Andrade

The issue is whether a defendant in a criminal case can be compelled under the reciprocal discovery statutes to supply the prosecution with his statements about the offense made to and relied upon by a psychotherapist for the purpose of preparing a report for the defense. We conclude these statements are covered by the attorney-client privilege and are exempt from discovery under the provisions of Penal Code section 1054.6.

*1611 Facts and Proceedings Below

Armando Andrade is charged with murder. At his request, the court appointed a psychologist to examine him pursuant to Evidence Code section 730. The psychologist, Dr. Castellano, performed her examination and submitted her report to the defense. The defense then designated Dr. Castellano as an expert witness for trial. By designating the psychologist as a witness, the defense triggered the discovery provisions of Penal Code section 1054.3 1 which provide in relevant part: “The defendant and his or her attorney shall disclose to the prosecuting attorney: (a) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded…

After receiving full disclosure from the prosecutor (Pen. Code, § 1054.1; statutory references, unless otherwise noted, are to the Penal Code) and after stating he intends to call a psychologist as a defense trial witness (§ 1054.3), may the defendant redact from the psychologist’s report the entire factual basis for the psychologist’s reported opinions? Relying upon Rodriguez v. Superior Court (1993) 14 Cal.App.4th 1260 [ 18 Cal.Rptr.2d 120 ], the majority say yes. I disagree.

Everyone agrees that when defendant talked to the psychologist, at the direction of his attorney, his communications were privileged. (Evid. Code, §§ 954 [lawyer-client], 1014 [psychotherapist-patient].)

Everyone also agrees that if defendant had chosen not to call the psychologist as a defense trial witness, those communications would remain privileged and immune from prosecutor discovery.

Further, no one contests that when defendant calls the psychologist as a trial witness and she testifies to opinions based upon what defendant told her, then her unredacted report containing defendant’s statements must be given to the prosecutor. (People v. Coleman (1989) 48 Cal.3d 112, 151-152 [ 255 Cal.Rptr. 813 ,…

The issue is whether a defendant in a criminal case can be compelled under the reciprocal discovery statutes to supply the prosecution with his statements about the offense made to and relied upon by a psychotherapist for the purpose of preparing a report for the defense. We conclude these statements are covered by the attorney-client privilege and are exempt from discovery under the provisions of Penal Code section 1054.6.

Armando Andrade is charged with murder. At his request, the court appointed a psychologist to examine him pursuant to Evidence Code section 730. The psychologist, Dr. Castellano, performed her examination and submitted her report to the defense. The defense then designated Dr. Castellano as an expert witness for trial. By designating the psychologist as a witness, the defense triggered the discovery provisions of Penal Code section 1054.3 [1] which provide in relevant part: "The defendant and his or her attorney shall disclose to the prosecuting attorney: (a) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those…