Opinion
C049339
4-23-2007
THE PEOPLE, Plaintiff and Respondent, v. JENNIFER LEE TUCKER, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury convicted defendant Jennifer Lee Tucker of grand theft (Pen. Code, § 487, subd. (a) — count I), petty theft (§ 484, subd. (a) — count IX), nine counts of second degree burglary (§ 459 — counts IV through VIII, X through XIII), and two counts of receiving stolen property (§ 496, subd. (a) — counts XIV, XV). The jury acquitted defendant on three other counts [counts II and III (second degree burglary) and XVI (receiving stolen property)].
Undesignated statutory references are to the Penal Code.
Sentenced to state prison for an aggregate term of eight years, defendant appeals, contending (1) the trial court erroneously failed to conduct an in camera review of the juvenile dependency file of her stepson, J.T., a crucial witness against her, and erroneously limited cross-examination of J.T. and (2) she was improperly convicted of both stealing and receiving some of the same property. We agree that the trial court erroneously failed to conduct an in camera review of J.T.s dependency file and shall reverse and remand for such review with directions. If remand results in no new trial being granted and judgment is reinstated, counts XIV and XV are reversed because we agree that defendant was improperly convicted of stealing (counts I and IX) and receiving (counts XIV and XV) the same property.
FACTUAL BACKGROUND
Over a lengthy period of time, defendant stole property from model homes she visited and the Thomas Kinkade Gallery where she worked, keeping some of the goods and giving away or selling some to friends, family and others.
She was eventually caught when her 11-year-old stepson, J.T., who had accompanied her to some model homes, reported her activities to his birth mother, S.F., (mother) who contacted law enforcement. At trial, defendant testified and denied all charges.
J.T. and his father met defendant when his father framed artwork for the gallery where she worked. Defendant and J.T.s father began dating and eventually married. J.T. testified at trial about numerous items defendant took from model homes and identified a Kinkade print, found hanging on defendants bedroom wall, that had been taken from the Thomas Kinkade Gallery. J.T. testified that defendant had stolen many items from the gallery. Some of the items stolen from model homes were found in defendants possession but others that J.T. claimed she had stolen were never recovered.
The gallery had a manual inventory system and its employees were unsure whether certain items linked to defendant were missing from the gallery. Over 250 canvases were missing.
In 1998, when J.T. was eight years old, he complained that he had been abused by his mothers then-boyfriend. J.T. was subsequently removed from his mothers home and placed in foster care. After this, his mother did not want J.T. returned to her because there were "a lot of problems in the house, and [she] was also starting cancer treatment." In 1999, J.T. lived with his father and his fathers girlfriend, Stephanie. By September 2000, J.T. lived with his father and defendant, whom J.T.s father married in February of 2001. After they married, J.T.s mother sought to have J.T. removed from his father and defendants care on the grounds that they were "felons" and "on the run." She also knew that defendant was a drug user. A week or so after she sought to have J.T. removed, J.T.s father was arrested and placed in custody. From February to September 2001, J.T. lived with defendant, who had custody as his stepmother. Defendant failed to bring J.T. to scheduled visitations with his mother, who later obtained a court order requiring defendant to do so. J.T.s mother thereafter had regular visitation with him.
In September 2001, J.T. told his mother about defendants thefts and she called the police the same day. J.T. lived with his mother from April 2003 to April 2004. At the time of trial in January 2005, J.T. no longer lived with her but was back in foster care.
Additional facts relevant to defendants contentions will be recounted in our discussion.
DISCUSSION
I. In Camera Review of Witnesss Dependency File
Defendant contends that the trial court erroneously failed to conduct an in camera review of J.T.s juvenile dependency file and curtailed cross-examination of J.T. at trial. We agree and conclude the court erroneously failed to conduct an in camera review of the file, which in turn led to the courts curtailment of cross-examination. We shall remand to the trial court for an in camera review of J.T.s dependency file as (1) the courts refusal to review the file violated defendants right to due process of law; and (2) the courts subsequent rulings, limited by the exclusion of the proffered cross-examination, violated defendants constitutional right to confront witnesses.
A. Background
1. The prosecutors request.
The prosecutor sought in limine a trial court ruling that accomplice instructions with respect to J.T. were inappropriate. The court concluded that an Evidence Code section 402 hearing (402 hearing) was required. After the jury was sworn to try the case but prior to commencement of the 402 hearing, the prosecutor informed the court that she had spoken with J.T.s mother who explained that she had been approached by a defense investigator. The defense investigator wanted to know about J.T.s false report of physical abuse by the mothers boyfriend in 1998 when J.T. was eight years old and his subsequent removal from the mothers home. The prosecutor stated the mother reported that J.T. had "recanted fairly quickly and essentially stated that he made the report in an effort to get out of the situation, that the home situation was not good." J.T. was removed from the home in 1999 and thereafter lived in foster care and with his father for a period of time. The prosecutor stated that she was unaware of the incident or that J.T.s mother had been approached by the investigator. The prosecutor claimed that the defense had been aware of the incident for some time and would probably use the information for impeachment purposes. The prosecutor suggested that J.T.s juvenile dependency file was required to resolve the dispute about "who[m] the report [was] made against, and what the outcome was."
Defense counsel claimed he had information that J.T. had accused his mother of "horsewhipping him" and later recanted. Defense counsel argued J.T.s statements were relevant because he lied then and he had accused defendant now "of doing something to get out of the situation that he was in, where he was living with [defendant] because [his father] was in jail at the time." Defense counsel requested that the court obtain J.T.s juvenile dependency file and review it for information concerning the same as well as other lies and accusations later recanted. Defense counsel claimed he knew of "a number of other instances" where J.T. had accused other people including caretakers but defense counsel did not think he needed the dependency file in order to raise them at trial.
