1 Filed 6/26/13 P. v. Cowan CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT (Sacramento)

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THE PEOPLE, Plaintiff and Respondent,

v. ROBERT LINDSAY COWAN, Defendant and Appellant. C066033 (Super. Ct. No. 09F09112)

A jury found defendant Robert Lindsay Co wan guilty of five co unts of lewd and lascivious acts involving two children under 14 years old. (Pen. Code, §§ 288, subd. (a), 667.61, former subd. (e)(5).) 1 During the pretrial phase, de fendant unsuccessfully moved for third party discovery, seek ing records regarding the vic tims’ paternal grandfather’s

1 Undesignated statutory references are to the Penal Code.2 (hereafter grandfather) sec tion 288 conviction from 2003. 2 Defendant argued that due to the victims’ parents’ experiences with sexu al molestation, the parents may have been overly wary of sexual contact, thereby ins tilling in their children a hypersensitivity to sexual contact. This, combined with the vic tims’ sheltered upbringi ng, may have caused the victims to misinterpret innocuous contact. Sentenced to 30 years to life, defendant appeals. Defendant contends the pretrial court (Judge Ernest W. Sawtelle) erroneously denied the motion for third party discovery (after reviewing the relevant records in camera), thereby violating defendant’s due process rights, right to a fair trial, and ability to fully and effec tively cross-examine
witnesses. Defendant further contends th at the trial court (Judge Delbert W. Oros) compounded this error by refusing to re-review these records. However, we find no error because the records sought would not have le d to the discovery of evidence, and defense counsel had the opportunity to fully and e ffectively cross-examin e the witnesses. Additionally, we have reviewed the records so ught and agree with the pretrial court that they contain no discoverable information. Th erefore, we shall affirm the judgment.

FACTUAL AND PROCED URAL BACKGROUND
On October 22, 2009, defend ant went to the victims’ fa mily home to lead a Bible study, as he had done most Thursday evenings over the past four years. Defendant touched then 10-year-old K.G. beneath her und erwear, twice in her “front girl parts” (vaginal area) and once near her bottom. The same night, K.G.’s then seven-year-old sister R.G. was sitting on defendant’s lap wh en he put his hand be neath her underwear, moving his hand up and down on her bottom. K.G. told her mother, Stephanie G.; her

2 There was never any allegation that the victims’ grandfather committed any offense against them. Furthermore, “there’s no offer of proof from either party that [grandfather] is linked to the molest char ged in the current case—there is no third party culpability argument being presented.”3 father, Patrick G.; and her sister, R.G., about defendant’s touching. R.G. subsequently told her parents about the touching, as well as similar touching by defendant when R.G. was four and five years old. Defendant wa s charged with nine counts of lewd and lascivious acts with a child under 14 years old. (§ 288, subd. (a); four counts involving K.G., five counts involving R.G.)

