Opinion
A156270
04-21-2020
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY MARBLE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR701080)
A jury convicted Timothy Marble of committing multiple sex offenses against Jane Doe, a young girl he picked up at a gas station. Marble, who had a prior strike conviction, was sentenced to life in prison without the possibility of parole, plus 100 years to life. On appeal, he contends his constitutional rights were violated because the trial court denied his request to conduct an in-camera review of Jane Doe's psychiatric records. Positing that the court was biased against him, Marble asks us to conduct this review in the first instance. We deny Marble's request and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2018, Marble was tried on charges that he committed the following crimes against Jane Doe, who was under the age of 14: forcible rape (Penal Code § 261, subd. (a)(2); count 1); forcible oral copulation (§ 288a, subd. (c)(2)(B)) on a hillside (count 2) and while inside a vehicle (count 3); and lewd acts on a child (§ 288, subd. (a)), the acts being sexual intercourse (count 4), oral copulation on a hillside (count 5), and oral copulation in a vehicle (count 6). Each charge was accompanied by a special sex-crime enhancement allegation for furnishing a controlled substance to a minor. (§ 667.61, subds. (a), (e), (j) & (l).) For crimes allegedly committed on the hillside, Marble was charged with an additional enhancement for tying and binding the victim. (Ibid.) For crimes allegedly committed in a vehicle, there was an additional enhancement allegation for aggravated kidnapping. § 667.61, subds. (a), (d), (j) & (l).)
Statutory references are to the Penal Code unless another statute is cited.
I. The Prosecution Case
A. The Events Leading to Marble's Arrest
On the morning of April 1, 2017, at around 5:00 a.m., Marble was driving on Heron Way in Bodega Harbor when he pointed his flashlight at a passing vehicle driven by Wolf L., a security guard for a local homeowner's association. Wolf pulled over to see if Marble needed help. When Marble got out of his truck to talk to Wolf he was "clearly panicked and worried." He said that a girl had thrown herself out of his vehicle. Wolf called 9-1-1 and handed his phone to Marble. Marble told the dispatcher that he had picked up a young girl about 14 years old who seemed like she was in distress. He was trying to help her because some guys had been harassing her and she was a cutter, but she had suddenly jumped out of his truck. He described the girl and said her sweatpants would be bloody.
Approximately 10 minutes later, Sonoma County Deputy Sheriff Tim Wright arrived at the scene where Marble and Wolf were waiting. Marble was nervous, breathing heavily and visibly distressed. His responses to questions were coherent but not always logical, and his explanation as to why the girl was with him did not make sense. His behavior was consistent with a person under the influence of methamphetamine. Deputy Wright had been talking to Marble for about a minute when 13-year-old Jane Doe "walked out of the darkness." She was limping up the hill, had no shoes and only one sock, was scraped up and appeared to be in pain. As the Deputy approached the girl, he could see that she had been sobbing and was very emotional. When he was around 25 feet away she said, "he raped me." Wright called for backup and told Wolf to stay with Jane Doe while he went to deal with Marble.
Wolf went to offer aid to Jane Doe, who was limping, crying, had blood on her clothes and "seemed quite injured." She was in too much pain to sit down so she leaned against Wolf until EMTs arrived. While they waited, Jane Doe was extremely distressed and seemed to be both terrified and angry. She said that Marble had offered her marijuana and she agreed to spend time with him, but the situation changed quickly, and it became a matter of "force." She said that Marble kidnapped and raped her and carved her flesh with a knife.
Jane Doe was transported to the hospital where she was treated for her physical injuries. Then she participated in a forensic interview and sexual assault exam at the Redwood Children's Center. Joan Risse, the sexual assault examiner, observed Jane Doe's interview through a one-way window and then took her to a sanitized private room to perform the physical exam. During her interview, Jane Doe described sexual assaults Marble committed on a hill and in his truck, which included rape, forcing Jane Doe to give and receive oral copulation, and kissing, sucking and biting various parts of Jane Doe's body. After completing her interview and giving Risse consent for a physical exam, Jane Doe fell asleep. This was not surprising under the circumstances: Jane Doe was exhausted; she had been given pain medication at the hospital; and she told Risse that Marble injected her with methamphetamine.