The prosecutor had not heard of the "horsewhipping" but heard instead that the mothers husband (then-boyfriend) had "grabb[ed] [J.T.], roll[ed] him up in a carpet and beat[] him." The prosecutor offered to have J.T. admit that he had lied in order to be removed from his home, stating that such was relevant, but objected to any further inquiry under Evidence Code section 352 because who he claimed beat him and how he claimed he was beaten was "off on this tangent." The prosecutor then suggested that the juvenile dependency file was not necessary.
Defense counsel insisted that the court review the dependency file for other instances of false accusations, acknowledging that he had other information, but arguing defendant was entitled to such information pursuant to her rights to due process and a fair trial.
The court agreed that J.T.s lie/explanation was relevant to his credibility but that any other information, such as who he lied about, was not relevant and suggested that defendant was not entitled to review the file, citing Welfare and Institutions Code section 827. The court did not believe it was its "job" or "responsibility" to review the file "for other incidents of lies." The court also determined that defense counsel had not shown "a probable cause of necessity" for the court to review the file in camera, citing People v. Hammon (1997) 15 Cal.4th 1117 (Hammon). The court concluded that defense counsel was on a "fishing expedition," having presented no reliable information that the file contained other relevant information that could not be obtained by other means. The court denied defendants request without prejudice.
Welfare and Institutions Code section 827 provides limitations on who may have access to juvenile records and under what circumstances such records may be accessed.
In clarifying the courts ruling, defense counsel stated that he "agree[d] fundamentally with what the Court has ruled — in terms of, you know, hes going to admit to the lie. I would then think that it would be appropriate to be able to bring out the fact that that lie created a situation where hes removed from the home, because thats exactly the situation that we believe occurred here, where he decided he then wanted to go back to his mothers. [¶] Now, the beatings didnt take place, so hes recanted, and hes now accusing the caretaker who has custody of him, and thats [defendant], of a whole series of crimes, and I think it is relevant to this case, that in the prior instance where he lies about his mother and he gets removed, placed presumably with his dad, then at the time he is with [defendant], who[m] he has now decided he hates, now we have this whole list of offenses that he says she did so he can get removed from her."
The court agreed, "That may very well be relevant as to the amount of credibility that the jurors should consider with regard[] to his testimony," but noted that defense counsel could simply ask J.T. the question without delving into his juvenile dependency file. Defense counsel stated he understood that he could ask J.T. the question.
The prosecutor noted that if the defense theory was that J.T. had lied about defendant to change placements, J.T. was in foster care for more than three years after making the accusations. The prosecutor also noted that the defense planned to impeach J.T. with his statements to Detective Gary Parker. When interviewed by the detective, 11-year-old J.T. claimed his fathers ex-girlfriend, Stephanie, with whom he and his father had lived for a time, was a drug dealer. The prosecutor objected to the use of such evidence, arguing it was improper impeachment, assuming Stephanie would deny the same. Defense counsel explained that he planned to ask J.T. about it to show he "is a consummate manipulator of the system," "knows every buzz word to say to make sure he gets out" and that he would not "have to worry about going back to her place." The prosecutor asserted that Stephanie could not be J.T.s caretaker as she had no custodial rights. Defense counsel claimed otherwise, noting that when J.T.s father was out of custody, they lived with Stephanie. The court ended the argument, stating that the issue would be addressed at the 402 hearing.
2. The 402 hearing.
At the 402 hearing, J.T. testified that he had lived with defendant and his father but when his father was arrested, J.T. lived with just defendant. When his father was in custody, J.T. and defendant visited model homes about 10 times and defendant would steal items. J.T. was afraid to tell anyone because the people with whom defendant associated were intimidating and were always taking drugs, including defendant, usually in defendants bedroom, and defendant threatened to take away his privileges, to sell his personal belongings, and to have her friends "shut [him] up." J.T. informed his mother during a visitation after defendants friend and his fathers ex-girlfriend, Stephanie, grabbed J.T. in a rough manner. After living with defendant, J.T. lived in a foster home for 10 or 11 months and then he moved in with his mother.
The prosecutor argued that J.T.s testimony about defendants drug usage and associates, his unwillingness to participate, and the intimidation and threats was relevant to show that J.T. was not an accomplice. Defense counsel argued just the opposite. The court ruled that J.T.s testimony about defendants drug use and the home environment was relevant and admissible but delayed ruling on the accomplice instructions.
3. Trial testimony.
At trial, the prosecutions first witness was J.T.s mother, who explained that child protective services removed J.T. from her home when he was eight years old in 1998 based on J.T.s lie that her then-boyfriend (now husband) had beaten J.T. Although his mothers boyfriend never physically abused J.T., he verbally abused him. She explained that at the time J.T. accused her boyfriend of physical abuse, she and the boyfriend "were very unstable," "fighting all the time," and she was "going through surgery," having "a tumor removed out of [her] lung," and "[J.T.] had to deal with [her] being sick."
On cross-examination, J.T.s mother denied that she had beaten J.T. and denied that J.T. had claimed she had. Defense counsel asked, "Prior to [J.T.] being removed from your home, had he told other lies about people?" The prosecutor objected and argued at a sidebar that defense counsel was asking about specific acts. The court overruled the objection. J.T.s mother responded that she did not recall J.T. lying about other people, "Its always about my husband or myself." J.T.s mother then claimed J.T. had only lied "once" before he was removed from her home.
