People v. Pack

• Decision Date: 24 May 1988
• Citation: 248 Cal.Rptr. 240,201 Cal.App.3d 679
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ronald F. PACK, Defendant and Appellant. Crim. B020929.

Page 240

248 Cal.Rptr. 240

201 Cal.App.3d 679

The PEOPLE, Plaintiff and Respondent, v. Ronald F. PACK, Defendant and Appellant.

Crim. B020929.

Court of Appeal, Second District, Division 6, California.

May 24, 1988.

Certified for Partial Publication ^*

As Corrected Aug. 16, 1988.

Gaudioso, Yurtchuk & O'Loughlin and John D. O'Loughlin, Beverly Hills, under appointment by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Richard L. Walker, and Patrick T. Brooks, Deputy Attys. Gen., for plaintiff and respondent.

GILBERT, Associate Justice.

Ronald F. Pack appeals his conviction by a jury of various counts which include rape, kidnapping, sodomy, oral copulation and assault with a deadly weapon or by means of force likely to cause great bodily injury.

[[ ]] On appeal, Pack requests that this court review the mental health records of the complaining witness in order to ascertain We affirm the conviction.

whether the trial court erred in denying release of the records to him for purposes of impeachment. Pack also asserts as error the admission of statements in violation of his Miranda rights. [[ ]]

DISCUSSION

I. Mental Health Records

In response to a subpoena duces tecum from Pack, Ventura County Mental Health Services delivered to the trial court a sealed envelope containing the patient records of Shirley J., the victim and complaining witness. In deference to the confidential nature of the records (Welf. and Inst.Code, § 5328), the court examined them in camera to determine if they contained information relevant to the credibility, memory, and capacity of the witness, and whether such information should be released to the defendant for purposes of cross-examination and impeachment. (See People v. Reber (1986) 177 Cal.App.3d 523, 223 Cal.Rptr. 139.) The court, finding nothing in the records warranting disclosure, ruled that the privilege under Welfare and Institutions Code section 5328 applied and resealed the records.

Pack wishes us to review Shirley J.'s mental health records to determine whether the trial court's ruling was in error. Pack invokes his constitutional right to produce evidence on the issue of whether the witness' mental health problems affects her credibility, and asserts that this right overrides California's policies of evidentiary privilege and confidentiality.

The People urge that we not review the records because Reber, supra, is inapplicable and, in any event, the procedures for reviewing confidential records, as outlined in that case, were properly followed here.

The People argue that Pack has not shown a reasonable possibility that the evidence sought might have resulted in a different verdict. Pack argues his situation is "Kafkaesque" in that, because of the confidential nature of the records, he is unable to view them to ascertain if they are relevant. Without appellate review of the documents as a check on the trial court's discretion, the ruling becomes absolute and unreviewable.

A.

Shirley J.'s mental health care records are privileged from compelled disclosure under two statutory schemes. Welfare and Institutions Code section 5328 provides that all information and records obtained by state or county public mental health care facilities, in the course of providing services, are confidential. The statute is a "general prohibition against disclosure of information, subject to defined exceptions." (In Re S.W. (1978) 79 Cal.App.3d 719, 721, 145 Cal.Rptr. 143.) Among these exceptions is subdivision (f), allowing disclosure "[t]o the courts, as necessary to the administration of justice...." (Ibid.)

Disclosure pursuant to Welfare and Institutions Code 5328, subdivision (f) is in turn subject to an evidentiary limitation. Use of the records is prohibited by the psychotherapist-patient privilege (Evid.Code, § 1014) which operates independently of the Welfare and Institutions Code privilege. (Boling v. Superior Court (1980) 105 Cal.App.3d 430, 443, 164 Cal.Rptr. 432.) The psychotherapist-patient privilege (Evid.Code, § 1014) was not expressly considered by the trial judge in his review of Shirley J.'s records, and was not raised by either party at trial or here on appeal. The privilege may only be asserted by the patient, her authorized representative, or the psychotherapist. (Evid.Code, § 1014.) Evidence Code section 916 provides that the presiding officer of the court, "on his own motion or on the motion of any party, shall exclude information that is subject to a claim of privilege under this division if: (1) The person from whom the information is sought is not a person authorized to claim the privilege; and (2) There is no party to the proceeding who is a person authorized to claim the privilege."

