Filed 9/7/18 P. v. Aquino-Hernandez CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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In June 2016, a jury found defendant Maximino Aquino-Hernandez guilty of two counts of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).)[1] The trial court sentenced him to prison for an aggregate term of four years.

On appeal, defendant asks this court to review the transcript of the trial court’s in camera examination of the counseling records of one of the victims and determine whether the court erred in declining to disclose the evidence to defendant. The People do not oppose defendant’s request. We have reviewed the transcript and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2014, E.S., his wife, and daughters 11-year-old S.S. and one-year-old Y.S. were leaving a quinceañera party when they found defendant and his brother (who is not a party on appeal) urinating near E.S.’s car. The three men began arguing, and defendant hit E.S. in the face with a beer bottle, breaking his nose. The brother also hit E.S. in the head. S.S., who was holding Y.S. in her arms, yelled at the men to leave E.S. alone and tried to hit defendant. Defendant tried to hit S.S with a broken beer bottle, but E.S. prevented him from doing so. S.S. was transported by ambulance to the hospital and treated for anxiety and hyperventilation due to the incident.

S.S., who was 12 years old at the time of trial, testified she did not recall what she told the police about the incident. The defense sought S.S.’s psychological records, arguing her memory was in doubt and she likely discussed the incident with her therapist. Further, any mental suffering by S.S. and the source thereof was at issue in the case because defendant was charged with child abuse (§ 273a, subd. (a); see CALCRIM No. 821 [infliction of physical pain or mental suffering required to prove child abuse in this context]).[2]

The custodian of records for S.S.’s therapist provided S.S.’s confidential medical file to the trial court; the court examined the record in a closed session in chambers and made observations and findings which were reported and placed under seal. After the hearing, the court ruled that S.S.’s right to confidentiality outweighed the minimal probative value of the records and denied defendant access thereto. The court returned the records to the custodian; no copy was preserved for appeal.

DISCUSSION

On appeal, defendant seeks only our review of the sealed transcript, providing we find it adequately provides for meaningful review. We have reviewed the transcript, find it adequate, and see no apparent error.

“ ‘[A] criminal defendant’s right to discovery is based on the “fundamental proposition that [an accused] is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.” ’ [Citations.]” (People v. Gonzalez (2006) 38 Cal.4th 932, 960, italics omitted.) Still, a defendant does not have an “absolute” right to obtain discovery. (People v. Avila (2006) 38 Cal.4th 491, 606.) A court may refuse to disclose a witness’s confidential mental health records if they were not favorable to defendant and material to the issue of guilt. (See People v. Hammon (1997) 15 Cal.4th 1117, 1127 [“when 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”].)

We have reviewed the sealed transcript and agree with the trial court from its description of the materials under review that the undisclosed information was not material to the defense.[3] The court did not err in declining to disclose the materials.

DISPOSITION

The judgment is affirmed.

/s/

Duarte, J.

We concur:

/s/

Mauro, Acting P. J.

/s/

Hoch, J.