Defendant was held to answer on all ni ne counts following a preliminary hearing in early March 2010 (Judge David I. Brown). During the pretrial phase (Judge Sawtelle), defendant sought third party discovery, re questing records relating to the girls’ grandfather’s section 288 conv iction from 2003. Defendant’s motion referenced specific pages from the preliminary hearing transcript a nd included an offer of proof . K.G. knew that her grandfather ha d “touched a little girl’s parts” and “went to jail” for it, which is how she understood that defendant’s touching her was wrong. Also, Stephanie G. had
been molested as a child. Defense counsel argued that due to these life experiences, Patrick G. and Stephanie G. ma y have been especially wary of sexual contact and may have instilled in their daughters a hypersen sitivity to any contact . For example, both parents repeatedly warned K.G. and R.G. not to let anyone touch their “girl parts.” In support of his pretrial moti on for third party discovery, de fense counsel argued, “It may be, for example, that one of the complaining witnesses—if not both—have misinterpreted a benign or innocent touch by [d efendant] due to what their father had told them to be wary of.” Furthermore, defense counsel “as k[ed] the Court to review the materials and release materials that are appropriate for me to know in order to in telligently prepare for cross-examination of the girls’ father that they will assist me in questioning him in trying
to ascertain whether he has told his daughters anything about” their grandfather’s case. Specifically, defendant sought discovery of (1) the district attorney’s file relating to grandfather’s prosecution; (2) sheriff’s de partment records relating to grandfather’s investigation and prosecution; and (3) superior court record s from grandfather’s case.4 The pretrial court (Judge Sawte lle) denied defendant’s motion as to the district attorney’s file and the court records. The pretrial cour t then performed an in camera review of the sheriff’s department records, and found nothing discoverable therein. Subsequently, defense counsel asked the tr ial court (Judge Oros) to re-review the sheriff’s department records, arguing that the pretrial court’s decision was “not binding
on” the trial court. The trial court was not persuaded, and declin ed “to disturb Judge Sawtelle’s decision” to deny the motion. Ho wever, the trial court explicitly stated that defense counsel could cross-examine the pare nts and both victims about the victims’ knowledge of specifics relating to their mo ther’s molestation and their grandfather’s molest history. That is, “If the children were affirmatively told by eith er or both of their parents of the specifics of their mother’s prio r history or their grandf ather’s prior history, that is fair game because it goe s to the issue of the children’ s knowledge of the nature of these alleged touchings, and it may go to the defense theory that there was a supersensitive environment in which th e children were raised, and they are misinterpreting the nature of the conduct that’s alleged against the defendant.” At trial, defense counsel had the opport unity to cross-examin e the witnesses and presented the theory that the children lived in “an overly cautious, extremely isolating
environment which resulted in oversensitivit y to otherwise innocuous acts.” A jury found defendant guilty of five counts of lewd and lascivious acts with a child under 14 years (§ 288, subd. (a); four counts invol ving K.G. and one count involving R.G.), and the trial court sentenced defendant to 15 year s to life in state prison for each count (see § 667.61, former subd. (e)(5), multiple vict ims), with counts one and five to run consecutively and counts two, three, and four to run concurrently.5 DISCUSSION Defendant’s argument on appeal is two-fold. First, defendant contends that the pr etrial court’s (Judge Sawtelle) in camera review of the sheriff’s department records was inappropriately limit ed, as “[t]he court appeared to be reviewing these documents for anything that may relate to [defendant] or be ‘exculpatory’ to [defendant].” As such, defendant asserts that the pretrial court’s denial of his motion for third party discovery violated his constitutional right to “a fair trial[ and] due process of law” by failing to disclose inform ation “that might lead to the discovery of evidence.” Second, defendant argues “[t]he trial court compo unded the earlier error by refusing to review [grandfathe r’s prior court] records,” th ereby infringing on defendant’s “ability to conduct effective cr oss-examination” as he coul d not “challenge or test the veracity of [K.G.’s and R.G .’s] statement[s]” on cross-exam ination, “render[ing] th[is] questioning meaningless.” As such, defendant ar gues reversal is required. We disagree. Discovery in a criminal case is governed by section 1054 et seq. (§§ 1054- 1054.10.) 3 Denial of a discovery motion is s ubject to abuse of discretion review.

3 Despite defendant’s contentions at trial and again in the briefi ng, a subpoena duces tecum was an inappropriate av enue for the records sought. “No order requiring discovery shall be made in criminal cases except as pr ovided in this chapter. This chapter shall be the only means by which the defendant may co mpel the disclosure or production of information from prosecuting atto rneys, law enforcem ent agencies which investigated or prepared the case against the defendant, or any other persons or agencies which the prosecuting attorney or investigating agen cy may have employed to assist them in performing their duties.” (§ 1054.5, subd. (a).) Furthermore, we note that defendant, in support of his subpoena duces tecum argument, relies on dicta in Alford v. Superior Court (2003) 29 Cal.4th 1033. The Alford court stated, “The Pitchess procedure is . . . in essence a special instance of third party discovery. Another such procedure . . . in a cr iminal case [is] to serve a subpoena duces tecum requiring the person or entity in possessi on of the materials so ught to produce the information in court for th e party’s inspection.” ( Id. at p. 1045.) Defendant notes that,6 ( People v. Superior Court ( Meraz ) (2008) 163 Cal. App.4th 28, 46 ( Meraz ).) As such, the decision will be upheld unless we find (1) “ ‘t he [trial] court exceed[ed] the bounds of reason,’ ” and (2) the defendant suffered subs tantial prejudice to justify reversal. ( Id. at pp. 46, 49.) We find that th e pretrial court was well with in the bounds of reason in denying defendant’s motion, an d moreover, defendant suffered no prejudice. Therefore, the pretrial court and the trial cour t did not abuse their discretion.

I. The Pretrial Court’s In Camera Review Was Proper and Did Not Violate Defendant’s Constitutional Rights A. The Pretrial Court Did Not Inappropriately Limit Its Review

Defendant asserts that th e pretrial court’s in camera review of the sheriff’s department records was too limited. Specifically , defendant asserts that “it is clear” that the pretrial court “review[ed] the documents fo r anything that may relate to [defendant] or be ‘exculpatory’ to [defendant]. Alth ough appropriate, it was far short of what the court should have been reviewing. The cour t was tasked with re viewing the documents for anything that may lead to the discovery of evidence.” In support of this argument, defendant directs us to the pretrial court’s minute order denying the motion for third party discovery: “After in camera review of the Sacramento County Sheriff’s [Department] records th e Court found no relevant information regarding the prosecution of [d efendant] therefore the motion to release
records is denied.” We do not interpret this statement to indi cate that the pretrial court reviewed the records only for exculpatory evidence. Rather, we find “relevan[ce]” to be the crux of this statement, and such an inquiry is not inappr opriately limited.

