Filed 11/14/13 P. v. Chaney CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 pr edator (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 righ ts by requiring him to bear the burden of proving his suitability fo r conditional release; (3) the tria l court violated his procedural due process rights, his constitutional rights to privacy, the psychotherapist-patient privilege, and public policy when it orde red production of his written treatment assignments; (4) the trial court violated his du e 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 th e trial court’s errors denied him a fair trial; (6) he is entitled to a di fferent 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 in effective 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 committe d to the custody of the Department of Mental Health (DMH) 2 for treatment. In Ma y 2010, Coalinga State Hospital (CSH) psychologist Nameeta Sahni conducted the annual examination that section 6605 requires and prepared a declara tion stating that Chaney could be effectively treated in the community with adequate supervision. CSH’s acting medical director Robert Withrow, M.D. disagree d with Sahni’s opinion and so informed the superior court judge who had committed Chaney. Three months later, CSH staff met to de termine whether Chan ey satisfied the criteria for advancement to Ph ase V outpatient treatment. The meeting was chaired by Dr. Withrow and attended by, am ong others, psychiatrist Dr. Peter Lavalle; social worker and head of the enhanced tr eatment program Ernest Marshall; senior psychologist in charge of the group program Virginia Greer; psychologist Steven Arkowitz, the clinical director of Liberty Conditional Release Pr ogram (Liberty CONREP), which contracts with the DMH to provide cond itional release services to th e SVP population; and Alan Stillman, Liberty CONREP’s comm unity program director. Th e 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, 1 17-126.) 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 a ssessment of his problem areas and how he would deal with them,” ended with a c onsensus 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 th e DMH’s director, notifying him that Chaney had been recommended for conditional release. On December 2, 2010, Chan ey 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 ordere d CSH’s then acting medical director Dr. Withrow to provide an updated recomme ndation “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 he aring on April 28, 2011. Dr. Lavalle had been a psychiatrist at CSH si nce July 2009, and one of his duties as the forensic consultant to CSH’s medical dire ctor 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 medica l records and interviews with his treatment providers and staff members. Dr. Lavalle ha d never been Chaney’s direct provider, nor had he interviewed or eval uated him, “[w]ith the ex ception of overhearing his conversations and watching his activity.” He had an office in Chan ey’s unit from July to December 2010, but had “less than a dozen” contacts with him during that time. Psychologist Arkowitz tes tified that he had known Chaney since 2002 and had attended his last three staffings. Although Li berty CONREP does not, “technically, have a vote in that process,” the staff at CSH, in cluding the medical dir ector, “do pay attention4 to our input,” Arkowitz told the court, and he had “signi ficant input” in to Chaney’s Phase V staffing. Arkowitz had “many . . . formal and inform al 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 revi ewed “the day-by-day notes of how the client is doing,” treatment notes, and notes from job supervisor s. He did not review Chaney’s written treatment assignments. In an evaluation prepared after Chaney’s Phase V staf fing, Arkowitz concluded that Chaney “is now seen as a suitable candi date for conditional rele ase . . . .” 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 othe r sex offenders and that Chaney’s diagnosis of antisocial personality disorder could increase hi s 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 show n “a deviant sexual interest in sexually aggressive acts,” Arkowitz reported that Ch aney had “completed behavioral counterconditioning treatments to address this issu e and now displays a nondeviant sexual arousal profile.” Arkowitz conceded on cross- examination, however, that “there’s ways to, in essence, b eat 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 ha d given Chaney a mechanism to identify and correct any such thoughts.5 Responding to concern that the reports co ntained “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 c ould look at,” the trial court stated, noting that because the written assignments reflecte d Chaney’s “independent thought process,” they would be far more help ful than “someone else summarizing something and I’m not quite sure exactly what context those descri ptions come in and I don’t know who the individual is that is describing them.” Defe nse counsel noted Arkowitz’s concern that the assignments “would be misused a nd taken out of context,” but ag reed to ask Chaney if he still had them. “And you unde rstand the previous objections I’ve made,” he added, referring to his earlier unsuccessful motion to quash a subpoena fo r Chaney’s mental health records, “but I assume the Court would overrule those objections . . . .” “[T]his would be the Court’s order,” the court replie d. “[W]e would all agree that [Dr. Lavalle] can just mail them [to] the court, maybe like a s ubpoena 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 adm itted 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 b ecome “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 thathas been memorized. It sounds rote. It6 sounds superficial. It is supe rficial. 