Opinion
H042282
01-23-2018
THE PEOPLE, Plaintiff and Respondent, v. CARLOS DAVID LOPEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1476266)
Defendant Carlos David Lopez pleaded no contest to two counts of forcibly committing lewd or lascivious acts on his nine-year-old niece (Pen. Code, § 288, subd. (b)(1)), and was sentenced to state prison. Defendant contends the trial court erred by denying his pre-plea motion to access medical records that the victim's health care provider produced in response to defendant's subpoena duces tecum. Defendant argues the trial court's decision violated his federal constitutional rights to the effective assistance of counsel, due process, compulsory process, and confrontation. For the reasons stated here, we will affirm the judgment.
I. TRIAL COURT PROCEEDINGS
According to a probation report, police officers received a report that defendant had touched his young niece inappropriately. The girl reported that while at defendant's house a day earlier, defendant removed her pants and underwear and touched her chest over her shirt. Defendant penetrated her vagina with his finger three to five times, and then placed his mouth and tongue in her vagina approximately two times. Defendant was charged with two counts of committing lewd or lascivious acts on a child under the age of 14 years by force, violence, duress, or fear. (Pen. Code, § 288, subd. (b)(1).)
Defendant subpoenaed the niece's school and medical records before any preliminary hearing occurred. The subpoena to the health care provider sought records about the niece's medical and psychological health, related both to the specific allegations against defendant and more generally. The school and the health care provider each submitted records to the trial court under seal. The trial court reviewed the school records in camera and denied defendant's request to release those files, finding no good cause to believe the records contained material information. The trial court refused even to review in camera the medical records, finding defendant was not entitled to those records at that stage of the proceedings.
The declaration attached to the subpoena describing the requested records was filed in this court under seal. We summarize its contents without quoting it to maintain confidentiality. --------
Defendant moved for reconsideration of the order denying access to the medical records, arguing that denying him access would prevent his counsel from providing effective assistance. The trial court denied the motion.
Defendant pleaded no contest to both counts and was sentenced to 10 years in state prison, consisting of two fully-consecutive five-year lower terms. The trial court granted defendant's request for a certificate of probable cause to challenge the denial of the request to release the medical records.
II. DISCUSSION
Defendant's primary argument on appeal is that the trial court denied him the effective assistance of counsel by not reviewing the medical records in camera and granting defense counsel access to any files pertinent to defendant's case. Defendant also argues the trial court's decision violated his federal constitutional rights to due process, compulsory process, and confrontation. Defendant appears to acknowledge that either the physician-patient privilege or the psychotherapist-patient privilege applies to the records at issue. (Evid. Code, §§ 994, 1014.) But he argues that his federal constitutional rights outweigh any statutory privilege. Before addressing defendant's arguments, we summarize People v. Hammon (1997) 15 Cal.4th 1117 (Hammon), the authority on which the trial court based its decision.
A. PEOPLE V. HAMMON
Hammon was charged with several counts of committing lewd or lascivious acts on a foster child in his care. (Hammon, supra, 15 Cal.4th at p. 1120.) Before trial, Hammon served subpoenas on three psychologists who had treated the foster child. The prosecutor moved to quash the subpoenas, asserting that the information was subject to the psychotherapist-patient privilege. (Ibid.) The trial court quashed the subpoenas, determining that defendant had not demonstrated good cause for obtaining the psychological records. (Id. at p. 1121.) Hammon was convicted by jury of some of the lewd act counts, the Court of Appeal affirmed, and the Supreme Court granted review. (Id. at pp. 1121-1122.)
Hammon argued that the trial court's decision violated his Sixth Amendment right to confront and cross-examine witnesses. (Hammon, supra, 15 Cal.4th at p. 1127.) The Hammon court reviewed United States Supreme Court Sixth Amendment confrontation clause jurisprudence. The Hammon court noted that in Davis v. Alaska (1974) 415 U.S. 308 (Davis), the United States Supreme Court held that a criminal defendant's constitutional right to confront adverse witnesses at trial "sometimes requires the witness to answer questions that call for information protected by state-created evidentiary privileges." (Hammon, at pp. 1123-1124.) But the Hammon court distinguished Davis because it was silent regarding "the effect of the confrontation clause on pretrial discovery." (Hammon, at p. 1124.)