While Risse was conducting her exam, Jane Doe said that she was "out of it" for stretches of time while she was with Marble. She was able to recount some things that happened to her but still felt the effects of the drugs that Marble had given her. In addition to the sexual assaults, Jane Doe said that Marble carved the name "Timmy" on her arm with a knife. She told Risse that she had used a razor blade to add the word "die" after "Timmy" because she wanted to die. Risse's physical findings were consistent with Jane Doe's account of what Marble had done to her.
B. The Investigation and Forensic Evidence
Sherriff's deputies searched Marble's truck. On the passenger floorboard, they found a knife inside a closed decorative box, a bra, a pink sock, and a pair of shoes. Hypodermic needles, a disposable lighter, and a spoon were recovered from the center console. From the cab of the truck, the officers also collected a disposable razor, cell phones, food items and miscellaneous paperwork. Among Marble's papers, the officers found a document that looked like a checklist. One entry stated, "see Eddie," which was preceded by two check marks. Another item on the list stated, "lil girl + kidnap w/ booze," followed by the phrase "exciting sec" [sic].
There were several gas station receipts in Marble's truck, which were used to trace his movements. On March 31, 2017, at approximately 2:54 a.m., Marble drove his truck to a gas station in Napa. Surveillance video from the station shows Marble interacting with Jane Doe. At one point, Jane Doe hugged Marble and he gave her his jacket. The video cut off before Marble left the station. However, several hours later Jane Doe was in Marble's truck when he stopped to get gas in St. Helena at around 4:00 p.m. The following day, at around 4:00 a.m., Marble stopped at a gas station in Bodega Bay for approximately one hour. Again, surveillance video shows Jane Doe in Marble's truck. The video also captures a young woman subsequently identified as Maura C.
Maura reported that when she and some friends were dropped off at the Bodega Bay gas station on the early morning of April 1, 2017, Marble was already there standing outside his truck. Maura's friend went to talk to Marble, perhaps to ask for a ride. After a short conversation, the friend came and told Maura that Marble seemed "off" and there was a young girl in his truck. Maura took a photo of Marble's license plate and then she and her friend went over to the truck. They talked to the girl through the passenger window, which was rolled all the way down. The girl in the passenger's seat was clearly very young, her hair was very messy, and a blanket covered her waist. The girl was "out of it," said "what" a lot, and did not answer questions about whether she was alright or if Marble was hurting her. She looked scared and helpless. Marble told Maura that the girl was "defiant" and trying to run away. In apparent response to that comment, Jane Doe lifted her sleeve to show that letters had been carved on her arm and then she said something about "mental issues." Marble became impatient and nervous, said he could not deal with the girl anymore and was going to take her to her mother. He seemed in a hurry as he got in the truck and drove away.
The Sherriff's Department ordered toxicology testing of urine and blood samples that had been taken during Jane Doe's sexual assault exam. One or both of these samples tested positive for methamphetamine, amphetamine, norfentanyl, lidocaine, diphenhydramine and citalopram. Amphetamine is a metabolite of methamphetamine. Norfentanyl and lidocaine are pain medications often administered by hospitals. Lidocaine is also used as a cutting agent for methamphetamine. Diphenhydramine is commonly used in allergy medication, and citalopram is used to treat depression.
A criminalist at the California Department of Justice tested DNA samples collected from Marble and Jane Doe. DNA recovered from Jane Doe's vagina and underwear matched a reference sample of Marble's DNA, and Jane Doe was a match for DNA collected from Marble's penis.
C. Jane Doe's Trial Testimony
Jane Doe testified that in March 2017, her divorced parents had separate homes in Napa, and she lived part-time with each of them. During that period, Jane Doe was having a "hard time" with school, family or just being a teenager. Around midnight on the morning of March 31, 2017, she snuck out of her father's house and walked to a gas station where she often hung out. She was familiar with the gas station because her aunt used to work there, and she also knew an employee named Eddie. On the day in question, Jane Doe talked with Eddie before she met a friend behind the station to smoke marijuana. Around 20 minutes later, Jane Doe went into the store at the gas station where Eddie was having a conversation with Marble. Jane Doe could not recall how she met Marble but testified that she walked outside with him to talk. She told Marble that she was 13 and he said that he was 51. She enjoyed talking and hanging out with him.