At trial, J.T. admitted lying to a mental health counselor and later the police or child protective services in claiming his stepfather (his mothers then-boyfriend) had beaten him. J.T. explained that he lied because he no longer desired to live with his mother. He was removed from her home and placed in foster care. About a year later, J.T. told the authorities that he had lied about his stepfather. On cross-examination, defense counsel asked J.T. about the period of time he lived with his father and Stephanie. Defense counsel asked, "Did you have difficulty during that period of time with Stephanie?" J.T. responded with a question ("Did I have problems with Stephanie?") at which point the court sustained the prosecutors objection on the grounds of relevance. When defense counsel asked, "Was Stephanie a drug dealer?" the prosecutor again objected on relevance grounds, and a bench conference ensued.
4. Bench conference.
At a bench conference, defense counsel explained, "[J.T.] told Detective Parker that [Stephanie] was a drug dealer, and the relevance is the same relevance that I said in my opening. Every time hes had a stepmother, theres been a problem. Frankly, every time hes ever had a female in the household, theres been a problem." The prosecutor claimed it was irrelevant and inadmissible under Evidence Code section 787. The prosecutor asserted that J.T. never claimed at the time he was living with Stephanie that she was a drug dealer in order to be removed from her custody. Defense counsel explained that J.T. made the claim when "there was a custody fight going on between Stephanie, [defendant] and [J.T.s mother]" and that it was relevant to show that J.T. "lies about his mother to get out of that situation. He then lies about [Stephanie] to make sure he doesnt go back to that situation, and then finally lies about [defendant]." The court sustained the prosecutors objection.
5. Continued trial testimony.
Defense counsel thereafter asked J.T. about his lie to the counselor about physical abuse. J.T. admitted that he was removed from his mothers home but denied claiming that his mother had physically abused him. Defense counsel then asked whether J.T. recalled an interview with a defense investigator. J.T. did not recall the name of the investigator or the date. J.T. did remember speaking to a lady at his house; she asked him questions but he did not know who she was. Defense counsel asked, "When she came to your house, this older lady, she asked you whether it was true that you had been beaten by your mother?" J.T. answered affirmatively and immediately thereafter the court sustained the prosecutors objection on the grounds of relevancy and Evidence Code section 352. When defense counsel received an affirmative answer from J.T. to the question whether he "remember[ed] telling [the investigator] that [he] had been horsewhipped," the prosecutor objected on the grounds of hearsay and Evidence Code section 352.
6. Further bench conference.
At another bench conference, defense counsel asserted that J.T.s answer impeached his answer as well as his mothers answer — they both claimed J.T. had lied about the boyfriend when, apparently instead, it was his mother who physically abused J.T. Defense counsel claimed J.T. told the investigator that his mother had horsewhipped him. The prosecutor countered that J.T.s lie about the situation had already been established. Defense counsel claimed that J.T.s lie then and his lie in the courtroom were both relevant. The court noted that "[p]art of the problem is that he is — he said he doesnt remember." Defense counsel confirmed that the purpose of the questioning was to attack J.T.s credibility and that he had admitted making false statements to authorities. The court concluded that although not hearsay, it was inadmissible pursuant to Evidence Code section 352 but asked defense counsel to further explain. The following discourse ensued:
"[DEFENSE COUNSEL]: Im trying to get that hes not truthful.
"THE COURT: We established that. Hes admitted that.
"[DEFENSE COUNSEL]: But I get to — there are other issues that pop up that show that hes continuing to be untruthful, not just in 98 or 96, you know.
"THE COURT: But I dont think you can get it from him. I mean, youve asked him the question about whether or not he was telling the truth.
"[DEFENSE COUNSEL]: Ill ask him directly, `Did your mother horsewhip you?
"[PROSECUTOR]: Well, that is irrelevant to anything.
"[DEFENSE COUNSEL]: Then I can bring my investigator in to say that he lied.
"[PROSECUTOR]: What did he lie about? He just said — apparently the answer got in before the objection. He said he did tell her that [his] mom horsewhipped him.
"[DEFENSE COUNSEL]: But youre objecting to that question.
"[PROSECUTOR]: Im objecting to the whole line of questioning because its irrelevant. Its [Evidence Code section] 352.
"THE COURT: I think it is. I think its establishing — unless its something other than his credibility regarding this particular event, its been established that he lied about it, and I think that continuing to go into it is just cumulative and its not going to get us anywhere.
"I think it potentially opens up all the stuff with the [Welfare and Institutions Code section] 300 [file], and Im concerned about that.
"[PROSECUTOR]: Bingo. Thats what it does.
"[DEFENSE COUNSEL]: That just goes to the question whether the file ought to be released so that we can find out what hes told.
"[PROSECUTOR]: It makes no difference what — the only thing relevant has been established, that at the time he lied to get out of the house. End of story. We cant go through every single, `Well, did you say it happened on this day, and, `Did you say
"THE COURT: The objection is sustained. Im going to leave the answer, the `Yes, but the objection going further into this area, unless you have some other basis for going into it, [defense counsel], the objection is sustained.
"[DEFENSE COUNSEL]: I can — youll let me . . . inquire again about the lies that he — the lie, the initial lie?
"THE COURT: Its already established. Whats the benefit of that? How is that going to help us? I mean, hes already said, `Yes, I told a lie at the outset.
"[DEFENSE COUNSEL]: Well, I want to ask him whether there was any truth.
"THE COURT: Hes already admitted he lied."
The court then denied the prosecutors motion to strike J.T.s answer "about the horsewhipping," and the trial resumed before the jury.
B. Analysis
We agree with defendants claim that an in camera review of J.T.s dependency file is required.