The Hammon court also discussed Pennsylvania v. Ritchie (1987) 480 U.S. 39 (Ritchie), where the United States Supreme Court decided that the Fourteenth Amendment's due process clause required the trial court in a child molestation case to review the state youth services agency's file about the victim in camera to determine whether it contained material exculpatory evidence that would have to be disclosed under the rule of Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady). (Hammon, supra, 15 Cal.4th at pp. 1125-1126.) The Hammon court noted that while there was no majority consensus in Ritchie regarding the effect of the confrontation clause on pretrial discovery, the lead plurality opinion signed by four justices "expressed the view that the 'right to confrontation [articulated in the Sixth Amendment] is a trial right' " that " 'does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony.' " (Hammon, at p. 1126, quoting Ritchie, 480 U.S. at pp. 52-53 (opn. of Powell, J., concurred in by Rehnquist, C.J., White and O'Connor, JJ.), italics added by Hammon.)
After discussing Davis and Ritchie, the Hammon court found no clear United States Supreme Court precedent supporting Hammon's argument that the Sixth Amendment should compel pretrial disclosure of privileged information. (Hammon, supra, 15 Cal.4th at p. 1127.) In addition to lack of precedent, the court identified a "persuasive reason" for finding that pretrial disclosure is not compelled by the confrontation clause: before trial, a trial court will typically have inadequate information to balance a defendant's need for evidence to assist in future cross-examination against the state policies the privilege is intended to serve. If pretrial disclosure were required, "a serious risk arises that privileged material will be disclosed unnecessarily." (Ibid.) The Hammon court concluded that the Sixth Amendment rights of confrontation and cross-examination do not compel pretrial disclosure of privileged information. (Id. at p. 1128.)
B. EFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that the trial court prevented counsel from providing constitutionally effective assistance by refusing to review the medical records in camera and disclose any records "pertinent to his defense." Respondent does not specifically address that argument, asserting simply that the California Supreme Court's Hammon decision resolves all issues raised by defendant. We decline to treat respondent's argument as a concession and will consider the issue on its merits. (See Griffin v. The Haunted Hotel, Inc. (2015) 242 Cal.App.4th 490, 505 ["[E]ven a respondent's complete failure to address an appellant's argument does not require us to treat the failure to respond as a concession the argument has merit."].)
1. Legal Principles
The Sixth Amendment guarantees criminal defendants the right to counsel at all critical stages of criminal proceedings. (Montejo v. Louisiana (2009) 556 U.S. 778, 786.) Plea negotiations are a critical stage in the proceedings. (Padilla v. Kentucky (2010) 559 U.S. 356, 373.) The right to counsel means the right to the effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686 (Strickland).)
To prevail on a claim of ineffective assistance of counsel, a defendant must show not only that counsel's performance was defective, but also that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at pp. 687, 694.) But the Strickland standard does not apply to claims that the government (through the actions of either the prosecution or the court) has denied altogether the right to counsel. When the assistance of counsel is actually or constructively denied, when counsel fails entirely to subject the prosecution's case to meaningful adversarial testing, or when a state interferes to a sufficiently severe degree with counsel's assistance (such as by not appointing counsel in a capital case until the day of trial (e.g., Powell v. Alabama (1932) 287 U.S. 45, 53, 56-57)), the Supreme Court has "uniformly found constitutional error without any showing of prejudice." (United States v. Cronic (1984) 466 U.S. 648, 659, fn. 25; Strickland, at p. 692.)
2. Defendant Was Not Denied the Effective Assistance of Counsel
Defendant's argument focuses on cases discussing whether the actions of attorneys in certain situations met the Strickland standard. (E.g., Missouri v. Frye (2012) 566 U.S. 134, 145, 149 [finding defective performance where counsel failed to communicate to the defendant a formal plea offer from the prosecution].) But defendant's argument here is not that his trial counsel's performance was deficient. (Indeed, we see no deficiency in defense counsel's performance on the record before us, which shows defense counsel worked proactively to investigate the case and even moved for reconsideration when the trial court denied his request to access the medical records.)
