Johnson’s report should not have been considered at the detention hearings, 

those issues are moot since Y.C. is no longer detained. And to the extent Y.C. 

is using these arguments to have the summary of his interview with Johnson 

sealed, returned, or destroyed to protect his privacy, that form of relief is not 

available for either alleged violation. 

The Fifth Amendment guarantees that no person “shall be compelled in 

any criminal case to be a witness against himself.” (U.S. Const., 5th Amend.) 

Compelled statements “of course may not be used against a defendant at 

trial, [citation], but it is not until their use in a criminal case that a violation 

of the Self–Incrimination Clause occurs.” (Chavez v. Martinez (2003) 538 U.S. 

760, 767 (plur. opn. of Thomas, J.); see also id., at pp. 777-779 (conc. opn. of 

Souter, J.); New York v. Quarles (1984) 467 U.S. 649, 686 (Marshall, J., 

dissenting).) Because the privilege is focused on the use of statements during 

a criminal case, the privilege “does not protect against the nonpenal adverse 

use of officially compelled answers.” (Speilbauer v. County of Santa Clara 

4 While the parties have focused their arguments on the Sixth 

Amendment’s right to counsel, the right to counsel in delinquency 

proceedings is derived from principles of due process rather than the Sixth 

Amendment. (In re Gault (1967) 387 U.S. 1, 41.) We will presume the right to 

counsel applies to minors in delinquency proceedings in the same manner as 

to adult defendants in criminal cases. (See In re Elijah C. (2016) 248 

Cal.App.4th 958, 964, fn. 5; but see In re William F. (1974) 11 Cal.3d 249, 254 

[“[t]he right of counsel in juvenile proceedings” is “not necessarily as broad as 

the right to counsel in criminal proceedings”] disapproved on another point in 

People v. Bonin (1988) 46 Cal.3d 659, 695, fn. 4.)
12

(2009) 45 Cal.4th 704, 715.) Thus, in Spielbauer, the Supreme Court held 

that “a public employee may be compelled, by threat of job discipline, to 

answer questions about the employee’s job performance, so long as the 

employee is not required, on pain of dismissal, to waive the constitutional 

protection against criminal use of those answers.” (Id. at p. 710, italics 

omitted.) The Fifth Amendment does not prevent compelling an employee’s

statements, the Court explained. “It simply forbids use of the compelled 

statements, or the fruits thereof, in a criminal prosecution against the 

employee.” (Id. at p. 727.)

Similarly, in People v. Elizalde (2015) 61 Cal.4th 523, the Supreme 

Court held that an un-Mirandized statement from a defendant about his 

gang affiliation, elicited during jail booking, was not admissible in the 

prosecution’s case-in-chief, but also observed that it remains “permissible to 

ask arrestees” questions about gang affiliation during the booking process. 

(Id. at p. 541.) The Court recognized, “[j]ail officials have an important 

institutional interest in minimizing the potential for violence within the jail 

population,” and they “retain substantial discretion to devise reasonable 

solutions to the security problems they face. [Citation.] We simply hold that 

defendant’s answers to the unadmonished gang questions posed here were 

inadmissible in the prosecution’s case-in-chief.” (Ibid.)

What these authorities make clear is that eliciting an unwarned, even 

an involuntary, statement from a person in custody is not itself a Fifth 

Amendment violation. It is the use in court proceedings of such a statement 

that offends the Fifth Amendment. Here, the simple fact of Johnson’s 

interview of Y.C. did not violate the Fifth Amendment, even if use of the 

interview report during the detention hearing would have (an issue we do not 

decide because it is moot). The Fifth Amendment is therefore unavailable as 
13

a vehicle to order the sealing or destruction of any reference to Y.C.’s 

statements to Johnson in his case file.

We reach the same result with respect to Y.C.’s right-to-counsel 

argument, albeit for slightly different reasons. Once Sixth Amendment rights 

attach, a violation of the right to counsel “occurs when the uncounseled 

interrogation is conducted.” (Kansas v. Ventris (2009) 556 U.S. 586, 592.) The 

right to counsel “renders inadmissible in the prosecution’s case in chief 

statements ‘deliberately elicited’ from a defendant without an express waiver 

of the right to counsel.” (Michigan v. Harvey (1990) 494 U.S. 344, 348.) But a 

statement that is inadmissible as part of the prosecution’s case-in-chief may

be used for other purposes. For example, a statement obtained in violation of 

the right to counsel can be used to impeach the defendant’s testimony. 

(Ventris, at p. 594.) In addition, because the right to counsel is “offense 

specific,” a defendant’s statements “regarding offenses for which he had not 

been charged [are] admissible notwithstanding the attachment of his Sixth 

Amendment right to counsel on other charged offenses.” (Texas v. Cobb (2001) 

532 U.S. 162, 168.) An uncounseled statement may even be considered at a 

juvenile disposition hearing, as “there is no statutory or constitutional 

prohibition on the consideration of illegally obtained evidence at a juvenile 

delinquency disposition hearing,” as long as the evidence is reliable, not 

obtained as a result of gross or shocking misconduct, and not obtained for 

purposes of influencing the sentencing court. (In re Michael V. (1986) 178 

Cal.App.3d 159, 172–173.) 

Because there are permissible uses of a statement taken in violation of 

the right to counsel, it would, once again, be inappropriate to seal or destroy 

records of such statements so that they could never be considered for any 

purpose. We do not here decide whether Y.C.’s statements to Johnson could 
14

be used in any particular circumstance, as no other use of the statements is 

before the court. We simply conclude, now that the challenge to the juvenile 

court’s pretrial detention order is moot, that relief is no longer available for 

any alleged violation of Y.C.’s right to counsel. Since neither this claim nor 

Y.C.’s Fifth Amendment claim provides a vehicle for granting the sealing or 

destruction relief he seeks, we deny (to the extent not dismissed) Y.C.’s writ 

petition as to both federal constitutional claims. 

III. Federal and State Privacy Laws

Y.C. asserts that disclosure of his assessment interview violated 

(1) HIPAA and state regulations requiring compliance with HIPAA; 

(2) California’s Confidentiality of Medical Information Act (CMIA); (3) the 

state constitutional right to privacy; (4) the psychotherapist-patient privilege; 

and (5) state laws governing informed consent of medical decisions. He asks 

that we “ensure all documents relating to the Assessment Center interview, 

and copies thereof, are returned to respondent court without being further 

read or consulted.” He also requests that we order the juvenile court to “seal 

or destroy those documents.”

