                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


                FELIPE PETRONE CABANAS, Petitioner,

                                   v.

    THE HONORABLE SUSANNA PINEDA, Judge of the SUPERIOR
     COURT OF THE STATE OF ARIZONA, in and for the County of
                 MARICOPA, Respondent Judge,

  STATE OF ARIZONA, ex rel. WILLIAM MONTGOMERY, Maricopa
              County Attorney, Real Party in Interest.

                          No. 1 CA-SA 18-0099
                          No. 1 CA-SA 18-0119
                            (Consolidated)
                            FILED 11-29-2018


 Petition for Special Action from the Superior Court in Maricopa County
                           No. CR1999-006656-A
                 The Honorable Susanna C. Pineda, Judge

           JURISDICTION ACCEPTED; RELIEF GRANTED


                               COUNSEL

Maricopa County Public Defender’s Office, Phoenix
By Tennie B. Martin, Kevin D. Heade, Nicholaus Podsiadlik
Co-Counsel for Petitioner

Vikki M. Liles, Attorney at Law, Phoenix
By Vikki M. Liles
Co-Counsel for Petitioner
Maricopa County Attorney’s Office, Phoenix
By Karen Kemper
Counsel for Real Party in Interest



                                  OPINION

Presiding Judge Maria Elena Cruz delivered the opinion of the Court, in
which Judge Jennifer B. Campbell and Judge James P. Beene joined.


C R U Z, Judge:

¶1           Felipe Petrone Cabanas seeks special action review of the
superior court’s rulings granting reconstruction of his 2002 sentencing
proceeding and ordering him to disclose his mental health and medical
records to the State as part of his post-conviction relief proceedings. We
hold that Cabanas’ defense of transient immaturity does not, by itself, place
his mental health at issue such that the State is entitled to have access to his
medical and mental health records over his objection.

¶2            We accept jurisdiction and grant relief, vacating the superior
court’s disclosure order. We also separately hold that no reconstruction
hearing is necessary because the court’s determination as to whether
Cabanas’ offense was the result of transient immaturity or irreparable
corruption must be made based on evidence admitted at an upcoming
evidentiary hearing, and not based on consideration of the previous
sentencing judge’s thought processes outside of his written orders.
Accordingly, we vacate the order setting such hearing.

                  FACTS AND PROCEDURAL HISTORY

¶3             In 2001, Cabanas pled guilty to first-degree murder for the
killing of a police officer. Cabanas was 17 years, 8 months old at the time
of the murder. During sentencing, the court considered Cabanas’ age, level
of intelligence, maturity, and other mitigating factors in a twenty-nine-page
special verdict. The court specifically considered Cabanas’ “juvenile
impulsivity.” Dr. Barillas, the psychologist that evaluated Cabanas prior to
sentencing, presented mitigating evidence that Cabanas acted with
“significant impulsivity.” Determining that mitigation compelled against
imposition of the death penalty, the court imposed a term of natural life in
prison without the possibility of release.



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                         Opinion of the Court

¶4              In 2013, Cabanas initiated post-conviction relief proceedings
in light of Miller v. Alabama, 567 U.S. 460 (2012). The superior court denied
Cabanas’ request on the grounds that his natural-life sentence was not
mandatory, “but instead was imposed after the sentencing court had
considered [Cabanas’] age and other mitigating factors.” State v. Cabanas,
2017 WL 3599595, at *1, ¶ 5 (Ariz. App. Aug. 22, 2017) (mem. decision). This
court reversed, stating Cabanas was “sentenced when there was no
requirement that a sentencing court distinguish between crimes that reflect
‘irreparable corruption’ as opposed to ‘transient immaturity of youth,’” and
thus, “[a]lthough the sentencing court considered [his] age in deciding on a
sentence of natural life, that is insufficient to deny relief . . . based on Miller.”
Id. at *2, ¶ 8. As a result, we held Cabanas was “entitled to an evidentiary
hearing to allow him the opportunity to establish that his crime reflected
transient immaturity” and remanded for further proceedings consistent
with our decision. Id. at ¶¶ 8-9.

