Hammon

*1119 Opinion

Before trial commenced in this sexual molestation case, defendant served subpoenas duces tecum on psychotherapists who had treated the complaining witness. Although defendant claimed the records would be necessary to challenge the witness’s credibility, the trial court quashed the subpoenas on the basis of the psychotherapist-patient privilege. We granted review to decide whether the trial court erred by not first reviewing the records in camera and, if so, what the appropriate remedy on appeal might be.

We determine no error occurred. For reasons we explain, the trial court was not required, at the pretrial stage of the proceedings, to review or grant discovery of privileged information in the hands of third party psychotherapy providers. We reject defendant’s claim that pretrial access to such information was necessary to vindicate his federal constitutional rights to confront and cross-examine the complaining witness at trial or to receive a fair trial. We conclude that the line of intermediate state court cases on which defendant relies was wrongly decided and should be disapproved to the extent they suggest a contrary result under these circumstances.

I.…

I concur in the result. Any error that the superior court may have committed by quashing the subpoenas duces tecum that defendant served on the psychotherapists for the records of their treatment of his former foster daughter does not require reversal. Even if such error should violate the United States Constitution, it would be subject to review under the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18 [ 87 S.Ct. 824 , 17 L.Ed.2d 705 , 24 A.L.R.3d 1065 ], and would pass scrutiny thereunder: Defendant sought the records in question to raise a reasonable doubt whether he had in fact engaged in sexual activity with the girl; subsequently, on the witness stand, he admitted he had.

Beyond the result, however, I do not concur. Without warrant, the majority sweep away what had heretofore been settled law in California—law that was articulated in Presiding Justice Puglia’s opinion for a unanimous court in People v. Reber (1986) 177 Cal.App.3d 523 [ 223 Cal.Rptr. 139 ] (hereafter sometimes Reber), and was subsequently applied in such decisions as People *1129 v. Boyette (1988) 201 Cal.App.3d 1527 [ 247 Cal.Rptr. 795 ], Rubio v. Superior Court…

I concur in the judgment. As indicated by my concurring and dissenting opinion in People v. Webb (1993) 6 Cal.4th 494, 537 [ 24 Cal.Rptr.2d 779 , 862 P.2d 779 ], I am of the view that the Sixth Amendment affords criminal defendants a right to pretrial discovery of privately held and privileged documents when discovery is necessary to a fair trial. To invoke the right, however, a criminal defendant must first make a showing of good cause for discovery. In this context, good cause means a reasonable likelihood that the documents contain information that is both material and favorable to the defense and that the same or comparable information is not obtainable from nonprivileged sources. If the defendant makes this showing, then the trial court is required to examine the documents in camera, to balance the interests served by the privilege against a defendant’s right to a fair trial, and to disclose the documents in whole or in part to the extent that this balance tilts in the defendant’s favor. (See People v. Reber (1986) 177 Cal.App.3d 523, 531-532 [ 223 Cal.Rptr. 139 ]; see also State ex rel. Romley v. Superior Court (1992) 172 Ariz. 232, 234-240 [ 836 P.2d 445, 452-454 ]; State…

Before trial commenced in this sexual molestation case, defendant served subpoenas duces tecum on psychotherapists who had treated the complaining witness. Although defendant claimed the records would be necessary to challenge the witness's credibility, the trial court quashed the subpoenas on the basis of the psychotherapist-patient privilege. We granted review to decide whether the trial court erred by not first reviewing the records in camera and, if so, what the appropriate remedy on appeal might be.

We determine no error occurred. For reasons we explain, the trial court was not required, at the pretrial stage of the proceedings, to review or grant discovery of privileged information in the hands of third party psychotherapy providers. We reject defendant's claim that pretrial access to such information was necessary to vindicate his federal constitutional rights to confront and cross-examine the complaining witness at trial or to receive a fair trial. We conclude that the line of intermediate state court cases on which defendant relies was wrongly decided and should be disapproved to the extent they suggest a contrary result under these…