A. HIPAA and CMIA

HIPAA “prohibits the unauthorized disclosure or sharing of a person’s 

medical information and imposes civil and criminal penalties on those who 

do.” (County of San Diego v. Mason (2012) 209 Cal.App.4th 376, 382.) When it 

enacted HIPAA, “Congress expressed its concern for protecting the integrity 

and confidentiality of personal medical records, and for preventing the 

unauthorized use or disclosure of such records. (42 U.S.C. § 1320d-2(d)(2).)” 

(Bugarin v. Chartone, Inc. (2006) 135 Cal.App.4th 1558, 1561–1562.)

Similar to HIPAA, CMIA “is intended to protect the confidentiality of 

individually identifiable medical information obtained from a patient by a 
15

health care provider, while at the same time setting forth limited 

circumstances in which the release of such information to specified entities or 

individuals is permissible.” (Loder v. City of Glendale (1997) 14 Cal.4th 846, 

859.) “To provide such protection, the act specifies that ‘[n]o provider of 

health care shall disclose medical information regarding a patient of the 

provider without first obtaining an authorization . . .’ (Civ. Code, § 56.10, 

subd. (a)), and then sets forth, in some detail, the requirements of a valid 

authorization for the release of medical information ‘by a provider of health 

care’ (id., § 56.11) or by an employer (id., § 56.21).” (Loder, at pp. 859–860.)

Y.C. argues that Johnson failed to follow the authorization and notice 

requirements in HIPAA and CMIA, rendering disclosure of the assessment in 

the detention report unlawful under both laws. Specifically, Y.C. argues that 

Johnson failed to obtain signed, written authorization, as required by both 

statutes (see 45 C.F.R. § 164.508(c)(1); Civ. Code, § 56.11), and that he was 

not provided with a “Notice of Privacy Practices” or the opportunity to object 

to disclosure of the assessment, as required by HIPAA’s regulations. (See 45 

C.F.R. §§ 164.510, 164.520.) As to CMIA, Y.C. claims that BHRS conditioned 

its services on his allowing disclosure of the information to the probation 

department and court, in contravention of Civil Code section 56.37. 

But Y.C. has not addressed key aspects of HIPAA and CMIA. 

Y.C. asserts that BHRS is “plainly a HIPAA covered entity” based on a 

BHRS policy memorandum describing BHRS’s procedure for complying with 

HIPAA. However, Y.C. overlooks and does not address the portion of the 

same memorandum stating that disclosure of protected health information by 

BHRS is mandatory “[t]o the courts, (e.g., to the Juvenile Judge), as 

necessary for the administration of justice, in accordance with federal and 

California law.” (BHRS memorandum, Confidentiality/Privacy of Protected 
16

Health Information (PHI), Feb. 25, 2003, p. 4

<https://www.smchealth.org/sites/main/files/fileattachments/03.01confidentprivacyphitechedits1.14_0.pdf?1597426118> [as 

of Nov. 8, 2021].) More importantly, Y.C. does not address HIPAA’s definition 

of a “Covered entity” set out in title 45 of the Code of Federal Regulations,

part 160.103: a covered entity is a “health plan,” a “health care 

clearinghouse,” and a “health care provider who transmits any health 

information in electronic form in connection with a transaction covered by 

[HIPAA’s regulations].” (45 C.F.R. § 160.103.) These terms each have their 

own definition under HIPAA, and Y.C. does not attempt to establish that any 

of them encompasses the San Mateo County probation department or BHRS.

We see no way the probation department or BHRS could be considered a 

“health plan” or “health care clearinghouse.”5 And assuming, without 

deciding, that the probation department or BHRS is a “health care provider,” 

we see no indication that either transmitted health information “in 

connection with a transaction” covered by HIPAA’s regulations. The 

5 “Health plan” is defined as “an individual or group plan that provides, 

or pays the cost of, medical care.” The definition provides a non-exclusive list 

of 17 types “health plans,” such as a group health plan, a health insurance 

issuer, an HMO, and a variety of government programs such as Medicare and 

Medicaid. A “Health care clearinghouse” is a “public or private entity, 

including a billing service, repricing company, community health 

management information system or community health information system, 

and ‘value-added’ networks and switches, that does either of the following 

functions: [¶] (1) Processes or facilitates the processing of health information 

received from another entity in a nonstandard format or containing 

nonstandard data content into standard data elements or a standard 

transaction[;] [¶] (2) Receives a standard transaction from another entity and 

processes or facilitates the processing of health information into nonstandard 

format or nonstandard data content for the receiving entity.” Nothing in the 

record before us suggests the probation department and BHRS satisfies these 

definitions. (45 C.F.R. § 160.103.)
17

regulations define “Transaction” as the “transmission of information between 

two parties to carry out financial or administrative activities related to 

health care” (45 C.F.R. § 160.103), which is not something Y.C. claims

occurred in this case. We decline to wade further into the regulatory thicket 

in search of arguments Y.C. might have made to support his HIPAA claim. It 

is enough to observe that he fails to carry his burden of establishing that the 

trial court erred when it found no HIPAA violation. (See Denham v. Superior 

Court (1970) 2 Cal.3d 557, 564.)

As for CMIA, it contains a number of exceptions that seem to permit 

disclosure of Y.C.’s assessment interview to the probation department, 

juvenile court, and other parties participating in Y.C.’s treatment and care. 

CMIA permits disclosure of medical information when “specifically 

authorized by law” (Civ. Code, § 56.10, subd. (c)(14)), a provision that 

“legitimizes a myriad of situations the Legislature may not have cared to 

spell out.” (Shaddox v. Bertani (2003) 110 Cal.App.4th 1406, 1414.) 

Disclosure of the assessment interview in this case appears authorized by the 

Welfare and Institutions Code provision requiring a probation officer to 

“investigate the circumstances of the minor” (§ 628, subd. (a)), and to provide 

a report to the juvenile court, which the court must consider with any other 

evidence (Cal. Rules of Court, rule 5.760(a)). Similarly, applicable regulations 

require the administrator of a juvenile facility to “develop and implement 

written policies and procedures for assessment and case planning,” that allow 

“for the multi-disciplinary sharing of health information,” and “for providing 

information to the court, child supervision staff and to probation.” (Cal. Code 

Regs., tit. 15, §§ 1355, 1407(a).) 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 
18

the purpose of coordinating health care services and medical treatment 

provided to the minor.” (Civ. Code, § 56.103, subd. (a).)

