PEOPLE v. NANDKESHWAR (1995)

I

STATEMENT OF THE CASE 1

Defendant Kem Salick Nandkeshwar appeals from a judgment entered after a jury found him guilty of rape of a person incapable of giving consent (§ 261, subd. (a)(1)), forcible rape (§ 261, subd. (a)(2)), penetration of a foreign object (§ 289, subd. (a)), kidnapping (§ 207, subd. (a)), sexual battery (§ 243.4, subd. (a)), and false imprisonment (§§ 236, 237).   He claims:  (1) the court erred in refusing to release the victim's medical records to defense counsel;  (2) the prosecutor was guilty of misconduct;  (3) the jury was guilty of misconduct;  (4) the court erred in amending the information;  (5) the court erred in failing to instruct on an element of kidnapping;  (6) there is insufficient evidence of the movement necessary to establish kidnapping;  (7) the court erred in failing to stay the sentences for digital inspection and sexual battery;  and (8) the court erred in failing to state adequate reasons for imposing consecutive sentences for digital penetration and sexual battery.   We reverse defendant's conviction for kidnapping and in all other respects affirm the judgment.

II

FACTS

Michelle B., the victim, was born with Down's Syndrome in 1967.   In January, 1991, she worked in the cafe at the San Jose Children's Discovery Museum, which was established by Hope Rehabilitation Services to provide training and work for people with disabilities like the victim's.   On Sunday January 6, she finished work at about 4:00 p.m., left the cafe, and walked to her bus stop.   She forgot to go to the bathroom and while waiting for the bus wet her pants.   She walked to the front doors of River Park Towers office building near the bus stop to use a restroom she had used once before.   She knocked on the door and defendant, one of two security guards on duty, opened the door and said she could use the restroom.

The victim knew the restroom was located on the second floor and told defendant she wanted to go by herself.   However, defendant accompanied her into the elevator and then to the restroom.   While inside, she peeked out and saw him waiting for her and became scared.   When she left, defendant walked with her back to the elevator.   They entered, but defendant pushed the stop button and said, “Have fun” “like sex” and proposed playing with toys and having some fun.   She replied that she did not like “it” and wanted to go home.   Defendant then touched her buttocks, breasts, and vagina.   He led her by the hand down the hallway, opened a door with a key, brought her inside, and shut the door.   She had never been there before.   Inside she saw a copy machine and paper.

The victim asked defendant what he was doing, and he said, “Play around sex with me.”   She began to cry.   Defendant then pulled down her pants and underwear.   She protested.   Defendant dropped his pants to his knees and began fondling the victim's breasts and vagina.   He ignored her crying and protests.

Thereafter, defendant turned the victim around so she faced a table and continued touching her.   At one point, she turned her head and saw him manipulating his penis and then felt it against her buttocks.   After that, he turned her around and lifted her onto the table.   He forced her knees apart and touched her vagina.   He rubbed his penis against her and then partially inserted it.   He tried to kiss her, and when she said she wanted to go to the bathroom, he pulled her head toward his penis and said, “Kiss it.”   She said she did not like touching and kissing, but he continued.   She tried to leave, but he took her by the arm and pulled her back.   She asked if he were done and said she wanted to go home.   At that time he apologized, saying, “I am sorry I hurt you and touch you, I did not mean to do that to you.”

Defendant and the victim left the room and took the elevator back to the lobby.   She left the building, sat down on the front steps and began to cry.   At the same time, Shirley Bardelmeier, her husband, and her sister Aissa Perez were walking by and noticed the victim sitting and crying hysterically “like a child, just shaking and crying.”   Bardelmeier could tell the victim had a disability and asked if she were hurt.   The victim said she had been “raped” by a security guard inside the building.   Mr. Bardelmeier left to call the police.   The victim calmed down somewhat and while clutching Perez's arm, explained what had happened.   She said she had been waiting for the bus but had to use the bathroom.   A security guard let her into the building and took her to the restroom.   When she came out, the guard took her to a room with the number “two” on it, mentioned something about playing with toys, and then touched her private parts, kissed, and then “raped” her.

