Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC055709 A
Pollak, J.
Defendant Brian Lee Parker appeals from a judgment convicting him of, among other things, first degree murder committed during the commission of a robbery and burglary. He contends the trial court erred in denying his motion to strike the testimony of a prosecution witness whose testimony he argues was the product of coercive police interrogation. He also contends that supplemental jury instructions regarding the definition of reasonable doubt and the jury’s obligation to continue deliberations, after learning that the jury stood 11-1 for conviction, violated his right to a fair trial. Finally, he seeks review of the trial court’s in-camera determination that most of a codefendant’s medical records subpoenaed from the California Department of Corrections should not be disclosed to the defendant. We affirm.
Factual and Procedural Background
Defendant was charged by amended information with murder (Pen. Code, § 187, subd. (a)), robbery (§ 212.5, subd. (a)), burglary (§ 460, subd. (a)), shooting into an occupied dwelling (§ 246), assault with a firearm (§ 245, subd. (a)(2)) and possession of a firearm by a felon (§ 12021.1, subd. (a)(1)). The information alleged further that the murder was committed in the commission of a robbery and a burglary (§ 190.2, subds. (a)(17)(a), (a)(17)(g)), that defendant personally discharged a firearm (§ 12022.53, subd. (d)), that he personally used a firearm (§ 12022.5, subd. (a)), that he inflicted great bodily injury (§ 12022.7, subd. (a)), that he has suffered two prior serious felony convictions (§ 667, subd. (a)) and that he had served a prior prison term (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise noted.
Codefendant Kevin Edward Clarke was charged similarly in the amended information. After a separate trial, Clarke was found guilty as charged with the exception that he was found guilty of attempted robbery rather than robbery. His conviction was affirmed by this court in March 2007. (See People v. Clarke (March 22, 2007, A112245) [nonpub. opn.].)
The following evidence was presented at trial:
The Prosecution Case
On April 10, 2003, around 7:00 p.m., 12-year-old Alberto G. was sitting on the stairs outside his apartment unit in East Palo Alto. He saw two men wearing masks enter the nearby apartment of Kenneth “Kiki” Hamel. Soon thereafter he heard a woman scream and saw the men run from the apartment.
On the same evening, Katie Williams, age 71, was sitting on her couch in the apartment next to Hamel’s apartment. Suddenly, she felt like she had been shot and looked down to see blood coming from her stomach. Williams ran from her apartment to that of the building manager, Frank Jenkins, who immediately called 911.
Jenkins recalled hearing two cracking sounds in quick succession shortly before Williams sought his help. Within seconds, he ran out of his apartment to the building walkway and saw two men coming quickly towards him. One man wore dark clothing and had a mask over his face. The other was a shorter, heavier unmasked African-American man. Jenkins asked what was happening, and the unmasked man mumbled something and kept going. In a police photo lineup Jenkins later identified Clarke as the unmasked man. He was unable to identify the masked man.
At the crime scene, investigators found Hamel on the couch in his apartment, without a pulse, bleeding from the mouth, and with a gunshot wound to the abdomen. They also recovered 271 grams of marijuana, 52 grams of cocaine, drug paraphernalia, several thousand dollars in cash, and a handgun behind the couch. Officers also located what appeared to be a bullet hole through the wall that separated the apartments of Hamel and Williams.
An autopsy revealed Hamel had been shot with four bullets. The lethal bullet entered the upper left side of his chest, severely tearing the heart tissue. Nonlethal but debilitating bullets entered his shoulder blade, left chest and lung, and upper abdomen. Williams sustained a single, potentially lethal gunshot wound to the abdomen.
According to three witnesses—Erika Geilfuss, William Mines and Amanda Martin—early in the evening on April 10, 2003, defendant and Clarke arrived at Geilfuss’s house and admitted killing Hamel. Geilfuss testified that on the evening of April 10, she, her boyfriend Mines and Martin were in front of her house when defendant and Clarke arrived. Clarke told her that “[t]hey went to go rob somebody and the guy ended up getting killed.” Clarke explained he and defendant had been involved in a robbery, and that defendant shot the intended target three times when the man produced a gun. Clarke tried to shoot too, but his gun had jammed. They had expected to collect about $90,000, but instead collected a mere $27 and some change.
