People v. Reber

• Decision Date: 11 February 1986
• Citation: 177 Cal.App.3d 523,223 Cal.Rptr. 139
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. William REBER and Walter Reber, Defendants and Appellants. Crim. 13655.

Page 139

223 Cal.Rptr. 139

177 Cal.App.3d 523

The PEOPLE, Plaintiff and Respondent, v. William REBER and Walter Reber, Defendants and Appellants.

Crim. 13655.

Court of Appeal, Third District, California.

Feb. 11, 1986.

Don Chairez, Fair Oaks, under appointment by the Court of Appeal, for defendants and appellants.

John K. Van de Kamp, Atty. Gen., Joel Carey and Richard Thomson, Deputy Attys. Gen., for plaintiff and respondent.

PUGLIA, Presiding Justice.

Defendants were convicted by a jury of felony false imprisonment (Pen. Code, § 236), two counts of kidnapping (Pen. Code, § 207), and assault with a deadly weapon (Pen. Code, § 245, subd. (a)). The jury found that in commission of the assault, the defendants inflicted great bodily injury (Pen. Code, § 12022.7). Defendants were also convicted of attempted sodomy in concert (Pen. Code, §§ 664/286, subd. (d)), oral copulation in concert (Pen. Code § 288a, subd. (d)), and five counts of rape in concert (Pen. Code, §§ 261, subd. (2)/264.1). Defendant William Reber alone was found guilty of anal penetration with a foreign object (Pen. Code, § 289, subd. (a)). The nonsexual offenses and the foreign object anal penetration were perpetrated upon a male victim; the remaining sexual offenses were perpetrated upon a female victim.

On appeal, defendants contend that (1) an order protecting the victims' psychotherapy records from discovery and use at trial violated their Sixth Amendment right to confrontation, (2) the court's refusal to order a psychiatric examination of the complaining witnesses hindered defendants' ability to assess the witnesses' competency to testify, and (3) the evidence was insufficient to sustain convictions for kidnapping. Although we conclude defendants' first argument has merit, defendants suffered no prejudice which would warrant reversal of the judgments of conviction. (See Cal.Const., art. VI, § 13.) We shall affirm.

The male victim, James D., is developmentally handicapped and retarded. According to his testimony, defendants befriended him. More accurately, they first ingratiatingly insinuated themselves into his confidence and then secured his participation in their perverted schemes with thinly veiled threats bolstered by the actual infliction of violence.

During the first week of May 1982, James accompanied defendants to their house at their invitation. While there, defendants whipped him with a belt, urinated on him, and forced him to orally copulate a dog. They cut portions of his hair and tied him up in a closet where he remained all night until released the next morning. This episode forms the basis of the kidnapping charged in count I as to which defendants were found guilty of the lesser included offense of felony false imprisonment.

Several days later, defendants approached James and told him to return with them to their house. James complied because he was "scared" of defendants. Once there, defendants again whipped him with a belt, urinated on him, forced him to orally copulate the dog, and shaved off the rest of his hair. Defendant William Reber "jammed" a mop handle "an inch or an inch-and-a-half" "up [his] rear" after which both defendants tied him up, placed him in a closet, and kicked him. He was released after spending the night chained in the bathroom. This episode forms the basis of the kidnapping charged in count II of which both defendants were convicted and the anal penetration with a foreign object charged in count V of which defendant William Reber alone was convicted.

A few days later, defendants again told James to accompany them to their house; he complied because he thought "worse" things would happen if he did not. Once there, defendants threatened to castrate him with knives and ordered him to remove his clothes. Defendants whipped him with a belt, forced him to orally copulate the dog, burned him twice on the chest with cigarettes, and lowered him from a second story window by a rope tied to his feet. After his mustache and eyebrows were shaved off, the victim was chained in a closet and kicked a number of times in the groin. Later, defendants pulled out or broke off most of his teeth with a pair of pliers and doused him with scalding and cold water. For a period of days, the victim remained chained to defendants' toilet during the night and chained to a couch during the day. Eventually, he stayed in the house without being chained, during which time the female victim arrived. This episode forms the basis of the kidnapping charged in count III and the assault with a deadly weapon charged in count IV. Defendants were each convicted on these counts.

