Filed 11/14/13 P. v. Chaney CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

v. 

ELDRIDGE CHANEY, 

Defendant and Appellant. 

 H037202 

 (Monterey County 

 Super. Ct. No. SC006639) 

Eldridge Chaney appeals from the denial of his petition for conditional release 

from civil confinement as a sexually violent predator (SVP). He contends that (1) the 

trial court erred by proceeding under the wrong provision of the Sexually Violent 

Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.)1

 and that his trial counsel 

rendered ineffective assistance by inviting the error and/or forfeiting the issue; (2) the 

trial court violated his equal protection rights by requiring him to bear the burden of 

proving his suitability for conditional release; (3) the trial court violated his procedural 

due process rights, his constitutional rights to privacy, the psychotherapist-patient 

privilege, and public policy when it ordered production of his written treatment 

assignments; (4) the trial court violated his due process rights when it denied his request 

 

1

 Subsequent statutory references are to the Welfare and Institutions Code unless 

otherwise noted. 
2 

to present “rebuttal” witnesses; (5) the cumulative effect of the trial court’s errors denied 

him a fair trial; (6) he is entitled to a different judge on remand; and (7) the deputy 

district attorney who tried the case must be disqualified on remand. We conclude that 

Chaney’s counsel rendered ineffective assistance by seeking relief under section 6608. 

We reject Chaney’s other arguments. We reverse the judgment and remand the matter 

for a new hearing under section 6605. 

I. Background 

Chaney was found to be an SVP in 2000 and committed to the custody of the 

Department of Mental Health (DMH)2

 for treatment. In May 2010, Coalinga State 

Hospital (CSH) psychologist Nameeta Sahni conducted the annual examination that 

section 6605 requires and prepared a declaration stating that Chaney could be effectively 

treated in the community with adequate supervision. CSH’s acting medical director 

Robert Withrow, M.D. disagreed with Sahni’s opinion and so informed the superior court 

judge who had committed Chaney. 

Three months later, CSH staff met to determine whether Chaney satisfied the 

criteria for advancement to Phase V outpatient treatment. The meeting was chaired by 

Dr. Withrow and attended by, among others, psychiatrist Dr. Peter Lavalle; social worker 

and head of the enhanced treatment program Ernest Marshall; senior psychologist in 

charge of the group program Virginia Greer; psychologist Steven Arkowitz, the clinical 

director of Liberty Conditional Release Program (Liberty CONREP), which contracts 

with the DMH to provide conditional release services to the SVP population; and Alan 

Stillman, Liberty CONREP’s community program director. The meeting, which included 

 

2

 The SVPA was amended effective June 27, 2012 to reflect that the DMH is now 

the State Department of State Hospitals and the director of mental health is now the 

director of state hospitals. (See People v. Gonzales (2013) 56 Cal.4th 353, 356 

(Gonzales); Stats. 2012, ch. 24, §§ 63, 65, 138-146, pp. 85, 117-126.) We use the prior 

nomenclature, which was in effect when the events here at issue occurred. 
3 

a group interview of Chaney and “a lengthy assessment of his problem areas and how he 

would deal with them,” ended with a consensus decision to recommend his conditional 

release. 

After the meeting, Dr. Lavalle prepared a memorandum from CSH’s then acting 

medical director Jagsir Sandhu, M.D. to the DMH’s director, notifying him that Chaney 

had been recommended for conditional release. 

On December 2, 2010, Chaney filed a “Motion for Conditional Release Pursuant 

to . . . Sections 6607/6608” in which he asserted that the DMH, “by and through its 

agents” at CSH, had provided a section 6607, subdivision (a) recommendation to request 

a section 6608 hearing. 

On April 4, 2011, the trial court ordered CSH’s then acting medical director Dr. 

Withrow to provide an updated recommendation “concerning the pending W&I 6608 

petition for outpatient treatment filed by [Chaney],” and Dr. Lavalle prepared a letter 

recommending Chaney for outpatient treatment. 

Dr. Lavalle testified at Chaney’s probable cause hearing on April 28, 2011. 

Dr. Lavalle had been a psychiatrist at CSH since July 2009, and one of his duties as the 

forensic consultant to CSH’s medical director was to prepare Phase V recommendation 

letters. He authored the letters recommending Chaney’s conditional release. The letters 

were based on his review of Chaney’s medical records and interviews with his treatment 

providers and staff members. Dr. Lavalle had never been Chaney’s direct provider, nor 

had he interviewed or evaluated him, “[w]ith the exception of overhearing his 

conversations and watching his activity.” He had an office in Chaney’s unit from July to 

December 2010, but had “less than a dozen” contacts with him during that time. 

Psychologist Arkowitz testified that he had known Chaney since 2002 and had 

attended his last three staffings. Although Liberty CONREP does not, “technically, have 

a vote in that process,” the staff at CSH, including the medical director, “do pay attention 
4 

to our input,” Arkowitz told the court, and he had “significant input” into Chaney’s 

Phase V staffing. 

Arkowitz had “many . . . formal and informal interactions” with Chaney and “full 

access to [Chaney’s] records.” In evaluating a person’s progress at CSH, Arkowitz 

typically reviewed treatment plans and annual assessments, and he “paid a lot of attention 

to . . . the PPG [penile plethysmograph] assessments, polygraph exams, [and] 

psychological testing.” He reviewed “the day-by-day notes of how the client is doing,” 

treatment notes, and notes from job supervisors. He did not review Chaney’s written 

treatment assignments. 

In an evaluation prepared after Chaney’s Phase V staffing, Arkowitz concluded 

that Chaney “is now seen as a suitable candidate for conditional release . . . .” In the 

section of the report labeled “Potential for reoffense and basis for determination,” 

Arkowitz wrote that evaluators estimated Chaney’s risk of conviction for another sexual 

offense as moderate to high compared to other sex offenders and that Chaney’s diagnosis 

of antisocial personality disorder could increase his risk for reoffense. “It is difficult to 

assess Mr. Chaney’s current degree of sexual self-regulation,” Arkowitz wrote. Noting 

that early phallometric assessments had shown “a deviant sexual interest in sexually 

aggressive acts,” Arkowitz reported that Chaney had “completed behavioral counterconditioning treatments to address this issue and now displays a nondeviant sexual 

arousal profile.” Arkowitz conceded on cross-examination, however, that “there’s ways 

to, in essence, beat the PPG.” 

In the section of the report labeled “Awareness of precursors,” Arkowitz wrote 

that “Chaney has stated that he believed each of his victims had rejected him and 

mistreated him. As a result, he wanted revenge on them.” In Arkowitz’s opinion, 

cognitive behavior therapy had given Chaney a mechanism to identify and correct any 

such thoughts. 
5 

Responding to concern that the reports contained “conclusionary statements that 

he’s taken classes and that he seems to be . . . more of a thinking person, but no real 

discussion . . . how, if he has those thoughts, he’s going to . . . not act on them,” Arkowitz 

testified that patients in the phase program complete written treatment assignments and 

that Chaney “probably had a folder . . . where he has addressed those specific 

things . . . .” 

