Opinion
A166277
12-20-2024
The PEOPLE, Plaintiff and Respondent, v. Cory Virgil BAUGH, Defendant and Appellant.
Steven Schorr, San Diego, under appointment by Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Bridget Billeter and Julia Y. Je, Deputy Attorneys General, for Plaintiff and Respondent.
Trial Court: Contra Costa County Superior Court, Trial Judge: Hon. Terri A. Mockler (Contra Costa County Super. Ct. No. 04002018133)
Steven Schorr, San Diego, under appointment by Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Bridget Billeter and Julia Y. Je, Deputy Attorneys General, for Plaintiff and Respondent.
Fujisaki, J.
Defendant Cory Virgil Baugh appeals his convictions of sex offenses against two minors. His principal contention is that the trial court erred and violated his constitutional rights to confrontation, compulsory process, and due process by refusing to order the People to obtain and disclose information as necessary for the defense to investigate whether one of the minors was treated for schizophrenia and to subpoena psychiatric records if they exist.
In the published portion of this opinion, we reject this contention and observe there is no indication the People suppressed evidence in its possession. In the unpublished portion, we reject defendant’s remaining claims pertaining to the rejection of his mistrial motion, the exclusion of certain evidence, prosecutorial error, and cumulative error. We also address defendant’s requests for independent review of subpoenaed law enforcement records and correction of the probation report. With regard to the law enforcement records, we will conditionally reverse and remand for further proceedings. Finally, in the event the judgment is reinstated, we agree the probation report must be corrected.
F actual and P rocedural B ackground
The People charged defendant by amended information with: sodomy of a person under the age of 16 (Pen. Code, § 286, subd. (b)(2), count 1); sodomy of an unconscious victim (§ 286, subd. (f), count 2); lewd acts on a 14 year old or a 15 year old at least 10 years younger than defendant (§ 288, subd. (c)(1), counts 3 and 5); and lewd acts on a child under the age of 14 (§ 288, subd. (a), count 4). Counts 1 through 3 involved John Doe 1 (Doe 1), while count 4 involved his younger brother John Doe 2 (Doe 2) and count 5 involved their older sister Jane Doe (Jane). The People further alleged defendant had one prior "strike" conviction (§§ 667, subds. (d)-(e), 1170.12, subds. (b)-(c)), along with a number of aggravating circumstances (Cal. Rules of Court, rule 4.421). The jury trial in August 2022 included the following evidence and testimony.
All further undesignated statutory references are to the Penal Code.
Defendant’s request was to examine Doe 1 as to whether he had been diagnosed with schizophrenia and received treatment for it, so that defendant could "get those records" for the court’s in camera review. It is possible that at a 402 hearing other witnesses (e.g., Jane or a parent) could have supplied the same information, sparing Doe 1 from having to testify. Although the trial court was adamant that Jane not testify at trial as to hearsay regarding Doe 1’s diagnosis, it did not consider whether she could testify at a 402 hearing to a disclosure by Doe 1 for the nonhearsay purpose of establishing he had waived an applicable privilege. (See Evid. Code, § 912.) Also possible is that, if the trial court had issued an order requiring Doe 1 to appear at a 402 hearing, the prosecutor would have reconsidered voluntarily supplying the requested information so as to avoid bringing Doe 1 to court. The point is, although I believe the trial court erred in denying the requested 402 hearing under the circumstances, I am not suggesting that granting the request for a hearing would necessarily have required Doe 1 to testify at it.
Doe 1 testified he was 11 or 12 years old when he became friends with defendant, who was then 25 or 30 years old. Doe 1 stayed with defendant off and on in the summer of 2014, when defendant was renting a basement residence in Contra Costa County. An incident occurred one night, sometime between July and the beginning of the school year. In short, Doe 1 and defendant were drinking whiskey and smoking marijuana in defendant’s basement residence; both were intoxicated. At some point in the night, Doe 1 fell asleep then awoke to a sharp pain to his anus. Defendant’s face was above Doe 1, and he was holding up Doe 1’s bent legs. Doe 1 eventually realized the pain was caused by defendant’s penis. Doe 1 felt panic, kicked defendant away, and ran to the bathroom to "push [defendant’s] semen out." Doe 1 could see what he believed was semen. Doe 1 called Jane to pick him up and left immediately; he recalled placing that call at around 4:00 a.m.
Doe 1 told no one of the incident, and he continued to hang out with defendant because he feared losing friends if he did not. In 2017, Doe 1 cut off as many ties to the Bay Area as possible, and left to "move on and grow up." He never confronted defendant about what happened. However, in 2020 defendant showed up at Doe 1’s place of work and acted like they were friends; this caused Doe 1 to have a "breakdown" and he was unable to "hold it in anymore." Doe 1 first told his mother, who then pressured him to report it. Though he made the report, he refused to conduct a pretext call. The last time Doe 1 talked to Detective Ruth Talley, who was assigned to investigate the case, his phone ran out of batteries and he never called her back.
Jane testified she met defendant when she was 14 years old, and he was in his early thirties. Doe 1 lived with defendant in the summer of 2014, and she recalled going to defendant’s residence twice, once to pick up Doe 1 in the middle to end of 2014. When Doe 1 moved back home, his demeanor had changed from outgoing, smiling, and energetic to reserved and unhappy.
Jane recounted an incident between herself and defendant when she was 14 or 15 years old and went camping with defendant and other friends. After Jane laid down to sleep in the group’s tent, she felt defendant lay behind her, put his arm around her, and rub his pelvic area against her while having an erection. After about two minutes, she left the tent to go sleep in defendant’s car. Jane testified she never told anyone because she thought defendant was drunk and acted unintentionally. Jane finally disclosed the incident after her brother, Doe 1, disclosed what defendant did to him.
Doe 2 testified that around Christmas in 2014, when he was 13 years old, there was a holiday party at his home. Defendant, who was in his thirties at the time, attended the party. Doe 2 fell asleep on a couch, but awoke in the middle of the night to find himself face to face with defendant, whose hand was in Doe 2’s boxers and squeezing his buttocks. Defendant appeared to be sleeping because he was breathing heavily and his eyes were closed. This went on for about two minutes. When Doe 2 felt defendant’s other hand traveling towards his front side, he "freak[ed] out" and went into another room. When Doe 2 woke up in the morning, defendant was sleeping nearby on the floor. Doe 2 did not tell anyone about the incident until Doe 1 disclosed what defendant did to him. Doe 2 acknowledged telling Detective Talley the incident might have occurred in 2014 or 2015. Doe 2 also recalled a period of time when Doe 1 stayed with defendant, and that when Doe 1 returned home, his demeanor was different.
Defendant’s former landlord, who managed the basement residence where the Doe 1 incident allegedly occurred, testified that he and defendant eventually agreed defendant would move out by June 10, 2014, and that defendant did so. Defendant also called two character witnesses who testified that they saw defendant interact with teenagers and never saw anything inappropriate, and that defendant was not a sexual deviant. Finally, at the defense’s request, the court took "judicial notice" of the fact that defendant was "unavailable" to commit the alleged crimes from December 4 to December 8, 2014, from November 1 to November 15, 2015, and from November 30 to December 31, 2015.
The jury found defendant not guilty of count 5 concerning Jane, but guilty of all remaining counts. The jury also found true the aggravating circumstances that the victims were particularly vulnerable and that defendant took advantage of a position of trust or confidence to commit the offenses. (Cal. Rules of Court, rule 4.421(a)(3), (11).) The trial court dismissed the prior strike allegation and sentenced defendant to a total of eight years in prison: six years for count 2 and two years for count 4. The court stayed the sentences on counts 1 and 3 pursuant to section 654. This appeal followed.