Mrs. Bardelmeier reported the incident to another security guard, Ubaldo Camacho.   When asked, the victim said he was not the one.   However, when defendant came to the door and asked what was going on, the victim, according to Bardelmeier, “lost it” and said “[t]hat's him, that's the one.”   She then became hysterical, covered her face with her jacket, and clutched Perez's arm so tightly she bruised it.   When Bardelmeier told defendant what had happened, he denied doing anything and reentered the building.

Officer Mark Willis of the San Jose Police Department arrived at the scene and encountered a distraught victim, who said defendant had taken her up to the restroom and raped her.   She told him defendant was wearing blue underwear.   When defendant admitted to Willis that he had escorted the victim, he was arrested and brought to the preprocessing center.

Officer Bertha Cooke arrived at the scene and found the victim in the lobby curled in a chair and crying hysterically.   After she calmed down, she told Cooke that a guard had let her into the building to use the restroom, then took her upstairs, and then led her into a room where he raped her.   To gauge the victim's credibility, Cooke had her describe where the assault took place before taking her there.   The victim did so, noting things like an exit sign, furniture, a copy machine, and paper.

Officer Brad Barnett and Cooke then took the victim upstairs.   There, she pointed out the bathroom, the hallway, and suite 200 as the place she and defendant had entered.   The doors to the suite were locked, so the officers had a security guard open them.   Inside, they located an exit sign the victim had said to look for.   In the reception area of the suite, the victim noted a door to a copy room.   The contents of the room were just as the victim had described.   The officers went inside, sealed the room, and dusted for fingerprints.   Both Barnett and Cooke testified that the victim was not allowed to go into the copy room.²  Officer Barnett obtained fingerprints, some of which belonged to the victim.

Sometime later, Officer Cooke accompanied the victim to the Santa Clara Valley Medical Center to be examined by a sexual assault response team (SART) nurse.   While there, Cooke spoke on the phone with Detective Marvin Lewis, who was coordinating the investigation.   He had learned that defendant was wearing red jockey-brief type underwear.   He asked Cooke to test the victim's knowledge of colors.   Cooke, who had not heard anything about defendant's underwear, had the victim identify different color books.   When she showed the victim a red book, the victim said “red,” and then, “that's what color underwear he had on.”   Cooke asked “who,” and the victim said the man who assaulted her.   Cooke asked if she were sure, and the victim said, “Yes, I'm positive they were red.”   Cooke then relayed this information to Detective Lewis.

Linda Alexander, a SART nurse, spoke with the victim about the incident.   The victim was agitated, upset, and disgusted and would cover her face with her hands.   She said that defendant penetrated her vagina and rectum with his penis and touched her breasts.   She also said he put his tongue inside her mouth and remarked that “he smokes.” ³

Alexander then physically examined the victim's genitals with a colposcope.   She observed abnormal edema and petechia at her vaginal opening consistent with forced penetration by a penis, finger, or other soft foreign object or an unusual amount of repeated rubbing.⁴  She took a picture of the area.   Alexander also noticed two abrasions or skin tears in the rectal area, which she also found consistent with forced penetration.

Alexander noted fecal material in the victim's underwear, which, she said, is common when sodomy occurs.   She did not find sperm or any evidence of ejaculation but noted that in her experience this is not unusual.

Detective Lewis interviewed the victim a few days later.   To see whether she could identify the type of underwear defendant was wearing, he drew pictures of jockey briefs and boxer shorts on different male figures.   The victim immediately pointed to the jockey briefs.   At that time, however, she said they were green.   He felt that the victim was confused about colors.   Defendant's red jockey briefs were admitted into evidence at trial.