Later that evening, after Clarke and defendant had left, Geilfuss noticed a freshly dug hole in her yard and became suspicious that the murder weapon had been buried there. She immediately sought advice from a friend who is a dispatcher with California Highway Patrol. With the friend’s help, Geilfuss came in contact with Detective Craig Denton and under his direction police recovered a .357 handgun from the yard.
Mines’s testimony regarding the evening of April 10 was similar to Geilfuss’s. Around 8:30 p.m. on April 10, Clarke and defendant arrived at Geilfuss’s house. Clarke told Mines that defendant had killed a man during a robbery when the man reached for a gun as they entered his apartment. Mines saw that Clarke had a 9 millimeter automatic gun and defendant had a .357 magnum revolver. Clarke told him they left the apartment with $27.
Mines hid Clarke’s 9 millimeter gun in a safe at the house. At defendant’s request, Mines buried in the backyard the .357 handgun, which he was told was the murder weapon. Defendant later retrieved the 9 millimeter gun from the safe.
A few days later the police questioned Clarke and Mines about the murder. Mines initially refused to cooperate. Mines learned later that evening from Clarke that the police had recovered the gun from the yard. He and Clark checked the backyard and were shocked when they confirmed that the gun was gone. Defendant called several times asking how the police got the gun.
On July 31, Denton met Mines at his house and told him that Clarke had confessed. By that time Mines also knew that defendant had been arrested and that the police knew he had buried the weapon. Mines then told them what he knew because “[he] wanted to be left alone. [He] wanted out of the situation.” Later, he entered a no contest plea to the charge of accessory after the fact of a murder for burying the gun in the backyard. Under the terms of the plea agreement, Mines was promised no state prison sentence if he cooperated fully and truthfully in subsequent prosecutions.
After entering the plea, Mines admitted for the first time that defendant and Clarke had, days before April 10, asked him to participate in a robbery of a drug dealer. Defendant and Clarke told Mines they would be armed, and that he should bring a shotgun. They expected to collect over $70,000. Mines agreed to participate. However, Clarke later informed Mines that they would commit the robbery alone because defendant did not know Mines well enough to include him in the plan. Mines was told nothing further of the robbery until defendant and Clarke arrived at Geilfuss’s house the evening of April 10.
Martin testified that she had known Clarke since 2000. According to Martin, both men appeared “amped like wiry, edgy” when they arrived at Geilfuss’s house. Clarke said “he and Brian killed somebody” and described the crime as a “robbery gone bad.” He threw a gun and some change on the bed. She also saw Clarke try to “unjam” the gun.
The Defense Case
Chris Cervantes testified that on the afternoon of April 10, he and defendant attended a girls softball game at a local high school. The game began at 3:45 p.m. and ended early at 5:00 p.m. After the game, Cervantes and defendant picked up Sheridan Quindipan from work, then they took Cervantes to work at 6:00 p.m. Around 6:30 p.m., Quindipan left defendant at his home and she went to a class. Jhona Dimaya, defendant’s girlfriend, testified that when she came home at 7:45 p.m. defendant was there, and he stayed home the rest of the evening. About two weeks later, when Dimaya learned that defendant was wanted for questioning about the murder, she told the police she did not know where he was despite knowing that he was in San Diego.
The weekend following the murder, defendant went with his family on a ski trip in Nevada. Defendant’s family all agreed that defendant seemed normal and calm over the course of the weekend.
Defendant testified and denied any involvement in the crime. He testified that he met Clarke at a halfway house in December 2000 and kept in touch with him while on parole. Once while getting a haircut with Clarke and Mines in East Palo Alto, he introduced them to Hamel. Hamel invited the three men to his apartment where Clarke and Mines smoked marijuana together.
Defendant claimed that on April 10, he returned home from the softball game by 6:30 or 6:45 p.m.. He did not learn he was wanted for questioning until April 21. After that, he went to San Diego to seek advice from his family and contact an attorney. Defendant was arrested in San Diego on May 21.