“That’s . . . the kind of thing I wish I could look at,” the trial court stated, noting 

that because the written assignments reflected Chaney’s “independent thought process,” 

they would be far more helpful than “someone else summarizing something and I’m not 

quite sure exactly what context those descriptions come in and I don’t know who the 

individual is that is describing them.” Defense counsel noted Arkowitz’s concern that the 

assignments “would be misused and taken out of context,” but agreed to ask Chaney if he 

still had them. “And you understand the previous objections I’ve made,” he added, 

referring to his earlier unsuccessful motion to quash a subpoena for Chaney’s mental 

health records, “but I assume the Court would overrule those objections . . . .” “[T]his 

would be the Court’s order,” the court replied. “[W]e would all agree that [Dr. Lavalle] 

can just mail them [to] the court, maybe like a subpoena duces tecum type of thing . . . .” 

Called to the stand a month later, Chaney was questioned by counsel and by the 

court about his offenses, his treatment, and his relapse prevention plans. He 

authenticated his written treatment assignments, and they were admitted into evidence as 

court exhibit 1. 

The trial court denied Chaney’s petition for conditional release. The court had 

spent “a good deal of time” looking at and had become “very familiar” with the evidence. 

It considered Chaney’s testimony “the most, absolute most important evidence in this 

case.” Aspects of that testimony reflected that Chaney had “learned . . . what the image 

is that he is to project in order to be normal.” “The problem is that when he talks about it, 

it sounds like something out of a textbook that has been memorized. It sounds rote. It 
6 

sounds superficial. It is superficial. It sounds canned.” The court gave examples where 

Chaney had avoided directly answering questions until, “[e]ventually, you are asked 

something so direct you can’t -- you can’t avoid it.” It described Chaney’s testimony as 

“at times incredible.” “[Y]our answer to the question . . . of what you were thinking 

about when you were frequently masturbating, during a time where [phallometric 

assessments showed] you were excited by deviant sex, is that you only thought about that 

one time. No one believed that. Not only that, you didn’t. Your demeanor, when you 

answered that question, was you knew you were lying.” “I am trying to judge whether or 

not you’re going to be transparent,” the court told Chaney. “You’re not, yet. And you’ll 

hide it when you think it’s the wrong thing to say, when you think it will get you in 

trouble. And that’s dangerous,” the court told him, especially when combined with his 

particular triggers—e.g., rejection and being told what to do. “[T]hose two triggers, if 

you’re released into the community, are going to be your life. You are going to be told 

what to do, you’re going to be regulated, you’re going to be controlled, and those are 

triggers for you. You’re going to be rejected.” 

Although the court felt Chaney was “beginning to learn about” empathy, it found 

his understanding “very superficial” and his answers “canned” and “rote.” The court also 

found that Chaney continued to become angry too often, noting his testimony that when 

he became angry, “nine times out of ten, even in your own estimation, it was groundless 

and inappropriate.” 

The “other critical aspect” of the trial court’s decision was a finding that Chaney 

lacked insight about his mental disorder. Chaney initially testified that he did not 

perceive himself as having any kind of psychological disorder at all in terms of desiring 

sex from nonconsenting women. He later conceded that he “had to have had” a mental 

disorder. When challenged about his use of the past tense, he finally admitted, “I have a 

mental disorder based on what I did with my victims. I have a mental disorder based on 

my history of alcoholism. And those two things will probably be with me for the rest of 
7 

my life, but they’re two things that I’m working on every day. They’re there. I don’t 

deny them. I take full responsibility for them.” (Italics added.) The court concluded that 

Chaney’s insight was “developing” but had not “matured in a way that gives the Court 

any confidence whatsoever” that he would not reoffend. It was “too soon to let you out, 

even under supervised release.” “So it’s the decision of the Court that the Petitioner has 

not met its burden. Quite the contrary.” The court ordered Chaney returned to CSH, and 

Chaney filed a timely notice of appeal. 

II. Discussion 

A. Section 6605 Versus 6608 

Chaney contends that the trial court erred by proceeding under section 6608 

instead of under section 6605 and that his trial counsel rendered ineffective assistance by 

inviting the error and/or forfeiting the issue. We agree that his trial counsel rendered 

ineffective assistance. 

We reject Chaney’s claim of trial court error. The SVPA permits SVP’s to 

petition for conditional release under section 6605 (with the DMH’s authorization after a 

favorable annual review) or under section 6608 (without the DMH’s concurrence). 

(Former §§ 6605, subd. (b), 6608, subd. (a); People v. Landau (2011) 199 Cal.App.4th 

31, 38-39 (Landau); People v. Smith (2013) 212 Cal.App.4th 1394, 1398-1399, 1404 

(Smith).) Chaney elected to proceed under section 6608. It was not the trial court’s role 

to question that choice. (See Smith, at p. 1407.) Trial court judges must remain 

“ ‘detached, fair and impartial.’ ” (People v. Scott (1997) 15 Cal.4th 1188, 1206.) “The 

court may not . . . assume the role of either the prosecution or the defense.” (People v. 

Cook (2006) 39 Cal.4th 566, 597.) Since Chaney cannot fault the trial court for 

proceeding under provisions that Chaney expressly invoked, we turn our attention to his 

ineffective assistance claim. 
8 

1. Standard of Review 

A defendant seeking reversal for ineffective assistance of counsel must prove both 

deficient performance and prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 218 

(Ledesma); Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The first 

element “requires showing that counsel made errors so serious that counsel was not 

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” 

(Strickland, at p. 687.) The proper measure of attorney performance is “reasonableness 

under prevailing professional norms.” (Id. at p. 688.) The court “must judge the 

reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed 

at the time of counsel’s conduct.” (Id. at p. 690.) “Judicial scrutiny of counsel’s 

performance must be highly deferential” and “every effort [must] be made to eliminate 

distorting effects of hindsight. . . .” (Id. at p. 689.) When counsel’s conduct can 

reasonably be attributed to sound strategy, a reviewing court will presume the conduct 

was the result of a competent tactical decision, and a defendant must overcome that 

presumption to establish ineffective assistance. (Ibid.) However, “deferential scrutiny of 

counsel’s performance is limited in extent and indeed in certain cases may be altogether 

unjustified. ‘[Deference] is not abdication’ [citation]; it must never be used to insulate 

counsel’s performance from meaningful scrutiny and thereby automatically validate 

challenged acts or omissions. Otherwise, the constitutional right to the effective 

assistance of counsel would be reduced to form without substance.” (Ledesma, at 

p. 217.) 

“Second, the defendant must show that the deficient performance prejudiced the 

defense.” (Strickland, supra, 466 U.S. at p. 687.) 

