P. v. Nylander
Filed 6/10/08 P. v. Nylander CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. DENNIS ALLEN NYLANDER, Defendant and Appellant. | G038005 (Super. Ct. No. 04WF1148) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Thomas J. Borris, Judge. Affirmed.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
Dennis Allen Nylander was charged with one count of committing a lewd act upon a child under the age of 14, in violation of Penal Code section 288, subdivision (a). He was convicted by a jury based largely upon the testimony of the minor victim, Mariah and sentenced to eight years in prison. He appeals his conviction on the basis he was erroneously denied access to records of Mariahs postcrime counseling sessions with two mental health professionals. We have reviewed those records, as did the trial court, and conclude the trial court was correct in finding them devoid of any material that might have had a bearing upon appellants trial. The judgment is therefore affirmed.
FACTS
There is no appellate issue in this case that turns upon a close reading of the facts. The one and only question before us is whether the trial court abused its discretion in denying appellant discovery of Mariahs mental health records. We can therefore dispense with a lengthy factual summary.
Suffice it to say appellant is Mariahs paternal stepgrandfather. Her father passed away when she was very young, and she spent most of her life staying with her maternal grandparents, but was a frequent visitor at the home of appellant and his wife, who lived two blocks away.
When Mariah was four-and-a-half, she accused appellant of molesting her. Appellant denied any culpable intent, but did admit that on one occasion, while giving her a bath, he had licked his finger, rubbed her vagina with it, asked her if it felt good and given her a boo-boo kiss in her vaginal area on the date in question. He disputed her testimony he told her not to tell anyone or hed get in trouble, and said he had never put his finger in her vagina. His explanation for his conduct was that she seemed to be preoccupied with her vaginal area and he was checking to see if she needed medical attention.
After Mariahs report, she was referred to Sandhya R. Gudapati, M. D., a psychiatrist, and Debra Webb, a licensed clinical social worker, for examination and counseling. Appellant moved for discovery of the records of those counseling sessions under Evidence Code section 1035.4. The trial judge reviewed the records in camera and denied disclosure, on the basis the records contained no material, impeaching or otherwise, that was discoverable. This is the ruling appellant contests, and he asks us to examine the records in order to review it.
DISCUSSION
Evidence Code section 1035.4 provides, in pertinent part:
The court may compel disclosure of information received by [a] sexual assault counselor which constitutes relevant evidence of the facts and circumstances involving an alleged sexual assault about which the victim is complaining and which is the subject of a criminal proceeding if the court determines that the probative value outweighs the effect on the victim, the treatment relationship, and the treatment services if disclosure is compelled. . . .
In applying the statute, case law has recognized a need to balance societys interest in protecting the privacy of those who believe they have been victimized by sexual assault (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1391) against the accuseds right to a full and fair trial. That was what the trial court attempted to do in the in camera hearing.
While an argument can be made that a threshold showing is required before an in camera review takes place (Compare People v. Pack (1988) 201 Cal.App.3d 679 with People v. Dancer (1996) 45 Cal.App.4th 1677, (both overruled on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123, the People have not raised that objection here. Indeed, since it was the prosecution that sought an in camera hearing in the court below, such an argument would not likely be well taken, and the Attorney Generals decision not to argue the point seems astute. We would probably favor the Dancer approach over that adopted in Pack anyway.
Nonetheless, we approached this task with trepidation. Attempting to coax possible defense theories from the barren landscape of a featureless appellate record is a daunting undertaking. Examining every note of the mental health professionals for buried meaning or latent significance, trying to ascribe consequence to what a social worker or doctor thinks is significant about what a young child has said or done, is at best problematic. It was complicated in this case by the fact the doctors penmanship is what most would expect of a modern medical professional, and the records we were given, while sequentially numbered, are out of order usually backwards.
It was therefore greatly reassuring that we found the trial courts characterization to be clearly correct: There is nothing in these notes that could possibly have helped in appellants defense. This is not a close case. It does not turn on the standard of review or a delicate legal analysis. There were no notes that required us to balance their relevance against the effect of disclosure. There was nothing said or unsaid that required us to make a close call about the propriety of their disclosure. The trial court correctly characterized them: There was no material, impeaching or otherwise, that could have helped defense at all, and, a fortiori, nothing that should have been disclosed.
The judgment is therefore affirmed.
BEDSWORTH, J.
WE CONCUR:
SILLS, P. J.
IKOLA, J.
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