At trial, Ubaldo Camacho, who was working with defendant, testified that sometime after 4:00 p.m., he allowed an Asian family to enter the building to use the upstairs bathroom.   He was working the lobby security console and could not leave it to escort them.   He explained that although the second floor offices would have been locked, the restrooms would not have been.⁵  Sometime later, he saw the victim knock on the front door.⁶  Defendant let her in and took her upstairs in the elevator, and returned 10 to 15 minutes later.   Defendant let her out of the building and returned to his patrolling duties.

A few minutes later, two women knocked on the door.   Camacho went to see what they wanted and saw the victim sitting on the stairs crying.   The victim looked at him and shook her head no.   He radioed to defendant that there was a woman claiming she had been raped by a security guard.   When defendant returned to the lobby, he told Camacho “not to worry about it.”   When the victim saw defendant, she started crying harder.

III

THE DEFENSE

Defendant testified that he arrived at work on January 6, 1991, at about 4:00 p.m.   At about 4:10, he was outside smoking with another guard.   An Asian family asked if they could use the restroom.   He gave them directions to the second floor, finished his cigarette, and returned to the lobby.   At about 4:20, he was talking to Camacho, when the victim came to the door and shook it.   Defendant went to see what she wanted.   She said she needed to use the bathroom.   He could tell she had Down's Syndrome.

Defendant let her in and accompanied her to the second floor restroom, where he was going anyway to check on the Asian family.   While he waited for her near the men's room, the Asian family emerged and took the elevator back to the lobby.   Less than a minute later, the victim came out and appeared confused and upset.   He asked what was wrong and gave her a comforting pat on the back.   She walked toward suite 200, drank from the water fountain, and then headed toward the freight elevator.   He directed her to the passenger elevator, accompanied her to the lobby, and escorted her out.   He said she was in the building less than 10 minutes.   He admitted having a key to suite 200 and having been in the copy room on previous occasions, but he denied taking her there or assaulting her in any way.   Defendant then went on patrol in the garage area.

At 4:50 p.m., Camacho radioed to defendant that someone had been assaulted.   Defendant returned to the lobby and learned that people were claiming he had assaulted the victim.   He immediately made an entry in the Daily Activity Log that at 4:35 p.m. he had let the victim in to use the bathroom.   Defendant explained that he wrote down 4:35, instead of 4:20 p.m., when the victim actually entered, because the previous entry in the log had been made at 4:30.

Defendant's sister, brother-in-law, and former supervisor testified that defendant was an honest and truthful person.

Dr. Hyland Hebert testified that those suffering from Down's Syndrome can have various levels of retardation and intellectual deficits, which may result in behavioral and sexual problems.   After observing the victim, he opined that she had borderline retardation, with an I.Q. in the 70's, which would support a capacity to fantasize but impair both short and long term memory.   He explained that borderline individuals have some capacity for abstract thought and a better idea of the passage of time than those who are mildly or moderately retarded.   He further opined that a man could not rectally penetrate a somewhat shorter woman if she were leaning over a low table.   Nor that defendant could have had intercourse with the victim while she was sitting on a 30–inch tall table.

Dr. Lee Coleman, an expert on interviewing in sexual assault cases, opined that persons with mental disabilities are more susceptible to suggestion by post-event information than those without such disabilities.

Doctors Joel Klein and Charles Barrett both examined the photographs taken by Linda Alexander of the victim's vaginal area.   Neither saw edema or petechia or found evidence of forcible penetration.   Both thought her vagina looked normal.

IV

DISCUSSIONA. Release of Medical Records to Defense Counsel

Defendant contends the court committed reversible error in refusing to release medical and psychological records from the Santa Clara County Valley Medical Center (VMC), the Good Samaritan Hospital, the Hope Rehabilitation Center, and the San Andreas Regional Center concerning the victim.

1. Background

Prior to trial, defense counsel subpoenaed records concerning the victim from the Santa Clara Valley Medical Center, the Good Samaritan Hospital, the Hope Rehabilitation Center, and the San Andreas Regional Center.   After the records had been produced, defense counsel requested that the court review them in camera to determine whether they contained relevant evidence that should be released to the defense concerning the victim's competency to testify, any anatomical conditions that would prevent genital or anal penetration, and any history of bowel control problems or poor hygiene “which might explain the redness around her vagina.”

