Filed 5/22/14 P. v. Scott CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038448
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 212037)

         v.

WENDELL CHRIS SCOTT,

         Defendant and Appellant.



         A jury convicted defendant Wendell Chris Scott of six counts of lewd conduct on
a child under 14 (Pen. Code, § 288, subd. (a))1 and found true allegations that he
committed the acts against more than one victim within the meaning of section 667.61,
subdivisions (b) and (e). He was sentenced to 30 years to life in prison.
         On appeal, defendant contends that the trial court (1) improperly imposed an
AIDS testing requirement, (2) erroneously assessed an AIDS education fine, and (3)
erroneously imposed a $300 section 290.3 fine. He also contends that his trial counsel
rendered ineffective assistance by failing to object to the imposition of a $240 restitution
fine. Finally, he asks that we review sealed documents to determine whether the trial
court inappropriately denied him access to mental health records relevant to impeaching
the credibility of one of his victims. We modify and affirm the judgment.

1
         Subsequent statutory references are to the Penal Code unless otherwise noted.
                                       I. Background
       Jennifer Doe moved into defendant’s house with her three daughters in 2002.
M. Doe was 11. B. Doe was nine. I. Doe was four. Defendant had pornographic
movies, books, and magazines in the house. He found M. Doe looking at one of the
magazines when she was 12. He allowed her to watch “any movies [she] wanted or look
at any magazines . . . .” He photographed her in little or no clothing on numerous
occasions when she was 12. He touched her breast during one photo session, “trying to
make it seem like he was fiddling with the towel around me.” He did not show her the
photos.
       M. Doe watched pornographic movies with defendant after school or late at night.
He “started . . . caressing [her] crotch area” over her pajamas and “tried to . . . go
underneath [her] pants” one time when she was 12 but she stopped him. They were
playing cards another time when defendant started making “weird noises” as if in pain.
He told her that his penis hurt and asked her to rub it “to make it feel better.” She
“believed he was actually in pain . . . [s]o I did it.” When she was 13, defendant called
her outside and “asked me if I would allow him to perform oral sex on me and he could
videotape it.” She was “taken aback” and told him no. She avoided him after that. She
did not tell anybody about the molestations because “I didn’t want us to get taken away
from my mom.”
       B. Doe started watching pornographic movies with defendant when she was 11.
They watched “[m]ostly at night, . . . when . . . everybody was asleep.” She did not tell
her mother because defendant said “bad things would happen” if she did. Defendant
digitally penetrated B. Doe when she was 11. They were watching a pornographic
movie. She recalled “[m]ore than twenty” similar incidents when she was 11. Defendant
orally copulated her on one of these occasions. That incident lasted “like over thirty
minutes but not more than an hour.” B. Doe did not tell her mother or her sisters about
the molestations.
                                               2
       B. Doe went to live with her biological father in Roseville in 2005. Her mother
moved out of defendant’s house later that year. B. Doe moved back to San Jose in
November 2005. There was no room in her mother’s small apartment so she had to move
into defendant’s house. B. Doe recalled “no more than three” incidents of digital
penetration during the month that she lived with defendant after her return from
Roseville. It was “terrifying” to be alone in the house with him. She stopped doing her
chores and “made messes everywhere” to give him a reason to kick her out. He did so
after a month and she went to live with her mother.
       In 2006, federal agents investigating the trafficking of child pornography seized a
computer and other items from defendant’s home. He wrote a statement admitting
possession of child pornography that same day.
       B. Doe spent “a lot” of time at her friend Sara’s house and it became an issue
between her and her mother. The issue came up in a family therapy session with B. Doe,
her mother, and defendant in April 2007. B. Doe was 14. Things got “very heated.” Her
mother was “yelling a lot.” B. Doe was “very much cowed” and asked to speak to the
therapist in private. She told the therapist that defendant had molested her. The therapist
“brought him in and my mom and she told them right there as if nothing would happen.”
B. Doe “thought [defendant] was going to jump across the room and kill me, like just go
off.” Her mother did not believe her. The therapist reported the molestations to Child
Protective Services. B. Doe was interviewed by a sexual assault investigations officer.
She was placed in a group home until she turned 18.
       M. Doe learned in 2007 that defendant molested B. Doe. She did not tell anyone
that he also molested her. It was “a coping mechanism” to “just pretend like nothing ever
happened.” She was “afraid that -- it happened anyways but my sister and myself would
be taken away. They had already taken away [B. Doe] . . . .” M. Doe did not disclose
that defendant molested her until shortly before his trial in this matter.


