Opinion
D060922
01-06-2012
RONALD B. PEARLEY, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Diego County Super. Ct. No. SCD226872)
PROCEEDINGS in mandate after the superior court denied in camera review. Gale E. Kaneshiro, Judge. Petition granted.
FACTUAL AND PROCEDURAL BACKGROUND
On May 26, 2011, the People charged Ronald B. Pearley with seven counts of lewd acts upon a child and one count of aggravated sexual assault of a child. The People alleged Pearley committed the crimes in 2008 and 2009 when the child, Dominique W., was then 10 or 11 years old and Pearley was 18.
On September 12, Pearley served a subpoena duces tecum on the San Diego Unified School District (District), seeking copies of Dominique's school records, specifically "(1) attendance records (2) classroom curriculum for each grade (3) academic grades and report cards for each grade (4) behavioral records (5) discipline records [6] health records and [7] counseling records."
On September 26, the People filed "Points and Authorities Regarding the Victim[']s Confidential School and Psychological Records" asserting the court should review the documents in camera and release only "relevant" information, conceding "any evidence which impacts the credibility of the victim is relevant." The People indicated Dominique had been a dependent of the juvenile court and her "school records are also likely to include [her] psychiatric records." The People asserted Pearley had not made a showing of good cause to obtain privileged psychological records and "[a]ny review of confidential psychiatric records should follow the Juvenile court's release of relevant dependency records to limit violations of [Dominique's] constitutional and statutory privacy rights."
Pearley replied, asserting after the court's in camera review he would move for release of any pertinent confidential records in Dominique's school records. He claimed he had shown good cause in a declaration filed by defense counsel under seal.
The District filed documents under seal with the court clerk. At the October 31 hearing, the court stated it reviewed defense counsel's sealed declaration several times and "decided good cause was not shown for review of the records, so therefore I did not even review the subpoenaed documents." The court stated the declaration was "very broad and vague" and declined to conduct an in camera review of the documents and denied release "without prejudice."
Pearley filed this petition, including counsel's sealed declaration, to set aside the court's order and to compel the court to conduct an in camera review of the subpoenaed documents. We requested a response to the petition and issued Palma notice. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.) The People contend the petition should be summarily denied because the ruling was without prejudice and the matter has since been assigned to another judge for all purposes. They also argue the information Pearley seeks is "irrelevant, overbroad, and nonspecific" in spite of their concession below that any information that impacts the victim's credibility is relevant. The People ask that defense counsel's declaration be unsealed "[s]hould this court reach the merits regarding the sufficiency of the sealed declaration." In reply, Pearley informs this court that the parties "have now stipulated that any relevant psychological evidence shall be disclosed before trial commences."
DISCUSSION
A criminal defendant has a right to discovery of third party records via subpoena duces tecum by showing "the requested information will facilitate the ascertainment of the facts and a fair trial." (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536.) The attorney of record for the criminal defendant is authorized to issue a subpoena commanding a custodian of records to produce "books, papers, documents, or records" in compliance with Evidence Code, section 1560, subdivision (b). (Pen. Code, § 1326, subds. (b) & (c).) A person or entity responding to a third party subpoena duces tecum in a criminal case must deliver the subject materials to the clerk of the court so that the court can hold a hearing to determine whether the requesting party is entitled to receive them. (Kling v. Superior Court of Ventura County (2010) 50 Cal.4th 1068, 1071.) "When a defendant has issued a subpoena to a person or entity that is not a party for the production of books, papers, documents, or records, or copies thereof, the court may order an in camera hearing to determine whether or not the defense is entitled to receive the documents." (Pen. Code, § 1326, subd. (c).) School records of a complaining witness may be relevant to an alibi defense. (See generally People v. Hammon (1997) 15 Cal.4th 1117, 1120.)
Here the People conceded the school records could contain evidence relevant to Dominique's credibility and in camera review was warranted. The issue of disclosure of psychological evidence has since been resolved by the parties and we need not address the sufficiency of counsel's sealed declaration. The court improperly declined to conduct in camera review and writ review is appropriate. (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1309.) No meaningful purpose would have been served by requiring Pearley to repeat the subpoena process for review by a subsequent trial judge.
Where the facts are undisputed and the law is well settled, a peremptory writ in the first instance is appropriate. (Code Civ. Proc., § 1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to vacate the October 31, 2011, order denying in camera review and to conduct an in camera review of the records provided by the District. This opinion is made final immediately as to this court. (Cal. Rules of Court, rule 8.490(b)(3).)
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BENKE, Acting P. J.
WE CONCUR: ____________
HUFFMAN, J.
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IRION, J.