D iscussion
A. Discovery
Defendant first contends the trial court should have ordered the prosecutor to "obtain and disclose information sufficient for the defense to investigate whether psychiatric records [of Doe 1] existed and to subpoena them if they did. Then, [the court] could have reviewed the records in camera and disclosed documents it deemed relevant and discoverable for the purpose of cross-examining and impeaching [Doe 1]." He contends the court’s refusal to do so violated his state and federal rights to confront witnesses, compulsory process, and due process.
1. Additional Background
Just before jury selection, the defense informed the trial court the prosecutor had disclosed that Jane said Doe 1 had been diagnosed with schizophrenia. Contending the diagnosis was relevant to Doe 1’s credibility because hallucinations and delusions can be symptoms of schizophrenia, the defense indicated it would rather not request a "1050," and asked the court to order the prosecutor to obtain Doe 1’s mental health records so the defense could ascertain if they had any relevance.
Section 1050 is the statute governing continuances in criminal cases. Continuances can be granted only upon a showing of good cause. (§ 1050, subd. (e).)
Our Supreme Court has recognized there is no single definition of when trial begins; context matters. (Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 777, 200 Cal.Rptr. 916, 677 P.2d 1206.) The natural time to address whether counsel can receive privileged information for purposes of cross-examining a trial witness—here, whether the defense can ask Doe 1 a few questions about a potential schizophrenia diagnosis—would seem to be during motions in limine before jury selection begins. Regardless, the trial court did not reject defendant's request as premature but denied it on the merits.
The prosecution affirmed that Jane mentioned in passing that Doe 1 was diagnosed with schizophrenia at some point after the alleged crime. The prosecution did not ask Jane any follow-up questions about the matter, believing it was not the People’s obligation to seek out third party discovery.
Defense counsel indicated, without identifying names, that "they" were unwilling to speak with the defense and argued that the People’s failure to "further probe" Jane about Doe 1’s diagnosis violated defendant’s due process rights. The defense asked the trial court to hold a hearing pursuant to Evidence Code section 402, in which Doe 1 could be asked if he has a mental health diagnosis and whether he has seen a mental health counselor. Alternatively, the defense asked for a continuance.
Noting that Jane’s statement constituted hearsay, the trial court agreed the People had no discovery obligation to obtain medical records for the defense. The court disagreed with the defense’s argument that the diagnosis was necessarily relevant to credibility, finding it speculative to say that someone with schizophrenia "lies about everything" or would make up the allegations at issue because of delusions. In denying the defense’s requests for a section 402 hearing or a continuance, the court explained: "The problem here is that you have not convinced me that a mere diagnosis, even if there is a diagnosis of schizophrenia, means that a person is by virtue of being schizophrenic walks around life every single day of his or her life in a state of delusion. There is absolutely no medical research that’s going to back that up and that’s essentially your argument, that a person with schizophrenia is always walking around in a state of delusion and that’s what I don’t buy."
The defense acknowledged there was no evidence that someone who has schizophrenia constantly has delusions, but pressed the trial court to obtain Doe 1’s mental health records and review them in camera to see if they contained anything relevant. Though concluding the defense had made no showing of relevance to support even an in camera review, the court left the door open for the defense to present authority to change the court’s mind. In so ruling, the court did not purport to prohibit the defense from questioning witnesses generally about Doe 1’s ability or inability to accurately perceive and recall events. The defense did not raise the mental health issue again but actively cross-examined Doe 1 about his recollection of the relevant events.
2. Analysis
[1] As indicated, defendant contends the trial court should have ordered the People to obtain and disclose information sufficient for the defense to investigate whether psychiatric records existed and to subpoena them if they did. In so contending, defendant focuses principally on the Sixth Amendment right to confrontation and cross-examination and cases such as People v. Reber (1986) 177 Cal.App.3d 523, 223 Cal.Rptr. 139 (Reber), which apply a balancing test to assess when the psychotherapist-patient privilege must yield to this constitutional right. Indeed, he frames the issue in light of this test, stating, "Whether the court below struck the proper balance is the question presented here," and claims "[t]he court erred by not applying the Reber procedure of obtaining the records, balancing the need for disclosure against the privacy interest, determining which records were essential to protect [his] confrontation right and making an adequate record for review."
The fundamental flaw in this argument is that the Reber line of cases does not purport to address whether a trial court can or should order the People to develop evidence it does not have or to obtain a witness’s mental health records so that impeachment evidence might be uncovered. Rather, Reber and its progeny are properly understood as applying a procedure for when a trial court is called upon to examine subpoenaed mental health records in camera to determine which, if any, of the records should be disclosed to the defense.
In Reber, the defendants had obtained a subpoena duces tecum to "secure from nonparties medical records relating to psychotherapy administered to the two complaining witnesses." (Reber, supra, 177 Cal.App.3d at p. 528, 223 Cal.Rptr. 139.) The prosecution moved to quash the subpoena and sought a protective order covering certain records that had already been released to the defendants. (Ibid.) The trial court conducted an in camera examination of only some of the records, and issued a protective order precluding further discovery and use of privileged information, but made available all other records "concerning the mental condition of the witnesses which revealed that either had suffered from ‘hallucinations or delusions of a severe nature.’ " (Id. at p. 529, 223 Cal.Rptr. 139.) The Reber court found, among other things, that the trial court erred to the extent it failed to examine in camera all the subpoenaed materials. (Id. at pp. 528–532, 223 Cal.Rptr. 139.) But Reber had no occasion to opine on what duty, if any, the People have to assist the defense by gathering and locating potential impeachment evidence that the People do not possess or have a right to possess.
Most of defendant’s other cases similarly involve parties who sought full or partial disclosure of subpoenaed records containing privileged medical or mental health information. (E.g., Pennsylvania v. Ritchie (1987) 480 U.S. 39, 43-44, 107 S.Ct. 989, 94 L.Ed.2d 40 (Ritchie); People v. Nieves (2021) 11 Cal.5th 404, 431, 278 Cal.Rptr.3d 40, 485 P.3d 457; People v. Gurule (2002) 28 Cal.4th 557, 587-588, 123 Cal.Rptr.2d 345, 51 P.3d 224 (Gurule); People v. Hammon (1997) 15 Cal.4th 1117, 1119, 65 Cal. Rptr.2d 1, 938 P.2d 986 (Hammon); People v. Dancer (1996) 45 Cal.App.4th 1677, 1691, fn. 6, 53 Cal.Rptr.2d 282; cf. Susan S. v. Israels (1997) 55 Cal.App.4th 1290, 1294, 1297, 67 Cal.Rptr.2d 42 [though "a witness’s credibility is always in issue," the defense is not entitled "to rummage through the medical records of every witness in a criminal prosecution looking for evidence to impeach the witness’s credibility"].) These cases are also off the mark because the trial court here did not refuse to examine any mental health records. Moreover, defendant wrongly insists that these cases additionally stand for the proposition that, when hearsay about an alleged crime victim’s possible psychiatric diagnosis comes to light, a trial court is required to order the People to gather and disclose information sufficient to enable the defense to investigate the existence and whereabouts of their psychiatric records.