1. Welfare and Institutions Code section 827.
Welfare and Institutions Code section 827 "restricts those who may `inspect a `juvenile case file. It provides that, `[f]or purposes of this section, a "juvenile case file" means a petition filed in any juvenile court proceeding, reports of the probation officer, and all other documents filed in that case or made available to the probation officer in making his or her report, or to the judge, referee, or other hearing officer, and thereafter retained by the probation officer, judge, referee, or other hearing officer. (§ 827, subd. (e).) [¶] Subdivision (a)(1) of section 827 sets forth a list of those who are permitted to inspect juvenile case files, but subdivision (a)(3) requires those authorized in subdivision (a)(1) to petition the juvenile court for access to all or a portion of a juvenile dependency case file or to `information relating to the contents of a juvenile dependency case file. Those authorized in subdivision (a)(1) include `[c]ourt personnel, `[t]he attorneys for the parties, and judges, referees, other hearing officers, probation officers and law enforcement officers who are actively participating in criminal or juvenile proceedings involving the minor, the minors parents and `[a]ny other person who may be designated by court order of the judge of the juvenile court upon filing a petition. (§ 827, subd. (a)(1)(A), (D), (E), [former (M), now (O)].) . . . The juvenile court may order disclosure of a file or information relating to the contents of a file after a noticed hearing `if disclosure is not detrimental to the safety, protection, or physical or emotional well-being of a child. (§ 827, subd. (a)(3).)" (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1314.)
"It is the express intent of the Legislature `that juvenile court records, in general, should be confidential. ([Welf. & Inst. Code,] § 827, subd. (b).) The strong public policy of confidentiality of juvenile proceedings and records has long been recognized. [Citations.] Courts have recognized, however, that this policy of confidentiality is not absolute. The juvenile court, which is in the best position to determine whether disclosure is in the best interests of the minor, has been vested with `exclusive authority to determine the extent to which juvenile records may be released to third parties. [Citation.] Confidentiality cannot always be honored. For example, where the principle of confidentiality conflicts with a defendants constitutional rights of confrontation and cross-examination, it must give way." (In re Keisha T. (1995) 38 Cal.App.4th 220, 231, fn. omitted.)
In a footnote, Keisha T. stated: "It has been suggested that the need for confidentiality is more compelling in dependency cases than in delinquency cases since the delinquent child is at least partly responsible for being in court and the public has an interest in delinquency cases akin to that in criminal cases, but the child may be blameless and there is no similar public interest in dependency cases." (In re Keisha T., supra, 38 Cal.App.4th at p. 231, fn. 4.)
2. The confrontation clause.
"The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution `to be confronted with the witnesses against him. This right is secured for defendants in state as well as federal criminal proceedings . . . . [¶] . . . [¶] Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness[s] story to test the witness[s] perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness." (Davis v. Alaska (1974) 415 U.S. 308, 315-316 [39 L.Ed.2d 347, 353] (Davis).)
"[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby `to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [89 L.Ed.2d 674, 684] (Van Arsdall), quoting Davis, supra, 415 U.S. at p. 318 .) "[T]he focus of the prejudice inquiry in determining whether the confrontation right has been violated must be on the particular witness, not on the outcome of the entire trial." (Van Arsdall, supra, 475 U.S. at p. 680 [89 L.Ed.2d at pp. 683-684].)
"[T]he constitutionally improper denial of a defendants opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman harmless-error analysis. [(Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].)] The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness[s] testimony in the prosecutions case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecutions case." (Van Arsdall, supra, 475 U.S. at p. 684 [89 L.Ed.2d at pp. 686-687], italics added.)
3. Limits on cross-examination.
"[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness[s] safety, or interrogation that is repetitive or only marginally relevant." (Van Arsdall, supra, 475 U.S. at p. 679 .) "In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352." (People v. Quartermain (1997) 16 Cal.4th 600, 623.) Evidence Code section 352 authorizes the court to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The courts exercise of its discretion violates neither the Sixth Amendment nor the California Constitution unless defendant can show the prohibited cross-examination might have resulted in "a significantly different impression of [the witnesss] credibility." (Van Arsdall, supra, 475 U.S. at p. 680 ; People v. Carpenter (1999) 21 Cal.4th 1016, 1050-1051; People v. Frye (1998) 18 Cal.4th 894, 946.)
In Davis the Supreme Court considered "whether the Confrontation Clause requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias deriving from the witness[s] probationary status as a juvenile delinquent when such an impeachment would conflict with a States asserted interest in preserving the confidentiality of juvenile adjudications of delinquency." (Davis, supra, 415 U.S. at p. 309 [39 L.Ed.2d at pp. 349-350].)
In Davis, the defendant was charged with the theft of a safe which was found near the home of Richard Green, a crucial prosecution witness. The prosecutor sought a protective order, preventing any cross-examination of Green concerning his juvenile record for burglary. The defense sought to show a motive on the part of Green, who was on probation, to shift suspicion away from him and to implicate the defendant or to avoid a violation of probation for failure to cooperate with the police investigation. The trial court granted the prosecutors motion. (Davis, supra, 415 U.S. at pp. 310-311 [39 L.Ed.2d at pp. 350-351].) Davis concluded that "the right of confrontation is paramount to the States policy of protecting a juvenile offender. Whatever temporary embarrassment might result to [the witness] or his family by disclosure of his juvenile record — if the prosecution insisted on using him to make its case — is outweighed by [the defendants] right to probe into the influence of possible bias in the testimony of a crucial identification witness." (Id. at p. 319 .) Davis found the limited cross-examination allowed was inadequate and that the defendant was denied the right to effective cross-examination, by preventing the defendant from showing the witnesss bias and prejudice. (Id. at pp. 317-318 [39 L.Ed.2d at pp. 354-355].)