2. Overview of the Relevant SVPA Provisions 

Enacted to identify, confine, and treat inmates with mental disorders predisposing 

them to commit violent criminal sexual acts, the SVPA was “ ‘designed to ensure that the 

committed person does not “remain confined any longer than he suffers from a mental 
9 

abnormality rendering him unable to control his dangerousness.” [Citation.]’ ” (People v. 

McKee (2010) 47 Cal.4th 1172, 1186 (McKee); People v. Allen (2008) 44 Cal.4th 843, 

857.) Before its amendment in 2006, the SVPA provided for a two-year commitment, 

renewable for successive terms if the People proved beyond a reasonable doubt that the 

committed person remained an SVP. (Former § 6604; Stats. 1995, ch. 763, § 3.) There 

were two ways a committed SVP obtained review of his or her current mental condition 

to determine if civil confinement was still necessary. (McKee, at p. 1186.) Section 6608 

permitted the SVP to petition the court for conditional release to a community treatment 

program, while section 6605 described a procedure, initiated by the DMH, that could lead 

to the committed person’s unconditional release. (People v. Cheek (2001) 25 Cal.4th 

894, 902 (Cheek); McKee, at p. 1186.) The conditional versus unconditional release 

distinction between the two sections was eliminated when California voters approved 

Proposition 83. (Smith, supra, 212 Cal.App.4th at pp. 1398-1399.) 

3. Proposition 83 

Proposition 83, an initiative measure approved by the electorate on 

November 7, 2006, amended the SVPA. (McKee, supra, 47 Cal.4th at p. 1183.) Among 

other modifications, Proposition 83 changed an SVP commitment from a two-year term 

to an indeterminate term and substantially changed the procedures for seeking release. 

(McKee, at p. 1186.) 

After Proposition 83, section 6605 continued to require yearly examinations of a 

committed SVP’s mental condition. (McKee, supra, 47 Cal.4th at p. 1186.) “However, 

Proposition 83 added new provisions to section 6605 regarding the DMH’s obligations: 

Pursuant to section 6605, subdivision (a), the DMH now files an annual report in 

conjunction with its examination of SVP’s that ‘shall include consideration of whether 

the committed person currently meets the definition of a sexually violent predator and 

whether conditional release to a less restrictive alternative or an unconditional release is 

in the best interest of the person and conditions can be imposed that would adequately 
10 

protect the community.’ Subdivision (b) now provides that ‘[i]f the [DMH] determines 

that either: (1) the person’s condition has so changed that the person no longer meets the 

definition of a sexually violent predator, or (2) conditional release to a less restrictive 

alternative is in the best interest of the person and conditions can be imposed that 

adequately protect the community, the director shall authorize the person to petition the 

court for conditional release to a less restrictive alternative or for an unconditional 

discharge.’ (§ 6605, subd. (b).) If the state opposes the director’s petition, then, as under 

the pre-Proposition 83 statute, it must prove beyond a reasonable doubt that the person 

still meets the definition of an SVP.” (McKee, at p. 1187, italics added.) 

“In the event the DMH does not authorize the committed person to file a petition 

for release pursuant to section 6605, the person nevertheless may file, as was the case 

with the pre-Proposition 83 Act, a petition for conditional release for one year and 

subsequent unconditional discharge pursuant to section 6608. (§ 6608, subd. (a).) 

Section 6608, subdivision (i), which was also unamended by the Act, provides: ‘In any 

hearing authorized by this section, the petitioner shall have the burden of proof by a 

preponderance of the evidence.’ (Italics added.)” (McKee, supra, 47 Cal.4th at p. 1187.) 

After 2006, then, an SVP may seek conditional release either under section 6605 

(with the DMH’s authorization after a favorable annual review) or under section 6608 

(without the DMH’s concurrence). (Smith, supra, 212 Cal.App.4th at pp. 1398-1399.) 

4. Analysis 

Chaney argues that his counsel should have invoked section 6605, because his 

“application for release was approved by the DMH” inasmuch as he received a 

“favorable annual review” in 2010. The Attorney General counters that Chaney is 

“mistaken” because his petition was not authorized by the DMH as a result of his annual 

review but was instead initiated by Chaney himself in response to Dr. Sandhu’s 

September 30, 2010 recommendation after the Phase V staffing. We agree with Chaney. 
11 

The version of section 6605 in effect when Chaney filed his petition provided that 

“[i]f the [DMH] determines [as a result of the SVP’s annual review] that . . . conditional 

release to a less restrictive alternative is in the best interest of the person and conditions 

can be imposed that adequately protect the community, the director shall authorize the 

person to petition the court for conditional release . . . .” (Former § 6605, subd. (b); Stats. 

2009, ch. 61, § 1, italics added.) Sahni, Chaney’s examining psychologist, made that 

determination in her report of his 2010 examination. CSH’s medical director disagreed. 

That created a conflict. 

The conflict highlighted an ambiguity in the statutory language and squarely 

raised the issue of what the Legislature meant by “[i]f the [DMH] determines.” (Former 

§ 6605, subd. (b).) If the Legislature meant that “[i]f the [the examining psychiatrist or 

psychologist] determines [as a result of the SVP’s annual review] that . . . conditional 

release to a less restrictive alternative is in the best interest of the person and conditions 

can be imposed that adequately protect the community, the director shall authorize the 

person to petition the court for conditional release . . . ,” then the director was statutorily 

required to authorize the petition, and Chaney could have invoked section 6605 

notwithstanding the director’s disagreement with Sahni’s determination. (Former § 6605, 

subd. (b); see Rice v. Superior Court (1982) 136 Cal.App.3d 81, 86 [“where the 

Legislature employs the terms ‘shall’ and ‘may’ in different portions of the same statute, 

it must be concluded that the Legislature was aware of the different meanings of these 

words and intended them to denote mandatory and directory requirements, 

respectively.”].) 

If, on the other hand, the Legislature meant that “[i]f the [the director of the DMH 

or, alternatively, CSH’s medical director] determines that . . . conditional release to a less 

restrictive alternative is in the best interest of the person and conditions can be imposed 

that adequately protect the community, the director shall authorize the person to petition 
12 

the court for conditional release . . . ,” Chaney’s petition was properly brought pursuant 

to section 6608. (Former § 6605, subd. (b).) 

The ambiguity in the statutory language gave Chaney’s trial counsel an 

opportunity to make a plausible argument that the DMH had “determine[d]” that Chaney 

was a suitable candidate for conditional release and that the director was required to 

authorize his filing of a section 6605 petition. (Landau, supra, 199 Cal.App.4th at 

pp. 38-39.) That argument, if successful, would have shifted the burden of proof from 

Chaney to the State. (Former § 6605, subd. (d).) Chaney would not have had the burden 

of proving by a preponderance of the evidence that he “would [not] be a danger to the 

health and safety of others in the community in that it [was not] likely that he . . . [would] 

engage in sexually violent criminal behavior due to his . . . diagnosed mental disorder if 

under supervision and treatment in the community.” (Former § 6608, subd. (d); Stats. 