pursuant to Alford , he need not present theories of relevance to the prosecution. However, in so relying, defendant fails to reco gnize that relevance is still part of the trial court’s analysis in granti ng or denying a motion for third party discovery. ( Alford , at pp. 1045-1046 [providing that defendant need not present a relevance argument to the prosecution, “but instead may make an offer of proof”].)7 Defendant further points to the following statement the pretrial court made to the prosecutor in the third party discovery context: “So mostly at this point it seems that the issue is whether or not there is exculpator y information, and that I guess I’m going to remind you of your Brady duties, and—and that you should review those for that purpose.” 4 Defendant avers that this statement shows that the pr etrial court reviewed the documents simply for exculpator y information. We disagree. While the pretrial court’s comments include the term “exculpatory in formation,” this was in the context of reminding the prosecutor of her Brady obligations, not in disc ussing the court’s own in camera review. Therefore, refe rring to “exculpatory information” in this context does not support the contention of an inappropriately limited in camera review. As there is nothing further in the record to support defe ndant’s contention that the pretrial court’s review was inappropriately limited, we will pr oceed under an abuse of discretion review. B. The Records Sought Would Not Have Led to Discovery of Evidence Relying on People v. Reber (1986) 177 Cal.App.3d 523, defendant contends that he was entitled to third party discovery beca use due process entitles a criminal defendant “to any ‘ “pretrial knowledge of any unprivileged evidence, or information that might lead to the discovery of evidence , if it appears reasonable that such knowledg e will assist him in preparing his defense.” ’ ” ( Id. at p. 531 [emphasis adde d in appellant’s opening brief quoting Reber ], overruled on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123.) Defendant also emphasizes that “[o]ne of the legitimate goals of discovery is to obtain information ‘ “for possible us e to impeach or cro ss-examine an adverse witness . . . .” ’ [Citation.] ‘ “[A]bsent so me governmental requirement that information be kept confidential . . . the state has no in terest in denying the accused access to all evidence that can throw light on issues in the case, and in pa rticular it has no interest in convicting on the testimony of witnesses w ho have not been as rigorously cross-