                                              3
       In 2008, defendant learned that federal charges would be filed against him. On
February 7, 2011, he was convicted by plea of possession of child pornography (18
U.S.C. § 2252, subd. (a)(4)(B). He was serving a five-year sentence for the federal
conviction when he was tried in this case.
       M. Doe, B. Doe, and Jennifer testified for the prosecution. Police officers and
federal agents described their investigations. Carl Lewis testified as an expert on Child
Sexual Abuse Accommodation Syndrome and investigation of child sexual abuse.
       The family therapist to whom B. Doe disclosed the abuse and the sexual assault
team officer who interviewed B. Doe were called as witnesses for the defense. Annette
Ermshar testified as an expert on Child Sexual Abuse Accommodation Syndrome and
forensic psychology. Defendant testified in his own behalf. He denied finding M. Doe
looking at pornographic magazines. He denied watching pornographic movies with
M. Doe or B. Doe. He categorically denied ever touching M. Doe or B. Doe
inappropriately.
       After deliberating for less than four hours, the jury returned guilty verdicts on all
counts and found the enhancement allegations true. Defendant was sentenced to 30 years
to life in prison. He filed a timely notice of appeal.


                                       II. Discussion
                                     A. AIDS Testing
       Defendant contends that the trial court improperly ordered him to submit to an
AIDS test pursuant to section 1202.1. We disagree.
       “Involuntary AIDS or human immunodeficiency virus (HIV) testing is strictly
limited by statute.” (People v. Guardado (1995) 40 Cal.App.4th 757, 763 (Guardado).
Section 1202.1 requires the court to order “every person . . . convicted of . . . a sexual
offense listed in subdivision (e) . . . to submit to a blood or oral mucosal transudate saliva
test for evidence of antibodies to the probable causative agent of acquired immune
                                              4
deficiency syndrome (AIDS) within 180 days of the date of conviction.” (§ 1202.1,
subd. (a).) Conviction of a sexual offense listed in subdivision (e) automatically triggers
mandatory testing. (§ 1202.1, subd. (e)(1)-(5).) Oral copulation in violation of section
266c or section 288a is one such offense. (§ 1202.1, subd. (e)(5).) Certain other crimes
constitute sexual offenses within the meaning of the statute “if the court finds that there is
probable cause to believe that blood, semen, or any other bodily fluid capable of
transmitting HIV has been transferred from the defendant to the victim.” (§ 1202.1,
subd. (e)(6).) Lewd conduct on a child in violation of section 288 is included in this
latter category. (§ 1202.1, subd. (e)(6)(A)(iii).)
       Section 1202.1 requires the court to “note its [probable cause] finding on the court
docket and minute order if one is prepared.” (§ 1202.1, subd. (e)(6)(B).) If a court orders
AIDS testing under section 1202.1, subdivision (e)(6) without an express finding of
probable cause, a defendant’s failure to object on that ground forfeits appellate review of
a claim that the lack of an express finding rendered the order unlawful. (People v.
Stowell (2003) 31 Cal.4th 1107, 1114.) “Nevertheless, because the terms of the statute
condition imposition on the existence of probable cause, the appellate court can sustain
the order . . . if it finds evidentiary support, which it can do simply from examining the
record.” (People v. Butler (2003) 31 Cal.4th 1119, 1127 (Butler).) “Probable cause is an
objective legal standard—in this case, whether the facts known would lead a person of
ordinary care and prudence to entertain an honest and strong belief that blood, semen, or
any other bodily fluid capable of transmitting HIV has been transferred from the
defendant to the victim.” (Ibid.)
       Defendant argues that the AIDS testing requirement must be stricken because the
trial court did not make a finding of probable cause and “there was no evidence that any
exchange of bodily fluids occurred in this case.” We cannot agree.
       We find sufficient evidence to support an implied finding of probable cause. The
Legislature has recognized that oral copulation can result in a transfer of bodily fluid
                                              5
capable of transmitting HIV. (§ 1202.1, subd. (e)(5).) B. Doe testified at trial that
defendant “performed oral sex on me.” “[S]uddenly he used his mouth on me.” She told
the jury that defendant began by touching her as he watched a pornographic movie. He
then digitally penetrated and orally copulated her. “It was like a mixture.” She was
sitting on the couch and he was “[o]n the floor in front of me.” The incident lasted “like
over thirty minutes, but not more than an hour.” It seemed like a long time to her.
       The prosecutor highlighted the incident involving oral copulation during her
closing argument. She emphasized that defendant “could have been charged twenty or so
times. He’s been charged with three and there [are] specifically three instances [that B.
Doe] recalls in detail.” The third such incident was “Count 6. Digital penetration and
oral copulation. This time he’s rubbing her vagina as is usual. Inserting his fingers into
her, as is usual. Then . . . he . . . put his mouth on her . . . .”
       Defendant categorically denied that he ever orally copulated B. Doe. He agreed
with the prosecutor “that someone here is lying” and that the options were that either he
was lying or M. Doe, B. Doe, and Jennifer were lying. Both counsel argued in closing
that the case “boil[ed] down to credibility.” The verdicts show that the jury believed B.
Doe’s testimony beyond a reasonable doubt. Given B. Doe’s testimony, the jury’s
verdicts, and the Legislature’s recognition that oral copulation can result in a transfer of
fluid capable of transmitting HIV, we conclude that there was sufficient evidence to
support an implied finding of probable cause here. (§ 1202.1, subd. (e)(6); (Butler,
supra, 31 Cal.4th at p. 1127.) The trial court did not err in ordering defendant to submit
to an AIDS test.