Even if HIPAA or CMIA were violated in the manner asserted by Y.C., 

the “Right to Truth-in-Evidence” provision found in article I, section 28 of our 

state Constitution prohibits the juvenile court from sealing or destroying the 

summary of Johnson’s interview with Y.C. This constitutional provision 

provides, in relevant part: “relevant evidence shall not be excluded . . . in any 

trial or hearing of a juvenile for a criminal offense, whether heard in juvenile 

or adult court.” (Cal. Const., art. I, § 28, subd. (f)(2).) Our Supreme Court has 

explained that this provision “was intended to permit [the] exclusion of 

relevant, but unlawfully obtained evidence, only if exclusion is required by 

the United States Constitution.” (In re Lance W. (1985) 37 Cal.3d 873, 890.)

Neither HIPAA nor CMIA authorizes a court to exclude otherwise relevant 

evidence as part of a juvenile delinquency proceeding. (See Elder-Evins v. 

Casey (N.D.Cal., July 3, 2012, No. C 09-05775 SBA (LB)) 2012 U.S. Dist. 

Lexis 92467, p. *28 [2012 WL 2577589, p. *8] [“HIPAA’s general penalty 

provision, 42 U.S.C. § 1320d-5(a)(1), does not include a suppression remedy,” 

but rather “a civil penalty that can be assessed only against covered entities 

and their business associates”]; United States v. Streich (9th Cir. 2009) 560 

F.3d 926, 935 (conc. opn. of Kleinfeld, J.) [“HIPAA does not provide any 

private right of action, much less a suppression remedy”]; cf. Civ. Code, 

§ 56.35 [listing compensatory damages, punitive damages, and attorney fees 

as remedy for CMIA violation, in addition to any other remedies available at 

law].) Nor has Y.C. cited authority holding that the federal Constitution 

requires exclusion of information obtained in violation of HIPAA or CMIA. 

Because, as far as we are aware, Y.C. remains on juvenile probation and 

under the jurisdiction of the juvenile court, the Right to Truth-in-Evidence 
19

provision counsels against the court sealing or destroying relevant evidence 

in his case file. Whether such evidence could be used in any future court 

proceeding should remain for decision another day.

Finally, we note that section 827 restricts access to juvenile case files to 

specified persons and entities, balancing the Legislature’s belief “that 

juvenile court records, in general, should be confidential” with its intent “to 

provide for a limited exception to juvenile court record confidentiality to 

promote more effective communication among juvenile courts, family courts, 

law enforcement agencies, and schools to ensure the rehabilitation of juvenile 

criminal offenders.” (§ 827, subd. (b)(1); see also § 827, subd. (a)(1); In re Gina 

S. (2005) 133 Cal.App.4th 1074, 1081.) Tellingly, Y.C. has cited no authority 

stating that the protections of section 827 are insufficient to protect a youth’s 

privacy rights during or after juvenile court proceedings. 

B. Right to privacy, psychotherapist-patient privilege, and 

informed consent

Y.C. also argues that the disclosure of Johnson’s assessment to the 

probation department and juvenile court violated his state constitutional 

right to privacy, the psychotherapist-patient privilege, and state laws 

governing informed consent. 

We disagree that the disclosure violated Y.C.’s constitutional right to 

privacy. The California Constitution does recognize a right of privacy (Cal. 

Const., art. I, § 1), but the party asserting the right must establish “an 

objectively reasonable expectation of privacy in the given circumstances.” 

(Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) Y.C. could not 

reasonably have expected that information he provided during the 

assessment interview would not be disclosed to the probation department or 

the juvenile court because Johnson explicitly advised Y.C. that any 

information he shared would be disclosed to the probation department and 
20

juvenile court. Johnson also reminded Y.C. that he could stop participating at 

any time. We recognize that within a short span of time Y.C. was arrested by 

police, detained at the Assessment Center, brought before a probation officer, 

and then referred to Johnson for an assessment interview—all undoubtedly 

stressful for any youth. However, we cannot agree that any uncertainty Y.C. 

may have had concerning the consequences of participating in the assessment 

interview changes this basic fact: he had no objectively reasonable 

expectation that the interview would not be shared with the probation 

department and the juvenile court.

For similar reasons, we disagree with Y.C. that his interview with 

Johnson was protected by the psychotherapist-patient privilege. The

psychotherapist-patient privilege grants a patient the right to refuse to 

disclose, and to prevent others from disclosing, a confidential communication

between himself and a psychotherapist. (Evid. Code, § 1014.) But Johnson’s 

interview with Y.C. cannot be considered a completely confidential 

communication. She informed Y.C., without qualification, that “[a]ny 

information disclosed by you during this Assessment can and will be shared 

with Probation and the Court.” She also informed him that she was a 

mandated reporter, so that if she “suspected that you pose a danger to 

yourself or others I am also required to report those concerns to the 

appropriate persons and/or agencies.” To the extent that Johnson told Y.C. in 

advance she would share his statements, those statements are not protected 

by the psychotherapist privilege. (Accord People v. Henderson (1977) 19 

Cal.3d 86, 97–98 [defendant interview with jail psychotherapist not 

confidential when defendant advised of constitutional rights and informed 

interview was being conducted at request of district attorney], overruled on 

other grounds by People v. Flood (1998) 18 Cal.4th 470, 484.)
21

Last, we conclude that the doctrine of informed consent has no bearing 

on whether the contents of Johnson’s interview should be sealed or destroyed. 

The doctrine of informed consent “imposes a duty on the physician to provide 

material information about any proposed treatment, such as risks and 

alternative procedures.” (Conte v. Girard Orthopaedic Surgeons Medical 

Group, Inc. (2003) 107 Cal.App.4th 1260, 1267.) Y.C. claims Johnson failed to 

inform him about what use the probation department would make of the

information he supplied, and failed to explain what rights he had to 

alternative mental health services or legal assistance. But even if Y.C. could 

establish that Johnson breached a duty to provide him material 

information—an issue we do not decide—that breach would not entitle Y.C. 

to the sealing order he seeks. Y.C. points to the black-letter principle that 

breach of a professional’s obligation to obtain informed consent renders any 

purported consent void. (Citing Sheppard, Mullin, Richter & Hampton, LLP 

v. J-M Manufacturing Co., Inc. (2018) 6 Cal.5th 59, 87.) But Y.C. fails to 

explain how this principle translates into a right to the relief he seeks.

