Filed 1/26/16 P. v. Richmond CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JENNA MARIE RICHMOND,

 Defendant and Appellant.

2d Crim. No. B258109

(Super. Ct. No. KA102775)

(Los Angeles County)

A jury found Jenna Marie Richmond guilty of oral copulation of a person 

under 14 years of age (Pen. Code, § 288a, subd. (c)(1))1and lewd acts upon a child (§ 288, 

subd. (a)). She was sentenced to five years in state prison.

We conditionally reverse. The trial court treated the claim of 

psychotherapist-patient and medical records privilege as absolute. The court failed to 

balance the defendant's right to cross-examine witnesses with the policies the privilege was 

intended to promote.

FACTS

The Leroy Haynes Center ("the Center') is a residential treatment facility for 

severely emotionally disabled children. The Center is a level 12 facility. A level 12 

facility is one step below a locked psychiatric facility.

 

1 All statutory references are to the Penal Code unless otherwise stated.
2

In 2012, Richmond was in charge of a cottage at the Center. Her supervisor 

encouraged her to use the Center's van to do things with the children on days when they 

did not have school. Activities included going to the Glendora Recreation Center and the 

Donut Man.

Angel, born in September 1999, was placed in Richmond's cottage in June 

and July of 2013. Q. was Angel's roommate.

Q. testified that in July 2013, he and Angel decided to go to the Donut Man. 

Richmond drove them in the Center's van. When they arrived at the Donut Man, Q. left 

the van to go to the bathroom. When he returned to the van, he saw Richmond's head 

going up and down near Angel's penis. Q. thought she was giving him a "blow job." 

Q. waited outside the van until they were finished. He knew they were finished when 

Angel opened the van door. They all went into the donut shop, purchased donuts and 

returned to the Center. Q. did not report the incident because Angel asked him not to.

On a different occasion, Q. was using a computer in the staff office. The 

door to the bathroom was open and he could see inside. He saw Angel and Richmond in 

the bathroom. Richmond was bending over with her pants down. It looked like Angel had 

his penis in her vagina. After Angel left the bathroom, Q. told him "he smelled like 

pussy." Angel told Q. he had been having sex.

Q. did not report what he had seen for about three months. By that time 

Angel told him he could report the incidents. Angel was angry with Richmond because 

she blamed him for taking her keys. Q. admitted he was also in trouble with Richmond. 

Q. was 12 years old at the time he saw the incidents.

Angel testified that he did not remember ever going to the Donut Man with 

Richmond. Angel denied that he and Richmond ever had oral sex or intercourse; that he

touched Richmond in a sexual manner or was touched by Richmond in a sexual manner; 

that he kissed Richmond, was involved in a relationship with Richmond, or ever wore 

Richmond's class ring.

Angel testified that while he was at the Center, he saw Kelly Price-Jarvis, a 

therapist, about once a week. He denied telling her that inappropriate sexual activity had 
3

occurred. He denied telling her that he lied to the police about having a relationship with 

Richmond and would lie again. 

Price-Jarvis testified she was a marriage and family therapist intern at the 

Center. Angel told her he had a sexual relationship with Richmond. Price-Jarvis notified 

the police. Angel told her he lied to everyone who asked him about the relationship and 

would continue to lie about it. Angel began wearing a female class ring. He would not tell 

Price-Jarvis where he got it.

William Harris is a unit manager at the Center. Harris became aware of 

allegations of a sexual relationship between Angel and Richmond. Harris began an 

investigation. As part of the protocol, Richmond was placed on leave. Harris was not able 

to interview Richmond because she resigned a day or two after being put on leave. Harris 

interviewed Angel. While speaking with Angel, Harris recovered a ring with the initials 

JMR inside. JMR coincides with Richmond's initials.

DEFENSE

Los Angeles Sheriff's Detective David Johnson testified Harris never told 

him about the bathroom incident. Angel testified he never told Q. that he was in a 

relationship with Richmond. Richmond did not testify.

DISCUSSION

Richmond contends errors by the trial court, defense counsel and the 

prosecution deprived her of due process.