The prosecutor objected, primarily on the grounds that the court's inspection would unduly invade the victim's right to privacy concerning her psychotherapy records.

The court agreed to review the records to assess their relevance concerning the victim's physical conditions and competence to testify but said it was “not going to go into these psychotherapy records and in any way breach the privilege that attaches to psychiatric records.”   Concerned that the court might limit its review, defense counsel urged the court to review all of the records, including psychological records, which might bear on the issue of the victim's competence.   The court responded, “So everyone is clear, I am looking for physical evidence or competency.”   It then said, “I'm just telling you you're not going to get those kinds, but I will review them because some of them may be psychiatric and physical examinations at the same time.   And anything that's physical, that might be relevant, I will again come back on the record and we can discuss that.   Okay.  I'll review them all.”

At a later date, defense counsel requested that his medical expert witness be allowed to observe the victim testify at the competence hearing and review her medical records to assess her competency to testify.   The court permitted observation but denied the request concerning medical records.   After the victim had testified at the competency hearing, defense counsel renewed his request that the records be released to his expert.   Again the court denied the request.

During trial, outside the presence of the jury, the court recounted defense counsel's pretrial request for a review of the victim's records and the reasons for it.   The court said it had reviewed the records from the four institutions with an eye toward specific areas of relevance ⁷ , and in doing so it “examined no private doctor records.”   The court concluded that “there is nothing discoverable.”

Later, in the course of a discussion about possible prior instances of sexual misconduct against the victim, defense counsel sought clarification from the court about the records it had reviewed.   The court said that among others, it had reviewed the victim's medical records from VMC.   Defense counsel asked if those included “psychiatric records from VMC[,]” explaining that the victim's mother had indicated the victim had been hospitalized for two weeks in 1990 for “some kind of emotional problem.”   The court understood counsel's question and responded, “I have reviewed hospital records that indicated what the mother talked about.   I have also reviewed Hope Rehabilitation Center records, San Andreas Regional Center records, and Good Samaritan Hospital records, those were the records that were delivered to the court.  [¶]  As I indicated ․ I have not reviewed any doctor's records that I would consider in the nature of a personal physician's records.   These are hospital and center records.”

2. Psychotherapy Records

 Defendant claims that the court erred in either refusing to review any of the victim's records that were protected by the psychotherapist-patient privilege (Evid.Code, § 1010) or reviewing them with no intent to release them, regardless of their relevance.   Alternatively, he claims the court erred in unduly limiting the scope of its review of any such privileged records.   We agree that the court erred.

 The psychotherapist-patient privilege is not absolute and in appropriate cases must yield to a criminal defendant's constitutional rights.   (People v. Boyette (1988) 201 Cal.App.3d 1527, 1532, 247 Cal.Rptr. 795;  People v. Caplan (1987) 193 Cal.App.3d 543, 555, 238 Cal.Rptr. 478.)

In People v. Reber (1986) 177 Cal.App.3d 523, 223 Cal.Rptr. 139, the trial court reviewed certain confidential records in camera, identified all privileged matter, and then protected the records without considering the defendant's need for them or his constitutional rights.   On appeal, the court noted that “[c]ertain types of mental disorders are highly probative on the issue of a witness' credibility[ ]” and observed that “[w]here psychotherapy records contain evidence of such disorders especially probative of the ability of an important prosecution witness to comprehend and accurately relate the subject of his testimony, the constitutional confrontation clause has been held to prevail over a statutory privilege.”  (Id. at p. 530, 223 Cal.Rptr. 139.)   The court opined that in determining whether to release privileged records, the trial court should (1) obtain the 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.)