Nothing in our analysis presupposes that Y.C. provided informed consent to 

Johnson’s interview, so Y.C.’s effort to nullify such consent is beside the 

point. Although we have established that once Johnson advised Y.C. the 

contents of his interview would be disclosed to the probation department and 

juvenile court, it was not objectively reasonable for Y.C. to believe otherwise, 

that is a different matter.

In sum, none of Y.C.’s statutory or state constitutional claims entitle 

him to the sealing or destruction order he sought from the juvenile court. 

DISPOSITION

To the extent petitioner seeks relief from the juvenile court’s detention 

order or the court’s consideration of the challenged statements during the 
22

detention hearings, the petition for writ of mandate is dismissed as moot. In 

all other respects, the petition for writ of mandate is denied. 

TUCHER, P.J.*

I CONCUR:

POLLAK, P.J.

* 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.
1

POLLAK, P.J. — I concur but write separately to emphasize that although 

we do not decide the constitutional issues raised by Y.C. because they are 

moot as to him, we do not imply that we would agree with his contentions 

were we to decide them. To the contrary, the constitutional provisions cited 

by Y.C. are designed to prevent the forced or uninformed disclosure of 

incriminating information. (See, e.g., Rhode Island v. Innis (1980) 446 U.S. 

291, 301, fn. 5; United States v. A.R. (3d Cir. 1994) 38 F.3d 699, 703–705; 

United States v. Mitchell H. (1999) 182 F.3d 1034, 1035.) Here, in my view, 

there is no indication that Y.C.’s participation in the interview with a 

therapist from the county’s Behavioral Health and Recovery Services was 

either compelled or lacking in informed consent,1 and the interview was 

designed and implemented to avoid discussion of Y.C.’s alleged offenses or of 

any potentially incriminating information. The therapist’s interview was no 

more than an extension of the probation officer’s interview, designed “not to 

elicit evidence of guilt — the function of police questioning — but to assist the 

probation officer in deciding at the outset of the case whether the minor need 

be further detained pending a court hearing,” which our Supreme Court 

approved in In re Wayne H. (1979) 24 Cal.3d 595, 601. There the Supreme 

Court held that statements made during such an interview “are not 

admissible as substantive evidence, or for impeachment, in any subsequent 

1 The advisement that failure to participate would be reported to the 

court was hardly a threat. The therapist never stated or implied Y.C. would 

receive less favorable treatment from the court if he declined to participate, 

or suggested that he would receive more favorable treatment if he did 

participate. (See People v. Holloway (2004) 33 Cal.4th 96, 116.) Indeed, the 

therapist could be faulted only if she had failed to make that disclosure. In 

addition, the therapist interview with Y.C. has no resemblance to the coercive 

and threatening questioning that was present in other cases in which a 

minor’s statement was found involuntary. (See In re T.F. (2017) 16 

Cal.App.5th 202, 221; In re Elias V. (2015) 237 Cal.App.4th 568, 583–584.)
2

proceeding to determine criminal guilt, whether juvenile or adult,” but “may, 

of course, be admitted and considered in hearings on the issues of detention 

and fitness for juvenile treatment.” (Id. at p. 602.)

As to the asserted violation of the Health Insurance Portability and 

Accountability Act (HIPAA), which I agree does not apply, I would add one 

observation. Even were the statute applicable, neither the therapist nor the 

court ran “roughshod” over Y.C.’s rights under its provisions as Y.C. 

contends. The therapist’s failure to obtain a signed, written authorization 

from Y.C. was a consequence of restrictions on in-person contact at the 

Juvenile Assessment Center caused by the COVID-19 pandemic. Although 

the therapist interviewed Y.C. over the telephone, her admonishments 

covered HIPAA’s principal requirements for a valid authorization, including 

an advisement of the purpose of the interview and identification of the 

persons to whom disclosure of information would be made. (See 45 C.F.R. 

§ 164.508(c)(1).) Under the circumstances, there was substantial compliance 

with the HIPAA safeguards.

In short, and without belaboring the arguments, the approach adopted 

by the San Mateo County Probation Department is well designed to 

accomplish its legitimate purpose without compromising the minor’s rights or 

violating any statutory or constitutional restrictions. Prompt evaluation of 

the mental health of a minor taken into custody is to be desired. The 

therapist in this case breached no duty of loyalty or confidentiality, was fully 

cognizant of her obligation to avoid eliciting potentially incriminating 

information from Y.C., and complied with that obligation.

POLLAK, P. J. 
1

STREETER, J., Concurring and Dissenting.

The collaborative, multidisciplinary approach San Mateo County took 

to establishing its Juvenile Assessment Center (the Assessment Center or the 

Center) appears to have been well intentioned. But no matter how well 

intentioned in concept, in practice the Assessment Center carries out two 

functions that are at war with each other. The Center offers detained youth 

mental health services while at the same time, through the required sharing 

of information among its constituent members—specifically in this case, the 

dissemination to a probation officer of a psychologist’s assessment of a 17-

year-old youth held in custody, charged with felony offenses—it also supports 

the prosecutorial function carried out by the probation department and the 

district attorney. Whether Linda Johnson, the department of Behavioral 

Health and Recovery Services (BHRS) psychologist who conducted the 

assessment, understood this conflict is beside the point. Wittingly or not, the 

fact is that her professional duties of loyalty and confidentiality to her young 

patient were compromised.

If the BHRS saw fit to accommodate some kind of protocol of the 

probation department by sharing Ms. Johnson’s clinical assessment, that 

does not excuse the resulting violations of law. Nor does the fact that the 

probation department is a constituent member of the Assessment Center 

transform the BHRS into an arm of the probation department. Indeed, in her 

testimony at the detention hearing, Ms. Johnson emphasized that she does 

not work for the probation department. She said she is “part of the BHRS 

forensic team.” By embedding a clinical psychologist in a collaborative body 

that also includes the probation department, San Mateo County cannot 

render inoperative the obligations of confidentiality that arise out of the 
2

psychologist’s professional responsibility to her patient. Ms. Johnson had the 

obligation to recommend mental health treatment for Y.C., if warranted; the 

probation officer had the obligation to pursue his prosecution, if warranted.