I.     Disclosure of Medical Records

¶5            At an October 2017 status conference, Cabanas stated his
intention to call himself, Dr. Barillas, and Professor Steinberg as witnesses,
and further stated that Steinberg would testify in general regarding the
transient immaturity aspect of the juvenile brain.              Claiming the
determination of transient immaturity requires analysis of the individual’s
current mental state compared to their juvenile evaluation, Cabanas stated
he would call Dr. Barillas to testify to Cabanas’ present-day maturity level
to prove his crime reflected transient immaturity. Under this anticipated
presentation of the defense’s case, Dr. Barillas was set to testify specifically
about Cabanas, while Steinberg would testify about general characteristics
associated with juvenile impulsivity.

¶6             In January 2018, the assigned judge recused herself, Cabanas’
counsel withdrew, and the Public Defender’s Office was appointed. After
Cabanas stated he would not call Dr. Barillas to testify but instead would
perform a nationwide search to identify an appropriate mental health
expert, the State requested the court order production of Cabanas’ medical
and mental health records for the State’s expert to review. The court
granted the State’s request for disclosure of all Arizona Department of
Corrections and/or Corizon1 reports dated February 20, 2002 through
March 1, 2018, and all Maricopa County Correctional Health Services
records from March 27, 1999 through March 4, 2002; June 25, 2015 through
July 7, 2015; and January 16, 2018 through March 1, 2018. Cabanas objected,

1      Corizon is a correctional facility healthcare provider.


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arguing he had not noticed a mental health defense nor designated an
expert; the court overruled the objection, but allowed Cabanas to submit
redacted records to the court for review. The court did not establish any
parameters for such redactions. Cabanas again challenged the order but
submitted unredacted copies of the records for the court to review in camera.
The court denied Cabanas’ challenge and ordered all the documents
produced.

¶7           Cabanas now seeks special action review from the superior
court’s order compelling disclosure of his medical and mental health
records.

II.   Reconstruction Hearing

¶8            Also discussed at the October 19 conference was the State’s
request for a reconstruction hearing on remand from this court’s mandate
in Cabanas, 2017 WL 3599595. In support of its request, the State stated that
because it was unable to access the transcript of the 2002 sentencing, it
wanted to call the sentencing judge to testify to reconstruct the record. The
State argued that while the record contained the special verdict, there was
no record of the original sentencing proceeding, and that if no transcript or
court reporter notes were located, the court should reconstruct the original
sentencing to complete the record. The State argued the record needed to
be reconstructed because if Cabanas were to meet his burden under
Arizona Rule of Criminal Procedure (“Rule”) 32.8(c), the State would then
have the burden of proving that the constitutional error was harmless
beyond a reasonable doubt.

¶9            After argument on November 16, the court ordered a hearing
to reconstruct portions of the record not included within the sentencing
judge’s twenty-nine-page special verdict, which could not otherwise be
recreated by way of affidavit or declaration. The State filed a motion re-
urging its request to have the original sentencing judge testify as a witness
during a reconstruction hearing and the evidentiary hearing.

¶10          At the hearing on the State’s motion, the State indicated it
intended to call the sentencing judge to reconstruct the record as well as to
rebut Cabanas’ purported constitutional violation during the evidentiary
hearing. The State intended to inquire whether the sentencing judge
considered Cabanas’ youth as a chronological fact or whether the judge
considered the crime as being the product of youthful conduct. Previously-
assigned counsel did not object and the court granted the State’s request to
call the former sentencing judge as a witness for the purpose of



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reconstructing the sentencing record, as well as to provide testimony at the
subsequent evidentiary hearing; however, before allowing the judge to
testify, the court directed the parties to research whether the State could
delve into the mental processes of the sentencing judge.

¶11          New defense counsel was appointed in January 2018 and
moved to vacate the reconstruction hearing. Through April 2018, the State
continued to argue that “[i]n order to address [transient immaturity], the
trial court will need to look at what was considered at the original
sentencing.” The court heard renewed argument on April 16, 2018, denied
Cabanas’ motion to vacate the reconstruction hearing, and ordered a three-
day evidentiary hearing set for the beginning of July 2018 to “absorb,
evaluate, and determine whether or not there was transient immaturity,”
and to reconstruct the evidence provided at the time of sentencing.
Cabanas also seeks special action relief from this ruling.