The jury found defendant guilty as charged and found true the enhancement allegations. Defendant was sentenced to life without the possibility of parole on the murder charge and a consecutive term of 25 years to life based on the allegation that he personally discharged a firearm. The court imposed a consecutive seven-year term for shooting into an inhabited dwelling and a consecutive five-year term for the prior serious felony enhancement. The court either imposed a concurrent term on the remaining counts or stayed execution of sentence under section 654. Defendant filed a timely notice of appeal.
Discussion
1. Mines’s testimony was not involuntary.
Defendant contends the trial court violated his due process right to a fair trial by denying his motion to strike Mines’s testimony. He argues that Mines’s initial confession was involuntary because unlawfully procured by the false implication that the officers had probable cause to arrest him. Because Mines’s confession was involuntary, defendant’s argument continues, Mines’s subsequent trial testimony was also unreliable and should have been stricken. We disagree.
In People v. Badgett (1995) 10 Cal.4th 330, 343-344 (Badgett), our Supreme Court reiterated that a criminal defendant has standing to assert that his right to a fair trial was violated because of the violation of a third party’s constitutional rights. However, the court also recognized that the pretrial coercion of a third party’s statement presents no basis for relief if that violation did not infect the testimony at the defendant’s trial. “[T]he basis of the claim must be that coercion has affected the third party’s trial testimony.” (Id. at p. 344.) A defendant may not prevail simply because challenged trial testimony was the fruit of a the witness’s previous involuntary statement. (Id. at pp. 346, 348-350.) The exclusionary rule applicable to successive statements following a claimed violation of the privilege against self-incrimination does not apply in this context. (Id. at p. 346.) Defendant may prevail only by demonstrating fundamental unfairness at trial, normally by establishing that the third party’s testimony was unreliable because of ongoing coercion. (Id. at pp. 347-348.) “[O]nly when the evidence produced at trial is subject to coercion are defendant’s due process rights implicated and the exclusionary rule . . . applied.” (Id. at p. 344.)
In this case, it is questionable whether Mines’s confession was involuntary. When defendant moved to strike Mines’s trial testimony, the court held a hearing under Evidence Code section 402. Detective Denton testified that when he interviewed Mines on July 31, 2003, he told Mines that the police had found a gun in his backyard, that Clarke had given a full confession, and that they suspected that Mines was involved in the crime. Denton acknowledged that he told Mines he might be charged as an accessory to the crime, but denied telling Mines he would be arrested if he did not make a statement. Denton acknowledged he did not have probable cause to arrest Mines at that time. Mines testified that when the officers told him that Clarke had confessed and that he had taken a .357 gun from the trunk of Clarke’s car, he had the “impression” or “feeling” that he would be arrested if he did not make a statement. The officers never told him his arrest was imminent. Mines said he confessed because he was “[t]ired of the whole thing; [he] never wanted any part of it, [was] forced into it, and just wanted to get it over with.”
This testimony does not support defendant’s claim that Mines’s confession was the product of an improper threat of arrest. At most, the record reflects that Denton’s comments gave Mines the impression that he might be arrested. If Denton’s statements are construed as a threat of prosecution, it was mild and not unfounded. (Badgett, supra, 10 Cal.4th at p. 355 [“ ‘There is nothing improper in confronting a suspect with the predicament he is in’ ”].) Certainly the statements were not so deceptive as to undermine the reliability of Mines’s confession. (See People v. Lee (2002) 95 Cal.App.4th 772, 785 [“California courts have long recognized it is sometimes necessary to use deception to get at the truth. [Citation.] Thus, the courts have held, a ‘deception which produces a confession does not preclude admissibility of the confession unless the deception is of such a nature to produce an untrue statement.’ ”].)