Prior to trial Richmond made an ex parte application for an order to enforce a 

subpoena duces tecum served on the Center. The subpoena sought: "All records showing 

instances in which [Q.] has been disciplined by the Leroy Hanes Center. [¶] All records 

showing instances in which the Leroy Hanes Center documented behavioral problems by 

[Q.]. [¶] All investigative notes and reports relating to all interviews of [Q.] by the Leroy 

Hanes Center in relation to report(s) of inappropriate activity between Jenna Marie 

Richmond and Angel." It also sought records relating to Richmond's use of the Center's 

van. Richmond's ex parte application pointed out that the trial court may review any 
4

privileged material in camera before deciding whether to release the information to the 

defense. The trial court did not compel the Center to produce records. 

At trial Price-Jarvis refused to answer on cross-examination whether Angel 

had run away from the Center. She claimed the information is privileged. The court 

agreed that the information was relevant, but expressed doubt whether the information 

could be obtained from the witness. Defense counsel said he would ask a staff member.

Defense counsel then stated he wanted to inquire about Angel's and Q.'s 

psychological condition. The prosecutor objected that the inquiry into Angel's and Q.'s 

medical records is prohibited by the Health Insurance Portability and Accountability Act. 

(42 U.S.C. § 1320d et seq. "HIPPA.") The trial court agreed. The court stated the inquiry 

went beyond that permitted under Evidence Code section 1027.

Defense counsel asked Harris if Angel was in a therapeutic residential 

program. The prosecutor objected that it was an inquiry into Angel's private medical 

information. The trial court sustained the objection. When defense counsel asked Harris 

whether Angel exhibited extreme behaviors, Harris asserted HIPPA. The trial court 

restricted defense counsel to questions related to Angel's general reputation. The trial 

court also sustained objections to questions whether Angel or Q. ever ran away from the 

Center. Harris had objected that he could not speak about behaviors. 

Pursuant to Richmond's motion for a new trial, she requested the trial court 

to issue a subpoena duces tecum for documents including Angel's and Q.'s therapy records. 

The court refused.

The trial court treated HIPPA as an absolute bar to the disclosure of medical 

information. But HIPPA allows the release of medical information without the patient's 

consent pursuant to a court order. (See Snibbe v. Superior Court (2014) 224 Cal.App.4th 

184, 197-198.) Nor is the psychotherapist-patient privilege embodied in the California 

Evidence Code (§ 1014 et seq.) an absolute bar to the disclosure of information.

Instead, a criminal defendant's right to confront an adverse witness 

sometimes requires the witness to answer questions that call for privileged information. 

(Davis v. Alaska (1974) 415 U.S. 308, 320.) 
5

In People v. Reber (1986) 177 Cal.App.3d 523, defendants sought 

psychotherapy records of the complaining witnesses by subpoenas duces tecum. The 

prosecution made a pretrial motion to quash the subpoenas on the ground of privilege. The 

trial court agreed with the prosecution. The Court of Appeal held the trial court erred to 

the extent it failed to (1) obain and examine in camera all the materials under subpoena; (2) 

weigh defendants' constitutionally based claim of need against the statutory privilege 

invoked by the People; (3) determine which privileged matters, if any, were essential to the 

vindication of defendants' rights of confrontation; and (4) create a record adequate to 

review its ruling. (Id. at p. 532.) 

In People v. Hammon (1997) 15 Cal.4th 1117, our Supreme Court 

disapproved of Reber, but only to the extent the defendant seeks to discover privileged 

psychiatric information before trial. Prior to trial, the trial court may not have sufficient 

information to balance the defendant's need for cross-examination and the policies the 

privilege is intended to serve. (Id. at p. 1127.)

Here there is nothing in the record to suggest that in any of its rulings on a 

claim of privilege the trial court balanced Richmond's need for cross-examination with the 

policies the privilege is intended to serve. Nor is there anything in the record to show the 

trial court took the steps outlined in Reber for the treatment of privileged material. 

Instead, the trial court treated the claim of privilege as absolute.