4 Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215].8 examined and as thoroughly impeached as the evidence permits.” ’ ” ( Reber , supra , 177 Cal.app.3d at p. 531.) While these principles apply to crimin al discovery motions, the records sought regarding grandfather’s case could not have r easonably led “to the discovery of evidence” or “throw[n] light on issues in the case.” Defendant contends ot herwise. Defendant points out that K.G. testified at trial, as an ticipated in the pretrial proceedings on this matter, that her father had told her grandfathe r touched a little girl’s parts and went to jail for it; this was how K.G. knew defendant’s actions were wron g. Defendant contends, “If the conduct alleged by [K.G.] wa s identical to that alleged ag ainst [grandfather], then the veracity of [K.G.’s] statement of what occurred by [defenda nt] is called into question.” Therefore, according to defe ndant, “[t]he underlying fa cts of her grandfather’s
misconduct should have been disclosed so th at the defense could determine whether or
not this was an area for cross-examination and possible impeachment of [K.G.] and her parents,” and failure to do so denied him th e ability to discover evid ence and effectively cross-examine K.G. and her parents. Defendant’s contention—that comparing th e nature of grandfather’s conduct from the 2003 case with the nature of the allege d conduct in the present case could, if sufficiently similar, sh ed light on the allegations and/ or lead to the discovery of evidence—only has me rit if the victims knew the nature of grandfather’s conduct. However, there is nothing to indicate the vict ims did know the details of grandfather’s case. Throughout the pretrial phase, defendant was unable to produce any evidence that the victims knew the nature of grandfather’s conduct. And at trial, the witness testimony indicated that neither the victims nor Stepha nie G. knew the nature of grandfather’s conduct. What’s more, there is no evidence R.G. knew anything about grandfather’s conviction, much less the details of his case.9 Nothing in the records of grandfather’s case—records from a different case with a different perpetrator and a different victim w ho were not involved in the case before us— could have shed any light on K.G. and R.G.’s knowledge of grandfather’s 2003 case. Therefore, these records are wholly irrelevant and could not have le d to the discovery of evidence or shed any light on th e issues in this case. Ac cordingly, denying defendant’s motion for third party discovery did not “ex ceed[] the bounds of reason,” and must therefore be upheld. ( Meraz , supra , 163 Cal.App.4th at pp. 46, 49.) C. Defendant Had the Opportunity to Effectively Cross-examine Witnesses Defendant continues to press the ar gument that by denying the third party discovery motion, the pretrial court “den[ied] [him] the ability to challenge or test the veracity of [K.G.’s and R.G.’s] statemen t[s], [which] renders the[ir] questioning on [cross-examination] meaningl ess.” Defendant concedes he had the ability to crossexamine the witnesses, but argu es that the inability to use re cords from grandfather’s case to “test the veracity of [K.G .’s and R.G.’s] statement[s]” violated his Sixth Amendment right to confront these witnesses. In support of this contention, defendant ’s argument follows a similar vein as the argument above; so too, then, does our disc ussion. Defendant posits, “If the conduct alleged by [K.G.] was identical to that allege d against [grandfather], then the veracity of [K.G.’s] statement of what occu rred by [defendant] is called into question.” Again, the People correctly point out that defendant’s contention—that similari ties between the facts of this case and those of gran dfather’s 2003 case may call into question “the veracity of [the victims’] statement[s]”—has merit only if the victims knew the nature of grandfather’s conduct. For the same reasons provided above, the records sought could not have provided defenda nt with “the ability to challenge or test the veracity of [K.G.’s and R.G.’s] statement[s],” beca use the documents would be wholly irrelevant as to the victims’ knowledge.10 Moreover, contrary to his contentions, de fendant at trial had the opportunity to, and did, fully and effectively cross-examin e the witnesses to fu rther his theory. Defendant presented his theory that “[K.G.] and [R.G.] were in such a sheltered environment that an innocuous touching was elevated to something nefarious based upon their hypersensitivity.” Defendant cross-examin ed the witnesses to fu rther this theory:
He cross-examined K.G. and R. G. as to their knowledge of their grandfather’s case; and he cross-examined Stephanie G. and Patrick G. as to what they ha d told their children about grandfather’s conviction. And yet, ther e was never any evidence presented that the
victims knew the details of the 2003 case. Specifically, defendant put fo rth evidence that R.G. and K. G. lived a sheltered life: They were home-schooled; they were not a llowed to have sleepovers; they had never been to a movie theatre; and they attended ch urch three times per week, in addition to a nightly Bible study. Defendant put forth evid ence that Patrick G. and Stephanie G. may have been overly wary of sexual contact: Stephanie G. had been molested as a child,
Patrick G.’s father had been convicted of lewd and lascivious acts with a child under 14, and they had warned K.G. and R.G. many times not to let people touch their “girl parts”—“their chest[s],” “their bottom[s],” and “their vaginal areas.” Defendant presented the theory that the children lived in “an overly cautious, extremely isolating
environment which resulted in oversens itivity to otherwise innocuous acts.” Furthermore, “[c]hildren this young are likel y not able to process the difference between a good touch, an innocent touch, and a tr ue molest, an innocuous blunder versus something that’s truly bad.” Therefore, cont rary to defendant’s assertion that his ability to cross-examine or impeach witnesses was thwarted by th e pretrial court denying his motion for third party discovery, defendant ha d the opportunity to, and did, fully and effectively cross-examine the witnesses on th e pertinent issue—whether R.G. and K.G. knew the details of grandfather’s prior conviction.11 II. The Trial Court Did Not Compound Any Previous Error Defendant additionally conten ds that when the trial court (Judge Oros) declined to re-review the records sought, “the trial cour t compounded the earlier error.” In declining to re-review the records, Judge Oros relied on In re Alberto (2002) 102 Cal.App.4th 421, which provides that a judge may generally va cate his or her own order; however, “the power of one judge to vacate an order made by another judge is limited. [Citation.] This principle is founded on the inherent diffe rence between a judge and a court and is designed to ensure the orderly administration of justice. ‘If the rule were otherwise, it would be only a matter of days until we would have a rule of man rather than a rule of law.’ ” ( Id. at p. 427.) Judge Oros stated, “[U]nder [ Alberto ] I am not going to disturb Judge Sawtelle’s decision. I think it would be inappropriate to do so.” We agree with Judge Oros and find that he acted within his discretion. Moreover, we note that there was no prior error to compound. Finally, as defendant likens review in this case to a Pitchess 5 motion and the People have no objection to such a review, we have reviewed the sheriff’s department records. We find the pretrial court (Judge Sawtelle) did not ab use its discretion in concluding that there was nothing discoverable therein. Therefore, even if the pretrial
court had erred—which it did not—defendant would be unable to show prejudice requiring reversal. The denial of defendant’s third party di scovery motion did not violate defendant’s due process and confrontation rights. As such , the denial did not constitute an abuse of
discretion.

5 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (review of a police officer’s personnel file regarding complaints).12 DISPOSITION The judgment is affirmed.

BUTZ , J.

We concur:

HULL , Acting P. J.

HOCH , J.