During her testimony, Jane Doe acknowledged that she got into Marble's truck, but she failed to answer questions about how that happened. Doe explained that the subject was difficult for her because she felt that she was at "fault for getting in the car." She did confirm, however, that Marble told her he was going to give her a ride home and she believed him. As the prosecutor proceeded to question Doe about the events that unfolded, she often failed to answer or did not remember details. Part way through her testimony, the court permitted the prosecutor to ask leading questions. With this caveat, Jane Doe was able to provide the jury with a summary of what happened after she got into Marble's truck.
According to Doe's testimony, Marble drove for around 10 minutes while they talked and then he pulled over and covered the windows of the truck cab with a blanket. He injected himself with methamphetamine and then offered her some. She told him she was not interested, but he took her arm and injected the drug into her. Jane Doe felt confused and afraid, and then she became disoriented. But Marble was still being nice. He got them some food and then drove off-road up a hill, through an area not meant for cars. They got out of the truck and walked behind some bushes, put out a blanket, and sat and talked. Then Marble began touching Jane Doe in a way that made her uncomfortable. He pulled off her pants and used them to tie her wrists in front of her. He began orally copulating her and she told him to stop but he did not. He put his penis inside her vagina. She did not recall feeling scared or feeling anything but just wanting it to end. Afterwards, he injected both of them with more methamphetamine.
After they returned to the truck, Marble was no longer being nice. He yelled at Jane Doe, hit her, pulled her hair and threatened her. He also showed her a knife he kept in a box in the truck. At trial, Jane Doe could not or would not answer questions about whether Marble threatened her with the knife. She did confirm that Marble punched her in the head several times and that she became afraid of him because he had hurt her and forced himself on her.
After the sexual assault on the hillside, Marble forced Jane Doe to orally copulate him while he was driving. He pulled her hair when she attempted to resist and threatened to hurt her more if she did not comply with his directions.
The prosecutor asked Jane Doe if she had any suicidal thoughts while she was in the truck with Marble. She declined to answer the question, but she did confirm that she was "hurting inside" and because of what she was feeling inside, she "hurt" herself on the outside. After the things that happened to her on the hillside, she cut the words "Timmie" and "die" onto her arm.
The next thing that Doe remembered happening was that they stopped at a gas station in Bodega Bay, which was not yet open because it was so early. A group of teenagers were hanging out there. Two of them came over to talk to her and see if she was okay, but she could not be honest with them because Marble was standing there and she was afraid of him. After they left the gas station, Marble yelled at her and punched her. At some point, she opened the truck door and jumped. Marble was probably driving 30 or 40 miles per hour, but she was afraid he was going to kill her and believed that jumping was her only way out. It hurt to hit the ground, but she got up and hid in the bushes. She knew he was looking for her because she saw his flashlight and heard him calling. She stayed hidden until she saw the police officer and felt she had been saved.
Under cross-examination, Jane Doe was asked several questions about drug use. She testified that she did not use marijuana or take any prescription drugs before coming to court to give her trial testimony. After her memory was refreshed, Jane Doe acknowledged that she did take Zoloft before testifying at Marble's preliminary hearing, but she denied taking Zoloft before testifying at trial.
Jane Doe also confirmed that she smoked marijuana on March 31, 2017, but she did not know if she smoked marijuana with Marble. Even after her memory was refreshed, Doe did not recall testifying at the preliminary hearing that she did not smoke marijuana with Marble. Doe also testified that she did not know if she had been prescribed or had taken an antidepressant on that day. She was not familiar with the names of drugs found in her blood stream after she was rescued and had no explanation for those test results.
During cross-examination, Jane Doe did not answer several questions, testified that she did not know the answers to many other questions about her encounter with Marble, and had to take several breaks. After Jane Doe completed her testimony and the jury was excused, the trial court made a record of the fact that both counsel experienced difficulty examining her. Her overall "demeanor" and tendency to be "nonresponsive" made it "very, very difficult" to examine her.
II. The Defense Case
At trial, Marble did not dispute that he committed crimes by having sexual intercourse and engaging in oral copulation with Jane Doe. His defense counsel argued, however, that Jane Doe consented to everything she did with Marble and lied about it later because she regretted the choices she made.
The defense called one witness at trial, Katie Litchfield, who had conducted Jane Doe's forensic interview on April 1, 2017. Litchfield testified that when Jane Doe described her ordeal, she presented many things that happened to her "as sort of this contradiction." Some parts of the experience were positive, when Marble was nice to her, bought her food and performed rap songs with her. But then, "out of nowhere," he would do something like yank her hair.