On the record before us, we are unable to conclude that the trial court properly discharged its duty under Reber.   As noted above, the court at the outset announced, “It is clear that I am not going to go into these psychotherapy records and in any way breach the privilege that attaches to psychiatric records.”   Nothing the court said after reviewing the records suggest that it changed its mind.   To the extent that the court simply refused to “go into” these records, i.e., examine them at all, it erred.  (People v. Boyette, supra, 201 Cal.App.3d at p. 1534, 247 Cal.Rptr. 795.)

The People assert that the court did examine all of the records presented to it, including any protected by statutory privileges.   The record tends to support this assertion.   However, if the court examined privileged material with no intent to release them under any circumstances, then, under Reber, the court erred.⁸

The People further claim that the court “faithfully adhered to the steps set forth in Reber ” and found nothing of “sufficient relevance to warrant disclosure.”   As noted above, however, the trial court expressly restricted its review of the records, including any privileged records, to their relevance on only a few specific issues:  possible anatomical abnormalities of the victim;  any history of inadequate hygiene;  and the victim's basic legal competence to testify as a witness.  (See fn. 7, ante, p. 47.)   In doing so the court did not consider the potential relevance of privileged matter on other issues, including the victim's capacity and ability to perceive, recollect, and narrate, as well as her credibility.   Consequently, the court could not have properly weighed the defendant's constitutional rights to a fair trial against the victim's interest in keeping the records confidential.   Under the circumstances, its simple ruling that nothing was “discoverable” does not reasonably imply a finding that there were, in fact, privileged records, or reflect a balancing of rights and interests, or reveal reasons for the court's ultimate determination.

 We turn now to whether the error requires reversal.   In People v. Boyette, supra, 201 Cal.App.3d 1527, 247 Cal.Rptr. 795, the trial court ruled that the defendant had not made a sufficient showing of relevance and denied the defendant's motion to disclose protected medical and psychological records apparently without reviewing them.  (Id. at p. 1531, 247 Cal.Rptr. 795.)   This court disagreed, concluding that the defendant had made a sufficient showing of potential relevance to invoke a Reber in camera inspection.   We found the appropriate standard of review for the error in Pennsylvania v. Ritchie (1987) 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40.   (Boyette, supra, 201 Cal.App.3d at p. 1534, 247 Cal.Rptr. 795.)

In Ritchie, the trial court similarly failed to review confidential records in camera to determine whether the defendant's rights compelled their disclosure.   The Supreme Court affirmed a state court order reversing and remanding the matter for a proper review.   As prescribed by the high court, the trial court was to determine whether the records contained relevant and material information, that is, “information that probably would have changed the outcome․”  (Pennsylvania v. Ritchie, supra, 480 U.S. at p. 58, 107 S.Ct. at p. 1002.)   If it did, then the defendant was entitled to a new trial.   If it did not or if nondisclosure was harmless beyond a reasonable doubt, the trial court would be free to reinstate the conviction.  (Id. at p. 58, 107 S.Ct. at p. 1001;  cf. People v. Boyette, supra, 201 Cal.App.3d at pp. 1534, 1538–1539, 247 Cal.Rptr. 795 [similar reversal and remand order].)

Here, the trial court reviewed the material in camera, albeit using an improper standard.   Thus, although not part of the evidentiary record at trial, the material still under seal is part of the record of the proceedings.   Since the determination to be made on remand involves purely legal questions, remand here is unnecessary, and we consider it appropriate to review the victim's records ourselves under the Ritchie standard.

 Having done so, we conclude that the records that reasonably fall under the protection of the psychotherapy-patient privilege are not material, in that they do not contain information that probably would have changed the outcome of the trial.⁹

Furthermore, the primary defensive purpose of such records would have been to raise questions about the victim's ability to perceive and recollect, challenge her credibility, and perhaps suggest that she fantasized the assault.   We note, however, that there was no direct restriction on the scope of cross-examination of the victim or her mother.   The victim's various statements about color of defendant's underwear and his tattoos ¹⁰ were brought before the jury.   And several witnesses testified about Down's Syndrome and its effects on intelligence and the ability to fantasize.