2007, ch. 571, § 3.) Instead, the burden would have been on the People to negate that 

claim beyond a reasonable doubt. (Former § 6605, subd. (d).) 

We acknowledge that we must “ ‘ “ ‘accord great deference to counsel’s tactical 

decisions,’ ” ’ ” that “ ‘ “ ‘[t]actical errors are generally not deemed reversible, and [that] 

counsel’s decisionmaking must be evaluated in the context of available facts.’ 

[Citation.]” ’ ” (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.) “To the extent 

the record on appeal fails to disclose why counsel acted or failed to act in the manner 

challenged, we will affirm the judgment ‘unless counsel was asked for an explanation and 

failed to provide one, or unless there simply could be no satisfactory explanation . . . . ’ 

[Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 333.) Here, there could be no 

satisfactory explanation for counsel’s failure to identify the ambiguity in the statutory 

language and attempt to take advantage of it to his client’s benefit. (People v. Roberts 

(2011) 195 Cal.App.4th 1106, 1129-1130.) Of course, there was no guarantee that the 

argument would succeed. But it was a reasonable interpretation of the statutory 
13 

language, and Chaney had nothing to lose by advancing it. His trial counsel’s failure to 

at least raise the issue cannot reasonably be attributed to sound strategy. 

Shortly after this case was tried, the Fourth District Court of Appeal, presented 

with facts similar to those presented here, held that “when section 6605, subdivision (b) 

requires the director to authorize a person committed as an SVP to file a petition for 

release when ‘the [DMH] determines’ the person meets the criteria set forth in the statute, 

it means when the annual report of its evaluator concludes the person meets the criteria.” 

(Landau, supra, 199 Cal.App.4th at p. 39.) The court reasoned that “[i]n initiating SVP 

proceedings, the director forwards a request for the filing of a petition to commit the 

person as an SVP, if ‘the [DMH] determines that the person is [an SVP] . . . .’ (§ 6601, 

subd. (h).)” (Landau, at p. 39.) Since the initial identification “is accomplished by 

mental evaluations performed by professionals selected by DMH,” the court found it 

“evident that DMH’s determination that the person qualifies as an SVP equates to two 

evaluators having found the person qualifies as an SVP.” (Ibid.) Similarly, identifying 

committed persons who no longer qualify as SVP’s or whose best interests require 

conditional release, “is accomplished by providing yearly mental evaluations also 

performed by professionals selected by DMH.” (Id. at pp. 38-39.) The court concluded 

that “when section 6605, subdivision (b) requires the director to authorize the committed 

person to file a petition ‘[i]f the [DMH] determines’ the person no longer qualifies as an 

SVP or conditional release is in his or her best interest . . . , it is apparent the same 

language again refers to the report prepared under the statutory scheme. ‘When the 

Legislature uses the same language . . . , we can infer the same result is intended.’ ” 

(Landau, at p. 39, quoting People v. McKay (2002) 27 Cal.4th 601, 622.) Thus, the 

director of CSH should have authorized Landau’s petition for release, and the trial court 

should have treated the petition, which invoked both sections 6605 and 6608, as having 

been filed under section 6605. (Landau, at pp. 39-40.) 
14 

That Landau had not yet been decided when Chaney filed his petition does not, in 

our view, excuse his trial counsel’s failure to spot the obvious issue raised by the 

conflicting conclusions that Chaney’s 2010 annual report generated and, at a minimum, 

invoke both sections in the petition. (See Smith, supra, 212 Cal.App.4th at p. 1408 

[holding that despite the absence of authority clarifying a different ambiguity in section 

6605, Smith’s trial counsel’s failure “to at least recognize the issue and to urge the court 

to proceed under section 6605” constituted deficient performance.].) We think counsel’s 

performance was deficient. 

That deficient performance prejudiced Chaney. The trial court concluded that he 

“ha[d] not met his burden.” Although the ruling was based in large part on the court’s 

determination that Chaney had not yet internalized the lessons he had learned, the court 

also acknowledged that he had “come a long way” and “appreciate[ed] the concepts that 

should control [his] conduct.” “I look and I see progress,” the court said. “I see 

Mr. Chaney . . . being sincere in his testimony that his intention is not to reoffend, his 

intention is to use the tools that he’s been trained to use to cope with deviant thoughts, 

with distorted thinking, those kinds of things.” The court also acknowledged that “all of 

the experts that came in and testified, who are involved closely in this program, perceive 

Mr. Chaney as an individual who deserves this opportunity to be supervised in the 

community.” The evidence reflected CSH and Liberty CONREP staff’s unanimous 

support for Chaney’s conditional release. Before the trial concluded, moreover, Chaney 

had received his 2011 annual report which, like his 2010 annual report, recommended his 

conditional release. This time, however, Dr. Withrow concurred in the recommendation. 

The parties stipulated to the admission of the 2011 annual report. In view of the strong 

evidence supporting Chaney’s conditional release and notwithstanding the trial court’s 

negative credibility determinations, we think there is a “reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding would have been 

different” had the state had the burden of proving its case beyond a reasonable doubt. 
15 

(Strickland, supra, 466 U.S. at p. 694; In re Jones (1996) 13 Cal.4th 552, 561.) We 

conclude that if intervening events have not rendered the matter academic, Chaney is 

entitled to a new hearing under the procedures specified in section 6605.3

B. Order to Produce Written Treatment Assignments 

1. Asserted Violation of Procedural Due Process 

Chaney claims the trial court violated his procedural due process rights when it 

ordered him to produce his written treatment assignments “without any notice or 

opportunity to litigate the issue, and without any apparent authority to issue the order.” 

His failure to object in the trial court on any procedural ground has forfeited the 

procedural due process issue on appeal. Anticipating that problem, he asserts as a 

fallback argument that any forfeiture occasioned by his trial counsel’s failure to object in 

the trial court constituted ineffective assistance, since there could be “no tactical reason 

for failing to raise the due process and procedural objections relating to the trial court’s 

failure to follow proper discovery procedures.” We reject both his procedural due 

process and his ineffective assistance claims. 

“ ‘An elementary and fundamental requirement of due process in any 

proceeding . . . is notice reasonably calculated, under all the circumstances, to apprise 

interested parties of the pendency of the action and afford them an opportunity to present 

their objections. [Citations.] The notice must be of such nature as reasonably to convey 

the required information [citation], and it must afford a reasonable time for those 

interested to make their appearance [citations].’ [Citations.]” (Traverso v. People ex rel. 

 

3

 Our resolution of this issue makes it unnecessary for us to address Chaney’s 

argument that the SVPA violates equal protection because section 6608 requires SVP’s to 

establish suitability for conditional release by a preponderance of the evidence while 

MDO’s are held to the less stringent probable cause standard. (Landau, supra, 199 

Cal.App.4th at p. 40, fn. 2; People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1501, 

1503, fn. 8.) 
16 

Dept. of Transportation (1993) 6 Cal.4th 1152, 1169-1170, italics omitted; Anderson Nat. 