Because these professional roles are fundamentally incompatible with each 

other, it was up to Ms. Johnson to level with Y.C. about the potential 

jeopardy she was putting him in, or at least put him in a position to 

understand that disclosure of her assessment summary to the probation 

department might not be in his best interests. For a lawyer in comparable 

circumstances, we would never tolerate this kind of conflict absent full 

disclosure and knowing waiver, even for sophisticated clients.

The issues raised in this case are not unique to San Mateo County, or 

to California. Commentators with expertise in this specialty area have 

surveyed the problems arising in psychological assessment interviews of 

minors at the intake stage of juvenile justice systems across the country.1

One of the unfortunate aspects of the way in which these issues have arisen 

1 Lore, Pretrial Self-Incrimination in Juvenile Court: Why a 

Comprehensive Pretrial Privilege Is Needed to Protect Children and Enhance 

the Goal of Rehabilitation (2009) 47 U. Louisville L.Rev. 439, 442–443, 

fn. omitted (“Often, children will make self-incriminating statements during 

the pre-adjudication stage of a juvenile court case while being evaluated or 

receiving rehabilitative or therapeutic services. . . . [¶] The issue of children 

making self-incriminating statements at the pre-adjudication stage has 

grown in importance recently because of the trend within the juvenile justice 

system to provide earlier screening and assessment . . . , often immediately 

after arrest, but prior to any official court or attorney involvement. At an 

initial screening, where children are often assessed for any immediate needs 

such as mental health or substance abuse problems, [they] are generally 

unrepresented. This lack of counsel increases the likelihood that they may 

make self-incriminating statements that could drastically impact their 

lives.”); see Rosado, Outside the Police Station: Dealing with the Potential for 

Self-Incrimination in Juvenile Court (2012) 38 Wash. U. J.L. & Pol’y 177, 

182–183.
3

here is that the objective of making sure psychological assessments are 

undertaken as an adjunct to the probation department’s reporting 

responsibility to the court—as the lead opinion puts it, to “ ‘aid the Court in 

determining an appropriate disposition and treatment plan’ ” (lead opn., ante, 

at p. 4)—could just as easily be carried out by the Assessment Center as a 

collaborative endeavor after the detention hearing, the point in time when 

Y.C. was guaranteed the assistance of counsel by statute. (Welf. & Inst. 

Code,2 § 634.)3 Ms. Johnson admitted in her testimony that any urgent need 

for mental health services prior to the detention hearing can be handled 

independently, without consulting a probation officer. She also testified that 

a court order is unnecessary for the provision of urgent services at that point.

Thus, it is the timing of the collaboration between BHRS and the probation 

department that is most problematic here, not the fact of it.

Because only a slight timing adjustment would have brought the 

Assessment Center into compliance with governing law at no cost to the 

prompt delivery of mental health services to juvenile arrestees, the issues 

that have arisen here could have been avoided quite easily. Why all the 

controversy surrounding this writ proceeding then? That seems plain to see. I 

would have thought that, by now, all these years after Miranda v. Arizona

2 All subsequent statutory references, as in the lead opinion, are to the 

Welfare and Institutions Code, unless otherwise noted.

3 Indeed, for youths like Y.C., who the court finds are beyond effective 

parental control and thus for whom immediate return to their parents is not 

a viable option, that is exactly what the statutory scheme contemplates.

(§ 636.1, subd. (a) [“When a minor is detained pursuant to Section 636 

following a finding by the court that continuance in the home is contrary to 

the minor’s welfare and the minor is at risk of entering foster care, the 

probation officer shall, within 60 calendar days of initial removal, or by the 

date of the disposition hearing, whichever occurs first, complete a case 

plan.”].)
4

(1966) 384 U.S. 436 (Miranda) and In re Gault (1967) 387 U.S. 1, it would be 

beyond debate that a juvenile accused of a felony has the right to counsel 

during any custodial interrogation. But apparently not. Although counsel 

must be appointed for all juvenile arrestees at their detention hearings, for a 

brief period prior to that point these young arrestees sit in jail unrepresented.

At stake here is whether the San Mateo County Probation Department, 

indirectly through BHRS psychologists, may be given access to uncounseled 

juvenile arrestees before a lawyer enters the picture.4

Which highlights another unfortunate aspect of the case: Because Y.C. 

has now been released pursuant to an agreed disposition, and because a 

recent amendment to section 625.6 gives all minors a mandatory, unwaivable 

right to consult with counsel before submitting to any type of interrogation 

while in custody,5 any endorsement of the Center’s past practices appears to 

be pointless. I therefore join the lead opinion in concluding that the case is at 

least partially moot, and to the extent it is moot, in further concluding that 

we should decline to apply the recurring-but-evading-review exception to the 

mootness doctrine. I would go further, however. I think the entire case is 

4 The fact that Y.C. was an apparently fully capable 17 year old is of no 

moment. He was a minor. In 2011, the United States Supreme Court drew 

attention to how the psychological pressures of custodial interrogation that it 

warned against in Miranda can be especially powerful in breaking the will of 

a juvenile. (J.D.B. v. North Carolina (2011) 564 U.S. 261, 272.) The Court’s 

sensitivity to this issue is not new. (See Gallegos v. Colorado (1962) 370 U.S. 

49, 53–55; Haley v. Ohio (1948) 332 U.S. 596, 599–601 (plur. opn. of Douglas,

J.).)

5 Section 625.6, subdivision (a) (“Prior to a custodial interrogation, and 

before the waiver of any Miranda rights, a youth 17 years of age or younger 

shall consult with legal counsel in person, by telephone, or by video 

conference. The consultation may not be waived.”). Until January 1, 2021, 

only youths 15 years of age or younger were covered by this statute.
5

moot and that we should say so, without more. I do not think Church of

Scientology of California v. United States (1992) 506 U.S. 9, which addresses 

Article III mootness in the federal courts, compels a contrary conclusion. That 

case involved a taxpayer’s request for return of its own records. The high 

court observed that “[t]axpayers have an obvious possessory interest” in their 

records. (Church of Scientology of California, supra, at p. 13.) The document 

at issue here is a detention report prepared by the San Mateo County 

Probation Department. What gave rise to all of Y.C.’s objections, and 

ultimately to this writ proceeding, is that Ms. Johnson authored a section of 

the probation department’s detention report. I fail to see how that could 

possibly have given Y.C. a possessory interest in the detention report itself.