Moreover, even assuming, as the trial court did, that Mines’s confession was involuntary, nothing in the record suggests that the coercion was ongoing. The fact that Mines’s testimony was the product of a plea bargain does not automatically render his testimony unreliable. Offers of leniency or immunity in exchange for truthful testimony are commonplace and are not necessarily coercive. (Badgett, supra, 10 Cal.4th at p. 355.) Here, almost three years elapsed between the time of the confession and the trial. During this entire period Mines was represented by counsel.
Relying on Badgett, defendant argues that Mines’s testimony is “inherently unreliable” because it tracked his coerced confession. In Badgett, the court recognized that a criminal defendant “arguably” could assert a claim “based on a theory that the illegality of the arrest itself coerced [the third party’s] cooperation and later statements, which, in turn, she was forced to repeat at trial despite their unreliability.” (Badgett, supra, 10 Cal.4th at p. 353.) The court did not hold that trial testimony that tracks an unreliable confession is inherently unreliable. After determining that the illegal arrest at issue in that case was not coercive, the court added, “there is even less cause to think that the asserted improper locale of her custody somehow, after months free of custody, infected her trial testimony.” (Ibid.) Thus, the court implicitly recognized that it is necessary to consider whether prior coercion is ongoing at the time of trial. As indicated above, nothing in this record supports defendant’s claim that any limited pressure from the threat of prosecution infected Mines’s testimony almost three years later.
2. The jury was properly instructed.
Defendant contends that the court erred in giving the jury supplemental instructions regarding the definition of reasonable doubt and its obligation to continue deliberations when informed that the jury stood 11-1 for conviction.
On the third day of deliberations, the jury sent a note to the court stating, “We can’t come to a decision.” The court inquired as to whether the jury had agreed to any of the counts, to which the jury responded, “no.” The court returned a note to the jury which read, “Given the complexity and length of this trial—I believe that you should continue your deliberations to see if progress can be made in reaching a decision.” Later that day, the jury sent the court another note, which read, “Regretfully, we all agree that we will not be able to come to a unanimous decision.” The court responded, “It does not appear that you have had time to fully and frankly consider the evidence with open minds and fully and frankly interact with each other to try and reach verdicts. [¶] This is the process in which you are required by law to engage. If there is something further that the court can do to assist you, please advise me. Otherwise, please continue your deliberations.” Still later the same day, the jury requested and received further instructions on the definition of “reasonable doubt.” Then the jury sent another note to the court indicating that it was still deadlocked. The court recessed for the evening and asked the jury to reflect on the case that evening and to return the following morning. The jury resumed deliberations the following day, but again sent the court a note indicating that it remained deadlocked. The note explained, “We have one juror who says that because he believes all the prosecution witnesses lied, he cannot find the defendant guilty—ever. He is unwilling to examine other evidence. He is wed to the statement the prosecuting attorney made in closing, ‘If you believe the prosecution witnesses, you must find the defendant guilty.’ He is unable, even though we have asked many times, to explain to us how the evidence leads to a not guilty verdict. We are deadlocked.”
In response to this note, the court instructed the jury verbatim from an instruction upheld in People v. Moore (2002) 96 Cal.App.4th 1105, 1121:
“ ‘What I am going to do right now, ladies and gentlemen, is I have further instructions and directions to give you. It has been my experience on more than one occasion that a jury which initially reported it was unable to reach a verdict was ultimately able to arrive at verdicts on one or more of the counts before it. To assist you in your further deliberations, I'm going to further instruct you as follows:
‘Your goal as jurors should be to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented and without regard for the consequences of your verdict regardless of how long it takes to do so.
‘It is your duty as jurors to carefully consider, weigh and evaluate all of the evidence presented at the trial, to discuss your views regarding the evidence, and to listen to and consider the views of your fellow jurors.
‘In the course of your further deliberations, you should not hesitate to re-examine your own views or to request your fellow jurors to re-examine theirs. You should not hesitate to change a view you once held if you are convinced it is wrong or to suggest other jurors change their views if you are convinced they are wrong.
‘Fair and effective jury deliberations require a frank and forthright exchange of views.
‘As I previously instructed you, each of you must decide the case for yourself, and you should do so only after a full and complete consideration of all of the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of arriving at a verdict on the charge if you can do so without violence to your individual judgment.