                               DISCUSSION

I.     Special Action Jurisdiction

¶12           Special action jurisdiction is proper when a party has no
“equally plain, speedy, and adequate remedy by appeal.” Ariz. R.P. Spec.
Act. 1(a). We have discretion to accept special action jurisdiction in cases
“involving a matter of first impression, statewide significance, or pure
questions of law.” State ex rel. Pennartz v. Olcavage, 200 Ariz. 582, 585, ¶ 8
(App. 2001).

       A.     Disclosure of Medical Records

¶13            Cabanas argues compelled disclosure of all mental health and
medical records, before he has placed his mental state at issue, violates his
Fifth Amendment right against self-incrimination and Arizona’s statutory
psychologist-patient privilege. Ariz. Rev. Stat. (“A.R.S.”) § 32-2085(A). The
State claims Cabanas necessarily placed his mental health at issue by
challenging his sentence on the grounds that his actions reflected “transient
immaturity” and not “irreparable corruption.” This case thus involves both
a matter of first impression and a pure question of law. See Ulibarri v.
Superior Court, 184 Ariz. 382, 384 (App. 1995) (“Existence of a privilege is a
question of law, and a special action is the appropriate means of relief when
the trial court orders disclosure of information that a party believes is
privileged.”).

¶14         Further, Cabanas argues his case is one of more than thirty
cases pending in the superior court where defendants have requested


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hearings to demonstrate their convictions were the result of “transient
immaturity” and not “irreparable corruption,” and that it is thus an issue
of statewide importance likely to arise again. Accordingly, we accept
special action jurisdiction.

       B.     The Reconstruction Hearing

¶15           Special action jurisdiction is appropriate when the superior
court has acted contrary to this court’s mandate. See Demand v. Gordon, 106
Ariz. 475, 477 (1970). Cabanas argues the superior court has ordered
reconstruction of the record in nonconformance with this court’s mandate
in Cabanas, 2017 WL 3599595, which required an evidentiary hearing. The
State argues reconstruction is necessary to fully set forth a record for review
of Cabanas’ sentence. See State v. Schackart, 175 Ariz. 494, 499 (1993).

¶16            Because the superior court granted the State’s request to
reconstruct the original sentencing for use during the evidentiary hearing
at issue, this case involves a challenge to the superior court’s compliance
with a mandate of this court. Similarly, the petition raises multiple purely
legal issues that are capable of repetition and are of statewide importance;
therefore, we accept special action jurisdiction.

II.    Disclosure of Mental Health and Medical Records

¶17           Cabanas argues his post-conviction petition did not place his
mental state at issue and thus the court’s order that he disclose his mental
health and medical records to the State was in error. We agree.

¶18          Arizona’s physician-patient privilege, A.R.S. § 13-4062(4),
precludes a physician from testifying, absent the patient’s consent, to any
information acquired in attending the patient and extends from statements
to medical records. State v. Zeitner, 244 Ariz. 217, 221, ¶ 16 (App. 2018).2
Section 32-2085(A) applies the same privilege to psychologist-patient
communications and records; however, such privilege is waived when a
party places the relevant medical or mental state at issue. See Bain v.
Superior Court, 148 Ariz. 331, 334 (1986) (stating a defendant waives the
psychologist-patient privilege when they either (1) offer themselves as a

2       While not applicable to this post-decree proceeding, unless the
defendant waives the privilege by asserting an insanity defense, Arizona’s
rules and statutes governing mental health examinations preserve the
defendant’s privilege against self-incrimination grounded in the Fifth
Amendment prior to conviction. State v. Hegyi, 242 Ariz. 415, 417, ¶ 12
(2017).


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witness and voluntarily testify with reference to privileged
communications, or (2) place a particular condition at issue by means of a
claim or affirmative defense).