He could complain about the probation department’s use of the detention 

report, which is what he did via his motion to suppress, but he could not 

demand it back or have it treated like it was his property, since it was never 

his.

Because I see no possible basis for any return, sealing, or destruction of 

records, I do not think we should be issuing what amounts to an advisory 

opinion on the claims requesting those remedies, since we cannot award 

effective relief on them. I will say, though, that having concluded we still 

have a live controversy here to an extent, Presiding Justice Tucher has done 

an admirable job setting forth an analysis that deftly tacks back and forth 

from merits discussion to mootness discussion, while keeping our merits 

rulings relatively narrow. I appreciate that, though I am concerned about the 

clarity of what we say here, since, at least as to some of the claims, the 

analysis seems to suggest both that we are rejecting them on the merits and

that we deem them moot. For an opinion that seeks to garner agreement from 

two colleagues with polar opposite views on this particular case, as our 
6

separate opinions surely demonstrate, I suppose some opaqueness is to be 

expected.

To the extent we are reaching the merits, explicitly or impliedly, I must 

dissent. I will comment briefly on only two sections of the lead opinion. First, 

I would find a violation of the Health Insurance Portability and 

Accountability Act of 1996 (HIPAA) (42 U.S.C. § 1320d et seq.) on this record.

HIPAA prohibits a “covered entity” from using or disclosing protected health 

information. (45 C.F.R. § 164.502(a) (2020).) Covered entities include a 

“health plan,” a “health care clearinghouse,” and a “health care provider who 

transmits any health information in electronic form in connection with a 

transaction” under HIPAA. (45 C.F.R. § 164.104(a) (2020).) The disclosure of 

“psychotherapy notes” is specifically mentioned in the regulations as a 

disclosure for which authorization is required. (45 C.F.R. § 164.508 (2020).)

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.” It violated HIPAA because the information gathered by its 

employee, Ms. Johnson, was “health information” (42 U.S.C. § 1320d(4)), the 

disclosure of which was prohibited (42 U.S.C. § 1320d-6) absent patient 

consent (45 C.F.R. § 164.508 (2020). Patient consent is governed by strict 

regulatory standards. (See 45 CFR 160.102(a)(3) (2020) [applicability of 

regulatory standards to a “healthcare provider”].) Ms. Johnson failed to 

secure Y.C.’s consent in the form of a “valid authorization” written in “plain 

language” advising Y.C. of the purpose of the disclosure, describing in 

“specific and meaningful fashion” the information to be disclosed, telling Y.C. 

his right to treatment was not conditioned on consent to disclosure, and 

warning Y.C. of the prospect that any disclosed information could lose its 

protected status under HIPAA. (45 C.F.R. § 164.508(c)(1)(i), (iv), (vi) and 
7

(c)(3) (2020).) Nor is there any basis for excusing the failure to obtain an 

effective consent. The exception for disclosures made in connection with 

judicial and administrative proceedings—which appears to be what the 

mandatory governmental disclosure proviso in BHRS’s policy memorandum 

is about—does not apply in the absence of a court order, subpoena or 

assurance that steps have been taken to secure a protective order. (45 C.F.R.

§ 164.512(e) (2020).)6

Second, under the due process principles enunciated in In re Gault, 

supra, 387 U.S. 1, I think Y.C.’s assessment interview violated Y.C.’s 

privilege against self-incrimination (Estelle v. Smith (1981) 451 U.S. 454, 

468–469) and right to counsel (Massiah v. United States (1964) 377 U.S. 201, 

205–206), which means it was error to admit into evidence and consider at 

the detention hearing the portion of the detention report that set forth Ms.

Johnson’s summary of Y.C’s psychological assessment, just as it would have 

been error to consider it in the state’s affirmative case at a jurisdictional 

hearing or subsequent criminal proceedings on the same charges. In re Wayne

H. (1979) 24 Cal.3d 595, a key case relied upon by the Attorney General, and 

cited by Presiding Justice Pollak as well, is not to the contrary. The appellant 

in Wayne H. received a Miranda warning and made a considered choice to 

6 Obviously, the BHRS cannot declare an exemption that is broader 

than the governing regulations allow. And to the extent the lead opinion 

suggests the BHRS is not covered at all by HIPAA—which is of course 

inconsistent with BHRS’s own policy memorandum concerning its HIPAA 

compliance practices—I read 45 Code of Federal Regulations part 160.103 

(2020) to be directed toward the handling of billing and other support 

functions carried out by entities that provide services to a “health care 

provider.” That regulation does not govern the core confidentiality standards 

applicable directly to a “health care provider.” Reading the regulations as a 

whole to apply only to “financial or administrative activities related to 

healthcare,” as the lead opinion apparently does (lead opn., ante, at p. 17), 

has the effect of gutting the statute.
8

participate in a section 628 interview after being advised of his right to 

counsel. Y.C. never had that opportunity. Under Miranda, supra, 384 U.S. 

436, unwarned statements in a custodial interrogation are presumed to have 

been coerced.

There is no question here that Ms. Johnson’s interview of Y.C. took 

place in a custodial setting. Nor can there be any genuine question about 

whether the interview qualifies as an “interrogation” for Fifth Amendment 

purposes. “Interrogation” simply means “questioning” (Miranda, supra, 384

U.S. at p. 461), and even without an expressly communicated inquiry, may 

include “any words or actions” the examiner should know “are reasonably 

likely to elicit an incriminating response from the suspect.” (Rhode Island v.

Innis (1980) 446 U.S. 291, 301, fn. omitted.) The Fifth Amendment privilege 

“not only permits a person to refuse to testify against himself at a criminal 

trial in which he is a defendant, but also ‘privileges him not to answer official 

questions put to him in any other proceeding, civil or criminal, formal or 

informal, where the answers might incriminate him in future criminal 

proceedings.’ ” (Minnesota v. Murphy (1984) 465 U.S. 420, 426, italics added.)