                                   B. AIDS Education Fine
       Defendant contends that the trial court improperly imposed a $70 AIDS education
fine against him pursuant to section 288a, subdivision (m). The Attorney General
concedes that the fine and the attendant $210 penalty assessment must be stricken. We
                                                 6
accept the Attorney General’s concession. Section 288a, subdivision (m) authorizes
imposition of an AIDS education fine not to exceed $70 against persons convicted of
violating section 288a. (§ 288a, subd. (m).) Defendant was convicted of violating
section 288, subdivision (a). Section 288, subdivision (a) does not authorize imposition
of an AIDS education fine. The $70 fine and the $210 penalty assessment must be
stricken.


                                   C. Section 290.3 Fine
       Defendant contends that the $300 section 290.3 fine was an ex post facto
assessment. He argues that the fine must be reduced because the crimes on which it was
based ended in 2005. The statutory fine at the time was $200. Defendant also argues that
the $900 the trial court imposed in penalty assessments must be recalculated. We agree.
       “Article I, section 10, clause 1 of the federal Constitution and article I, section 9 of
the state Constitution prohibit the passage of ex post facto laws. [Citation.] California’s
ex post facto law is analyzed in the same manner as the federal prohibition. [Citation.]
‘[T]he ex post facto clauses of the state and federal Constitutions are “aimed at laws that
‘retroactively alter the definition of a crime or increase the punishment for criminal
acts.’ ” ’ [Citations.]” (People v. Alford (2007) 42 Cal.4th 749, 755.) “Fines arising from
convictions are generally considered punishment.” (Id. at p. 757.) In determining
whether a fine or penalty assessment increases the punishment for a criminal act, the
court must consider “ ‘whether the Legislature intended the provision to constitute
punishment, and, if not, whether the provision is so punitive in nature or effect that it
must be found to constitute punishment despite the Legislature's contrary intent.’ ” (Ibid.)
Section 290.3 provides that persons convicted of specified offenses “shall . . . be
punished by a fine . . . .” Thus, the fine that section 290.3 imposes is punitive on its face.
       Section 290.3 as originally enacted required a $200 fine for a defendant’s first
conviction and a $300 fine for each subsequent conviction. (Former § 290.3, subd. (a);
                                              7
Stats. 1995, ch. 91, § 121.) The fines were raised to $300 and $500 on
September 20, 2006. (Former § 290.3, subd. (a); Stats. 2006, ch. 337, § 18; see Historical
and Statutory Notes, 48 West’s Ann. Pen. Code (2013 Supp.) foll. § 290.3, p. 138.)
         It was undisputed that defendant’s molestation of M. Doe and B. Doe ended in
2005. This was almost a year before the section 290.3 fines were raised to $300 and
$500. Thus, imposition of a $300 fine violated the constitutional prohibition against ex
post facto punishment. (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249
(Valenzuela).) The $300 fine must be reduced to $200, the amount statutorily authorized
when defendant committed his crimes. (Ibid.)
         The Attorney General disagrees. She points out that former section 290.3