On the other hand, the victim described who she is and where she works and lives, and with whom.   She properly identified the type and color of defendant's underwear.   She gave reasonably consistent accounts of the incident to numerous people, accurately described the general area and specific copy room in which the assault took place, and then led police to a locked suite, in which there was a copy room and where police found her fingerprints.   Finally, the victim, upon leaving the building, immediately sat on the steps and became hysterical, drawing the attention of passersby, to whom she complained of having been raped.   Later, upon seeing defendant, the victim became more agitated.

Defendant admitted escorting the victim into an elevator and taking her to the restroom but denied going into the copy room in suite 200.   Upon becoming aware of the victim's allegations, he recorded her entry into the building at a time later than it actually occurred.

The circumstantial evidence and corroborative testimony by police, family, and others convincingly support the victim's credibility and ability to perceive and recount the events on January 6.   What difficulties she had remembering details were evident to the jury.   Under these circumstances, and having reviewed the relevant records, we are convinced that defendant's constitutional rights were not infringed by his lack of access to the privileged material and that its nondisclosure was harmless beyond a reasonable doubt.

3. Physician's and other Medical Records

 Defendant correctly notes that the physician-patient privilege set forth in Evidence Code section 994 is inapplicable in criminal cases.   (Evid.Code, § 998;  see Menendez v. Superior Court (1992) 3 Cal.4th 435, 457, fn 18, 11 Cal.Rptr.2d 92, 834 P.2d 786.)   Thus, he argues that the court had a mandatory duty to release all of the victim's medical records and erred in failing to do so.

Defendant acknowledges that Welfare and Institutions Code, section 5328 (hereafter Section 5328) makes confidential records obtained in the course of providing service to persons voluntarily or involuntarily committed for mental health reasons.¹¹  He notes, however, that disclosure is authorized under the exception set forth in Section 5328, subdivision (f), which permits disclosure “[t]o the courts, as necessary to the administration of justice.”   He argues that where, as here, defense counsel makes a showing that the records might contain evidence relevant on several issues important to the defense and that the medical records were not otherwise privileged under the Evidence Code, their release to the defense becomes “necessary to the administration of justice” (§ 5328, subd. (f)) and the court is obligated to release them.¹²  We disagree.

 Section 5328 makes records “absolutely confidential” and prohibits their disclosure except in specifically defined circumstances, which are to be strictly construed.  (Gilbert v. Superior Court, supra, 193 Cal.App.3d at pp. 169–170, 238 Cal.Rptr. 220;  Mavroudis v. Superior Court (1980) 102 Cal.App.3d 594, 601, 162 Cal.Rptr. 724.)   Moreover, it “operates independently of any of the privileges established by the Evidence Code.”   (Boling v. Superior Court (1980) 105 Cal.App.3d 430, 443, 164 Cal.Rptr. 432, emphasis added.)   Thus, that the records sought are not otherwise privileged from disclosure, does not, standing alone, nullify their confidential status under Section 5328.

 Obviously, the exception established in Section 5328, subdivision (f), contemplates the disclosure of protected material in some pending judicial actions or proceedings.  (County of Riverside v. Superior Court, supra, 42 Cal.App.3d at p. 481, 116 Cal.Rptr. 886.)   However, we do not believe that in the absence of a separate privilege barring disclosure of the documents, they must be released simply because they may be relevant.   Rather, we conclude that the release of records protected by Section 5328 is authorized and required only “as necessary to the administration of justice.”  (§ 5328, subd. (f).)

The next question is what material covered by Section 5328 must be released “as necessary to the administration of justice” under Section 5328, subdivision (f).