In Hammon, supra, 15 Cal.4th at pages 1123 to 1124, the California Supreme Court acknowledged the Davis courts holding "that a criminal defendants right to confront adverse witnesses sometimes requires the witness to answer questions that call for information protected by state-created evidentiary privileges." As Hammon stated, Davis applies in discussing "a defendants trial rights only: The court held 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.) Hammon "decline[d] to extend the defendants Sixth Amendment rights of confrontation and cross-examination to authorize pretrial disclosure of privileged information. Of course, nothing we say here is intended to address the application at trial of the principles articulated in Davis, supra, 415 U.S. 308 ." (Id. at p. 1128.)
"[T]he due process clause requires the `government to give the accused all `material exculpatory evidence `in its possession, even where the evidence is otherwise subject to a state privacy privilege, at least where no clear state policy of `absolute confidentiality exists. [Citation.] When the state seeks to protect such privileged items from disclosure, the court must examine them in camera to determine whether they are `material to guilt or innocence. [Citation.] In [Pennsylvania v.] Ritchie [(1987) 480 U.S. 39 (Ritchie)], the high court held that a complete in camera review of confidential records generated by a state agency as part of a molestation investigation was required where the defendant claimed they might undercut the complaining witnesss credibility and where state law did not bar their disclosure under all circumstances." (People v. Webb (1993) 6 Cal.4th 494, 518.)
In Ritchie, the issue was whether a defendants rights to confront and cross-examine witnesses and to due process outweighed the states interest in the confidentiality of its child protective agencys investigative files. (Ritchie, supra, 480 U.S. at pp. 42-43 , limited on a different ground in Jefferson v. City of Tarrant (1997) 522 U.S. 75, 83-84 [139 L.Ed.2d 433, 442].) The defendant was charged with sexual offenses involving his 13-year-old daughter who had reported the offenses to the police which turned the matter over to the agency. Serving the agency with a subpoena, the defendant sought to discover the agencys investigative files with respect to his daughter and her accusations as well as the agencys investigative files with respect to a prior child abuse report by an unidentified source. (Id. at p. 43 .) The agency refused to comply with the subpoena, citing the Pennsylvania statute which made the agencys investigative files confidential, "subject to 11 specific exceptions[] [o]ne of [which allowed disclosure] to a `court of competent jurisdiction pursuant to a court order. [Citation.]" (Id. at pp. 43-44 [94 L.Ed.2d at pp. 48-49], fn. omitted.) After a hearing in chambers, the trial court denied the defendants motion for sanctions against the agency and refused to order the agency to disclose its files. (Id. at p. 44 .) At trial, the defendants daughter testified against him and defense counsel thoroughly cross-examined her, without limitation on the scope. The defendant was convicted on all counts. (Id. at pp. 44-45 .) He appealed, contending that the failure to disclose the agencys files violated his rights to due process and to confront and cross-examine witnesses. (Id. at p. 45 [94 L.Ed.2d at pp. 49-50].)
Four members of the Ritchie court, the Chief Justice and Justices Powell, White and OConnor, concluded in the plurality opinion that the defendant did not have the right to examine the agencys files under the right of cross-examination prong of the confrontation clause since the right of confrontation is a trial right, not a right of pretrial disclosure of information. (Ritchie, supra, 480 U.S. at pp. 42, 51-54 [94 L.Ed.2d at pp. 48, 53-55].) They concluded that the confrontation clause was not violated because defense counsel was able to fully cross-examine the defendants daughter. (Id. at p. 54 [94 L.Ed.2d at pp. 55-56].) Justice Blackmun concluded that denial of pretrial access to the agencys file that would facilitate effective cross-examination of a crucial prosecution witness may constitute a violation of the confrontation clause. (Id. at pp. 61-66 [94 L.Ed.2d at pp. 60-63] (conc. opn. of Blackmun, J.) Justices Brennan and Marshall dissented, concluding that a violation of the confrontation clause occurred in the case since the defendant was denied access to the file and the victims prior statements with which he sought to impeach the victim at trial. (Id. at pp. 66-72 [94 L.Ed.2d at pp. 63-67].)
The Ritchie plurality considered the defendants claims under the due process clause of the Fourteenth Amendment, citing, inter alia, Brady v. Maryland (1963) 373 U.S. 83 (Brady). (Ritchie, supra, 480 U.S. at p. 56 [94 L.Ed.2d at pp. 56-57].) "It is well settled that the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment. [Citations.] Although courts have used different terminologies to define `materiality, a majority of this Court has agreed, `[evidence] is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. [Citations.] [¶] At this stage, of course, it is impossible to say whether any information in the [agencys] records may be relevant to [the defendants] claim of innocence, because neither the prosecution nor defense counsel has seen the information, and the trial judge acknowledged that he had not reviewed the full file." (Ritchie, at p. 57 .)
"It is undisputed that materials that `may be used to impeach a witness fall within the class of information subject to Brady[,supra, 373 U.S. 83 ] because impeachment information affects the fairness of trial. [Citations.]" (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 16 (Los Angeles).)