Litchfield testified that Jane Doe told her that Marble had several knives and a gun in his truck and that he used one of the knives to cut his name into Jane Doe's arm. During her interview, Doe also reported that Marble had played dominos at a gas station where they met some young people. She "explained" the sexual assault that occurred on a hill in multiple ways. She said that Marble had used her leggings to bind her hands, but then she also described being tied to a tree and possibly having her legs tied. She also said that Marble put a sock in her mouth and used his shirt to tie her up. She told Litchfield that Marble had five sweatshirts and was "very prepared." She had trouble answering Litchfield's questions about this assault and Litchfield did not feel that she had a good understanding of what had happened.
III. The Jury Verdicts
On November 5, 2018, the jury found Marble guilty of forcible rape (count one), forcible oral copulation on a child under the age of 14 (count 3) and three lewd acts on a child under the age of 14 (counts 4, 5, 6). As to each offense, the jury found true the enhancement allegation for administering a controlled substance to a minor. The jury also found true the aggravated kidnapping enhancement alleged in connection with the two offenses that occurred in Marble's truck (count 3 & 6). However, the jury was unable to reach a verdict on the charge of forcible oral copulation on a hillside (count 2) or the enhancement of tying and binding as to the crimes committed on the hillside (count 4 & 5).
DISCUSSION
Marble's sole claim of error pertains to the denial of a defense motion to disclose Jane Doe's psychiatric records. The crux of this claim is that Marble's due process rights to a fair trial were violated because the trial court refused to review these records and consider disclosing them to the defense.
I. Additional Background
Prior to trial, Marble filed a notice of motion and motion to release documents produced pursuant to a subpoena duces tecum. According to Marble's motion, the defense was requesting an order releasing Jane Doe's "psychiatric records" because they were "material to the preparation of a full and intelligent defense."
As factual support for his request, Marble relied on two circumstances. First, a Sherriff's incident report indicated that Jane Doe's mother had described her daughter as a "a chronic runaway" who had "been hospitalized several times for mental illness." This disclosure prompted the defense to review Jane Doe's family law case file, where it discovered the name of Jane Doe's therapist and a hospital where she was treated for "mental health issues." Second, Jane Doe's preliminary hearing testimony was allegedly inconsistent with several statements she previously made during her forensic interview.
Marble acknowledged that Jane Doe's medical records were protected from discovery by the patient-psychotherapist privilege. He argued, however, that because the records were relevant, the trial court was required to review them in camera to determine whether the privilege was outweighed by Marble's constitutional right to a fair trial.
The People opposed Marble's motion on the grounds of privilege and lack of relevancy. They argued that the court should either quash the subpoena or wait until trial to conduct an in-camera review of Jane Doe's mental health records. Jane Doe's parents also objected to the release of their daughter's medical records. In an order filed August 1, 2018, the court deferred further hearing on the motion until trial, citing People v. Hammon (1997) 15 Cal.4th 1117, 1127-1128 (Hammon). The order stated that the defense would be expected to present a concrete theory of relevancy, other than its general claims of a right to investigate and present evidence of "alternative reasonable explanations" for the charges.
After the prosecutor completed her direct examination of Jane Doe, the defense renewed its request that the court conduct an in-camera review of Jane Doe's mental health records and make a formal ruling as to "whether those records can be released to the defense." The prosecutor objected, arguing there had been no "good cause showing" that the records were relevant or would be exculpatory in any way. The trial court agreed with the prosecutor that it would not be appropriate to unseal Jane Doe's records absent a threshold showing of how the records could add to Marble's defense. Counsel responded that it was hard to show relevancy without knowing the content of the records but offered two theories. First, if Jane Doe had a cutting disorder, that would explain her arm injury. Second, if Jane Doe was suicidal, that would provide an alternative explanation for her jumping out of the truck.
Questioning how these matters were relevant to Marble's defense, the court stated: "Please explain to me how that would bear in any way on whether Mr. Marble raped her or did any sex acts on her body or injected her with methamphetamine." Defense counsel suggested the records could be relevant to the enhancements and then asked whether the court would take the matter under submission. The court responded that nothing had materialized to justify interrupting the trial to do an in-camera review. However, defense counsel was not prohibited from renewing her motion if her cross-examination of Jane Doe disclosed something relevant about the content of the mental health records.