Here the Ventura County Mental Health Service released the records to the court pursuant to Welfare and Institutions Code section 5328, subdivision (f), and did not assert the Evidence Code section 1014 privilege on behalf of the patient. Shirley J. is not a party to this criminal proceeding, and there is nothing in the record indicating she waived the psychotherapist-patient privilege. (Evid.Code, § 912.) Nor do any exceptions to the privilege apply. (See Evid.Code, §§ 1016-1027.)

Under such circumstances, the trial court was statutorily required to assert the psychotherapist-patient privilege, on its own motion, on behalf of Shirley J. (Evid.Code, § 916; Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 158, 143 Cal.Rptr. 450.)

Subdivision (f) of Welfare and Institutions Code section 5328 authorizes disclosure of information in some pending judicial actions or proceedings "unless such evidence is otherwise undisclosable." (Mavroudis v. Superior Court (1980) 102 Cal.App.3d 594, 602, 162 Cal.Rptr. 724.) Subdivision (f) does not override the Evidence Code privilege, and records released pursuant to subdivision (f) are not subject to discovery unless the Evidence Code section 1014 privilege is waived. (Ibid; In Re S.W., supra, 79 Cal.App.3d at p. 722, 145 Cal.Rptr. 143.)

B.

People v. Reber, supra, 177 Cal.App.3d 523, 223 Cal.Rptr. 139 sets forth the proposition that the psychotherapist-patient privilege must yield where the undisclosed information would deprive the defendant of the constitutional right to cross-examine adverse witnesses. The Reber court concluded that where good cause is shown by the moving party, the trial court should (1) obtain the privileged records and review them in camera; (2) weigh the constitutional right to cross-examine against the statutory privilege; (3) determine which if any of the privileged materials are essential to vindicate the defendant's constitutional right; and (4) create an adequate record for review. ( Id. at p. 532, 223 Cal.Rptr. 139.)

The trial court followed these procedures before it ruled that none of Shirley J.'s mental health care records should be released to Pack for use in cross-examination. We agree with the People that Pack did not make the good cause showing, which is a prerequisite to a Reber review of privileged documents.

A criminal defendant's motion for discovery must describe the requested information with reasonable specificity and must be sustained by plausible justification for production of the items requested. ( Lemelle v. Superior Court, supra, 77 Cal.App.3d 148, 162, 143 Cal.Rptr. 450.)

In Pennsylvania v. Ritchie (1987) 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40, the Supreme Court affirmed a Reber-type procedure providing for in camera review of confidential child abuse records held by a state agency. (480 U.S. at p. ----, 107 S.Ct. at p. 1002, 94 L.Ed.2d at p. 58.) The Court noted however that the defendant could not require the trial court to examine the confidential records "without first establishing a basis for his claim that it contains material evidence." (Ibid., at fn. 15.)

The defendants in Reber, accused of sexual assault, were not required to allege with particularity the information sought in the witness' psychotherapy records but "were able to and did connect specific facts in issue with recorded instances when the female victim had hallucinated sexual attacks." ( People v. Reber, supra, 177 Cal.App.3d at p. 532, 223 Cal.Rptr. 139.) This established sufficiently good cause for the trial court to undertake its in camera review.

Here, no such specific facts were shown prior to the trial court's in camera review of Shirley J.'s records. At trial, Pack cross-examined Shirley J. and called an expert witness in an attempt to impeach her reliability as a witness. Pack tried to show Shirley J. to be unreliable because of her blood alcohol level at the time of the incident, her periods of black-out, her inability to recall and place events in proper sequence, and her inconsistent testimony.

Pack argues that he has a constitutional right to produce evidence of Shirley J.'s mental health because of the showing he has made concerning her credibility. He contends that because Shirley J. "apparently received treatment for some mental health problem, the nature of which is unknown" to Pack, he is therefore entitled to judicial review of her mental health records to determine whether they contain information sufficiently probative to require disclosure.

We decline to review privileged psychotherapeutic records upon such a minimal showing. A person's credibility is not in question merely because he or she is receiving treatment for a mental health problem. To subject every witness in a criminal prosecution to an in camera review of their psychotherapist's records would be the invasion of privacy which the psychotherapist-patient privilege is intended to prevent. (People v. Stritzinger (1983) 34 Cal.3d 505, 511, 194 Cal.Rptr. 431, 668 P.2d 738; In Re Lifschutz (1970) 2 Cal.3d 415, 431-432, 85 Cal.Rptr. 829, 467 P.2d 557.)

That the privileged documents may contain relevant evidence is not a reason for disclosure. In considering the...