Defendant also relies on Brady v. Maryland (1963) 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (Brady) and Davis v. Alaska (1974) 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (Davis). As one court succinctly recognized, however, " ‘[a] prosecutor’s duty under Brady to disclose material exculpatory evidence applies to evidence the prosecutor, or the prosecution team, knowingly possesses or has the right to possess.’ " (People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 47, 77 Cal. Rptr.3d 352, italics added.) Here, defendant makes no attempt to show the information he sought was in the possession of the prosecution or persons acting on its behalf.
Contrary to defendant’s suggestion, neither Brady nor Davis suggests the People have a constitutional duty to assist the defense in obtaining possible impeachment information from a victim or a third party. In Davis, the prosecution moved for a protective order to prevent the defense from referencing a key prosecution witness’s juvenile record on cross-examination, including the fact that the witness was on probation as a juvenile delinquent. (Davis, supra, 415 U.S. at pp. 310-311, 94 S.Ct. 1105.) Relying on state law making juvenile adjudications and orders inadmissible, the trial court issued the protective order. (Id. at p. 311, fns. 1 & 2, 94 S.Ct. 1105.) The United States Supreme Court reversed, concluding the Sixth Amendment right to cross-examination trumped the state’s interest in protecting the confidentiality of a juvenile’s record. (Id. at pp. 319-320, 94 S.Ct. 1105.) Notably, Davis did not address whether a trial court could or should order the People to gather information regarding the non-criminal or nonjuvenile records of a victim or a prosecution witness that are not in the possession or control of the People.
As the People observe, defendant has identified no legal authority that would have authorized the trial court to order the People to conduct an investigation into Doe 1’s alleged diagnosis and potential mental health provider and to provide such information to the defense. Indeed, upon close examination, the cited case law tends to support rejection of his claim.
For instance, Ritchie, supra, 480 U.S. 39, 107 S.Ct. 989, involved a defendant who subpoenaed and sought pretrial discovery of records in the possession of a child protective service agency concerning the victim of the alleged sex crimes. (Ritchie, at p. 43, 107 S.Ct. 989.) There, the Pennsylvania Supreme Court concluded that the defense attorney should have had access to the agency’s entire file to search for any useful evidence, and that the trial court denied the defendant his rights under both the confrontation clause and the compulsory process clause in holding otherwise. (Id. at p. 46, 107 S.Ct. 989.) The United States Supreme Court granted certiorari to consider "whether and to what extent a State’s interest in the confidentiality of its investigative files concerning child abuse must yield to a criminal defendant’s Sixth and Fourteenth Amendment right to discover favorable evidence." (Id. at pp. 42-43,107 S.Ct. 989.)
The lead opinion—authored by Justice Powell and joined by Chief Justice Rehnquist, Justice White, and Justice O’Connor—disavowed the Pennsylvania Supreme Court’s apparent understanding that Davis, supra, 415 U.S. 308, 94 S.Ct. 1105, indicated a statutory privilege could not be maintained when a defendant asserts a need, prior to trial, for protected information in order to undermine a witness’s testimony: "If we were to accept this broad interpretation of Davis, the effect would be to transform the Confrontation Clause into a constitutionally compelled rule of pretrial discovery. Nothing in the case law supports such a view. The opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination. [Citations.] The ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. Normally the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses." (Ritchie, supra, 480 U.S. at pp. 52-53, 107 S.Ct. 989, fn. omitted.)
In dissent, Justice Brennan joined by Justice Marshall disagreed with the lead opinion’s reading of the confrontation clause, arguing that "cross-examination may be restricted … through preclusion at trial itself of a line of inquiry that counsel seeks to pursue," but it can also be foreclosed "by the denial of access to material that would serve as the basis for this examination." (Ritchie, supra, 480 U.S. at p. 67, 107 S.Ct. 989.) In a concurring opinion, Justice Blackmun also wrote separately to assert his disagreement with the plurality’s conclusion that the confrontation clause "protects only a defendant’s trial rights and has no relevance to pretrial discovery" and to express agreement with Justice Brennan’s dissent. (Id. at pp. 61-62, 107 S.Ct. 989.) Notwithstanding the possible merits of these dissenting views, we shall defer to the plurality’s general understanding of the reach of the confrontation clause.
Like the prosecutor at trial, the Attorney General relies heavily on the limits of the People's disclosure obligations under Brady, and in response defendant’s reply brief focuses to some extent on arguments that the prosecutor should have obtained Doe 1's medical records. But even on reply, defendant frames the issue broadly—as whether "the trial court erred by not ordering disclosure of sufficient information to allow the defense to ascertain the existence of [Doe 1’s] psychiatric records and subpoena them for the purpose of in camera review’’—and addresses issues that pertain to both forms of relief that were requested by his trial counsel and denied by the trial court.
The Ritchie court declined to address whether the failure to order disclosure of the agency records violated the Sixth Amendment’s compulsory process clause, explaining that "the applicability of the Sixth Amendment to this type of case is unsettled, and … our Fourteenth Amendment precedents addressing the fundamental fairness of trials establish a clear framework for review." (Ritchie, supra, 480 U.S. at pp. 55-56, 107 S.Ct. 989.) Discussing the government’s Brady obligation to turn over favorable and material evidence in its possession, Ritchie concluded the defendant was entitled to have the agency’s records reviewed by the trial court, and the court could do so in camera. (Id. at pp. 57-60, 107 S.Ct. 989.)
After Ritchie, the California Supreme Court issued Hammon, supra, 15 Cal.4th 1117, 65 Cal.Rptr.2d 1, 938 P.2d 986, a molestation case where the defendant served subpoenas on psychotherapists who treated the victim, his foster child. (Hammon, at pp. 1119-1120, 65 Cal.Rptr.2d 1, 938 P.2d 986.) In granting the prosecutor’s pretrial motion to quash the subpoenas based on the victim’s psychotherapist-patient privilege, the trial court refused to review the records in camera. (Id. at pp. 1120-1121, 65 Cal.Rptr.2d 1, 938 P.2d 986.) The California Supreme Court upheld that refusal, rejecting the defendant’s reliance on Reber and its progeny. In the words of the Hammon court, the Reber line of authority incorrectly "believed the confrontation clause of the Sixth Amendment . .., as interpreted in Davis v. Alaska. (1974) 415 U.S. 308 [94 S.Ct. 1105, 39 L.Ed.2d 347] …, required pretrial disclosure of privileged information when the defendant’s need for the information outweighed the patient’s interest in confidentiality. In authorizing disclosure before trial, however, Reber went farther than Davis required, with insufficient justification." (Hammon, at pp. 1122-1123, 65 Cal.Rptr.2d 1, 938 P.2d 986.)
Specifically, the Hammon court explained that Davis, supra, 415 U.S. 308, 94 S.Ct. 1105 "involved a defendant’s trial rights only" when holding that "a defendant could not be prevented at trial from cross-examining for bias a crucial witness for the prosecution, even though the question called for information made confidential by state law." (Hammon, supra., 15 Cal.4th at p. 1124, 65 Cal.Rptr.2d 1, 938 P.2d 986.) As Hammon explained, Reber’s assumption that Davis permitted a defendant to obtain before trial any information he would be able to obtain at trial was rendered questionable after Ritchie, supra, 480 U.S. 39, 107 S.Ct. 989. (Hammon, at p. 1124, 65 Cal.Rptr.2d 1, 938 P.2d 986.) On the record before it, Hammon declined to "extend the defendant’s Sixth Amendment rights of confrontation and cross-examination to authorize pretrial disclosure of privileged information." (Id. at p. 1128, 65 Cal.Rptr.2d 1, 938 P.2d 986.) Though the California Supreme Court indicates this remains an open question (see People v. Abel (2012) 53 Cal.4th 891, 930-931, 138 Cal.Rptr.3d 547, 271 P.3d 1040), we see no need to weigh in on that issue because the question here is whether the trial court erred in refusing to order the People to gather and provide information to the defense regarding an alleged crime victim’s mental health and possible psychiatric treatment. In any case, both Doe 1 and Jane took the stand during trial, and the trial court did not foreclose the defense from confronting and cross-examining either of them about the topic. (See discussion, post, at pp. 345-46.) Nor did the court prohibit the defense from cross-examining Doe 1 about his perception and recall of events.