In rejecting the states argument that disclosure would contravene the states interest in confidentiality and the statutorily privileged nature of the agencys files "on the mere speculation that the file `might have been useful to the defense," Ritchie stated: "Although we recognize that the public interest in protecting this type of sensitive information is strong, we do not agree that this interest necessarily prevents disclosure in all circumstances. This is not a case where a state statute grants [the agency] the absolute authority to shield its files from all eyes. [Citation.] Rather, the Pennsylvania law provides that the information shall be disclosed in certain circumstances, including when [the agency] is directed to do so by court order. [Citation.] Given that the Pennsylvania Legislature contemplated some use of [the agencys] records in judicial proceedings, we cannot conclude that the statute prevents all disclosure in criminal prosecutions. In the absence of any apparent state policy to the contrary, we therefore have no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determines that the information is `material to the defense of the accused. [¶] We therefore affirm the decision of the Pennsylvania Supreme Court to the extent it orders a remand for further proceedings. [The defendant] is entitled to have the [agency] file reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of his trial. If it does, he must be given a new trial. If the records maintained by [the agency] contain no such information, or if the nondisclosure was harmless beyond a reasonable doubt, the lower court will be free to reinstate the prior conviction." (Ritchie, supra, 480 U.S. at pp. 57-58 [94 L.Ed.2d at pp. 57-58], fn. omitted.)
Here, the confidential nature of juvenile dependency case files generated by the government is not absolute in that certain parties have access to the information upon petition and court order. (Welf. & Inst. Code, § 827.) J.T. was a crucial prosecution witness. He accompanied defendant to the model homes during the day. He claimed that defendant gathered items she planned to take near a window, removed a screw in the window and placed the items outside the window. They returned at night and he helped defendant retrieve the items. J.T.s testimony directly linked defendant to the model home burglaries and her modus operandi.
4. Accomplice instructions.
Accomplice instructions were given as to J.T. If found to be an accomplice, J.T.s testimony required corroboration. (CALJIC No. 3.11.) He was between 10 and 11 years old at the time of the crimes. He claimed he had been intimidated by defendant as well as her friends, supporting the prosecutions theory that J.T. was not an accomplice because he had not participated voluntarily. (CALJIC No. 3.17.) But he admitted taking one pipe for himself from a model home. Without J.T.s testimony, the evidence that defendant burgled several of the model homes was less than convincing.
5. Evidence of thefts at model homes.
Several model homes were burglarized and defendant was found to be in possession of numerous stolen items. The model homes contained numerous decorative items, many ordinary and relatively easy to purchase, like books, towels, dishes, and blankets, which J.T. claimed defendant took. Many items that J.T. claimed defendant had stolen were not recovered upon a search of her apartment or storage unit.
L.M., J.T.s older friend (15 years old at the time of defendants crimes), claimed he accompanied J.T. and defendant on three occasions to new homes. On one occasion, defendant retrieved three framed pictures from the back of the model home. A car, however, was parked in the driveway of this home. L.M. admitted he had previously told an officer and a defense investigator that he never had been with defendant and J.T. at model homes.
Many employees from the model homes testified as to observing either defendant or her car at the homes where items were reported stolen. Defendant has a maroon Honda. An employee of one model home remembered a maroon car but not defendant in it. The employee said she remembered seeing defendant in the sales office earlier in the day prior to discovering items outside the window of one of the models, but four years earlier, she could not identify defendant from a photo lineup. The employee also said many people go through the homes. Employees discovered the screws missing from windows of several model homes but did not see who removed them or anyone moving items out the window. One model home employee identified defendant from a photo lineup. The employee had seen defendant and another woman in the model home acting suspiciously and later baskets were found stacked up near a door. The women got into a maroon car with a license plate ending in the numbers XXXX795 (obtained by one of the employees as the car drove by), almost the same as the license plate number on defendants car ending in XXXX575.
A Woodbridge development employee, Lana Reynolds, confirmed that items J.T. identified, as he walked through the model homes with a detective, as having been taken by defendant were missing, including a doll, pillow shams, pillows, throws, a perfume decanter and a stove top burner grate. From items recovered from defendants apartment/storage unit, Reynolds and another person identified a doll, dishes and chargers. Reynolds also identified green towels and stove grates.
A Winncrest development employee, Ruby Alby-Coles, confirmed that items J.T. identified as having been taken by defendant were missing, including glassware, dishes, law books, smoking pipes, suitcases, a silver tea set, a backpack, towels, silverware, wine, champagne, hand mirrors, a lamp, hats, jewelry and napkins. She was not sure whether the silver tea set and platter found in defendants possession came from the Winncrest model home. Apparently, none of the other items were found in defendants possession.
A model home sales representative had her purse stolen and her credit card was used at a Chevron station where Cindy Magee worked. Magee stated at trial that defendant had used it but Magee had previously told an officer she did not know who used it.
A computer was stolen from the sales office located in the garage of a model home. The computer was found in defendants apartment. Defendant claimed someone gave it to her as collateral for a loan and she had no idea it had been stolen.
6. Defense theory of limited cross-examination.
Defendant claims the trial court failed to conduct an in camera review of her stepson J.T.s juvenile dependency file to ascertain whether it contained evidence of inconsistent prior statements about caretakers that may have shown he was not a credible witness as to her thefts.
As we have noted, defense counsels theory was that J.T. lied about defendant in order to facilitate a change in placement. Defense counsel sought an in camera review of J.T.s juvenile dependency file to learn of accusations J.T. later recanted about his caretakers. The prosecutor agreed that J.T. would admit he lied about being beaten by his mothers boyfriend to preclude review of his dependency file. Defense counsel stated that he had information that J.T. lied about his mother, lied about Stephanie, and may have lied about other caretakers. Defense counsel argued that J.T.s accusations against defendant were motivated to ensure a change in placement such as the one J.T. obtained after he lied about his mothers boyfriend. On this record, defendant established a basis and made a plausible showing that the juvenile dependency file contained material evidence. (Ritchie, supra, 480 U.S. at p. 58, fn. 15 .)