Bank v. Luckett (1944) 321 U.S. 233, 246.) 

Chaney had reasonable notice that the trial court wanted to review his written 

treatment assignments. He was present when the court, alerted to their existence by 

Arkowitz’s testimony, expressed a desire to see them. Chaney’s counsel voiced several 

objections in colloquy later that afternoon, but then concurred, albeit reluctantly, with the 

court’s suggestion that “we would all agree that [Dr. Lavalle] can just mail them into the 

court, maybe like a subpoena duces tecum type of thing --.” At no time on that day or 

during the two-week interim before the trial court actually released the documents to the 

parties did Chaney’s trial counsel suggest briefing and further argument on the procedural 

due process or any procedural issue, nor did he urge the court to reconsider its ruling. 

We reject Chaney’s assertion that “by the time the next hearing occurred, the 

documents had already been seized and reviewed by the court.” (Italics added.) The 

transcript of the May 11, 2011 hearing at which the trial court released the documents for 

duplication and distribution to the parties reflects that the court had not yet reviewed 

them. It was not until a week after that, when Chaney appeared to testify, that the court 

told the parties it had reviewed the assignments. 

In sum, Chaney had notice that the court wanted to review his assignments. He 

had an opportunity to present his objections. We therefore reject his assertion that he had 

no opportunity to litigate the issue. He asserted his objections through his counsel on 

April 28 and reiterated them on May 11, 2011. His procedural due process rights were 

not violated. 

Chaney argues that his trial counsel’s failure to object on procedural grounds 

constituted ineffective assistance. Not so. Because his procedural due process rights 

were not violated, an objection on that ground would have been meritless. 

“Representation does not become deficient for failing to make meritless objections.” 

(People v. Ochoa (1998) 19 Cal.4th 353, 463.) 
17 

An objection that the trial court lacked authority to issue the order would have 

fared no better. “As has often been stated, a trial court has inherent power, independent 

of statute, to exercise its discretion and control over all proceedings relating to the 

litigation before it. [Citation.] One phase of such power . . . is the power to obtain 

evidence upon which the judgment of the court may rest. [Citation.]” (Johnson v. 

Banducci (1963) 212 Cal.App.2d 254, 260; see Code Civ. Proc., § 187.) Chaney has not 

shown deficient performance. (Strickland, supra, 466 U.S. at p. 687; Ledesma, supra, 43 

Cal.3d at p. 218.) Nor has he shown prejudice, because the result would have been 

exactly the same had the trial court, upon a timely objection, rigorously adhered to the 

formal procedures that Chaney maintains were required. 

“ ‘[T]he Civil Discovery Act applies to SVPA proceedings . . . .’ [Citation.] The 

act is ‘applied in each SVPA proceeding on a case-by-case basis.’ [Citation.] The 

discovery rules are ‘liberally construed in favor of disclosure and the trial court is vested 

with wide discretion to grant or deny discovery. [Citation.]’ [Citation.]” (People v. 

Landau (2013) 214 Cal.App.4th 1, 25.) 

Here, Chaney concedes that the district attorney could have subpoenaed the 

documents or requested their production pursuant to Code of Civil Procedure section 

2031.010. He claims, however, that the district attorney’s inaction forfeited that 

opportunity. But he cannot fault the district attorney for failing to seek production of his 

written treatment assignments given his affirmative representation, in his March 24, 2011 

letter requesting discovery from the prosecution, that “Mr. Chaney has attached to his 

Motion for Conditional Release all the records he has in the above entitled matter . . . .” 

(Italics added.) 

Nor can Chaney argue that “there was no good cause to permit this late 

discovery.” (Code Civ. Proc., § 2024.050, subds. (a), (b)(1)-(2).) Given the 

misrepresentation, the undisputed materiality of the assignments, and Chaney’s reliance, 

in large part, on the same substantive objections that had just been thoroughly briefed, 
18 

argued, and rejected on his unsuccessful motion to quash the subpoena for his mental 

health records, we think it highly likely that the trial court would have granted a short 

continuance and reopened discovery to permit the district attorney to request production 

of the assignments, had counsel objected to the shortcut procedure the court employed 

instead. (See Lee v. Superior Court (2009) 177 Cal.App.4th 1108, 1123-1124 [“General 

civil discovery methods . . . have been held to be available to litigants in SVPA 

proceedings.”].) The documents would have been produced. Chaney would have been 

asked the same questions at trial. He would have given the same responses. There is not 

“a reasonable probability that, but for counsel's unprofessional errors, the result of the 

proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694; Jones, 

supra, 13 Cal.4th at p. 561.) Chaney’s ineffective assistance claim fails. 

2. Asserted Violation of Psychotherapist-Patient Privilege 

Chaney claims the trial court’s order to produce his treatment assignments violated 

the psychotherapist-patient privilege. We disagree. 

“In California, as in all other states, statements made by a patient to a 

psychotherapist during therapy are generally treated as confidential and enjoy the 

protection of a psychotherapist-patient privilege.” (Gonzales, supra, 56 Cal.4th at p. 371; 

Evid. Code, § 1014.) Despite its broad and protective nature, however, “ ‘the 

psychotherapist-patient privilege is legislatively created and is not absolute.’ ” (People v. 

Martinez (2001) 88 Cal.App.4th 465, 483 (Martinez); Gonzales, at p. 372.) Statutorilycreated exceptions include the dangerous patient exception, which provides that “[t]here 

is no privilege under this article if the psychotherapist has reasonable cause to believe 

that the patient is in such mental or emotional condition as to be dangerous to himself or 

to the person or property of another and that disclosure of the communication is 

necessary to prevent the threatened danger.” (Evid. Code, § 1024.) This exception “is an 

expression of the Legislature’s determination that the value of safeguarding confidential 

psychotherapeutic communications, as great as it is, is outweighed by the public interest 
19 

in protecting foreseeable victims from physical harm.” (San Diego Trolley, Inc. v. 

Superior Court (2001) 87 Cal.App.4th 1083, 1091 (San Diego Trolley).) Evidence Code 

section 1024 “does not automatically render the psychotherapist-patient privilege 

inapplicable in SVPA proceedings.” (Gonzales, at pp. 380-381.) But as our high court 

has “emphasize[d],” that “does not mean that [it] cannot properly come into play in an 

SVPA proceeding.” (Ibid.) 