Defendant’s reply brief belatedly cites People v. Coyer (1983) 142 Cal.App.3d 839, 191 Cal.Rptr. 376 (Coyer) and In re Littlefield (1993) 5 Cal.4th 122, 19 Cal.Rptr.2d 248, 851 P.2d 42 (Littlefield) for the propositions that (i) information in the prosecution’s possession and control encompasses information that is reasonably accessible to the prosecution, and (ii) information that is readily available to the prosecution and not the defense is subject to disclosure by the prosecution. Defendant then argues "pertinent identifying information about the location of records that would shed light on Doe 1’s diagnosed mental illness was ‘reasonably accessible’ and ‘readily available’ to the prosecution since all it needed to do was ask Doe 1 about it."
[2] Defendant fails to show good cause for tardily presenting these authorities. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852, fn. 10, 57 Cal. Rptr.3d 363.) Nor does he specifically discuss how Coyer and Littlefield support his position. "We are not required to examine undeveloped claims or to supply arguments for the litigants." (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52, 183 Cal.Rptr.3d 654.)
In any event, Coyer and Littlefield provide no basis for concluding the trial court erred or abused its discretion in failing to order the People to gather the requested information in preparation for the trial. (Facebook, Inc. v. Superior Court (Touchstone) (2020) 10 Cal.5th 329, 359, 267 Cal. Rptr.3d 267, 471 P.3d 383 [discovery orders in criminal cases reviewed for abuse of discretion].)
In Coyer, supra, 142 Cal.App.3d 839, 191 Cal.Rptr. 376, the defendant sought a list of pending criminal charges for the prosecution witnesses. (Coyer, at p. 842, 191 Cal.Rptr. 376.) The trial court declined to order the requested discovery, stating defense counsel could discover any charges pending in Solano County through "court indexes." (Ibid.) In holding the trial court abused its discretion in refusing to order the prosecutor to furnish the requested list, the Court of Appeal emphasized "the pendency of criminal charges is material to a witness’ motivation in testifying even where no express ‘promises of leniency or immunity’ have been made" and further noted there was no claim of privilege. (Id. at pp. 842-843, 191 Cal.Rptr. 376.) And notably, Coyer observed that the prosecution could easily compile the requested list of pending charges but that there existed "no similarly expedient method" by which defense counsel could do so. (Ibid.)
Here, defendant was not seeking a list of criminal charges pending against Doe 1. Rather, defendant sought information related to Doe 1’s mental health and possible psychiatric treatment. But the record falls short of establishing that this information was unavailable to the defense. Though defense counsel summarily represented that "they" were unwilling to speak with the defense, counsel did not identify who was unwilling and offered no other facts indicating the defense could not obtain the information through reasonable investigative efforts. Moreover, defendant posits the information was reasonably accessible and readily available to the People because "all [the People] needed to do was ask Doe 1 about it." But unlike the situation in Coyer, where the People had ready access to information about pending criminal charges against their witnesses while the defense had no similar means of access, records of a witness’s "voluntary treatment by private and county therapists" are "not generated or obtained by the People in the course of a criminal investigation," and the People have "no greater access to them than defendant." (People v. Webb (1993) 6 Cal.4th 494, 518, 24 Cal.Rptr.2d 779, 862 P.2d 779.)
Nor does Littlefield, supra, 5 Cal.4th 122, 19 Cal.Rptr.2d 248, 851 P.2d 42, impose an obligation on the People to gather or develop such information for the defense. In contrast to the instant case, Littlefield held the reciprocal criminal discovery statutes (§ 1054 et seq.) authorized the sanction of contempt "for the refusal by defense counsel to comply with an order to acquire the address of a person whom the defense intends to call as a witness at trial, where that address is reasonably accessible." (Littlefield, at pp. 129, 137, 19 Cal. Rptr.2d 248, 851 P.2d 42.) In reaching this conclusion, the high court construed section 1054.3 as requiring "the defense to provide the prosecution with the names and addresses of prospective defense witnesses to the extent this information is known to, or reasonably accessible to, the defense." (Id. at p. 131, 19 Cal.Rptr.2d 248, 851 P.2d 42.)
In holding that sections 1054.1 and 1054.3 "require both the prosecution and the defense to disclose the names and addresses of persons whom they intend to call as witnesses at trial, if such information is known or is reasonably accessible," Littlefield was quite clear in acknowledging that "the prosecution has no general duty to seek out, obtain, and disclose all evidence that might be beneficial to the defense." (Littlefield, supra, 5 Cal.4th at pp. 135-136, 19 Cal.Rptr.2d 248, 851 P.2d 42, italics omitted; cf. United States v. Hansen (11th Cir. 2001) 262 F.3d 1217, 1234-1235 [no Brady violation where there was no showing the prosecution actually possessed impeachment evidence concerning its expert witness]; United States v. Portillo (5th Cir. 2020) 969 F.3d 144, 182 [no Brady violation where there was no showing the prosecutor’s team had access to a witness’s psychiatric records].) Here, the People provided the defense with the names and contact information of Jane and Doe 1, among others; no more was required.
[3] Though we reject defendant’s claims of error, our decision should not be read as suggesting agreement with the trial court’s apparent view that evidence of an alleged victim’s schizophrenia is never relevant unless the defense can show it causes the person to lie constantly or to make up allegations because of delusions. Although "psychiatric material is generally undiscoverable prior to trial," it is also true that "mental illness or emotional instability of a witness can be relevant on the issue of credibility, and a witness may be cross-examined on that subject, if such illness affects the witness’s ability to perceive, recall or describe the events in question." (Gurule, supra, 28 Cal.4th at pp. 591-592, 123 Cal.Rptr.2d 345, 51 P.3d 224; see Reber, supra, 177 Cal.App.3d at p. 530, 223 Cal.Rptr. 139 [the veracity of someone "with a psychosis such as paranoid schizophrenia may be impaired by distortions in his ability to perceive and recall events; a schizophrenic who suffers delusions and hallucinations may have difficulty distinguishing fact from fantasy"].) Under different circumstances—e.g., had the defense actually subpoenaed Doe 1’s mental health records—the Reber-Hammon line of cases would have required the trial court, at a point during the trial when the court could meaningfully assess the materiality of the evidence at issue, to review those records in camera and properly balance defendant’s need for cross-examination against the state policies the privilege is intended to serve. (Hammon, supra, 15 Cal.4th at p. 1127, 65 Cal.Rptr.2d 1, 938 P.2d 986.) Here, however, there were no medical records for the trial court to examine and defendant has not identified a valid basis for requiring the People to obtain information leading to the location of the victim’s medical records as part of any prosecutorial obligation imposed under constitutional, statutory, or case law.
Defendant also makes a due process claim that similarly focuses largely on the Sixth Amendment and faults the trial court for "not applying the Reber procedure." Likewise, defendant invokes Brady but again makes no attempt to show the People suppressed evidence in its possession. These contentions are unavailing for the reasons already stated.