We find Pennsylvania v. Ritchie, supra, 480 U.S. 39, 107 S.Ct. 989 instructive.  Ritchie involved a state statute, similar to Section 5328, which made an agency's investigative records concerning child abuse confidential, subject to defined exceptions.   One of the exceptions authorized disclosure under a court order to a court of competent jurisdiction.  (Id. at pp. 43–44, 107 S.Ct. at p. 994.)   In a prosecution for sexual offenses against his daughter, the defendant sought such investigative records, claiming they might contain the names of favorable witnesses and other unspecified exculpatory evidence.  (Ibid.)  The trial court did not review the records and refused to disclose them.  (Id. at p. 44, 107 S.Ct. at p. 944.)

The Supreme Court recognized the strong public interest in the confidentiality of the investigative records.  (Pennsylvania v. Ritchie, supra, 480 U.S. at p. 57, 107 S.Ct. at p. 1001.)   However, it found that the statutory shield of confidentiality was not absolute, noting that the statute itself provided for disclosure in certain circumstances.  (Id. at pp. 57–58, 107 S.Ct. at p. 1001.)  “In the absence of any apparent state policy to the contrary, we therefore have no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determines that the information is ‘material ’ to the defense of the accused.”  (Id. at p. 58, 107 S.Ct. at pp. 1001–1002, emphasis added.)   Thus, as noted above (ante, p. 49), the court concluded that the defendant's due process right to a fair trial entitled him to have the trial court review the confidential records in camera to determine whether they contained relevant and material information, that is, “information that probably would have changed the outcome․”  (Id. at p. 58, 107 S.Ct. at p. 1002.)

 Although the interests of the mentally disordered and developmentally disabled protected by Section 5328 may not be identical to the interests of abused children protected by the statute in Ritchie, any distinctions are not so substantial as to suggest that a different, more permissive disclosure policy is necessary or appropriate here.   Consequently, we adopt the approach taken in Ritchie to the disclosure of records protected by Section 5328.   We hold that where a defendant moves for the release of information disclosed to the court that is covered by Section 5328 and shows that the information may be relevant and material, the trial court must conduct a Reber-type review:  collect the protected material and review it in camera, weigh constitutional rights against confidentiality, determine if disclosure of any information is essential to assure a fair trial, and create an adequate record for review.

We acknowledge that Section 5328 does not explicitly require courts to make a preliminary determination concerning whether to release confidential records and information.   However, the language of subdivision (f) and the need for initial protection of confidential records strongly imply the need for an in camera review.

Returning to this case, we first address defendant's claim that the court refused to review any physician's records concerning the victim.   In support, he points to the court's comments that it “examined no private doctor records” and had not “reviewed any doctor's records that I would consider in the nature of a personal physician's records.”

As noted above, the record indicates that the court ultimately agreed to review all of the records delivered to it and later said it had done so.   Thus, we agree with the People that the records simply contained no private physician's records.   Our review of the material confirms this.   There are no records from private physicians but only those generated and kept by the various facilities and individuals on their staffs.

Nevertheless, on the record before us, we are unable to determine whether the trial court's conclusion that none of the material was “discoverable” fully accorded with a proper consideration of defendant's constitutional rights to a fair trial.   Moreover, given the limited scope of the court's review, its conclusion does not reasonably imply that the documents were not relevant and material on any issue of significant importance to the defense.

 Our review of the material, however, convinces us that any error by the court does not require reversal.   The medical records did not contain information that would probably have resulted in a different outcome.   We agree with the implicit finding by the trial court that they had little, if any, relevance on the physical issues important to the defense.   Moreover, they were not probative on the issues of credibility and accuracy of perception and recollection.   Again, the scope of cross-examination of prosecution witnesses was not curtailed.   The SART nurse, who provided the essential medical corroboration concerning the rape was challenged by defense witnesses.   And defense counsel elicited evidence that the victim rubbed herself and that rubbing could conceivably have resulted in the inflammation of her vagina.   Under the circumstances, we are convinced that defendant's constitutional rights were not infringed by his lack of access to records covered by Section 5328 and that their nondisclosure was harmless beyond a reasonable doubt.¹³

B.–F.***

V

DISPOSITION

The conviction for kidnapping is reversed.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   Unless otherwise specified, all statutory references are to the Penal Code.