‘Both the People and the defendant are entitled to the individual judgment of each juror.
‘As I previously instructed you, you have the absolute discretion to conduct your deliberations in any way you deem appropriate. May I suggest that since you have not been able to arrive at a verdict using the methods that you have chosen, that you consider to change the methods you have been following, at least temporarily and try new methods.
‘For example, you may wish to consider having different jurors lead the discussions for a period of time, or you may wish to experiment with reverse role playing by having those on one side of an issue present and argue the other side’s position and vice versa. This might enable you to better understand the other’s positions.
‘By suggesting you should consider changes in your methods of deliberations, I want to stress I am not dictating or instructing you as to how to conduct your deliberations. I merely find you may find it productive to do whatever is necessary to ensure each juror has a full and fair opportunity to express his or her views and consider and understand the views of the other jurors.
‘I also suggest you reread CALJIC instruction 1.00 on page 1 and 1-A, CALJIC instruction 17.40 on page 40, and CALJIC instruction 17.41 on page 41. These instructions pertain to your duties as jurors and make recommendations on how you should deliberate.
‘The integrity of a trial requires that jurors at all times during their deliberations conduct themselves as required by the instructions. CALJIC instruction 1.00 defines the duties of a juror.
‘The decision the jury renders must be based on the fact[s] and the law. You must determine what facts have been proved from the evidence received in the trial and not from any other source. A fact is something proved by the evidence or by stipulation.
‘Second, you must apply the law I state to you to the facts as you determine them and in this way, arrive at your verdict.
‘You must accept and follow the law as I state it to you regardless of whether you agree with the law. If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflict[s] with my instructions on the law, you must follow my instructions.
‘CALJIC 17.40 defines the jury’s duty to deliberate. The decisions you make in this case must be based on the evidence received in the trial and the instructions given by the Court. These are the matters this instruction requires you to discuss for the purpose of reaching a verdict.
‘CALJIC 17.41 is an instruction which recommends how jurors should approach their task.
‘You should keep in mind the recommendations this instruction suggests when considering the additional instructions, comments and suggestions I have made in the instructions now presented to you. I hope my comments and suggestions may have some assistance to you.
‘You’re ordered to continue your deliberations at this time. If you have other questions, concerns, requests or any communications you desire to report to me, please put those in writing on the form my bailiff has provided you with. Have them signed and dated by your foreperson and then please notify the bailiff.’ ”
Later that day the jury requested a copy of this instruction and the next morning it reached a verdict. The jury also sent a note to the trial judge which read, “Thank you for having us continue to deliberate.”
This special instruction has been cited with approval in People v. Hinton (2004) 121 Cal.App.4th 655, 661 and People v. Whaley (2007) 152 Cal.App.4th 968, 982-983. In People v. Whaley, at page 982, the court confirmed that “nothing in the supplemental instruction improperly directed the jury that it was required to reach a verdict, placed any constraints on an individual juror’s responsibility to weigh and consider the evidence, or coerced the jurors into abdicating their independent judgment in favor of compromise and expediency.”
Without challenging the validity of the instruction itself, defendant argues that it was error to give the instruction in this case because the jury had already informed the court that there was a lone dissenting juror who favored acquittal. Defendant relies on a line of federal authority in which the courts found similar charges to the jury to continue deliberations violated a criminal defendant’s right to a fair trial if the trial judge inquires of the numerical division of the jury. (Sanders v. Lamarque (9th Cir. 2004) 357 F.3d 943, 944.; U.S. v. Ajiboye (9th Cir. 1992) 961 F.2d 892, 893-894; U.S. v. Sae-Chua (9th Cir. 1984) 725 F.2d 530, 531 (Sae-Chua).) In U.S. v. Ajiboye, the court explained, “Even when the judge does not inquire but is inadvertently told of the jury’s division, reversal is necessary if the holdout jurors could interpret the charge as directed specifically at them -- that is, if the judge knew which jurors were the holdouts and each holdout juror knew that the judge knew he was a holdout.” (Id. at p. 894.)