The trial courts limit upon cross-examination violated defendants confrontation right because the additional evidence defendant sought to introduce might have resulted in "a significantly different impression of [J.T.s] credibility." (Van Arsdall, supra, 475 U.S. at p. 680 .) Unlike the defendant in Ritchie, defendant here was not able to fully cross-examine J.T. The limited cross-examination allowed was inadequate. The courts ruling precluded defense counsel from asking J.T. about prior lies about his mother and Stephanie. Access to J.T.s juvenile dependency file may have facilitated effective cross-examination of J.T.
Although the jury learned of J.T.s lie that he was beaten by his mothers boyfriend, J.T.s mother neutralized J.T.s lie: She claimed the home situation was not good; she revealed she was sick and had surgery for a tumor; she explained that she and her boyfriend argued all the time; and she admitted that her boyfriend verbally abused J.T. J.T.s mother denied that J.T. ever accused her of beating him or that she ever had. J.T. testified that he had lied about being beaten by his mothers boyfriend but denied that his mother had beaten him. Defense counsel was precluded from asking J.T. about whether he had told an investigator that his mother had horsewhipped him.
J.T. only confirmed that the investigator asked him whether he had been beaten by his mother but he was not asked what his answer was and confirmed that he told the investigator that he had been horsewhipped, but did not say who had done so.
As defendant argues, multiple lies by J.T. about his caretakers would have had an impact on the jurys evaluation of his credibility. (See Los Angeles, supra, 29 Cal.4th at p. 24 (dis. opn. of Moreno, J.).) Indeed, Juror No. 3, who was excused during trial in the midst of J.T.s testimony, recognized J.T. as a child in the neighborhood who was a "pathological liar," explaining "everything [J.T.] said to me seemed like a lie when I would ever talk with him." We cannot say the failure to conduct an in camera review of J.T.s dependency file was harmless beyond a reasonable doubt. (Cf. People v. Gurule (2002) 28 Cal.4th 557, 594-595, italics added ["[E]ven if defendant were entitled to disclosure of more psychiatric background material, any error in this regard was harmless beyond a reasonable doubt in light of the large amount of material already disclosed and made available to impeach [the witness ]"]; see also People v. Marshall (1996) 13 Cal.4th 799, 839-843.) As in Ritchie, it is impossible to say whether there was information in J.T.s juvenile dependency file that was relevant to defendants claim of innocence because no one has seen J.T.s file — not the prosecutor who initially suggested it was necessary to obtain the file, certainly not defense counsel who sought disclosure, and not the court which refused, indicating that it was not its responsibility.
7. Conclusion.
We conclude defendant was entitled to a court-conducted in camera review of J.T.s juvenile dependency file for lies and accusations later recanted against his caretakers. We shall reverse and remand. On remand, the trial court shall conduct such a review to determine whether disclosure of information relevant and material to defendants defense was required and if so, whether the failure to disclose was prejudicial, that is, whether the information probably would have changed the outcome of defendants trial. If J.T.s juvenile dependency file contains no such information, or if the failure to disclose was nonprejudicial, that is, harmless beyond a reasonable doubt, the trial court may reinstate the judgment except as discussed in part II.
II. Convictions for Stealing and Receiving the Same Property
Defendant contends and the Attorney General concedes that defendant was improperly convicted of stealing and receiving the same property in counts I and XV and in counts IX and XIV. The parties disagree as to the remedy. Defendant argues all four counts should be reversed and the matter remanded to the trial court for a determination of which count of each pair should be reinstated. The Attorney General argues that the two convictions for receiving should be reversed and that the two convictions for theft remain with judgment thereon affirmed. In the event judgment is reinstated after a review of J.T.s juvenile dependency file, the judgment requires modification. We agree with the Attorney General and shall reverse the convictions for receiving stolen property in counts XIV and XV and shall affirm the convictions for grand theft in count I and misdemeanor petty theft in count IX.
A. Background
Counts I and XV charged defendant with the theft and receipt, respectively, of Kinkade art:
"COUNT I
"On or between the 1st day of August, 1999, and the 31st day of December, 2000, in the County of El Dorado, the crime of GRAND THEFT OF PERSONAL PROPERTY, in violation of PENAL CODE SECTION 487[, subdivision] (a), a Felony, was committed by [defendant], who did willfully and unlawfully take money and personal property, to wit; Thomas Kin[k]ade Art, which belongs to [the Thomas] Kin[k]ade Gallery and has a value exceeding Four Hundred Dollars ($400)."
"COUNT XV
"On or about the 18th day of October 2001, in the County of El Dorado, the crime of RECEIVING STOLEN PROPERTY, in violation of PENAL CODE SECTION 496[, subdivision] (a), a Felony, was committed by [defendant], who did unlawfully buy, receive, conceal, sell, withhold, and aid in concealing, selling, and withholding property, to wit, `Kin[k]ade framed print, which had been stolen and obtained by extortion, knowing that said property had been stolen and obtained by extortion."
Counts IX and XIV charged the petty theft and felony receipt, respectively, of door hardware belonging to U.S. Homes:
"COUNT IX
"On or between the 1st day of June, 2000, and the 18th day of October, 2001, in the County of El Dorado, the crime of PETTY THEFT, in violation of PENAL CODE SECTION 484[, subdivision] (a), a Misdemeanor, was committed by [defendant], who did willfully, unlawfully steal, take, and carry away the personal property of another, to wit, U.S. Homes."