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 av oid 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 masturba ting, during a time where [phallometric assessments showed] you were excited by devi ant sex, is that you only thought about that one time. No one believed th at. 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 th ink it will get you in trouble. And that’s dangerous,” the court to ld him, especially wh en combined with his particular triggers—e.g., rejec tion and being told what to do. “[T]hose two triggers, if you’re released into the commun ity, 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 answ ers “canned” and “rote.” The court also found that Chaney continued to become angry too often, no ting his testimony that when he became angry, “nine times out of ten, ev en 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 ment al disorder. Chaney initially testified that he did not perceive himself as having an y 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 thi ngs will probably be with me for the rest of7 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 re offend. 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.” Th e 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 e rred by proceeding under section 6608 instead of under section 6605 and that his tr ial 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 un der section 6605 (with the DMH’s authorization after a favorable annual review) or under secti on 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 e ither the prosecution or the defense.” ( People v. Cook (2006) 39 Cal.4th 566, 597.) Since Ch aney 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 ineffectiv e 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 Si xth Amendment.” ( Strickland, at p. 687.) The proper measure of attorney performance is “reasonableness under prevailing prof essional 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 c ourt will presume the conduct was the result of a competent tactical deci sion, 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’ [c itation]; it must never be used to insulate counsel’s performance from meaningful scru tiny 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 in mates with mental disorders predisposing them to commit violent criminal sexual acts, th e SVPA was “ ‘designed to ensure that the committed person does not “remain confined any longer than he suffers from a mental9 abnormality rendering him unable to contro l 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 confin ement 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 proc edure, 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 conditiona l versus unconditional release distinction between the two sections was e liminated 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, Propositi on 83 changed an SVP commitment from a two-year term to an indeterminate term and substantially ch anged 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 sec tion 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 th at ‘shall include cons ideration of whether the committed person curren tly 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 cond itions can be imposed th at would adequately10 protect the community.’ Subdiv ision (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 th e person and conditions can be imposed that adequately protect the community , the director shall authori ze the person to petition the court for conditional release to a less restrictive alternative or for an unconditional discharge.’ (§ 6605, subd. (b).) If the stat e opposes the director’s petition, then, as under the pre-Proposition 83 statute, it must prov e 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 pe rson to file a petition for release pursuant to secti on 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 unconditiona l discharge pursuant to secti on 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 th e 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 af ter 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 Genera l 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 hi mself in response to Dr. Sandhu’s September 30, 2010 recommendation after the Ph ase V staffing. We agree with Chaney.11 The version of section 6605 in effect wh en Chaney filed his petition provided that “[i]f the [DMH] determines [as a result of th e SVP’s annual review] that . . . conditional release to a less restrictive alte rnative is in the best intere st of the person and conditions can be imposed that adequately pr otect the community, the director shall authorize the person to petition the court for conditional release . . . .” (Former § 6 605, subd. (b); Stats. 2009, ch. 61, § 1, italics adde d.) Sahni, Chaney’s examining psychologist, made that determination in her report of his 2010 examin ation. 