Defendant's argument is that the trial court's actions violated his right to the effective assistance of counsel. But the trial court's refusal to review and release the medical records did not prevent defendant from communicating with his attorney for any extended period of time, as would be necessary to support a finding that his right to counsel had been denied. (E.g., Geders v. United States (1976) 425 U.S. 80, 91 ["[A]n order preventing petitioner from consulting his counsel 'about anything' during a 17-hour overnight recess between his direct-and cross-examination impinged upon his right to the assistance of counsel guaranteed by the Sixth Amendment."].)
Defendant points to no case, and we have found none, where a court has found that a trial court's refusal to disclose certain privileged evidence before trial prevented defense counsel from investigating a case to such a degree as to deprive a defendant of the Sixth Amendment right to counsel. Defendant has not demonstrated that the trial court's decision denied him the effective assistance of counsel.
C. DUE PROCESS
Citing Ritchie, supra, 480 U.S. 39, defendant argues that the Fourteenth Amendment's due process clause required the trial court to review the medical records in camera "to determine whether they contained information relevant" to defendant's case. Though defendant did not object on this ground in the trial court, we will address the argument. (People v. Hobbs (1994) 7 Cal.4th 948, 955 (Hobbs) [" 'Issues cognizable on an appeal following a guilty [or no contest] plea are limited to issues based on "reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings" resulting in the plea.' "]; In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7 [recognizing discretion of appellate courts to consider forfeited arguments raising "an important issue of constitutional law"].)
Ritchie involved an appeal from convictions obtained after a jury trial, where the defendant argued that the trial court had violated his constitutional rights by not reviewing and disclosing evidence submitted to the court in response to a subpoena the defendant had served on a state youth services agency. (Ritchie, supra, 480 U.S. at pp. 43, 45, 51.) The Ritchie court determined that due process and the Brady rule (Brady, supra, 373 U.S. 83) required the trial court to review in camera the records to determine whether they contained any material exculpatory evidence. (Ritchie, at pp. 57-58.) Because the United States Supreme Court decided the case after trial, it found that the defendant would be entitled to a new trial if the records contained material exculpatory evidence that "probably would have changed the outcome of his trial." (Id. at p. 58.)
Ritchie is distinguishable. As the California Supreme Court noted in Hammon, the disclosures required by Brady, supra, 373 U.S. 83, apply only to "material exculpatory information in the government's possession." (Hammon, supra, 15 Cal.4th at p. 1125.) The records at issue here were subpoenaed from the victim's health care provider rather than being "possessed" by the government. And, as defendant acknowledges, "Ritchie did not address whether a criminal defendant was entitled to pretrial review" of confidential files because the post-trial posture of the case did not present that issue.
Defendant contends that notwithstanding Ritchie, "California appellate courts have granted pretrial access to criminal defendants of confidential records pertinent to the charges against the defendant." (Citing Department of Motor Vehicles v. Superior Court (2002) 100 Cal.App.4th 363, 367-377 (DMV); Rubio v. Superior Court (1988) 202 Cal.App.3d 1343, 1346-1350 (Rubio).) In DMV, a man (Carmona) struck several cars while driving unsafely, leading to the death of another driver. Carmona was charged with vehicular manslaughter, and the prosecution served the Department of Motor Vehicles with a business records subpoena duces tecum to produce all documents related to Carmona's driving record. Carmona also wanted the records. The Department moved to quash the subpoena, arguing that the records were privileged under Vehicle Code "section 1808.5 [DMV records of medical and physical condition confidential], and Evidence Code section 1040, subdivision (b) [official information privilege]." (DMV, at pp. 367-369.) The trial court denied the motion to quash. (Id. at p. 369.) The Department petitioned the Court of Appeal for a writ of mandate to prevent disclosure of the records, which the court denied. (Id. at p. 377.) The appellate opinion focused on the reasons the two asserted privileges did not apply. (Id. at pp. 373-376.) The opinion does not mention due process, and refers only generally to a criminal defendant's right to discovery based on the right to a fair trial. (Id. at p. 377.)