Because the court’s ruling effectively excluded evidence of Doe 1’s schizophrenia, it seems especially inappropriate to place the burden on defendant to raise the issue again. (See Evid. Code, § 354 [evidentiary challenge preserved where "[t]he substance, purpose, and relevance of the excluded evidence was made known to the court," or "[t]he rulings of the court made" such disclosure futile].) Here, the record shows defendant raised a discrete evidentiary issue and requested a 402 hearing to afford the court sufficient context to address the matter, but the court rejected that request based on an error of law.
[4] "Normally the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses." (Ritchie, supra, 480 U.S. at p. 52, 107 S.Ct. 989.) Defendant, however, did not cross-examine Doe 1 about his mental health or whether he had any history of delusions. Nor did he even seek to do so, despite statutory and case law that would have permitted such questioning. (See, e.g., Evid. Code, § 780 ["the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing"]; People v. Herring (1993) 20 Cal. App.4th 1066, 1072, 25 Cal.Rptr.2d 213 ["witness may be cross-examined about her mental condition or emotional stability to the extent it may affect her powers of perception, memory or recollection, or communication"]; see also Abel, supra, 53 Cal.4th at p. 929, 138 Cal.Rptr.3d 547, 271 P.3d 1040 ["During cross-examination, defense counsel asked Ripple if she had any history of mental health treatment"].) Though the trial court refused defendant’s request to impose a novel informationgathering burden on the People based on Jane’s hearsay reference to Doe 1’s supposed schizophrenia, there is no reason to believe the court would have foreclosed the defense from cross-examining Doe 1 on the stand about his mental health in an effort to show its relevance to his credibility.
[5] In closing, we address the dissent’s view that the trial court erroneously refused the defense’s request to hold an Evidence Code section 402 hearing, specifically so that the defense could ask Doe 1 directly if he had been diagnosed with schizophrenia and, if so, where his psychiatric records could be located. (Dis. opn. at pp. 347-48, 349, 350, post.) Notably, defendant has not raised or briefed this perceived error on appeal, and his appellate briefing mentions Evidence Code section 402 only twice in passing when setting out the procedural background of his claim. In an effort to overcome this omission, the dissent overlooks the issues that defendant in fact raises on appeal, which are—and we quote—that "[t]he court should have ordered the prosecution to obtain and disclose information sufficient for the defense to investigate whether psychiatric records existed and to subpoena them if they did" and that "[t]he trial court erred by not applying the Reber procedure of obtaining the records, balancing the need for disclosure against the privacy interest, determining which records were essential to protect Baugh’s confrontation right and making an adequate record for review." Because "‘[i]ssues do not have a life of their own’ " and are forfeited if not raised or properly briefed on appeal (City of Eureka v. Superior Court (2016) 1 Cal. App.5th 755, 765, 205 Cal.Rptr.3d 134), we see fit to limit our decision to the issues actually presented by defendant.
Though we offer no opinion on the merits of the dissent’s conclusions, we question whether there is a logical limiting principle to cabin the dissent’s view that Evidence Code section 402 provides defendants with a means of extracting pretrial testimony and evidentiary disclosures directly from alleged victims or witnesses whenever hearsay comes to light that suggests a potentially significant ground for investigating their credibility. But we believe, particularly where, as here, the Legislature has carefully crafted an evidentiary privilege for mental health patients and their records (e.g., Evid. Code, §§ 1012, 1014), that the legislative branch appears well suited to address this issue with full consideration of the significant competing rights of victims and the accused.
The dissent acknowledges the " ‘Sixth Amendment right to access protected information does not extend to pretrial disclosure, given the possibility that subsequent developments may eliminate the justification for invading a patient’s statutory privilege.’ " (Dis. opn. at p. 351, post, citing People v. Nieves, supra, 11 Cal.5th at p. 432, 278 Cal.Rptr.3d 40, 485 P.3d 457.) But the dissent concludes that the ruling at issue did not implicate "pretrial" disclosure because, in its view, the court’s addressing of in limine motions meant the trial was underway. (Dis. opn. at pp. 351— 52, post.) We note the court rendered its ruling before any prospective jury panel was brought in and before any witnesses took the stand. (See Hammon, supra, 15 Cal.4th at pp. 1127–1128, 65 Cal.Rptr.2d 1, 938 P.2d 986.)
The majority asks what "logical limiting principle" cabins my view that a 402 hearing would have been appropriate in this case. (Maj. opn. ante, at pp. 346-47.) In response I, too, would cite Davis, supra, 415 U.S. 308, 94 S.Ct. 1105, together with California cases that rely on it for the proposition that, "[w]hen a defendant proposes to impeach a critical prosecution witness with privileged information, the trial court may be called upon to balance the defendant's rights under the Sixth Amendment … against the state policies supporting that privilege." (Nieves, supra, 11 Cal.5th at 432, 278 Cal.Rptr.3d 40, 485 P.3d 457.) The circumstances in which I contend a 402 hearing may be necessary are those in which the trial court does not otherwise have the information it needs properly to assess this balance.
In sum, we are not persuaded the trial court erred or violated defendant’s constitutional rights in refusing to order the People to obtain and disclose information sufficient for the defense to investigate whether psychiatric records of Doe 1 existed and to subpoena them if they did.
See footnote *, ante.
D isposition
The judgment is conditionally reversed, and the cause remanded for the trial court to reconsider its discovery order concerning the subpoenaed incident reports related to the three complaining witnesses from the Brentwood Police Department and Calaveras County Sheriff’s Office. On remand, the trial court must create a record that facilitates meaningful appellate review. (Touchstone, supra, 10 Cal.5th at p. 358, 267 Cal.Rptr.3d 267, 471 P.3d 383 ["a trial court should, at a minimum, articulate orally, and have memorialized in the reporter’s transcript, its consideration of the relevant factors"].) If the trial court releases any portion of the subpoenaed documents, it shall allow defendant an opportunity to show prejudice. If the trial court determines defendant was prejudiced by its previous failure to release the documents, the trial court shall order a new trial on all counts or on a particular count, depending on the scope of the prejudice. If the trial court determines no documents must be released, or that defendant was not prejudiced by the failure to release the documents, the trial court shall reinstate the judgment.
If the judgment is reinstated, the court must (i) correct the first full paragraph on page 15 of the probation report, to reflect the accurate number of victims and facts underlying the convictions; and (ii) correct the stated crimes of which defendant was convicted on page 1, line 22, of the probation report.
I CONCUR:
Rodríguez, J.
TUCHER, P. J., Dissenting in Part:
I would conditionally reverse the judgment for a different reason: because I believe the trial court may have violated defendant’s constitutional right to confront John Doe 1 (Doe 1) with evidence relating to his schizophrenia. I conclude the trial court abused its discretion in declining to hold a hearing pursuant to Evidence Code section 402 (a 402 hearing) at which the defense could have ascertained whether Doe 1 had indeed been diagnosed with schizophrenia and could have identified any diagnosing or treating clinicians. A 402 hearing eliciting such evidence would have been an important first step toward allowing the defense to present such evidence to the jury, if warranted, but the trial court prematurely shut down the entire line of inquiry based on its mistaken view that evidence of schizophrenia was not relevant to a witness’s credibility.