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 m eant by “[i]f the [DMH] de termines.” (Former § 6605, subd. (b).) If the Legislature meant that“[i]f the [the examin ing psychiatrist or psychologist] determines [as a result of the SVP’s annual re view] that . . . conditional release to a less restrictive alte rnative is in the best intere st 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 Ch aney could have i nvoked section 6605 notwithstanding the director’s disagreement w ith 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 wa s aware of the different meanings of these words and intended them to denote ma ndatory and direct ory requirements, respectively.”].) If, on the other hand, the Legislature meant th at “[i]f the [the director of the DMH or, alternatively, CSH’s medical director] dete rmines that . . . cond itional release to a less restrictive alternative is in the best interest of the pe rson and conditions can be imposed that adequately protect the co mmunity, the director shall au thorize the person to petition12 the court for conditional release . . . ,” Ch aney’s petition was prop erly brought pursuant to section 6608. (Former § 6605, subd. (b).) The ambiguity in the statutory langua ge gave Chaney’s trial counsel an opportunity to make a plausi ble argument that the DMH had “determine[d]” that Chaney was a suitable candidate for conditional releas e 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, w ould have shifted the burden of proof from Chaney to the State. (Forme r § 6605, subd. (d).) Chaney w ould 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 crimin al behavior due to his . . . diagnosed mental disorder if under supervision and treatment in the commun ity.” (Former § 6608, subd. (d); Stats. 2007, ch. 571, § 3.) Instead, the burden woul d have been on the People to negate that claim beyond a reasonable doubt. (Former § 6605, subd. (d).) We acknowledge that we must “ ‘ “ ‘accor d great deference to counsel’s tactical decisions,’ ” ’ ” that “ ‘ “ ‘[t]actical errors are generally not deemed reversible, and [that] counsel’s decisionmaking must be evaluate d in the context of available facts.’ [Citation.]” ’ ” ( People v. Montoya (2007) 149 Cal.App.4th 11 39, 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 ‘unle ss counsel was asked for an explanation and failed to provide one, or unless there simply c ould 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 advantag e of it to his client’s benefit. ( People v. Roberts (2011) 195 Cal.App.4th 1106, 11 29-1130.) Of course, there was no guarantee that the argument would succeed. But it was a reason able interpretation of the statutory13 language, and Chaney had nothing to lose by advancing it. Hi s trial counsel’s failure to at least raise the issue cannot reasonably be attri buted to sound strategy. Shortly after this case was tried, the Four th 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 evalua tor concludes the person meets the criteria.” ( Landau , supra , 199 Cal.App.4th at p. 39.) The co urt reasoned that “[i]n initiating SVP proceedings, the director forwards a requestfor the filing of a petition to commit the person as an SVP, if ‘the [DMH] determines th at the person is [an SVP] . . . .’ (§ 6601, subd. (h).)” ( Landau , at p. 39.) Since the initial identification “is accomplished by mental evaluations performed by professi onals selected by DMH, ” the court found it “evident that DMH’s determinat ion that the person qualifies as an SVP equates to two evaluators having found the pers on 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 prov iding yearly mental evaluations also performed by professionals selected by DMH.” ( Id. at pp. 38-39.) Th e court concluded that “when section 6605, subdivision (b) requi res the director to authorize the committed person to file a petition ‘[i]f the [DMH] determ ines’ the person no long er qualifies as an SVP or conditional release is in his or her be st interest . . . , it is apparent the same language again refers to the report prepar ed 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 invo ked 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 Chan ey 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 an nual 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 le ast recognize the issue and to urge the court to proceed under section 6605 ” constituted deficient performan ce.].) We think counsel’s performance was deficient. That deficient performance pr ejudiced Chaney. The trial court concluded that he “ha[d] not met his burden.” Although the ru ling was based in large part on the court’s determination that Chaney had not yet interna lized 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 ar e 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 co nditional release. Before the tr ial concluded, moreover, Chaney had received his 2011 annual re port which, like his 2010 an nual report, recommended his conditional release. This time, however, D r. 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 determinati ons, we think there is a “rea sonable probability that, but for counsel’s unprofessional errors, the resu lt of the proceedi ng 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 proc edures specified in section 6605. 3

B. Order to Produce Wri tten Treatment Assignments 1. Asserted Violation of Procedural Due Process Chaney claims the trial c ourt violated his procedural due process rights when it ordered him to produce his written trea tment assignments “without any notice or opportunity to litigate th e issue, and without any apparent authority to issue the order.” His failure to object in the trial court on any procedural gr ound 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 assistan ce, since there could be “no tactical reason for failing to raise the due process and proced ural objections relating to the trial court’s failure to follow proper discovery procedur es.” We reject both his procedural due process and his ineffect ive 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 penden cy of the action and afford th em an opportun ity to present their objections. [Citations.] The