Defendant contends that Sae-Chua, supra, 725 F.2d at page 531 is “directly on point.” In that case, the district court received a note from the foreperson, which stated that eleven jurors favored conviction but that one juror persisted in voting not guilty despite his belief that the defendant was guilty. The district court polled the jurors as to whether they believed further deliberations would result in a verdict; all but one juror responded affirmatively. The district court then charged the jury to continue deliberating, and the jury returned a guilty verdict several hours later. (Id. at pp. 531-532.) The Ninth Circuit held that “the charge could only be read by the dissenting juror as being leveled at him” and that the charge given was unduly coercive. (Id. at p. 532.)
In U.S. v. Lorenzo (9th Cir. 1995) 43 F.3d 1303, 1307, the court recognized that “[t]he lynchpin of Sae-Chua was that the judge had polled the jury, and the dissenting juror therefore knew that the judge was aware of his identity.” In this case, however, the trial judge learned of the numerical division inadvertently and did not poll the jurors. There is no evidence in the record suggesting that the trial judge knew the identity of the dissenting juror. Moreover, there is nothing in the supplemental instruction that can be read as directed only to the dissenting juror, or that suggests that juror should change his or her vote. Thus, despite the unfortunate disclosure of how the jury was divided, the trial court did not err in instructing the jury to continue its deliberations. (See U.S. v. Frost (6th Cir. 1997) 125 F.3d 346, 375 [distinguishing Sae-Chua on ground that the trial court did not know the identity of the lone dissenter, and dissenter knew that the trial court did not know]; U.S. v. Lorenzo, supra, 43 F.3d at p. 1307 [Sae-Chua is distinguishable where there is “no evidence that [the judge] knew who the dissenting juror was”].)
As noted above, in between its notes about being deadlocked, the jury also requested a “more understandable” explanation of the definition of “reasonable doubt.” Having already instructed the jury with CALJIC No. 2.90, the court sent the jury the following additional excerpt from CALCRIM No. 103: “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant[s] guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” The court advised the jury that it “may consider this in connection with the original reasonable doubt instruction.” Defendant contends the court violated his right to a fair trial by refusing his request to instruct the jury with the remaining part of the instruction regarding the presumption of innocence.
The omitted part of CALCRIM No. 103 reads: “I will now explain the presumption of innocence and the People’s burden of proof. The defendant[s] (has/have) pleaded not guilty to the charge[s]. The fact that a criminal charge has been filed against the defendant[s] is not evidence that the charge is true. You must not be biased against the defendant[s] just because (he/she/they) (has/have) been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise].”
“In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights.” (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) The correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) To prevail on a claim that instructions were misleading, the defendant must show a reasonable likelihood that the jury misunderstood the instructions as a whole. (People v. Van Winkle (1999) 75 Cal.App.4th 133, 147.) We assume jurors are intelligent and capable of understanding and correlating the instructions. (People v. Guerra (2006) 37 Cal.4th 1067, 1148.)
While defendant may be correct that the concepts of reasonable doubt and presumption of innocence are “inextricably entwined,” the court did not err by refusing to include in its supplemental instruction the portion of CALCRIM No. 103 relating to the presumption of innocence. The jury was fully instructed under CALJIC No. 2.90 on the presumption of innocence and the supplemental instruction expressly referred the jury to this original instruction. The supplemental instruction was reasonably limited to answering the jury’s question regarding the definition of reasonable doubt. There is no basis on which to conclude that the jury was misled or misapplied the law in this regard.
Accordingly, the jury was properly instructed.
3. Defendant was not prejudiced by the court’s ruling regarding Clark’s medical records.
“A criminal defendant has a right to discovery by a subpoena duces tecum of third party records by showing ‘the requested information will facilitate the ascertainment of facts and a fair trial.’ ” (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1316.) “ ‘Allowing an accused the right to discover is based on the fundamental proposition that he is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.’ ” (Ibid.) A criminal defendant has a right to discovery by a subpoena of third party records on a showing of good cause—that is, specific facts justifying discovery. (Millaud v. Superior Court (1986) 182 Cal.App.3d 471, 475.) “ ‘[T]he right of an accused to obtain discovery is not absolute.’ [Citation.] ‘[The] court retains wide discretion to protect against the disclosure of information which might unduly hamper the prosecution or violate some other legitimate governmental interest.’ [Citation.] This may be particularly true when the information sought is not directly related to the issue of a defendant’s guilt or innocence.” (People v. Luttenberger (1990) 50 Cal.3d 1, 21.)