BACKGROUND
On the first day of trial, at the beginning of a hearing on in limine motions, defense counsel raised a new issue: a "last minute" email from the prosecutor disclosing that its chief complaining witness had been diagnosed with schizophrenia. The source of this information was Doe 1’s sister, Jane Doe (Jane), who did not provide the name of any diagnosing or treating clinician. Because neither Doe 1 nor Jane would speak with the defense, counsel had sought the prosecutor’s help in obtaining Doe 1’s mental health records, explaining that the diagnosis could be relevant to Doe 1’s credibility. The prosecutor had declined to assist, on the theory she had no obligation to "go fishing for third party discovery." The defense thus asked the court to order the prosecutor to get Doe 1’s mental health records, if they existed, so the court could review them in camera for impeachment evidence.
The trial court disagreed that a schizophrenia diagnosis was relevant to Doe 1’s credibility, adding that Jane’s statement was hearsay "and she would not be allowed to say that in trial." Defense counsel sought to clarify her theory—that evidence a witness experiences hallucinations or delusions due to a mental health diagnosis would be relevant to the witness’s credibility. But the court disputed this logic, opining that credibility is about whether a person is lying, and even if there was proof Doe 1 was schizophrenic that would not show that he "lies at all, or that he lies all the time, or that he lied about this." When defense counsel pointed out that "credibility goes beyond lying" and includes the possibility that Doe 1’s testimony was influenced by delusions that were the product of mental illness, the trial court responded that counsel did not even know that Doe 1 suffered from delusions, and counsel had not persuaded the court "that a mere diagnosis, even if there is a diagnosis of schizophrenia, means that a person is by virtue of being schizophrenic walk[ing] around life every single day of his or her life in a state of delusion. There is absolutely no medical research that’s going to back that up and … that’s what I don’t buy," the court explained.
Defense counsel objected that the situation put the defense in a "difficult situation" because if Doe 1’s accusation against defendant was attributable to a mental impairment, the fact that the People chose not to probe further violated the defendant’s due process rights. It left the defense with no way to obtain the information from victim-witnesses who refused to talk to the defense. So if "nothing else," defense counsel requested that the court convene a 402 hearing to get more information about Doe 1’s state of mind. Counsel said that at such a hearing she would elicit from Doe 1 whether he had a mental health diagnosis and had seen a mental health professional, and that she would then subpoena Doe 1’s mental health records so the court could review them in camera. The court denied this request, stating that it did not see any "violation" by the People, and that the defense had failed to "convince" the court that a person with schizophrenia "is always walking around in a state of delusion." The defense would have to show something more for the court to find the issue was "relevant at all," the court concluded. When counsel reiterated she had no way to access more information without medical records, the court responded those records were confidential and the defense was not "getting past ‘go’ here" in obtaining them, as the trial court did not "see that they’re relevant."
Counsel then inquired whether the court’s ruling was final, to which the court responded: "My ruling is based on what you’ve said now, I don’t see any relevance. If somehow you provide legal authority [¶] … [¶] that a mere diagnosis of some mental health disorder means that the person is walking around daily in a state of delusion, I’ll consider it." Of course, defendant produced no such authority for the counterfactual proposition—that a "mere diagnosis" of schizophrenia equated to a perpetual state of delusion—so defendant was never in position to ask the court to revisit its otherwise final ruling, that evidence of Doe 1’s schizophrenia was not relevant to the proceedings and the defense was not "getting past ‘go’ " in its effort to obtain Doe 1’s confidential medical records.
ANALYSIS
Defendant contends the trial court’s ruling impaired his state and federal constitutional rights to confront witnesses and to compulsory process. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15.) In reviewing this claim, the majority limits its discussion to whether the court erred by refusing to order the prosecution to obtain Doe 1’s medical records. But defendant’s challenge to the trial court’s ruling is broader. He describes the court’s error as "declining to take appropriate steps to order disclosure of information needed to obtain Doe 1’s psychiatric records so that it could review them in camera." (Italics added.) One such appropriate step, I believe, would have been to order Doe 1 to appear at a brief 402 hearing. The trial court summarily denied this request, along with the defense request that it order the prosecution to obtain Doe 1’s medical records, for a single reason: it found that a witness’s diagnosis of schizophrenia is irrelevant to issues of credibility. This was the court’s first material mistake and the inception of its potentially prejudicial error.
"Of course, the mental illness or emotional instability of a witness can be relevant on the issue of credibility, and a witness may be cross-examined on that subject, if such illness affects the witness’s ability to perceive, recall or describe the events in question." (People v. Gurule (2002) 28 Cal.4th 557, 591-592, 123 Cal. Rptr.2d 345, 51 P.3d 224 (Gurule).) To impeach a witness’s credibility on this ground, there must be evidence not just that the witness has a mental health condition but that the condition affects the witness’s ability to perceive, recollect or communicate. (People v. Hamilton (2009) 45 Cal.4th 863, 919, 89 Cal.Rptr.3d 286, 200 P.3d 898.) Assessing the relationship between mental illness and credibility is not a categorical exercise. "[M]any people experience emotional problems, undergo therapy, and take medications for their conditions. ‘A person’s credibility is not in question merely because he or she is receiving treatment for a mental health problem.’ " (People v. Anderson (2001) 25 Cal.4th 543, 579, 106 Cal.Rptr.2d 575, 22 P.3d 347 (Anderson).) However, a mental illness "that causes hallucinations or delusions is generally more probative of credibility than a condition causing only depression, irritability, impulsivity, or anxiety." (Id. at p. 609, 106 Cal.Rptr.2d 575, 22 P.3d 347 (conc. opn. of Kennard, J.).) Our high court has recognized, as the majority acknowledges, that "the veracity of someone ‘with a psychosis such as paranoid schizophrenia may be impaired by distortions in his ability to perceive and recall events; a schizophrenic who suffers delusions and hallucinations may have difficulty distinguishing fact from fantasy.’ " (Maj. opn. ante, at p. 345, citing People v. Reber (1986) 177 Cal.App.3d 523, 530, 223 Cal. Rptr. 139 (Reber), overruled in part by People v. Hammon (1997) 15 Cal.4th 1117, 1123–1124, 65 Cal.Rptr.2d 1, 938 P.2d 986 (Hammon).)
At the outset of defendant’s trial, the court did not have enough information to evaluate whether Doe 1’s mental health impacted his ability to perceive, recall or describe the events in question. It did not know whether Jane’s disclosure about her brother’s diagnosis was true, nor did it have any information about the symptoms or severity of any mental illness Doe 1 might have. This was not a pretrial discovery problem, and defendant did not accuse the prosecutor of wrongfully withholding evidence. Instead, defense counsel suggested two methods to address the import of Jane’s last-minute disclosure that potentially impugned her brother’s credibility. In my view, one of counsel’s proposals was clearly a proper course of action.
Section 402 provides: "(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article. [¶] (b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury …. " The purpose of a section 402 hearing "is to decide preliminary questions of fact upon which the admissibility of evidence depends." (People v. Superior Court (Blakely) (1997) 60 Cal.App.4th 202, 209, fn. 6, 70 Cal.Rptr.2d 388.)