notice must be of such nature as reasonably to convey the required information [cita tion], and it must afford a reasonable time for those interested to make their appearan ce [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 protec tion 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 th at [Dr. Lavalle] can justmail 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 c ourt actually released the documents to the parties did Chaney’s trial counsel suggest br iefing and further argument on the procedural due process or any procedural i ssue, 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 wh ich the trial court released the documents for duplication and distribution to the parties re flects that the court had not yet reviewed them. It was not until a week af ter that, when Chaney appeared to testify, that the court told the parties it had re viewed the assignments. In sum, Chaney had notice th at 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 i ssue. 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 fa ilure to object on procedural grounds constituted ineffective assistan ce. Not so. Because his pr ocedural 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 proceed ings 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 prej udice, 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 SV PA proceedings . . . .’ [Citation.] The act is ‘applied in each SVPA proceeding on a case-by-case basis.’ [Citation.] The discovery rules are ‘liberally construed in favo r of disclosure and the trial court is vested with wide discretion to grant or deny di scovery. [Citation.]’ [Citation.]” ( People v. Landau (2013) 214 Cal. App.4th 1, 25.) Here, Chaney concedes that the distri ct attorney could have subpoenaed the documents or requested their production purs uant to Code of Civil Procedure section 2031.010. He claims, however, that the di strict attorney’s inaction forfeited that opportunity. But he cannot fau lt the district attorney for fa iling to seek production of his written treatment assignments given his affirm ative representation, in his March 24, 2011 letter requesting discovery from the prosecution, that “Mr. Chaney ha s attached to his Motion for Conditional Release all the records he has in the above entitled matter . . . .” (Italics added.) Nor can Chaney argu e 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, a nd Chaney’s reliance, in large part, on the same substantive objections that had just been thoroughly briefed,18 argued, and rejected on his unsuccessful moti on to quash the subpoena for his mental health records, we think it highly likely th at 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 he ld to be available to litigants in SVPA proceedings.”].) The documents would ha ve been produced. Ch aney would have been asked the same questions at tria l. 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 Ps ychotherapist-Patient Privilege Chaney claims the trial cour t’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 psychotherap ist-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 legisla tively created and is not absolute.’ ” ( People v. Martinez (2001) 88 Cal.Ap p.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 ps ychotherapist has reasonable cause to believe that the patient is in such mental or emoti onal condition as to be dangerous to himself or to the person or property of another a nd that disclosure of the communication is necessary to prevent th e 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 interest19 in protecting foreseeable victim s 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 rende r 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 [i t] 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 envi ronment of confidentiality of treatment is vitally important to the successf ul operation of psycho therapy,’ ” 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 thei r mental disorders.” ( Id. at p. 976.) “However,” the court recognized, “the psychotherapist/patient priv ilege is legislatively created and is not absolute. [Lakey] has been confined as an MDSO becau se 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 moni tor 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 in tent 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 the20 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 Suprem e 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 wh ich 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 Martin ez’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 assess ment of the person’s current mental condition, including reference to treatm ent records and progre ss in therapy. To this end, we conclude that the psychotherapist-patient priv ilege 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 recommitmen t proceeding, the psychothe rapist-patient privilege does not shield psychological treatment re cords created during a prior involuntary commitment. Although those records are gene rated in the course of treating MDSO’s and SVP’s, they have an add itional and equally important purp ose: to provide authorities with a professionally informed basis for determining when the committed person can be21 safely released. Having been found at trial to pose a danger to the health and safety of others, persons involuntarily committed as MD SO’s or SVP’s cannot reasonably expect that their therapeutic communications will be absolutely privileged at future commitment or recommitment hearings. Th e 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 re view 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 