¶19           In Miller, the U.S. Supreme Court held the Eighth
Amendment prohibits imposition of mandatory life-without-parole
sentences for juveniles without giving due consideration for the transient
immaturity associated with their youth, because mandatory sentencing
schemes that do not consider the characteristics of youth pose too great a
risk that a defendant who acts with transient immaturity will be
disproportionately punished. 567 U.S. at 479-80. In Montgomery v.
Louisiana, the U.S. Supreme Court held Miller applied retroactively, and
further held that even discretionary life-without-parole sentences were
unconstitutional for defendants whose crimes reflect transient immaturity.
136 S. Ct. 718, 734 (2016) (“Even if a court considers a child’s age before
sentencing him . . . to a lifetime in prison, that sentence still violates the
Eighth Amendment for a child whose crime reflects unfortunate yet
transient immaturity.”) (internal quotations and citations omitted).

¶20            In light of Miller and Montgomery, our supreme court clarified
in Valencia that in the Rule 32 context, after they present a colorable claim
for relief, defendants sentenced as juveniles to natural life are entitled to a
Rule 32.8(a) evidentiary hearing “to establish, by a preponderance of the
evidence, that their crimes did not reflect irreparable corruption but instead
transient immaturity.” State v. Valencia, 241 Ariz. 206, 210, ¶ 18 (2016).3 If
defendants can meet their burden and establish that their crimes reflected
transient immaturity, then they will have established that their natural-life
sentences are unconstitutional, thus entitling them to parole-eligible
resentencing. Id.

¶21          Before imposing a natural-life sentence upon a juvenile, the
court must consider: (1) evidence of juvenility’s hallmark characteristics—
immaturity, impetuosity, and a failure to appreciate risks and
consequences; (2) the juvenile’s family and home environment; (3) the

3       At oral argument, Cabanas argued Rule 32.8(a) was inapplicable as
the hearing is controlled by Rule 32.8(d) as a “further proceeding.” We
disagree. Cabanas’ successful Rule 32.1(g) petition for post-conviction
relief, Cabanas, 2017 WL 3599595, entitles him to an evidentiary hearing
because he has made a colorable claim for relief based on Miller. See
Valencia, 241 Ariz. at 210, ¶18 (relying on Rule 32.8(a) and State v. Amaral,
239 Ariz. 217, 220, ¶¶ 11-12 (2016) (discussing when an evidentiary hearing
is required)).


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circumstances of the offense, including the extent the juvenile’s
participation in the conduct and the way that familial and peer pressures
may have affected them, and whether substance abuse played a role;
(4) evidence as to whether the incompetencies of youth prevent the juvenile
from being charged with a lesser offense; and (5) evidence bearing on the
possibility of rehabilitation. Miller, 567 U.S at 477-78.

¶22            But nothing in the line of cases from Miller through Valencia
supports the proposition that a defendant who challenges his natural-life
sentence with Miller necessarily places his or her mental state at issue.
Miller implicates the sentencing court’s consideration of whether the
juvenile’s crime reflects transient immaturity based on the diminished
culpable state of juveniles, but not necessarily his mental state as reflected
in mental health records or medical records.4 567 U.S. at 470-74. While the
Miller Court noted its holding resulted from studies and psychological
developments, the object of consideration is the juvenile’s “moral
culpability,” id. at 471-72, not mental status.

¶23           The State cites Kansas v. Cheever and State v. Schackart to argue
that Cabanas has placed his mental state at issue. In Cheever, the U.S.
Supreme Court upheld the admission of a court-ordered psychiatric
evaluation on rebuttal, where the defendant presented a voluntary-
intoxication defense and called an expert, whose own evaluation relied on
the court-ordered psychiatric evaluation, to testify on his behalf. 571 U.S.
87, 91-97 (2013). The defendant’s “psychiatric evidence concerned his
mental status because he used it to argue that he lacked the requisite mental
capacity to premeditate,” and thus the Fifth Amendment did not bar the
State from using the court-ordered psychiatric evaluation to rebut the
defendant’s voluntary-intoxication defense. Id. at 96-97. Here, no
affirmative defense was presented—only the claim that at the time of
sentencing, Cabanas’ crime did not reflect irreparable corruption: an
evaluation that does not turn on his mental ability to premeditate or other
“mental status,” id., but on the aspects of the crime and his level of maturity
at that time.

¶24         In State v. Druke, a special action case, the court of appeals
reviewed whether the superior court could grant the State’s request to
appoint a mental health expert to examine the accused where the defendant

4     The State conceded at oral argument that Cabanas could challenge
each of the Miller factors without relying on mental health or medical
records. Though he may choose to rely upon such records, we agree he
need not.