Here, defendant issued a subpoena duces tecum to the California Department of Corrections (CDC) requesting its entire CDC file for Clarke, including his CDC medical records. Clarke objected and the CDC moved to quash the subpoena. Defendant’s attorney submitted a declaration stating that good cause existed for the production of the file in that “the co-defendant in this action and a possible witness is known to have a substantial criminal record involving dishonesty, acts of moral turpitude and other behavior impacting his credibility. The extent of his criminal history and his possibly acting in conformance with that history is relevant to the issues in this case. [¶] In addition, . . . it appears that Mr. Clarke may have psychiatric problems which could also relate to his credibility, ability to discern reality and also form a motive to fabricate information which forms the basis of his statement to the authorities. [¶] Finally, the defense in this case is that Mr. Clark is protecting others and wrongly implicating the defendant. Hence his associations while incarcerated, including gang ties, may likely yield information that could lead to admissible evidence at trial and in fact, could produce evidence of the identity of the real killer of the crime which Mr. Parker is charged.” The court found that defendant met his initial burden of establishing the relevancy of the documents and performed an in-camera review of the CDC file. Following its review, the court ordered the CDC to produce the central CDC file after redacting the names of CDC personnel and Clarke’s victims. The court also ordered the CDC to produce one document from Clark’s medical records but quashed the subpoena as to the remainder of the medical file. The court explained that “[t]here was only one [medical] document that the court thought was even tangentially related to [defendant’s] request.” All other documents were returned to the custodian of records for the CDC.
On appeal, defendant asks that we “review the sealed transcript of the in camera review of Clarke’s CDC file and medical records.” There is, however, no transcript of the court’s in-camera review of the CDC file. Defendant indicates that the record of the in-camera review can be found at pages 38 through 42 of the reporter’s transcript. These pages, however, include only the defendant’s request for issuance of the subpoena and the trial court’s finding that “the declaration as well as the verbal articulation that [defendant’s attorney] has made are sufficient to require the court to do an in-camera review of the documents that have been subpoenaed.” Moreover, the documents reviewed in-camera by the trial court are not included in the appellate record. The file that the court reviewed was returned to the CDC at the close of the hearing and apparently was not copied for the court file.
It is unnecessary to pursue augmentation of the record because it is clear that any failure to have disclosed a relevant document to defendant could have caused no prejudice. Initially, we observe that the court’s comments at the hearing indicate that the court correctly understood the applicable legal analysis. As the court explained, the first step was to determine the relevance of the documents sought. “Only if defendant establishes that, is there any need to even look at the question of whether or not privileges, or other constitutional and statutory protections apply . . . .” If a privilege applies, it is a matter of weighing “the competing balances, the right to privacy versus the very fundamental right that someone charged with a special circumstance homicide has as well.” There is no suggestion that the trial court abused its discretion in ordering that the CDC file be redacted to exclude the names of CDC personnel and the names of Clarke’s prior victims. Most importantly, Clarke’s medical records were relevant, if at all, for the purpose of impeaching his testimony at trial. However, Clarke did not testify at trial and his confession was not admitted into evidence. Thus, any potential error with respect to the production of Clarke’s medical records is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
In his opening brief, defendant argued that his sentence was imposed in violation of Cunningham v. California (2007) 549 U.S. 270. In his reply, he acknowledges that after the filing of his opening brief the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II), the holding of which would require that we uphold his sentence. We are bound by the Supreme Court decision and therefore will not consider his argument “that Black II’s ‘single factor eligibility test’ contravenes Cunningham.”
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J. Jenkins, J.