da ngerous 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 re lease is materially different from a commitment or recommitment proceeding, as a ll three focus on an assessment of the committed person’s current ment al 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 ar e nondiscoverable because they “were deliberately kept out of his medical record s by the DMH.” The civil discovery rules permit “any party” to obtain di scovery 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 Ci v. Proc., § 2017.010.) It was undisputed below that, as Arkowitz acknowledged, “there would be lots of valu able information in [Chaney’s written treatment assi gnments].” Neither Chaney nor the DMH can shield that information from discovery if it falls within a statutory ex ception 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’s22 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 narrowi ng of evidence available in litigation, the balancing of those alternatives remains with the Legislature.”] We rejectChaney’s contention that the trial court’s order to produce his treatmen t assignments violated the psychotherapistpatient privilege. 3. Asserted Violation of State and Fe deral Constitutional Rights to Privacy Chaney claims the trial cour t’s order to produce his treatment assignments violated his state and federal constitutional ri ghts to privacy. We disagree. Article I, section 1 of the California Cons titution 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 ci rcumstances, 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 justifie d 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 treatm ent 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 psyc hological records, falls within the zone of informational privacy protected under [the cons titutional provision],” the court explained. ( Id . at pp. 474-475.) But Martinez’s e xpectation of privac y 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 § 6 601, 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 record s, including notes by staff, ps ychologist notes, probation reports and court records].) The district a ttorney is entitled to re view the evaluators’ reports, moreover, and “ ‘any other supporting do cuments’ ” 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 se rious 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 mini mal invasion of Martinez’s ri ght to informational privacy was justified by the “compe lling 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 i npatient ps ychotherapy records, which include his written treatmen t assignments, fall within the zone of informational privacy protect ed by the California constituti on, 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 sa fety of others “in that it is lik ely that he . . . will engage in sexually violent criminal behavior due to hi s . . . 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 conditio n at issue. (See Evid. Code, § 1016.) He does not dispute that his assignments were highly relevant to the determination the trial court ha d 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 pr ivilege or protected by his [constitu tional] right to privacy. . . .” We have already rejected the file location distinction. (Code Ci v. 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 priv acy, 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 clin icians. They were not widely disseminated, moreover, but were shared only with th e court and with the district attorney in the limited context of determining Chaney’s su itability 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 fo r conditional release. The tria l court’s order did not violate Chaney’s state constituti onal right to privacy. Nor did it violate his federal constitutional ri ght to privacy. As our high court has noted, “the United States Supreme Court its elf 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, th at such a right exists]; NASA v. Nelson (2011) __ U.S. __, [131 S.Ct. 746, 751-752].) Th e 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, howe ver, ‘is not absolute; rather, it is a conditional right which may be infringed upon a showi ng of proper governmental in terest.’ [Citation.]” ( Id . at p. 959.) “[T]he relevant considerations w ill 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 legitimat e state interest and that its acti ons 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 SV P’s claim that disclosure of his medical information in an SVPA commitment proceeding violated his25 constitutional right to privacy. ( Hubbs , at p. 1082.) “[T]he State has a compelling governmental interest in identifying, confining and tr eating SVPs, who have been diagnosed as sexually violent and represent a dis tinct 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 record s 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 favo r, 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 or der to produce his treatment assignments violated public policy. It is in the interest of every one, 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. Givi ng courts access to that work creates an incentive to be less honest and less forthcom ing. That, Chaney asserts, led to a determination by mental health experts at the DMH “that these docum ents should not be part of the medical file and should not be ava ilable to the courts . . . .” Chaney claims “the trial court had no busine ss overriding this policy . . . .” The essence of his argument is that public policy on this issue should be set by th e DMH rather than by the Legislature. We have alrea dy rejected that argument.