In People v. Lakey (1980) 102 Cal.App.3d 962 (Lakey), a mentally disordered sex 

offender (MDSO) challenged the admission, in his recommitment proceeding, of 

statements he had made during inpatient therapy sessions. (Id. at pp. 967-968, 970.) In 

rejecting the claim, the court acknowledged that “ ‘an environment of confidentiality of 

treatment is vitally important to the successful operation of psychotherapy,’ ” and “the 

effectiveness of the treatment given . . . probably would be improved if complete 

confidentiality were accorded every statement made by a person involuntarily confined 

for the treatment of their mental disorders.” (Id. at p. 976.) “However,” the court 

recognized, “the psychotherapist/patient privilege is legislatively created and is not 

absolute. [Lakey] has been confined as an MDSO because he took the life of another 

human being and is dangerous. The purpose of his confinement is not merely to treat his 

mental disorder, but to protect society. An important purpose of the close supervision 

given persons who are confined as MDSOs is to gather information through which it is 

possible to predict their future behavior. It seems apparent that one legislative purpose in 

providing psychotherapy for MDSOs is to monitor their progress so that the decision to 

release the MDSO from confinement may be based upon as much information as 

possible. We cannot find any legislative intent to exclude testimony such as that 

presented in this matter because of any psychotherapist/patient privilege.” (Lakey, at 

pp. 976-977.) 

The Lakey court found support for its decision in Evidence Code section 1024. 

(Lakey, supra, 102 Cal.App.3d at p. 977.) “The proceeding below was premised upon the 
20 

belief of defendant’s psychotherapist, and the medical staff at Atascadero State Hospital, 

that [Lakey] constitutes ‘a serious threat of substantial harm to the health and safety of 

others,’ as provided in [the MDSO statute]. As the Supreme Court stated in Tarasoff v. 

Regents of University of California (1976) 17 Cal.3d 425, 442, ‘the public policy 

favoring protection of the confidential character of patient-psychotherapist 

communications must yield to the extent to which disclosure is essential to avert danger 

to others. The protective privilege ends where the public peril begins.’ ” (Lakey, at 

pp. 976-977.) 

This court relied on Lakey when it concluded in Martinez that records of inpatient 

psychotherapy treatment provided during Martinez’s previous commitment as an MDSO 

were properly admitted in a later proceeding to determine whether he qualified as an 

SVP. (Martinez, supra, 88 Cal.App.4th at pp. 483-484.) “We agree with the reasoning in 

Lakey,” the court explained, “and consider it applicable in the context of an SVP 

proceeding. The SVPA protects the public from sexual predators by detaining them and 

providing treatment until the mental condition causing their disorder has abated. The 

determination that a disorder has abated requires a full assessment of the person’s current 

mental condition, including reference to treatment records and progress in therapy. To 

this end, we conclude that the psychotherapist-patient privilege did not preclude [the 

testifying psychologists] from considering [Martinez’s] therapy records because the 

privilege never attached to his communications with the treatment staff at ASH or the 

MDSO evaluator.” (Martinez, at p. 484.) 

Martinez and Lakey stand for the proposition that in the context of an MDSO or 

SVP commitment or recommitment proceeding, the psychotherapist-patient privilege 

does not shield psychological treatment records created during a prior involuntary 

commitment. Although those records are generated in the course of treating MDSO’s 

and SVP’s, they have an additional and equally important purpose: to provide authorities 

with a professionally informed basis for determining when the committed person can be 
21 

safely released. Having been found at trial to pose a danger to the health and safety of 

others, persons involuntarily committed as MDSO’s or SVP’s cannot reasonably expect 

that their therapeutic communications will be absolutely privileged at future commitment 

or recommitment hearings. The very purpose of those proceedings is to determine 

whether the person is dangerous. The public safety benefit of a full assessment of the 

person’s current mental condition, including review of all relevant treatment records, 

outweighs the more general public policy of treating patients’ psychotherapeutic 

communications as confidential. Such records may reasonably be deemed to fall within 

Evidence Code section 1024’s dangerous patient exception. (Lakey, supra, 102 

Cal.App.3d at pp. 976-977; Martinez, supra, 88 Cal.App.4th at pp. 483-484.) 

Chaney attempts to distinguish Lakey and Martinez, but we do not find his 

arguments persuasive. We are not convinced that a proceeding to determine whether a 

committed SVP is suitable for conditional release is materially different from a 

commitment or recommitment proceeding, as all three focus on an assessment of the 

committed person’s current mental condition to determine whether the person poses a 

danger to the health and safety of others. Nor are we persuaded by Chaney’s assertion 

that his written treatment assignments are nondiscoverable because they “were 

deliberately kept out of his medical records by the DMH.” The civil discovery rules 

permit “any party” to obtain discovery regarding “any matter, not privileged,” that is 

relevant to the subject matter of the pending action or reasonably calculated to lead to the 

discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) It was undisputed 

below that, as Arkowitz acknowledged, “there would be lots of valuable information in 

[Chaney’s written treatment assignments].” Neither Chaney nor the DMH can shield that 

information from discovery if it falls within a statutory exception to the psychotherapistpatient privilege, because the Legislature has determined that “as important as 

psychotherapeutic confidentiality is, even its value may be outweighed by other societal 

interests.” (San Diego Trolley, supra, 87 Cal.App.4th at p. 1091.) It is the Legislature’s 
22 

determination that controls—not DMH’s. (In re Lifschutz (1970) 2 Cal.3d 415, 427 

[“Although petitioner argues that, as a matter of social as well as medical policy, the 

benefits to be derived from a broadening of the existing privilege would outweigh the 

detriments resulting from a narrowing of evidence available in litigation, the balancing of 

those alternatives remains with the Legislature.”] We reject Chaney’s contention that the 

trial court’s order to produce his treatment assignments violated the psychotherapistpatient privilege. 

3. Asserted Violation of State and Federal Constitutional Rights to Privacy 

Chaney claims the trial court’s order to produce his treatment assignments violated 

his state and federal constitutional rights to privacy. We disagree. 

Article I, section 1 of the California Constitution provides that “[a]ll people” have 

certain “inalienable rights,” including a right to privacy. “[T]o prove a violation of this 

constitutional guarantee, one must establish [1] a legally protected privacy interest, [2] a 

reasonable expectation of privacy in the circumstances, and [3] conduct constituting a 

serious invasion of the privacy interest.” (Martinez, supra, 88 Cal.App.4th at p. 474, 

citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 37 (Hill).) “Invasion 

of a privacy interest is not a violation of the state constitutional right to privacy,” 

however, “if the invasion is justified by a competing interest.” (Hill, at p. 38.) 

Applying these principles in Martinez, this court held that the district attorney’s 

review of Martinez’s psychological treatment records did not violate his state 

constitutional right to privacy. (Martinez, supra, 88 Cal.App.4th at p. 474.) “It is settled 

that a person’s medical history, including psychological records, falls within the zone of 

informational privacy protected under [the constitutional provision],” the court explained. 