The female victim, Cherron W., suffered from chronic mental illness. She had known defendants for about a year and, to her ultimate misfortune, considered them to be her friends. Defendants invited her to their house. When she arrived, they chained her, whipped her with a fly swatter, forced her to undress, urinated on her, cut off her hair, and beat her with a belt. On defendants' orders, she orally copulated James and he attempted to sodomize her. Defendants then compelled Cherron to have intercourse with each of them. They raped her three more times while she was chained to the toilet for the night. She remained chained at different locations in the house for the next five or six days. This episode forms the basis of the attempted sodomy in concert charged in count VII, the oral copulation in concert charged in count VIII, and five counts of rape in concert charged in counts IX through XIII. Both defendants were convicted on all these counts.

Walter Reber testified that James orally copulated the dog voluntarily and allowed himself to be tied up in various poses and photographed so that the pictures could be sold to magazines. The pictures were admitted into evidence. He denied James was struck with a mop handle, chained to a toilet, or threatened with castration. He testified James's hair had been cut and his head shaved because he had gotten paint on his head; his teeth reportedly were knocked out by two black men using a piece of pipe. Defendant Walter Reber also denied ever chaining, tying, or otherwise abusing Cherron. He admitted the sexual acts which she described had occurred but testified they all were voluntary on her part.

Defendant William Reber did not testify.

I

Defendants obtained a subpoena duces tecum to secure from nonparties medical records relating to psychoterapy administered to the two complaining witnesses. (See Pacific Lighting Leasing Co. v. Superior Court (1976) 60 Cal.App.3d 552, 559-567, 131 Cal.Rptr. 559; People v. Superior Court (McKunes) (1976) 62 Cal.App.3d 853, 857-858, 133 Cal.Rptr. 440.) Prior to trial, the prosecution moved to quash defendants' subpoena duces tecum and sought a protective order covering certain such records of the female victim which had already been released to defendants. Both motions were predicated on the psychotherapist-patient privilege of Evidence Code section 1014. Defendants opposed the motion, arguing that their Sixth Amendment right to confront the witnesses outweighed the statutory privilege protecting patient privacy. They asserted that the records in question would reveal that both complaining witnesses had a long history of paranoid schizophrenia, accompanied by periods of delusion and hallucination. The female victim's psychotherapy records had already been made available to the defense. Confidential communications contained in those records documented instances when she had hallucinated sexual attacks by men.

After conducting an in camera examination of at least some of the records under subpoena, the court issued a partial protective order (1) precluding further discovery and evidentiary use of confidential communications between the patient-witnesses and their psychotherapists but (2) making available for defendants' use at trial all other records concerning the mental condition of the witnesses which revealed that either had suffered from "hallucinations or delusions of a severe nature." The ruling was based on then extant Evidence Code section 1028 (repealed Stats.1985, ch. 1077), which limited the psychotherapist-patient privilege in a criminal proceeding to patient relationships with psychiatrists and licensed psychologists, excluding other credentialed mental health therapists. (See People v. Gomez (1982) 134 Cal.App.3d 874, 880, 185 Cal.Rptr. 155.)

At trial, defendants again requested they be allowed to use the protected psychotherapy records of both victims on cross-examination. The court adhered to the earlier ruling and also limited inquiry into the nonprivileged history of the witnesses' mental deficiencies to the immediately preceding 10-year period because "beyond that, it would [not] be relevant." (See Evid. Code, § 352.)

Defendants rely principally on Davis v. Alaska (1974) 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347, to support their claim that the challenged discovery and evidentiary rulings effectively denied them their Sixth Amendment confrontation rights. In Davis, the prosecution obtained a protective order preventing the defense from cross-examining the key prosecution witness concerning his probation status. The order was based on an Alaska statute protecting the anonymity of juvenile offenders. Reversing the conviction, the United States Supreme Court held that the right of confrontation was paramount to the state's policy of protecting anonymity of the the juvenile offender. Whatever temporary embarrassment might result to the witness and his family by disclosure of his juvenile record was outweighed by the defendant's "right to probe into the influence of possible bias in the testimony of a crucial identification witness." (Id., 415 U.S. at p. 319, 94 S.Ct. at p. 39 L.Ed.2d at p. 355.) The high court reasoned that the Sixth Amendment guarantee that an accused in a criminal prosecution " 'be confronted with the witnesses against him' " means...