C. Asserted Denial of Righ t to Present Case in Full Chaney claims the trial cour t violated his due process rights when it denied his request to present “rebuttal” witnesses. 1. Background When Chaney finished testifying, th e court asked if there was “any other evidence.” The district attorn ey answered, “No,” and defense counsel said nothing. The26 court then asked counsel to prepare memoranda explaining “the structure” of conditional release and the extent of the court’s con tinued involvement in the event it granted Chaney’s petition. It set a hearing on that i ssue 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 a nd 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 hearin g, in case I bring the executive director or other facilitators down to tes tify.” 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, whic h 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 re but 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 me dical 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 finish ed 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 earlie r comment about additional witnesses to refer witnesses who would describe the structure of conditional release. The district attorney concurred in that understa nding, noting that both par ties had by that time submitted memoranda on the subject. The district attorney argued that the impact on CSH of the27 release of Chaney’s written a ssignments was irrelevant and that the other areas of testimony had already been addr essed by other witnesses. The trial court denied defense counsel’s re quest as cumulative. “[N]ot only is it cumulative, but I do believe that I have accur ately 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 conditio nal 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 ru ling—that “these witnesses clearly were witnesses that were foreseeable, the informa tion 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, bu t 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 tria l 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 evid ence 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 bindi ng on appeal in the absence of palpable abuse.” ( Guardianship of Phillip B . (1983) 139 Cal.A pp. 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 the28 moving party fails to sh ow 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 si gnificance will reviewing courts reverse a decision where denial has resulted in such exclusion.” ( Ibid. ) We cannot say that the excl uded evidence was of crucial significance. It was not rebuttal evidence, which “by definition . . . co unters . . . the [oppo sing party’s] case-inchief,” because it was undisputed that those who attended Chaney’s Phase V staffing had unanimously recommended his co nditional 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 need ed the proposed evidence to rebut his own testimony. A similar argument was rejected in Lompoc Produce & Re al 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 th e subject . . . was given by the appellant himself. He cannot claim to have been su rprised by his own tes timony, 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 to ld the trial court it would be “c onsistent 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 meani ngful opportunity to be heard on critical issues.” His due process rights were not violated.29 D. Cumulative Error Chaney contends that the cu mulative effect of the trial court’s errors violated his due process rights and deprived him of a fair trial. We ha ve identified one instance of ineffective assistance a nd 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 J udge and the Deputy District Attorney

Contending that the trial court’s errors ma ke it “impossible to imagine that [the trial judge] could, at this point, hear [the] cas e objectively,” Chaney asks us to order that future proceedings be heard by a different tr ial 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 in terests of justice require disqualification of Judge Donahue [citation], the judge who presided over his SVP trial, from hearing further proceedings involving appellant a nd his status as an SVP.”].) Here, Chaney’s request to disqualify the trial judge is expressly premised on his assertion that the judge improperly “seize d” his written treatment assignments and “refused to permit [him] to pr esent 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 th e deputy district atto rney 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 [C haney’s] confidential documents, then . . . the District Attorney’s Office must destroy or return the c opies of the documents in its possession and any district atto rneys who had worked on the case must be disqualified30 from any further activities in the case.” Becaus e we have determined that the trial court’s order was proper, we have no basis for di squalifying the deputy district attorney.

III. Disposition The judgment is reversed, and the matter is remanded for a new hearing under the procedures specified in sec tion 6605. The parties shal l be given leave to file supplemental pleadings.31 ___________________________ Mihara, J.

WE CONCUR:

_____________________________ Elia, Acting P. J.

_____________________________ Márquez, J.