(Id. at pp. 474-475.) But Martinez’s expectation of privacy was “substantially 

diminished—if not completely eliminated” by his consent to interviews with the 

evaluating psychologists and by the fact that the SVPA makes all relevant records, 

including psychological records and “especially those generated at [the state hospital],” 
23 

relevant to the determination whether a person qualifies as an SVP. (Martinez, at 

pp. 476-477; former § 6601, subds. (b)-(d), (h); see People v. Sumahit (2005) 128 

Cal.App.4th 347, 351, 353 [SVP who declined to be interviewed recommitted based on 

evaluators’ review of records, including notes by staff, psychologist notes, probation 

reports and court records].) The district attorney is entitled to review the evaluators’ 

reports, moreover, and “ ‘any other supporting documents’ ” must also be made available 

to him or her. (Martinez, at p. 477; former § 6601, subd. (d).) Finally, the prosecutor’s 

review did not constitute a serious invasion of Martinez’s privacy interests. (Martinez, at 

p. 478.) His mental state was the primary focus of the commitment proceeding, and the 

records had already been examined and relied upon by nontreating doctors. (Ibid.) The 

court concluded that the minimal invasion of Martinez’s right to informational privacy 

was justified by the “compelling public interests behind the SVPA and the [district 

attorney’s] duty to make an independent and informed decision . . . whether to file a 

petition.” (Id. at p. 480.) 

We reach the same conclusion here. Although Chaney’s inpatient psychotherapy 

records, which include his written treatment assignments, fall within the zone of 

informational privacy protected by the California constitution, he could not reasonably 

expect the assignments to be kept private in a proceeding to determine whether he would 

be a danger to the health and safety of others “in that it is likely that he . . . will engage in 

sexually violent criminal behavior due to his . . . diagnosed mental disorder if under 

supervision and treatment in the community.” (§ 6608, subd. (d).) By initiating the 

petition for conditional release, Chaney put his mental condition at issue. (See Evid. 

Code, § 1016.) He does not dispute that his assignments were highly relevant to the 

determination the trial court had to make. On the contrary, he concedes that had they 

been maintained in CSH’s files, “they would almost certainly not be subject to either the 

psychotherapist-patient privilege or protected by his [constitutional] right to privacy. . . .” 

We have already rejected the file location distinction. (Code Civ. Proc., § 2017.010; 
24 

Evid. Code, § 1024; see ante, at pp. 21-22.) Thus, Chaney had, at best, a diminished 

expectation of privacy in his written treatment records. 

Given that diminished expectation of privacy, any invasion of Chaney’s interest 

was minimal. The assignments had already been reviewed by his treatment providers, 

shared with his fellow phase participants, and studied by outside clinicians. They were 

not widely disseminated, moreover, but were shared only with the court and with the 

district attorney in the limited context of determining Chaney’s suitability for conditional 

release. This minimal invasion was more than justified by the compelling purpose of the 

SVPA and by the trial court’s duty to make an informed and independent decision about 

Chaney’s suitability for conditional release. The trial court’s order did not violate 

Chaney’s state constitutional right to privacy. 

Nor did it violate his federal constitutional right to privacy. As our high court has 

noted, “the United States Supreme Court itself has not yet definitively determined 

whether the federal Constitution embodies even a general right of informational privacy.” 

(Gonzales, supra, 56 Cal.4th at p. 384; see Whalen v. Roe (1977) 429 U.S. 589, 605-606 

[assuming, without deciding, that such a right exists]; NASA v. Nelson (2011) __ U.S. __, 

[131 S.Ct. 746, 751-752].) The Ninth Circuit has held that the indiscriminate public 

disclosure of Social Security numbers “may implicate the constitutional right to 

informational privacy.” (In re Crawford (9th Cir. 1999) 194 F.3d 954, 958.) “The right 

to informational privacy, however, ‘is not absolute; rather, it is a conditional right which 

may be infringed upon a showing of proper governmental interest.’ [Citation.]” (Id. at 

p. 959.) “[T]he relevant considerations will necessarily vary from case to case. In each 

case, however, the government has the burden of showing that ‘its use of the information 

would advance a legitimate state interest and that its actions are narrowly tailored to meet 

the legitimate interest.’ [Citation.]” (Ibid.) Applying this test in Hubbs v. Alamao (9th 

Cir. 2005) 360 F.Supp.2d 1073 (Hubbs), the court rejected an SVP’s claim that disclosure 

of his medical information in an SVPA commitment proceeding violated his 
25 

constitutional right to privacy. (Hubbs, at p. 1082.) “[T]he State has a compelling 

governmental interest in identifying, confining and treating SVPs, who have been 

diagnosed as sexually violent and represent a distinct threat to the health and safety of the 

public,” the court wrote. (Ibid.) Relying on Martinez, it noted that the SVPA expressly 

provides for the disclosure of relevant records not only to evaluators but also to others, 

including the prosecutor. (Hubbs, at p. 1082.) “Under such circumstances,” the court 

concluded, “the balance falls squarely in the State’s favor, and plaintiff’s constitutional 

rights were not violated . . . .” (Ibid.) Chaney’s federal constitutional privacy claim thus 

fails for the same reasons his state constitutional claim fails. 

4. Asserted Violation of Public Policy 

Chaney contends that the trial court’s order to produce his treatment assignments 

violated public policy. It is in the interest of everyone, he points out, that SVPA 

treatment be as effective as possible, a goal that is advanced when patients are “honest 

and forthcoming” in their written work. Giving courts access to that work creates an 

incentive to be less honest and less forthcoming. That, Chaney asserts, led to a 

determination by mental health experts at the DMH “that these documents should not be 

part of the medical file and should not be available to the courts . . . .” Chaney claims 

“the trial court had no business overriding this policy . . . .” The essence of his argument 

is that public policy on this issue should be set by the DMH rather than by the 

Legislature. We have already rejected that argument. 

C. Asserted Denial of Right to Present Case in Full 

Chaney claims the trial court violated his due process rights when it denied his 

request to present “rebuttal” witnesses. 

1. Background 

When Chaney finished testifying, the court asked if there was “any other 

evidence.” The district attorney answered, “No,” and defense counsel said nothing. The 
26 

court then asked counsel to prepare memoranda explaining “the structure” of conditional 

release and the extent of the court’s continued involvement in the event it granted 

Chaney’s petition. It set a hearing on that issue in three weeks. Two days before the 

scheduled hearing, the court told the parties it needed to continue the hearing because it 

wanted a transcript of Chaney’s testimony and was having difficulty obtaining it. “I’m 

thinking a couple of weeks,” the court said. At that point, defense counsel asked for “a 

date that we could have a full day of hearing, in case I bring the executive director or 

other facilitators down to testify.” The court said it was not sure it could guarantee a full 

day, and it continued the matter to June 30, 2011. 

On June 28, 2011, the defense moved to exclude electronic media coverage. On 

June 30, the court heard that matter, which included testimony by Liberty CONREP’s 

community program director, first. It denied the motion. 

