Story

I. Introduction

Petitioner Gary Dean Story seeks extraordinary relief from the order of respondent court denying his motion to quash the People’s subpoena duces tecum and allowing release of his psychotherapy records. The petition raises an issue of first impression in the area of prosecutorial discovery: whether the records of psychotherapy ordered as a condition of probation are protected from disclosure in a subsequent criminal action where the prosecution seeks Evidence Code section 1108 evidence regarding the defendant’s commission of a previous sexual offense. Petitioner contends that the psychotherapist-patient privilege set forth in Evidence Code section 1014 bars discovery of his psychotherapy records. The People respond that the psychotherapist-patient privilege did not attach because petitioner was not a patient within the meaning of the section 1011 definition of “patient,” since petitioner’s motivation in attending psychotherapy was to obtain probation, not treatment of his mental or emotional condition.

We agree with petitioner. The California Supreme Court has established that the motive for participating in psychotherapy is immaterial to determining…