Here, the preliminary question of fact to be determined by way of a 402 hearing was whether Doe 1 suffered delusions or otherwise had difficulty distinguishing fact from fantasy as a result of mental illness, specifically schizophrenia. If he did, then defendant had a right to elicit that evidence before the jury to impeach Doe 1’s testimony. If, on the other hand, mental illness did not affect Doe 1’s ability to perceive, recall or describe events, then the defense might properly be prevented from delving into the topic on cross-examination. (Gurule, supra, 28 Cal.4th at pp. 591-592, 123 Cal.Rptr.2d 345, 51 P.3d 224; see also Anderson, supra, 25 Cal.4th at p. 609, 106 Cal.Rptr.2d 575, 22 P.3d 347 (conc. opn. of Kennard, J.).) Given the prosecutor’s unwillingness to ask her witnesses for further information about Doe 1’s mental health, the most direct way to answer the preliminary question of fact would have been to put Doe 1 on the witness stand and ask him. And to enable the defense to test Doe 1’s answers against information contained in his mental health records, the defense should have been allowed also to ask the identity of Doe 1’s mental health provider(s) so that, after defendant had served them with subpoena(s) duces tecum, the court could review responsive records for potentially impeaching information.1a
The information the defense sought was privileged, but that privilege should have been balanced against the defendant’s right to test the veracity of his accuser. The California Constitution recognizes a right to privacy, which has been applied to a person’s medical information. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198, 45 Cal.Rptr.3d 316, 137 P.3d 153; see Cal. Const, Art. 1, § 1.) And a statutory privilege protects confidential communications between a patient and his psychotherapist, "includ[ing] a diagnosis made." (Evid. Code, § 1012; see also § 1014.) A person does not lose these privacy rights by accusing a defendant of a crime, but the privilege may be overridden when necessary to ensure the defendant’s constitutional right to confrontation. (Susan S. v. Israels (1997) 55 Cal.App.4th 1290, 1295, 67 Cal.Rptr.2d 42 (Susan S.).) "When a defendant proposes to impeach a critical prosecution witness with privileged information, the trial court may be called upon to balance the defendant’s rights under the Sixth Amendment to access such material at trial against the state policies supporting the privilege." (People v. Nieves (2021) 11 Cal.5th 404, 432, 278 Cal.Rptr.3d 40, 485 P.3d 457 (Nieves), citing Davis v. Alaska (1974) 415 U.S. 308, 319, 94 S.Ct. 1105, 39 L.Ed.2d 347 (Davis).) Here, the defense sought a 402 hearing to elicit information that was likely privileged—whether Doe 1 had been diagnosed with schizophrenia and by whom. It intended to use this information to subpoena privileged medical records for the court’s review. A 402 hearing would have put the court in position to determine, presumably a few days after the hearing, whether good cause existed for disclosing to the defense confidential information in these medical records.
Because confrontation is a trial right, it cannot be invoked to compel discovery of a witness’s confidential medical records before trial. (Hammon, supra, 15 Cal.4th at pp. 1123-1124, 65 Cal.Rptr.2d 1, 938 P.2d 986, overruling in part, Reber, supra, 177 Cal.App.3d 523, 223 Cal.Rptr. 139.) The California Supreme Court has found that the "Sixth Amendment right to access protected information does not extend to pretrial disclosure, given the possibility that subsequent developments may eliminate the justification for invading a patient’s statutory privilege." (Nieves, supra, 11 Cal.5th at p. 432, 278 Cal.Rptr.3d 40, 485 P.3d 457, citing Hammon, at p. 1127, 65 Cal.Rptr.2d 1, 938 P.2d 986.) Here, however, we are called upon to review a ruling that was made on the first day of trial, not pretrial. The fact that trial had already begun is memorialized in the superior court’s minute order for the day, which describes the proceedings as "Jury Trial-Day 1." And we can reasonably say trial was "in progress" when the defense requested the 402 hearing, as the case had "been called for trial by a judge who was "available and ready to try the case to conclusion," the court had "committed its resources to the trial," and the parties were "ready to proceed." (Burgos v. Superior Court, (2012) 206 Cal.App.4th 817, 835-836, 142 Cal.Rptr.3d 133.) Immediately after ruling on the defense request, the trial court addressed other in limine motions and then began selecting a jury.2a
The requested 402 hearing would have enabled the court to make an informed decision as to whether there was evidence Doe 1’s mental health status affected his ability to perceive, recall or describe events. The court would have better understood whether Doe 1 had, in fact, been diagnosed with schizophrenia. (See e.g. People v. Gonzales (2019) 34 Cal.App.5th 1081, 1090-1091, 246 Cal.Rptr.3d 843 [testimony by brother of prosecution witness that his sister "might be bipolar or delusional" was properly excluded after section 402 hearing showed brother’s testimony was speculative].) And court and counsel would have learned whether confidential mental health records existed and where they could be obtained, so the court could review them in camera to determine whether there was good cause for their disclosure. (See Susan S., supra, 55 Cal. App.4th at pp. 1295-1296, 67 Cal.Rptr.2d 42.) The majority acknowledges that, "had the defense actually subpoenaed Doe 1’s mental health records—the Reber-Hammon line of cases would have required the trial court … to review those records in camera and properly balance defendant’s need for cross-examination against the state policies the privilege is intended to serve." (Maj. opn. ante, at p. 345.) Here "there were no medical records for the trial court to examine" (ibid.), but that was only because the trial court prevented the defense from taking the predicate step of asking Doe 1 whether and where he had been diagnosed with, or treated for, schizophrenia. A 402 hearing would have afforded the defense the opportunity to elicit those facts. Then, armed with the information learned during and as a result of the hearing, the trial court could have made an informed decision about whether to allow Doe 1 to be cross-examined in front of the jury on his mental health under the rule articulated in Gurule. (See Gurule, supra, 28 Cal.4th at p. 592, 123 Cal.Rptr.2d 345, 51 P.3d 224 ["witness may be cross-examined" if "illness affects the witness’s ability to perceive, recall, or describe" events].) Instead, the trial court made an uninformed and legally erroneous decision that evidence of Doe 1’s schizophrenia was irrelevant to his credibility.
The decision whether to hold a 402 hearing is an evidentiary ruling, subject to review for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 197, 66 Cal.Rptr.2d 123, 940 P.2d 710.) However, "when a trial court’s decision rests on an error of law, that decision is an abuse of discretion." (People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 746, 76 Cal.Rptr.3d 276, 182 P.3d 600; see People v. Grimes (2016) 1 Cal.5th 698, 712, fn. 4, 207 Cal.Rptr.3d 1, 378 P.3d 320 [abuse of discretion standard not intended " ‘to insulate legal errors from appellate review’ "].) Unfortunately, that is what happened here. The trial court refused to hold the hearing based on its patently erroneous view that, even if Doe 1 had been diagnosed with schizophrenia, that fact was not relevant to his credibility.
The majority does not defend this error of law (Maj. opn. ante, at p. 346), but argues we need not reach it. I disagree.