Defense counsel then declared that he had two witnesses to present “in response to 

[Chaney’s] testimony,” to “fill out” or “to rebut to some extent” the inferences drawn 

from it. He proposed calling Chaney’s social worker to testify about various aspects of 

his treatment and to provide “her ultimate opinion” on his suitability for conditional 

release. He also proposed calling Dr. Withrow to testify, “consistent with what the expert 

witnesses already presented,” that the medical and psychological experts supported 

Chaney’s conditional release. 

 “I thought we were done with the evidence,” the court responded. “I thought Mr. 

Chaney was the last witness.” “I thought you were finished after the other witnesses 

testified and it was the Court that was inclined to listen to Mr. Chaney.” (Italics added.) 

The court said it understood counsel’s earlier comment about additional witnesses to refer 

witnesses who would describe the structure of conditional release. The district attorney 

concurred in that understanding, noting that both parties had by that time submitted 

memoranda on the subject. The district attorney argued that the impact on CSH of the 
27 

release of Chaney’s written assignments was irrelevant and that the other areas of 

testimony had already been addressed by other witnesses. 

The trial court denied defense counsel’s request as cumulative. “[N]ot only is it 

cumulative, but I do believe that I have accurately described where we were when we last 

left off before June 8th; and that was we were coming back for one purpose and that was 

to have a decision ultimately on the conditional release issue and then have further 

information provided to the Court . . . . I think in my mind [that further information] was 

actually part of the decision-making process.” 

The court stated a second basis for its ruling—that “these witnesses clearly were 

witnesses that were foreseeable, the information they had was foreseeable . . . I can’t 

even call it rebuttal. You know, it’s just additional. And . . . I don’t see the significant 

relevance of it. [¶] It may be relevant, but in terms of 352 and in terms of anticipating 

what your case is going to be, they’re the kind of witnesses that I would have expected to 

see up front. And even then, they would have been cumulative probably, on most 

issues.” 

2. Analysis 

Chaney argues that the trial court’s refusal to allow him to present “rebuttal” 

witnesses violated his “California statutory and constitutional rights as well as the due 

process clause of the Fourteenth Amendment.” We disagree. 

In our view, the trial court reasonably inferred from defense counsel’s silence 

when the court asked if there was any other evidence that the defense had rested its case. 

That meant the defense had to seek leave to reopen its case to present further evidence. 

“A request to reopen for further evidence is addressed to the discretion of the trial court 

whose determination is binding on appeal in the absence of palpable abuse.” 

(Guardianship of Phillip B. (1983) 139 Cal.App. 3d 407, 428 (Phillip B.).) Proposed 

rebuttal evidence that is merely cumulative is properly excluded. (Pauly v. King (1955) 

44 Cal.2d 649, 661 (Pauly).) “And denial of a motion to reopen will be upheld if the 
28 

moving party fails to show diligence . . . .” (Phillip B., at p. 428.) “It does not follow . . . 

that the discretionary denial of a motion to reopen warrants reversal. Only in rare 

instances involving evidence of crucial significance will reviewing courts reverse a 

decision where denial has resulted in such exclusion.” (Ibid.) 

We cannot say that the excluded evidence was of crucial significance. It was not 

rebuttal evidence, which “by definition . . . counters . . . the [opposing party’s] case-inchief,” because it was undisputed that those who attended Chaney’s Phase V staffing had 

unanimously recommended his conditional release and that CSH’s then acting medical 

director had concurred in the recommendation. (In re Brown (1998) 17 Cal.4th 873, 

889.) 

Chaney argues, however, that he needed the proposed evidence to rebut his own

testimony. A similar argument was rejected in Lompoc Produce & Real Estate Co. v. 

Browne (1919) 41 Cal.App. 607.) “[T]his is not a case of a refusal to permit a party to 

introduce evidence to overcome the testimony of the opposing party,” the court noted. 

(Id. at p. 614.) “All the testimony upon the subject . . . was given by the appellant 

himself. He cannot claim to have been surprised by his own testimony, and should not 

object to its being given full credence. He should not be permitted to attempt to 

contradict it.” (Ibid.) 

In any event, the proposed testimony was merely cumulative, as defense counsel 

acknowledged when he told the trial court it would be “consistent with what the expert 

witnesses already presented.” The evidence was, moreover, neither newly discovered nor 

even newly relevant, and Chaney offered no explanation why it could not have been 

presented earlier. Because he failed to show diligence and because the proposed 

testimony would have been cumulative, the trial court did not abuse its discretion in 

excluding it. (Pauly, supra, 44 Cal.2d at p. 661; Phillip B., supra, 139 Cal.App.3d at 

p. 428.) Chaney was not denied “a meaningful opportunity to be heard on critical 

issues.” His due process rights were not violated. 
29 

D. Cumulative Error 

Chaney contends that the cumulative effect of the trial court’s errors violated his 

due process rights and deprived him of a fair trial. We have identified one instance of 

ineffective assistance and no trial court error. There is nothing to cumulate. (See People 

v. Myles (2012) 53 Cal.4th 1181, 1225.) 

E. Request to Disqualify the Trial Judge and the Deputy District Attorney 

Contending that the trial court’s errors make it “impossible to imagine that [the 

trial judge] could, at this point, hear [the] case objectively,” Chaney asks us to order that 

future proceedings be heard by a different trial court judge. We decline to do so. 

“ ‘The power of the appellate court to disqualify a judge under Code of Civil 

Procedure section 170.1, subdivision (c), should be exercised sparingly, and only if the 

interests of justice require it. [Citation.]’ [Citation.]” (Landau, supra, 199 Cal.App.4th 

at p. 40 [“Appellant has not shown that the interests of justice require disqualification of 

Judge Donahue [citation], the judge who presided over his SVP trial, from hearing further 

proceedings involving appellant and his status as an SVP.”].) 

Here, Chaney’s request to disqualify the trial judge is expressly premised on his 

assertion that the judge improperly “seized” his written treatment assignments and 

“refused to permit [him] to present highly relevant and important evidence despite his 

clear right to do so.” We have determined that the trial court’s rulings were proper. We 

see no basis to disqualify the trial judge. (Landau, supra, 199 Cal.App.4th at p. 40.) 

Chaney also seeks disqualification of the deputy district attorney who prosecuted 

his case “and any other employee contaminated by the confidential information.” The 

basis of his claim, as stated in his reply brief, is that “if this Court determines that the trial 

court improperly ordered the production of [Chaney’s] confidential documents, then . . . 

the District Attorney’s Office must destroy or return the copies of the documents in its 

possession and any district attorneys who had worked on the case must be disqualified 
30 

from any further activities in the case.” Because we have determined that the trial court’s 

order was proper, we have no basis for disqualifying the deputy district attorney. 

III. Disposition 

The judgment is reversed, and the matter is remanded for a new hearing under the 

procedures specified in section 6605. The parties shall be given leave to file 

supplemental pleadings.
31 

 ___________________________ 

 Mihara, J. 

WE CONCUR: 

_____________________________ 

Elia, Acting P. J. 

_____________________________ 

Márquez, J.