"COUNT XIV
"On or about the 18th day of October, 2001, in the County of El Dorado, the crime of RECEIVING STOLEN PROPERTY, in violation of PENAL CODE SECTION 496[, subdivision] (a), a Felony, was committed by [defendant], who did unlawfully buy, receive, conceal, sell, withhold, and aid in concealing, selling, and withholding property, to wit, miscellaneous hardware/door, which had been stolen and obtained by extortion, knowing that said property had been stolen and obtained by extortion."
B. Analysis
1. Counts IX and XIV.
The evidence confirms that the conviction for count XIV was premised on receipt of the same property, door hardware, that defendant had taken for purposes of count IX. J.T. identified door hardware as stolen from a model home. U.S. Homes Development Company construction manager, Gregory Witherow, identified the door hardware as worth $250 at builder cost. Detective Parker, who searched defendants apartment, found the door hardware in the hallway closet. In argument to the jury, the prosecutor identified the door hardware in a box from U.S. Homes Development Company as the property defendant had taken from a model home for purposes of count IX. The prosecutor did not specifically cite the evidence which supported count XIV, the receiving count, but she did note the defense evidence to refute that defendant had stolen the door hardware. Defendant testified that J.T. brought the box of hardware home one day after having been on a bike ride or scooter ride. The prosecutor argued that defendants explanation was not credible in light of the fact that 11-year-old J.T. would have had to ride his bike to U.S. Homes which was 15 miles away and ride back carrying a heavy box of hardware. In closing, defense counsel noted that the receiving stolen property count involved "stolen door hardware," which "probably came from U.S. Homes," but argued that the prosecutor had to prove that defendant knew it was stolen. With respect to the petty theft count (count IX), defense counsel argued it involved property that J.T. claimed defendant had stolen and defendant claimed J.T. brought home. Defendant contends and the Attorney General concedes that defendant cannot be convicted of both stealing and receiving the same property as charged in counts IX and XIV. Our review discloses the concession is appropriate.
A defendant may not be convicted of stealing and of receiving the same property except when there is evidence of a complete divorcement between the acts of stealing and receiving. (People v. Garza (2005) 35 Cal.4th 866, 874-882; People v. Allen (1999) 21 Cal.4th 846, 853, 858 (Allen); People v. Jaramillo (1976) 16 Cal.3d 752, 757, 759, fn. 8; § 496.) The Attorney General indicates the appropriate remedy is to affirm the theft conviction and vacate the conviction for receiving stolen property. We agree. (People v. Stewart (1986) 185 Cal.App.3d 197, 207, overruled on another ground in Allen, supra, 21 Cal.4th at p. 864; see also People v. Stephens (1990) 218 Cal.App.3d 575, 586-587.) Thus, we shall reverse defendants conviction of count XIV (receiving stolen property) and let the conviction of count IX (petty theft) stand.
2. Counts I and XV.
Although the analysis somewhat differs, the same result applies to counts I and XV. Count I alleged that defendant had stolen Thomas Kinkade art with a value exceeding $400 from the Thomas Kinkade Gallery. Count IX alleged receiving a stolen unspecified Kinkade framed print. The evidence revealed that Ken Williams purchased the canvases "Mountains Declare His Glory" and "Carmel, Sunset on Ocean Avenue" and several prints from defendant for his parents. Numerous prints were taken from the Kinkade gallery or framing shop and defendant gave them to her friend (Kim Bradley) and her sister (Christine McCrum) as well as to a bail bondsman (Chuck Holland) for bail on behalf of defendants husband. Officers found one print "Foothill Hometown Bridge" in defendants apartment. Mary Jane Baker saw defendant looking through the certificate drawer at the gallery when defendant worked on a different floor. Jeanne Stuart testified that there were prints without invoices on layaway. Billie Feuerhelm saw defendant leave the gallery with a tote bag full of items, one of which was a gallery light for a canvas. Defendants friend Julie Glass testified that defendant admitted stealing from the gallery.
The prosecutor relied on multiple theories for a conviction on count I. She argued that the jury could find defendant guilty of grand theft based on just her theft of the canvas "Mountains Declare His Glory" or just her theft of the canvas "Carmel, Sunset on Ocean Avenue." The prosecutor argued in the alternative that the jury could find defendant guilty of grand theft based on the theft of the two canvases and the 12 Kinkade prints, including the one officers found in defendants apartment. The prints were valued at about $4,000. The prosecutor told the jury it did not matter which theory as long as the jury was unanimous. In connection with the grand theft charge (count I), the trial court instructed the jury on unanimity (CALJIC No. 17.01).
For the receiving stolen property count (count XV), the amended information cited an unspecified Kinkade framed print that had been stolen. The prosecutor never specifically referred to count XV in closing argument. Because the jury may have convicted defendant of both stealing and receiving the same property, the receiving count must be reversed. Count I stands.
In imposing a state prison sentence of eight years, the trial court stayed sentence (§ 654) on counts XIV and XV. Thus, the reversal of these two counts has no effect upon the eight-year sentence imposed but an amended abstract of judgment must be prepared.
DISPOSITION
The matter is reversed and remanded. On remand, the trial court shall conduct an in camera review of J.T.s juvenile dependency file to determine whether disclosure of information relevant and material to defendants defense was required and if so, whether the failure to disclose was prejudicial, that is, whether the information probably would have changed the outcome of defendants trial. If J.T.s juvenile dependency file contains no such information, or if the failure to disclose was nonprejudicial, that is, harmless beyond a reasonable doubt, the trial court may reinstate the judgment except as follows: Counts XIV and XV, both receiving stolen property, are reversed. The trial court is directed to prepare an amended abstract of judgment reflecting the same and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur:
BLEASE, Acting P. J.
ROBIE, J.