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did not raise an insanity defense, but instead intended to present expert
testimony pertaining to his mental condition to negate the element of intent.
143 Ariz. 314, 316 (App. 1984). The court of appeals held the State was
entitled to a fair opportunity to present its evidence and rebut the evidence
of the defendant, because the defendant had placed his mental state at issue.
Id. at 318. On review, the Arizona Supreme Court then held that ordering
the defendant to submit to a mental examination did not violate his
privilege against self-incrimination because he had “opened the door” to an
examination by the State’s expert. Schackart, 175 Ariz. at 500-01.

¶25            We find the above cases distinguishable, as each turned on
the right to records or examination after mental state is first placed at issue
by the defendant. Relying on juvenile characteristics and claiming transient
immaturity does not ipso facto equate to a mental health defense, nor would
it negate an element of the crime. The fair-opportunity rationale compelling
the Cheever, Druke, and Schackart decisions is absent here. The reciprocal
rights of discovery established by the Arizona Rules of Criminal Procedure
were intended to further the concept that a defendant is not entitled to an
unfair advantage in the presentation of his defense. Druke, 143 Ariz. at 318.5
No such advantage would arise here by allowing Cabanas the opportunity
to establish transient immaturity without the use of expert testimony or
other clinical reference to his mental health. We hold that until Cabanas
relies on such records or otherwise places his mental status at issue, the
State is not entitled to disclosure of his mental health records or to a mental
health evaluation. We vacate the court’s order as premature.

III.   The Order Compelling Disclosure Is Overbroad

¶26             In light of State v. Valencia, this court held that Cabanas was
entitled to an evidentiary hearing to allow him the opportunity to establish
that his crime reflects transient immaturity. Cabanas, 2017 WL 3599595, at
*2, ¶ 8. The State argues that because the original sentencing transcripts are
lost, it is entitled to reconstruct the original hearing. The State further
argues reconstruction is necessary to complete the record for reference

5      While Rule 15 applies to the trial stage, not to post-conviction relief
proceedings, Canion v. Cole, 210 Ariz. 598, 599, ¶ 9 (2005), we nevertheless
find the reciprocal-right-of-discovery rationale applicable. The Valencia
hearing (1) grants the petitioner the opportunity to have the court
determine an issue of material fact, Rule 32.8(a); (2) is part of the original
criminal action, Rule 32.3; (3) applies the Arizona Rules of Evidence, Rule
32.8(b); and (4) requires the court to make specific findings of fact and state
its conclusions of law, Rule 32.8(d)(1).


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during the evidentiary hearing.         Cabanas argues reconstruction is
inappropriate, redundant to the purpose of the evidentiary hearing, and
violates this court’s mandate. This court reviews whether the superior
court has complied with the appellate court’s mandate de novo. In re
Marriage of Molloy, 181 Ariz. 146, 149 (App. 1994).

       A.     Whether a Harmless Error Burden Applies

¶27           Intertwined in the State’s argument for reconstruction and
questioning the sentencing judge during the evidentiary hearing is its belief
that Rule 32.8 imposes a burden on the State to establish harmless error if
the defendant meets his burden showing his sentence was unconstitutional.
See Rule 32.8(c). The State’s belief is mistaken.

¶28            Miller and Montgomery hold that a natural-life sentence
imposed on a juvenile for a crime reflecting transient immaturity is
categorically unconstitutional. Valencia, 241 Ariz. at 209-10, ¶¶ 16-18. It is
the imposition of a life sentence upon a youth whose crime reflects transient
immaturity which violates the Eighth Amendment, not the sentencing
court’s consideration of age-related factors. Id. at 210, ¶ 17 (citing
Montgomery, 136 S. Ct. at 736) (“Montgomery noted that ‘Miller did not
require trial courts to make a finding of fact regarding a child’s
incorrigibility,’ but instead held that imposing a sentence of life without
parole on a ‘child whose crime reflects transient immaturity’ violates the
Eighth Amendment.”).