My colleagues contend defendant has not raised the issue on appeal, quoting one introductory sentence from the appellant’s opening brief that is indeed specific to his trial counsel’s request for an order directed to the prosecutor. (Maj. opn. ante, at p. 346.) But the argument headings make no mention of an order directed to the prosecutor. Instead, as the majority acknowledges (id. at p. 340), defendant frames the issue before us in broader terms, stating in his opening brief, "Whether the court below struck the proper balance [between Doe 1’s right to privacy and defendant’s right to cross-examine] is the question presented here." This formulation is agnostic as to the method for getting the defense the information about Doe 1’s schizophrenia that it sought. Appellate counsel goes on to characterize the case law as establishing "the court erred by declining to take appropriate steps to order disclosure of information," again with no suggestion that the only "appropriate step[]" would have been an order directed to the prosecutor. Counsel also relies on a civil case, where no prosecutor would have been present, for the proposition that the trial court should have "follow[ed] the four-step procedure outlined in Reber." (Citing Su- san S., supra, 55 Cal.App.4th at pp. 1295-1296, 67 Cal.Rptr.2d 42 [on showing of good cause, "trial court should (1) obtain the records and review them in camera … "].) Finally, counsel wraps up with a summary of his argument: the trial court infringed defendant’s constitutional rights "[b]y failing to properly facilitate the initial disclosure of information," again silent as to how the court should have accomplished this goal.3a
No doubt it would have been helpful if appellate counsel had directly addressed why a 402 hearing, in particular, would have been an appropriate procedural device here, but defendant’s argument on appeal does respond directly to the error the trial court actually made. Defendant’s appellate briefing sets forth that defense counsel "urged the court to allow her ‘to probe the witness with regards to his credibility as to whether or not he’s making this up or had some sort of delusions about it,’ " and specifically asked the court to convene a 402 hearing if it was unwilling to order the prosecutor to obtain the requested information. The court’s response was that the defense theory went " ‘against logic’ " and was " ‘the height of speculation.’ " When the court refused the requested 402 hearing, its stated reason had nothing to do with the timing of the request, the sufficiency of the defense’s showing that it had no other method for obtaining the information, or the court’s reluctance to bring Doe 1 into court more than once. Therefore, defendant does not address these issues on appeal. Instead, the trial court opined that Doe 1’s reported schizophrenia was not relevant, the records being sought were confidential, and thus defendant was not "getting past ‘go’ " in obtaining them. This is the error defendant addresses and, in my view, convincingly demonstrates.
My colleagues suggest defendant’s constitutional right to confront Doe 1 was not violated because defendant did not try to cross-examine him about his mental health before the jury. (Maj. opn. ante, at pp. 345–46.) They go so far as to assert, "there is no reason to believe the court would have foreclosed the defense from cross-examining Doe 1 on the stand about his mental health in an effort to show its relevance to his credibility." (Maj. opn. ante, at p. 346.) The problem with this theory is that the court did foreclose the defense from cross-examining Doe 1 on the stand about his mental health in an effort to establish its relevance to his credibility. That is precisely the ruling defendant here appeals—that the defense could not, at a 402 hearing, elicit testimony from Doe 1 as to whether he had been diagnosed with schizophrenia, or ask related questions about his mental health.
The defense asserted its right "to probe the witness with regards to" whether his account of the crime was the result of delusion, and a 402 hearing would have given the trial court the information it needed to strike the appropriate balance between Doe 1’s privacy interests and defendant’s right to confront Doe 1 with his mental health history. I struggle to see how it would have been preferable for the defense to raise this topic before the jury in the first instance. But certainly in this case, where the trial court had already ruled that the subject of Doe 1’s schizophrenia was not "relevant at all," I cannot agree that defendant failed to preserve, or fatally undermined, his constitutional claim by failing to raise the issue before the jury. To so hold is to encourage defendants to challenge court rulings in order to avoid forfeiting their appellate rights. (Cf. People v. Ramos (1997) 15 Cal.4th 1133, 1171, 64 Cal.Rptr.2d 892, 938 P.2d 950 [properly directed and ruled upon motion in limine preserves challenge to erroneous admission of evidence].)4a Although the majority characterizes the trial court as having "left the door open for the defense" to re-raise the issue (Maj. opn. ante, at p. 340), that is true only in the narrow and formal sense that the trial court agreed it would consider "legal authority" for a non-existent proposition, "that a mere diagnosis of some mental health disorder means that the person is walking around daily in a state of delusion." In all other respects, the trial court stated its ruling was final. In my view, the issue was adequately preserved and appropriately placed before this court.
Having concluded that the trial court abused its discretion in denying defendant’s request for a 402 hearing, I must address issues of prejudice and remedy. At the outset, I note that when the trial court cut off any inquiry into Doe 1’s schizophrenia diagnosis, it necessarily implicated defendant’s right to cross-examine the primary witness against him. Thus, as defendant argues to this court, his constitutional confrontation rights were squarely at issue (citing Davis, supra, 415 U.S. at pp. 315-316, 94 S.Ct. 1105; Anderson, supra, 25 Cal.4th at p. 608, 106 Cal.Rptr.2d 575, 22 P.3d 347 (conc. opn. of Kennard, J.)),5a and we must assess prejudice under Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705. (See e.g. People v. Roberts (2021) 65 Cal.App.5th 469, 478–479, 279 Cal.Rptr.3d 878.)
The People argue any error was harmless beyond a reasonable doubt because Doe 1 was a credible witness. However, we have no way of knowing what evidence a 402 hearing would have unearthed or what impact such evidence would have had on Doe 1’s credibility. We cannot rule out that "a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted." (Anderson, at p. 608, 106 Cal.Rptr.2d 575, 22 P.3d 347 (conc. opn. of Kennard, J.).) In other words, we cannot rule out that the error was prejudicial. The judgment must accordingly be vacated.
On the other hand, it is possible that on remand, after the trial court holds a 402 hearing and reviews any mental health records subpoenaed as a result, the court will decide that Doe 1 should not be cross-examined in front of the jury on the subject of his mental health. Such a ruling could be proper if the evidence was that Doe 1 was never diagnosed with schizophrenia, or that any symptoms he experienced did not interfere with his ability to perceive, recall, or describe events accurately. (See Gurule, supra, 28 Cal.4th at pp. 591-592, 123 Cal.Rptr.2d 345, 51 P.3d 224; People v. Murillo (2014) 231 Cal. App.4th 448, 457, 179 Cal.Rptr.3d 891 [402 hearing enables trial court to limit cross-examination to "prevent the revelation of unduly prejudicial facts"].) In this circumstance, there would be no need to empanel another jury to retry the case. The original jury verdicts could be reinstated.
Faced with these competing possibilities, I would conditionally reverse the judgment and remand the cause for the trial court to conduct a 402 hearing into Doe 1’s reported schizophrenia diagnosis. At the conclusion of such a hearing, and after reviewing any mental health records subpoenaed as a result of it, the trial court would decide in the first instance whether cross-examination into Doe 1’s mental health should be allowed at trial and, if so, whether the court’s previous refusal to allow the defense to inquire into Doe 1’s mental health was prejudicial. If no cross-examination would be allowed, then the trial court would reinstate the jury verdicts. If some cross-examination would be allowed, but the trial court determines beyond a reasonable doubt that such cross-examination would not have affected the original jury’s verdict(s), then the trial court would likewise reinstate the original verdict(s). Otherwise, the trial court would proceed with the new trial, empaneling a new jury to hear the evidence against defendant.
This is the only condition I would place on reversal. With regard to defendant’s separate claim that the trial court erred in reviewing subpoenaed law enforcement records pertaining to the complaining witnesses, 1 think defendant's failure to include in the appellate record a copy of the subpoena and the reporter’s transcript of the hearing in which the trial court declined to enforce it is fatal to his claim. Without a transcript, we do not know whether the trial court articulated, and "memorialized in the reporter’s transcript, its consideration of the relevant factors." (Facebook, Inc. v. Superior Court (Touchstone) (2020) 10 Cal.5th 329, 358, 267 Cal.Rptr.3d 267, 471 P.3d 383; see also People v. Whalen (2013) 56 Cal.4th 1, 85, 152 Cal.Rptr.3cl 673, 294 P.3d 915 [claim of error rejected where appellant failed to carry "burden to present a record adequate for review and to affirmatively demonstrate error"].)
The trial court would make this determination separately for each of counts 1 through 4, recognizing that the complaining witness in count 4 is Doe 1’s little brother.