The Sixth Amendment guarantee of counsel is equally applicable. Once 

charges are filed accusing a person of a crime (People v. Bustamante (1981) 

30 Cal.3d 88, 106–107), there is a Sixth Amendment right to counsel at any 

“stage of the proceedings [that is] a critical one from [the] defendant’s 

standpoint.” (People v. Horton (1995) 11 Cal.4th 1068, 1136.) A “critical stage” 

includes any pretrial event “at which crucial decisions affecting [the 

defendant’s] defense [are] to be made, and where his counsel could [take] 

steps” toward “protect[ing] and further[ing] [his] substantial rights” (ibid.).
9

For Y.C.—from his standpoint—I believe Ms. Johnson’s interview was a 

“critical stage” of the proceedings against him.7

A significant thrust of the Attorney General’s argument in opposition to 

Y.C.’s Fifth Amendment and Sixth Amendment claims, echoed in Presiding 

Justice Pollak’s concurrence, is that Ms. Johnson’s assessment interview was 

part of the probation officer’s fact-gathering process under section 628, and 

that, as a result, Wayne H. not only bars the use of any statements in the 

interview to prove guilt at the jurisdictional hearing but expressly permits 

their use at the detention hearing. The detention hearing, the Attorney 

General argues, was a neutral proceeding that did not bear upon guilt. He 

cites by analogy United States v. A.R. (3d Cir. 1994) 38 F.3d 699 and United 

States v. Mitchell H. (9th Cir. 1999) 182 F.3d 1034. These federal cases are 

problematic for a number of reasons (see Commonwealth v. Brown (2011) 

26 A.3d 485, 501–502), but the premise of this line of argument collapses if 

there is no Wayne H. use immunity. I say that because Wayne H. has no 

constitutional foundation. Because Wayne H. is based solely on an 

interpretation of section 628 and the statutory scheme of which that 

provision is part, I doubt its rule of use immunity survived the passage of 

article I, section 28, subdivision (f)(2) (formerly subdivision (d)) of the 

7 When Ms. Johnson visited Y.C., the stakes for him at the detention 

hearing turned out to be more consequential than he could possibly have 

known without the assistance of counsel. When finally released, still without 

a jurisdictional hearing, he had spent six months behind bars, far beyond the 

presumptive maximum period of 15 judicial days’ temporary detention 

contemplated by the statutory scheme. (§ 657, subd. (a)(2).) That is one of the 

most troubling aspects of this case. In the circumstances Y.C. faced—whether 

because of the alleged use of a gun, the alleged involvement of gangs, or some 

concern about his family ties to a foreign country—he was entitled to counsel 

to advise him of the potential that he might be deemed a flight risk and a 

danger to public safety, and kept behind bars for an extended period of time 

before his case came on for trial.
10

California Constitution, passed as Proposition 8 in 1982. (Cf. Ramona R. v.

Superior Court (1985) 37 Cal.3d 802, 806–811 [use immunity for juvenile’s 

transfer hearing testimony and statements to probation officer in advance of 

that hearing is founded on article 1, section 15 of the California Constitution 

and is therefore valid under Proposition 8 by virtue of the savings clause for 

constitutionally based privileges in Evid. Code, § 940].)

It is not the case that, because the questioning at Ms. Johnson’s 

assessment interview concerned only matters relating to Y.C.’s personal life 

and mental health, we may conclude that nothing Y.C. said in the interview 

was potentially incriminating. The felony assault and weapons charges in 

this case alleged that Y.C. shot a gang member. Without revealing any 

clinical diagnoses or recommendations for treatment set forth in 

Ms. Johnson’s assessment interview summary, suffice it to say that the 

interview covered a variety of topics concerning Y.C.’s personal background, 

including his family’s immigrant story and some information concerning the 

nature of his friendships. Together with independent evidence coming from 

his mother that Y.C. may have been involved with drugs and might have 

been in possession of a gun, it is not difficult to see how Y.C.’s statements to 

Ms. Johnson could have been used against him in a case alleging gang 

involvement.

The issue here is whether there was an incriminatory hazard, not 

whether there was actual incrimination. “An ordinary witness need not 

actually prove the existence of an incriminatory hazard, as that would 

surrender the very protection which the privilege against self-incrimination 

was designed to guarantee. Instead, the privilege forbids compelled 

disclosures which could serve as a ‘link in a chain’ of evidence tending to 

establish guilt of a criminal offense; in ruling upon a claim of privilege, the 
11

trial court must find that it clearly appears from a consideration of all the 

circumstances in the case that an answer to the challenged question[s] 

cannot possibly have a tendency to incriminate the witness.” (Prudhomme v.

Superior Court (1970) 2 Cal.3d 320, 326, disapproved on other grounds in 

Izazaga v. Superior Court (1991) 54 Cal.3d 356, 371–372; see Hoffman v.

United States (1951) 341 U.S. 479, 486–488.) I am not convinced we can say 

the assessment interview of Y.C. could not “possibly have a tendency to 

incriminate” him. That interpretation of the record accepts on faith 

Ms. Johnson’s professed desire only to help this young man, while ignoring 

the fact that the prosecutor might react to the information in her assessment 

summary in a wholly different way, and use it to build a case against him.

The lead opinion relies on a line of cases holding there is no Fifth 

Amendment protection beyond the “core” privilege not to have incriminating 

statements used adversely in later criminal proceedings. (Spielbauer v.

County of Santa Clara (2009) 45 Cal.4th 704, 714–715, 727; Chavez v.

Martinez (2003) 538 U.S. 760, 767–773 (plur. opn. of Thomas, J.); see Chavez,

at pp. 777–778 (conc. opn. of Souter, J.).) Even under this analysis, the 

central contention Y.C. makes in this case, that the assessment interview 

summary should have been excluded at the detention hearing—a contention 

we say is moot in light of Y.C.’s release, but not moot in light of his request 

for affirmative relief—qualifies as an attack on a later use of his statements 

that posed an incriminatory hazard at the detention hearing. At that hearing, 

Y.C. faced a significant threat to his physical liberty, and along with it the 

potential stigma of extended incarceration. Gault traches that those things 

are by no means neutral or rehabilitative. (In re Gault, supra, 387 U.S. at 

pp. 49–55.) The fact that there may be other, “permissible uses” (lead opn., 
12

ante, at pp. 13–14) of Y.C.’s statements to Ms. Johnson does not erase the 

underlying Fifth Amendment violation.