¶29            The Valencia hearing thus operates as an eligibility
determination: if Cabanas meets his burden then he will have established
that his natural-life sentence is unconstitutional, thus entitling him to
resentencing. Valencia, 241 Ariz. at 210, ¶ 18; Montgomery, 136 S. Ct. at 734
(stating Miller “rendered life without parole an unconstitutional penalty for
a class of defendants because of their status—that is, juvenile offenders
whose crimes reflect the transient immaturity of youth”) (internal
quotations and citations omitted). Though the State typically carries the
burden to rebut a constitutional violation by showing it was harmless per
Rule 32.8(c), it cannot prove that the failure to consider the Miller-type
factors was harmless here; if Cabanas is successful, then the
unconstitutional life sentence cannot stand.

¶30          To the extent the State relies on harmless error to support the
need for reconstruction, that argument fails. The superior court is limited
by our mandate to decide the material issue presently before it: whether
Cabanas’ crime reflected transient immaturity or irreparable corruption. It



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is not tasked with deciding whether the previous sentence should stand,
nor may it base its decision on considerations by the previous sentencing
judge. See Phillips v. Clancy, 152 Ariz. 415, 418-21 (App. 1986) (discussing
the impropriety of a judge testifying how he would have ruled had a
circumstance or factor been different); In re Aubuchon, 233 Ariz. 62, 69-70,
¶ 34 (2013) (discussing the impropriety of probing into the mental processes
engaged in by a judge).6

       B.     Need for Reconstruction

¶31            The State argues Rule 31.8(f) allows reconstruction of a
portion of the record on appeal because the original sentencing transcript is
unavailable. See, e.g., Schackart, 175 Ariz. at 497-98. However, the current
Rule 32.8 proceeding is a post-conviction relief petition and subsequent
evidentiary hearing to determine whether Cabanas’ crime reflected
transient immaturity, not a direct appeal—thus, Rule 31.8 is inapplicable.
See Rule 32.3(a) (discussing the nature of a post-conviction relief proceeding
and its relation to other remedies); see also State v. Gutierrez, 229 Ariz. 573,
579, ¶ 32 (2012) (“Rule 32.8(a) provide[s] for an evidentiary hearing only to
determine issues of material fact.”). More to the point, the superior court is
not tasked with reviewing a previous court decision for error and thus need
not review the previous transcript. See Schackart, 175 Ariz. at 499, 503
(vacating death sentence and ordering new sentencing hearing based on a
finding that the sentencing transcript was inadequate given the broad scope
of the court’s obligation to independently review defendant’s death
sentence); State v. Hart, 110 Ariz. 55, 57 (1973) (remanding for a new trial
where appellant could not make first appeal without transcripts which
were unavailable by no fault of appellant).

¶32           The State claims “[r]econstruction will allow this Court to
hear the facts and circumstances of [Cabanas’] crimes.” The State’s recited
purpose of reconstruction is redundant to the evidentiary hearing. To the
extent the superior court on remand seeks to “absorb, evaluate, and

6      The State argues that calling the sentencing judge to testify is
necessary to complete the record; but a judge may be called upon to give
evidence, if at all, only in “instances in which there is no other reasonably
available way to prove the facts sought.” In re Peasley, 208 Ariz. 27, 34-35,
¶ 30 n.14 (2004) (citation omitted). That is not the case here, as the State
conceded during oral argument that it has all other records of the original
sentencing, including the exhibits, list of witnesses, and the original
sentencing judge’s detailed twenty-nine-page special verdict. The only
missing portion is the transcript.


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determine whether . . . there was transient immaturity,” it must do so
during the evidentiary hearing, within the parameters established in Miller,
Montgomery, Valencia, and this decision. We therefore hold that the superior
court erred when it ordered a reconstruction hearing.

¶33          The superior court retains discretion to admit relevant
evidence during the evidentiary hearing tending to prove or disprove that
Cabanas’ crime reflected transient immaturity, Ariz. R. Evid. 401-403, and
make necessary factual findings and conclusions of law pursuant to Rule
32.8.

                              CONCLUSION

¶34           For the foregoing reasons, we accept special action
jurisdiction and grant relief. The superior court’s order requiring disclosure
of Cabanas’ medical and mental health records is vacated. The court’s order
granting reconstruction and permitting the State to call the sentencing
judge to testify is also vacated, and we remand for compliance with this
court’s previous mandate and this decision.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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