The defense renewed its motion after eliciting testimony from Katie Litchfield about statements Jane Doe made during her forensic interview. Again, the prosecutor objected the records were not relevant.
To clarify the issue, the trial court asked defense counsel to assume that the court had conducted the review and found some evidence that Jane Doe had a diagnosed mental disorder or was prescribed medication for a mental health issue. Then the court asked: "How would that go to a defense related to what we've had presented here? What would that add to anything?" Defense counsel repeated the same two theories of relevancy: if Jane Doe was a cutter that would impact her credibility on the issue whether Marble had cut her arm; if Jane Doe had a mental health problem, that could be relevant to the kidnapping enhancement if it provided an alternative explanation for Jane Doe's decision to jump out of the truck.
The trial court probed counsel to explain how a cutting disorder or other mental health issue would diminish Marble's culpability or assist his defense in any way. Defense counsel conceded that such evidence would not justify the crimes Marble was charged with committing but argued that "it could go to the aggravated kidnapping allegation." When the court responded, "I'm not following that," defense counsel declined to elaborate further stating, "[t]hat's my position."
Concluding that the defense did not make "an adequate showing," the court explained: "I . . . really do not believe that would go to a defense in any way, shape or form. It is clear—and the jury is aware that she has mental health issues that occurred before this incident happened, but I don't believe that would be exculpatory or mitigating for Mr. Marble in this circumstance. So I'm not going to go into that."
B. Analysis
Marble concedes that Jane Doe's psychiatric records are protected from disclosure by the psychotherapist-patient privilege. (Evid. Code § 1014.) He argues, however, that the trial court violated his constitutional rights to a fair trial by refusing to conduct an in-camera review of those records either before or during trial.
We begin with the order denying Marble's request for the court to undertake a pre-trial review of the confidential records. Marble argues that, as a criminal defendant, he was entitled to obtain this third-party discovery if he established a "plausible justification" for his request, citing Ballard v. Superior Court (1966) 64 Cal.2d 159, 167 (Ballard). Marble posits that he met this "low bar" because the information he sought went "directly to the credibil[ity] of the key prosecution witness."
Ballard was a writ proceeding challenging an order denying a defendant's pretrial request for discovery in a pending criminal action. (Ballard, supra, 64 Cal.2d at p. 164.) Affirming the order, our Supreme Court found that the discovery motion failed to describe with reasonable specificity the information that defendant sought or to provide a "plausible justification" for the request. (Id. at p. 167.) First, we note that Ballard did not involve a request to produce privileged documents. Second, and in any event, Marble's pre-trial motion suffered from the same infirmities as the discovery motion that was denied in Ballard. Marble did not specify information he was looking for or articulate a plausible justification for violating Jane Doe's psychotherapist-patient privilege.
Furthermore, in its pre-trial ruling the court did not refuse to review Jane Doe's records but deferred the matter until she testified at trial. As Marble concedes, this ruling was consistent with controlling precedent. In Hammon, supra, 15 Cal.4th 1117, the California Supreme Court held that a "trial court was not required, at the pretrial stage of the proceedings, to review or grant discovery of privileged information in the hands of third-party psychotherapy providers." (Id. at p. 1119.) The Hammon court rejected the "defendant's claim that pretrial access to such information was necessary to vindicate his federal constitutional rights to confront and cross-examine the complaining witness at trial or to receive a fair trial." (Ibid.) Hammon has been interpreted broadly, as establishing that "psychiatric material is generally undiscoverable prior to trial." (People v. Gurule (2002) 28 Cal.4th 557, 593 (Gurule).) The justification for this rule is that the trial court will likely not have sufficient information prior to trial to balance the competing interests at stake and, therefore, "if pretrial disclosure is permitted, a serious risk arises that privileged material will be disclosed unnecessarily." (Hammon, at p. 1127.)
In light of these settled principles, the trial court did not err by postponing the decision whether to conduct an in-camera review of Jane Doe's records. Marble's motion did not articulate a compelling theory of relevancy or identify any concrete circumstance that would except this case from the general rule disfavoring pre-trial discovery of this type of information.
Regarding the rulings made at trial, Marble's theory is that due process principles required the court to conduct an in-camera review once Jane Doe was called to testify for the prosecution in order to determine whether her history of psychiatric treatment was relevant to impeach her credibility. On the facts presented here, we disagree.