DMV is inapposite. The records pertained to Carmona (the defendant), rather than to a third party; both the prosecutor and Carmona sought access to the records; and the opinion did not conclude that the parties were entitled to the records because of Carmona's due process rights.
Rubio involved a subpoena duces tecum served after a preliminary hearing to obtain a videotape of a child molestation victim's parents engaging in consensual sex acts that were supposedly similar to those Rubio was charged with performing on the victim. (Rubio, supra, 202 Cal.App.3d at p. 1346.) Rubio suggested that the victim made up the allegations after watching part of the videotape. The trial court quashed the subpoena, and the Court of Appeal granted Rubio's petition for writ of mandate. The Rubio court noted that there were competing constitutional interests involved: Rubio's constitutional rights to confrontation and due process, and the parents' constitutional right to privacy. (Id. at p. 1349.) Based on Ritchie, supra, 480 U.S. 39, and an opinion of this court (People v. Boyette (1988) 201 Cal.App.3d 1527 (Boyette), disapproved by Hammon, supra, 15 Cal.4th at p. 1123), the Rubio court determined that the trial court should review the videotape in camera to determine whether Rubio's right to due process outweighed the parents' right to privacy. (Rubio, at p. 1350.)
Rubio's continued viability is questionable in light of Hammon, which disapproved the Boyette opinion upon which Rubio was based. (See Hammon, supra, 15 Cal.4th at p. 1123 [noting that the line of authority that included Boyette was "not correct"].) Because Ritchie is distinguishable and we are not bound by Rubio (even assuming Rubio remains good law), defendant has not demonstrated a due process violation.
D. COMPULSORY PROCESS
Defendant argues that the Sixth Amendment's compulsory process clause required the trial court to review the records in camera and disclose any material evidence. The Sixth Amendment guarantees a defendant's right "to have compulsory process for obtaining witnesses in his favor." (U.S. Const., 6th Amend.) Though defendant did not object on this ground in the trial court, we will address the argument. (Hobbs, supra, 7 Cal.4th at p. 955.)
Defendant acknowledges that the United States Supreme Court "has never specifically held that the Compulsory Process Clause requires the production of exculpatory evidence." (Citing Ritchie, supra, 480 U.S. at p. 56 ["This Court has never squarely held that the Compulsory Process Clause guarantees the right to discover the identity of witnesses, or to require the government to produce exculpatory evidence."].)
Defendant cites United States v. Nixon (1974) 418 U.S. 683, which involved the President's attempt to quash a government subpoena duces tecum seeking documents and recordings related to conversations with aides and advisers for use in prosecuting individuals who had worked for the White House or for the President's reelection committee. (Id. at p. 686.) Defendant argues the Nixon court determined that "the Compulsory Process Clause overcame the President's assertion of a confidentiality privilege, and compelled production for in camera review." (Italics omitted.) But the Nixon court found that disclosure was required based on due process principles, reasoning that the President's "generalized interest in confidentiality ... cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice." (Id. at p. 713.) The compulsory process clause was mentioned in Nixon (id. at p. 711), but it was not the basis for the court's decision. Significantly, because the subpoena was served by the government rather than by a defendant, it is unclear how the compulsory process clause could have been implicated as that right is guaranteed by the Sixth Amendment to defendants.
E. CONFRONTATION CLAUSE
Defendant acknowledges that Hammon, supra, 15 Cal.4th at p. 1128, precludes a confrontation clause challenge to the trial court's decision, but notes that the Supreme Court granted review in Facebook, Inc. v. Superior Court (review granted Dec. 16, 2015, S230051) and asked the parties to brief whether the court should limit or overrule Hammon. As Hammon remains binding on this court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), defendant's confrontation clause argument must fail.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Premo, Acting, P. J. /s/_________
Bamattre-Manoukian, J.