We also note that defense counsel's pretrial motion to discover the contents 

of privileged material was premature. (People v. Hammon, supra, 15 Cal.4th at p. 1127.) 

Defense counsel failed to renew the motion during trial. He also failed to include Angel's 

and Q.'s therapy records in the subpoena. It was not until Richmond's motion for a new 

trial that substitute counsel attempted to obtain the therapy records. But given the trial 

court's treatment of privilege, renewing the motion or including therapy records in the 

subpoena would not have produced a more favorable result.

The remaining question is whether the trial court's errors require reversal. 

The error requires reversal only if the defendant can demonstrate prejudice. (People v. 

Reber, supra, 177 Cal.App.3d at p. 532.)
6

In Reber, the court found the error harmless because there was no direct 

restriction on cross-examination and the defendant admitted the charged sexual acts 

occurred. (People v. Reber, supra, 177 Cal.App.3d at p. 533.) Here the trial court did 

directly restrict cross-examination and Richmond did not admit to anything. In fact, the 

alleged victim denied anything inappropriate happened. The only witness who claimed he 

saw Richmond and Angel engage in sexual activity was 12 years old at the time. Of 

course, it is impossible to know what the excluded evidence might have shown. But there 

is at least some reasonable possibility that the excluded evidence contains information 

sufficiently helpful to Richmond to have resulted in a more favorable verdict.

The People argue that Richmond did not need Angel's records because he 

repeatedly denied having a relationship with her. But Angel's records may have been 

helpful to Richmond on cross-examination of Price-Jarvis or to rehabilitate Angel's 

testimony.

The People argue it is "unclear" if anything in Q.'s records would be relevant 

or if any relevant information would have value because it is cumulative. But it is unclear 

what the records show because the People objected to their production. The People cannot 

both object to the production of records and claim the failure to produce the records is 

harmless because the defendant cannot show what they contain. 

Finally, the burden of the trial court's rulings on privilege fell entirely on the 

defense. The prosecution was able to elicit statements made by Angel to his therapist.

All things considered, the errors here are sufficient to undermine confidence 

in the outcome of the trial. 

Under the circumstances here a conditional reversal is appropriate. We 

adopt the approach taken by the appellate court in People v. Vanbuskirk (1976) 61 

Cal.App.3d 395. We also rely on section 1260.2This will ensure that Richmond receives 

a fair trial on the one hand and may possibly avoid an outright reversal on the other. 

 

2

Section 1260 states: "The court may reverse, affirm, or modify a judgment or order 

appealed from, or reduce the degree of the offense or attempted offense or the punishment 

imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, 
7

In Vanbuskirk, the defendant was not allowed to challenge the fairness of the 

manner in which photographic identification of him was presented to witnesses prior to 

trial. As the court noted, this was a fundamental error that denied defendant a fair trial. 

(People v. Vanbuskirk, supra, 61 Cal.App.3d at p. 401.) So too here, Richmond did not 

receive a fair trial. 

We remand for post-judgment proceedings. The trial court shall compel the 

Center to produce all the records Richmond sought from the Center. The trial court shall 

view these records in camera and determine whether they contain information relevant to 

the credibility of prosecution witnesses. Depending on its findings, the court may find in 

necessary to examine certain witnesses in camera. 

The matter is conditionally reversed. The trial court shall make findings on 

its determination for possible review. If it determines the information contained in these 

records will have no appreciable effect on the outcome of these proceedings, it shall state it 

reasons for these findings and rearraign Richmond and pronounce judgment on the 

judgment. 

On the other hand, if the trial court finds the information withheld denied 

Richmond a fair trial, it shall grant Richmond a new trial. 

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

 

or dependent upon, such judgment or order, and may, if proper, order a new trial and may, 

if proper, remand the cause to the trial court for such further proceedings as may be just 

under the circumstances."
8

Juan Carlos Dominguez, Judge

Superior Court County of Los Angeles

______________________________

Innocence Legal Team, William P. Daley for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. 

Matthews, Supervising Deputy Attorney General, Ryan M. Smith, Deputy Attorney 

General, for Plaintiff and Respondent.