"[T]he mental illness or emotional instability of a witness can be relevant on the issue of credibility, and a witness may be cross-examined on that subject, if such illness affects the witness's ability to perceive, recall or describe the events in question." (Gurule, supra, 28 Cal.4th at pp. 591-592, see also Evid. Code § 1103, subd. (a).) But "this does not mean the defense is entitled to rummage through the medical records of every witness in a criminal prosecution looking for evidence to impeach the witness's credibility." (Susan S. v. Israels (1997) 55 Cal.App.4th 1290, 1297 (Susan S.).) Instead, "[w]hen a defendant proposes to impeach a critical prosecution witness with questions that call for privileged information, the trial court may be called upon . . . to balance the defendant's need for cross-examination and the state policies the privilege is intended to serve." (Hammon, supra, 15 Cal.4th at p. 1127.)
Both parties assume that an in-camera review is required if the defendant establishes "good cause" to believe that the privileged records contain evidence relevant to impeach the credibility of a prosecution witness. This test was announced in People v. Reber (1986) 177 Cal.App.3d 523 (Reber). In that case, the defendants were convicted of kidnapping and sexually assaulting two victims, a developmentally disabled male and a female acquaintance who suffered from chronic mental illness. (Id. at p. 527- 528.) On appeal, the Reber court found that the trial court erred by failing to complete an in-camera review of the complaining witnesses' psychotherapy treatment records when the defendants' pre-trial motion established good cause for discovery of the records "insofar as [they] contained evidence of psychotic or hallucinatory behavior relevant to credibility." (Id. at p. 531.)
Reber was overruled in Hammon, which found no constitutional basis for requiring pre-trial consideration of a witness's mental health records. (Hammon, supra, 15 Cal.4th at pp. 1127-1128.) However, because Hammon does not preclude using the good cause standard to evaluate whether to conduct an in-camera review during trial, some courts assume this standard should still be utilized. (See e.g. Susan S., supra, 55 Cal.App.4th at pp. 1295-1296.)
The legal point may be contested. Reber's good cause standard derives from Evidence Code section 1043, which requires a showing of good cause for the discovery of peace officer personal records. (Reber, at p. 532, citing People v. Memro (1985) 38 Cal.3d 658 (Memro).) As explained in Hammon, this category of privileged documents is distinguishable from third party medical records for purposes of resolving discovery disputes. Because the prosecution is generally required to "turn over to the defense all material exculpatory information in the government's possession," due process principles may require the trial court to conduct an in-camera review of an agency's records prior to trial to determine if disclosure is required. (Hammon, supra, 15 Cal.4th at p. 1125.) But records that are subpoenaed from a third party health care provider were never "possessed" by the government, and thus are not governed by the rule of Brady v. Maryland (1963) 373 U.S. 83, 87. (Hammon, at p. 1125.) In holding that the good cause standard does not apply to a pre-trial request to compel privileged third-party discovery, Hammon did not address what standard should be used to evaluate whether to conduct an in-camera review of the same records during trial.
We assume, without deciding, that the good cause standard can be used in this context and review for abuse of discretion the trial court's finding that good cause for an in-camera review was not established here. (See Memro, supra, 38 Cal.3d at p. 684.) We conclude the trial court did not abuse its discretion by denying Marble's request after asking repeatedly for a concrete theory of relevancy that Marble was unable to supply.
As outlined above, defense counsel's first theory was that evidence of a cutting disorder was relevant to show that Marble did not cut Jane Doe. This was not a material issue because Marble was not charged with any crime or enhancement based on the cutting injury to Jane Doe's arm. Further, Jane Doe testified at trial that she cut herself. Defense counsel cross-examined on this point and impeached Jane Doe with prior inconsistent statements that Marble had carved his name into her arm. Thus, even if the issue was marginally relevant, the defense did not need privileged records to impeach Jane Doe about it.
The other theory that defense counsel relied on at trial was that Jane Doe's treatment records could be relevant to the kidnapping enhancement if there was evidence of a disorder that made her suicidal. But considering her predicament, Jane Doe's conduct was not consistent with attempted suicide; she escaped from a vehicle, hid in bushes, and waited for help to arrive. And even if her leap from the truck could be interpreted as an attempt at suicide, it is hard to imagine how that would bolster Marble's consent defense or tend to disprove the kidnapping enhancement. The kidnapping enhancement pertained to acts of forcible oral copulation and lewd conduct with Jane Doe inside the truck, acts which, according to Jane Doe's undisputed testimony, occurred long before she jumped out of the truck. Thus, even if her decision to jump were attributed to a mental health problem instead of being seen as a brave act of self-preservation, that would have no bearing on the jury's decision whether Marble had kidnapped Jane Doe earlier in the ordeal, at the time he was committing the sexual assaults in his truck.