2.   In his police report, Officer Barnett wrote that the victim was walked through the area where the assault occurred to point out where evidence might be collected.

3.   This testimony was received only for the purpose of showing the information upon which Alexander based her opinion and not for the truth its contents.

4.   Alexander explained that edema is “swelling” and petechia “is a very specific type of peppery injury that occurs to fragile areas of skin,” a “fine peppery rash” caused by pressure, rather than regular rubbing.

5.   Julie Gregory Montini, property manager of the office building, testified that the door to suite 200 would ordinarily be locked on Sundays.

6.   Camacho testified that the victim came after the Asian family had left.   However, at defendant's first trial he said he thought the Asian family left almost as soon as defendant and the victim went upstairs.

7.   The court said it looked at the records to see “whether or not [the victim] was incapable of understanding the duty of a witness to tell the truth, whether or not she had a physical anatomy that would prevent penetration of her genitals or anus, to determine whether a doctor should be appointed to conduct a physical exam of [the victim] to determine whether or not there is evidence that she could not be physically penetrated genitally or anally.   And also, regarding hygiene, loss of bowel movement and hygiene.”

8.   The People do not claim that defendant failed to make a prima facie showing sufficient to invoke an in camera review.  (Cf. People v. Pack (1988) 201 Cal.App.3d 679, 248 Cal.Rptr. 240 [failure to review not error because defendant did not make showing sufficient to warrant review].)

9.   Defendant notes that the record in this case contains no assertion of the psychotherapist-patient privilege by one statutorily authorized to assert it.  (See Evid.Code, § 1014.)   However, in a criminal proceeding, where the complaining victim has not waived the privilege concerning psychological records, the court must assert the privileged on the victim's behalf.  (People v. Pack, supra, 201 Cal.App.3d at pp. 684–685, 248 Cal.Rptr. 240.)

10.   At trial, the victim testified that the security guard who assaulted her had tattoos on his arms.   Officer Willis testified that the victim had told him defendant had tattoos on his shoulder.   Defendant testified that he has no tattoos.   And Dr. James Hinsdale testified that defendant had never had a tattoo removed.

11.   Section 5328 provides, in relevant part, “All information and records obtained in the course of providing services under [various divisions of the Welfare and Institutions Code], to either voluntary or involuntary recipients of services shall be confidential.”

12.   In support of his claim, defendant relies on Gilbert v. Superior Court (1987) 193 Cal.App.3d 161, 238 Cal.Rptr. 220 and People v. Gardner (1984) 151 Cal.App.3d 134, 198 Cal.Rptr. 452.   However, these cases do not support defendant's position.   In Gilbert, the court properly refused to release protected records for use before an administrative agency because administrative agencies were not included in any exception.  (Gilbert v. Superior Court, supra, 193 Cal.App.3d at pp. 169–170, 238 Cal.Rptr. 220;  see County of Riverside v. Superior Court (1974) 42 Cal.App.3d 478, 481, 116 Cal.Rptr. 886 [§ 5328, subd. (f) does not authorize disclosure to administrative agencies].)   In Gardner, the trial court erred in permitting the inclusion of protected information in the probation report.  (People v. Gardner, supra, 151 Cal.App.3d at pp. 141–142, 198 Cal.Rptr. 452.)

13.   In his opening brief, defendant neither claims, argues, nor suggests that the records he sought were not covered by Section 5328.   Nor did he do so below.   In his reply brief, he discusses this section, “assuming it applies.”   This parenthetical aside is not sufficient to preserve a claim that the records are not confidential.   Thus, we assume that they are and our review confirms this.   However, to the extent that some of the records may not fall within the scope of Section 5328, we nevertheless conclude for the reasons stated above that their nondisclosure was harmless also.

FOOTNOTE.   See footnote *, ante.

WUNDERLICH, Associate Justice.

COTTLE, P.J., and MIHARA, J., concur.