Notably, moreover, Spielbauer and Chavez are civil cases in which the 

prospect of criminal exposure was not immediately in view. Gault definitively 

rejected the idea that juvenile delinquency proceedings are “civil” in nature 

and thus that there is no possibility of criminal exposure warranting 

application of the Fifth Amendment. (In re Gault, supra, 387 U.S. at pp. 49–

55.) And in any event, to the extent the narrow Spielbauer and Chavez

conception of the Fifth Amendment applies in a scenario where criminal 

charges are pending, our Supreme Court has invoked those cases only where 

a defendant who knowingly waived his Fifth Amendment privilege had yet to 

face any questions at all. (See Maldonado v. Superior Court (2012) 53 Cal.4th 

1112, 1127–1128 [where represented criminal defendant made strategic 

choice to put his mental state in issue, protective order entered in advance of 

mental examination sought by prosecution not justified by the Fifth 

Amendment since scope of defendant’s waiver could only be determined at 

the examination].)

There was no knowing waiver on this record. (See Miranda, supra, 

384 U.S. at p. 475 [“this Court has always set high standards of proof for the 

waiver of constitutional rights”]; Johnson v. Zerbst (1938) 304 U.S. 458, 464–

469 [“intelligent waiver” requires “intentional relinquishment or 

abandonment of known right or privilege”].) Where there is no waiver and 

there is clear criminal exposure—or its equivalent, a pending trial in 

delinquency proceedings—the prophylactic sweep of the Fifth Amendment 

under Miranda extends beyond simple prohibition on direct evidentiary use 

of compelled statements in the state’s case-in-chief on the issue of guilt at 
13

trial. It also prohibits the use of such statements outside the courtroom to 

build a case for guilt.8

The lead opinion’s citation to People v. Elizalde (2015) 61 Cal.4th 523, 

is no more illuminating than Spielbauer and Chavez. If anything, that case 

tends to support Y.C.’s claim of a Fifth Amendment violation here. Elizalde

holds that, in a case involving gang allegations, the collection of information 

about gang affiliation, even if gathered for permissible purposes—there, the 

questions were asked at jail intake in order to ensure the safety of inmates 

and staff—does violate the Fifth Amendment. (Elizalde, at pp. 530–532.)

“Any number of questions posed to arrestees, such as whether they are 

injured or under the influence of drugs or alcohol, and how they came to be 

so, may be both necessary and highly incriminating. In-custody defendants 

generally retain their Fifth Amendment protections even if the police have 

good reasons for asking un-Mirandized questions,” the court explained. (Id. at 

p. 536, italics added.) The remedy for this violation, the court held, was 

suppression of the defendant’s “unadmonished answers” at trial (id. at 

p. 540), though the failure to do so in that case was not prejudicial (id. at 

p. 542). My colleagues appear to confuse the issue of whether there was a 

violation of the Fifth Amendment with the issue of remedy. In this case, it is 

enough to say that Y.C. is not entitled to the remedy he seeks. Instead, we 

hold, incorrectly I believe, that there was no violation at all. (Lead opn., ante, 

8 This is why courts distinguish use immunity from derivative use 

immunity. See, e.g., People v. Jablonski (2006) 37 Cal.4th 774, 803 (holding 

that the rule of judicially declared immunity for statements made in a 

compelled mental competency examination fully protects a defendant against 

any nonevidentiary uses of statements obtained from the defendant during 

the competency hearing to the same extent he or she is protected by the 

privilege against self-incrimination).
14

at p. 12 [“the simple fact of Johnson’s interview of Y.C. did not violate the 

Fifth Amendment”].)

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.) Y.C. may have chosen 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.” (Maldonado v. Superior Court, 

supra, 53 Cal.4th at p. 1125.) The Attorney General cannot have it both ways 

on this issue. If, as the Attorney General contends, Y.C.’s participation in the 

assessment interview was voluntary, he enjoyed at most a narrow, statutorily 

derived use immunity under Wayne H. prohibiting the prosecution from 

seeking later admission of any incriminating statements he made to 

Ms. Johnson as substantive evidence of guilt of a criminal offense. But 

Wayne H. does not shield him from indirect, nonevidentiary use of anything 

else that might have bolstered the prosecution’s case against him in a later 

proceeding. And, worse, if the pure use immunity conferred by Wayne H. is no 

longer valid, as I have suggested above is likely the case, then he had no 

protection at all—even in this juvenile proceeding. These may seem like 

subtleties, but ultimately they explain why Y.C. faced a significant risk of 

incrimination in answering questions that seemed both necessary and 

benign, as the defendant in Elizalde did, not just at the detention hearing, 

but at the jurisdictional hearing and beyond. Y.C. may not have confessed at 

the assessment interview, but he supplied information that the state was free 
15

to use either in building a case for guilt or in arguing he was dangerous 

enough to justify an extended period behind bars.9

STREETER, J.

9 In light of that risk, had there not been an agreed disposition in this 

case—which moots the issue—I would have favored granting some form of 

writ relief designed to give Y.C. use and derivative use immunity, 

affirmatively barring the prosecution from nonevidentiary use of 

Ms. Johnson’s assessment summary in any further investigation of whether 

he committed the offenses charged against him. The statutory confidentiality 

and sealing to which he is automatically entitled under section 827 and 

rule 5.552 of the California Rules of Court do not provide sufficiently broad 

protection to accomplish that. I mention this in closing because I suspect 

there is an 800-pound gorilla in the room here: an unstated concern on the 

part of the BHRS and the probation department that, if counsel for juvenile 

arrestees were involved, that would disrupt psychological assessment 

interviews of the kind at issue in this case. A similar concern has been 

recognized and taken into account by our Supreme Court in comparable 

circumstances. (People v. Pokovich (2006) 39 Cal.4th 1240, 1252.) Going 

forward here, I see no reason why full use and derivative use immunity could 

not be conferred by a negotiated protective order applicable to assessment 

interviews. If that level of protection were granted, the BHRS and the 

probation department may be surprised to find that defense counsel—who 

surely understand their paramount duty to protect the welfare of their young 

clients, as do all other professionals involved in juvenile delinquency 

proceedings—would not impede or stand in the way of these interviews.
16

Trial Court: Contra Costa County Superior Court

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: Rob Bonta

Attorney 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

Y.C. v. Superior Court for the County of San Mateo (A162063)