Marble appears to contend that even without a persuasive theory of relevance the trial court was required to review Jane Doe's records in order to determine whether some could be relevant to his defense. We reject this notion, which depends on a presumption favoring disclosure of privileged records that we do not find in the law. It also ignores the trial court's broad discretion under Evidence Code section 352. Although the prosecution appears not to have invoked this statute at Marble's trial, the court made express findings that the probative value of Jane Doe's mental health records was low, and that there was insufficient justification for delaying the trial in order to conduct an in-camera review of those records.
"As a general matter, the '[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense.' " (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) Trial judges retain wide latitude to impose reasonable limits on the criminal defendant's right to cross-examine adverse witnesses on matters reflecting on their credibility on the grounds stated in Evidence Code section 352. (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.) Therefore, a "trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted." (Ibid.)
In the present case, the jury knew from other trial evidence that Jane Doe had some pre-existing emotional or behavioral problems. She was having a "hard time" with life in 2017, she took medication for depression, snuck out of her house in the middle of the night, and used marijuana. The jury also knew that Jane Doe was under the influence of methamphetamine during the events that gave rise to the charges against Marble, which impacted her ability to perceive, recall and describe the things that happened to her. Finally, the jury had the opportunity to observe Jane Doe's demeanor at trial, where she was so non-communicative that both counsel struggled to examine her. These circumstances strongly reinforce that disclosing Jane Doe's privileged mental health records would have had no material effect on the jury's evaluation of her credibility as a witness.
Finally, Marble intimates that a per se violation of due process occurs when the trial court refuses to conduct an in-camera review of the mental health records of a crucial prosecution witness in a criminal trial. As support for this proposition, Marble cites People v. Abel (2012) 53 Cal.4th 891 (Abel), an automatic appeal following the defendant's conviction for first degree murder and sentence to death. One issue in Abel pertained to a prosecution witness named Ripple who testified that the defendant told her he had killed the victim. (Id. at pp. 901-902.) After Ripple testified under cross-examination that she had a history of mental health treatment, the defense requested access to her treatment records. The trial court reviewed Ripple's records and disclosed a small portion of one record that indicated Ripple was not currently suffering from a serious mental health disorder. (Id. at p. 930.)
On appeal, the Abel defendant argued his constitutional right to confrontation was violated because material in Ripple's records that the trial court did not disclose to the defense could have been used to impeach Ripple's credibility. (Abel, supra, 53 Cal.4th at p. 930.) To support this claim, the defendant relied on specific items in those records that were disclosed to the defense after trial, following Ripple's execution of a waiver of her privacy rights. (Id. at p. 930, fn. 7.) The court analyzed defendant's claim under due process principles explaining the trial court's obligation to balance the defendant's need for cross-examination and the policies underlying the privilege. (Abel, at p. 931, quoting Hammon, supra, 15 Cal.4th at p. 1127.) "In this context," the Abel court found, the trial court should have disclosed Ripple's records " ' " 'only' " ' " if they were " ' " 'material,' " ' " which they were not because there was no " ' " 'reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " ' " (Abel, at p. 931.)
Abel does not require an in-camera review of a prosecution witness's privileged mental health records in all cases or provide any guidelines for determining when such a review is required. Indeed, the documents at issue in Abel were not subpoenaed from a third party but were in the possession of a government agency, the California Department of Corrections. (Abel, supra, 53 Cal.4th at p. 930.) Moreover, as best we can determine, there was never any dispute about whether to conduct an in-camera review of Ripple's records. In light of these materially different facts, the only relevance of Abel is that it affirms Hammon, which places the onus on trial courts to balance competing interests. As discussed above, the trial court did balance those interests here and concluded that an in-camera review was not required. Marble fails to support his contention that this ruling violated his due process rights.
DISPOSITION
The judgment is affirmed.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
STREETER, Acting P. J. /s/_________
BROWN, J.