specified a $300 fine for repeat offenders. She argues that defendant “could be
considered a repeat offender” because his federal conviction for possession of child
pornography subjected him to the registration requirements of section 290. We cannot
agree.
         The problem with the Attorney General’s reasoning is that defendant was not a
repeat offender when he molested M. Doe and B. Doe. Those molestations ended in
2005. Federal agents did not seize defendant’s computer until November 2, 2006.
Judgment was entered against him on February 7, 2011. Thus, he was a first time
offender when he molested M. Doe and B. Doe. Former section 290.3’s repeat offender
fine could not properly be applied to him.
         Defendant contends that the penalty assessments on his section 290.3 fine must
also be recalculated. We agree.
         Our discussion of the statutory basis for each penalty assessment references the
statute in effect when defendant committed his crimes. (See People v. Batman (2008)
159 Cal.App.4th 587, 590-591.) Section 290.3 fines were subject to a 100 percent state
penalty assessment (“ten dollars ($10) for every ten dollars ($10) or fraction thereof”)
under former section 1464. (Former § 1464, subd. (a).) They were also subject to a 20
                                              8
percent state surcharge under former section 1465.7. (Former § 1465.7, subds. (a), (b).)
They were also subject to a 10 percent penalty for implementation of the DNA
Fingerprint, Unsolved Crime and Innocence Protection Act. (Former Gov. Code,
§ 76104.6, subd. (a).) When these assessments are recalculated based on a $200
section 290.3 fine, the penalty amounts are $200 under former section 1464, $40 under
former section 1465.7, and $30 under former Government Code section 76104.6.
       Section 290.3 fines were also subject to county penalty assessments. Subdivision
(a) of former Government Code section 76000 imposed a 70 percent (“seven dollars ($7)
for every ten dollars ($10) or fraction thereof”) penalty assessment. (Former Gov. Code,
§ 76000, subd. (a).) Subdivision (e) of that section provided that the $7.00 penalty “shall
be reduced in each county by the additional penalty amount assessed by the county for
the local courthouse construction fund established by Section 76100 as of January 1,
1998, when the money in that fund is transferred to the state under Section 70402. The
amount each county shall charge as an additional penalty under this section shall be as
follows: [¶] . . . [¶] Santa Clara $5.50.” (Former Gov. Code, § 76000, subd. (e).) Thus,
the penalty assessment in Santa Clara County under former Government Code section
76000 was $5.50 of every $10.00 or 55 rather than 70 percent. This was the amount that
the Santa Clara County Board of Supervisors “allocated for purposes other than
courthouse construction.” (See People v. McCoy (2007) 156 Cal.App.4th 1246, 1254
(McCoy).) The remaining $1.50 of every $10.00 was the amount allocated by the Santa
Clara County Board of Supervisors for local courthouse construction. (Ibid.; former Gov.
Code, § 76000, subd. (e).) When recalculated based on a $200 section 290.3 fine, the
Government Code section 76000 penalty is $110.
       Former Government Code section 70372 imposed a 50 percent (“five dollars ($5)
for every ten dollars ($10) or fraction thereof”) state court construction penalty. (Former
Gov. Code, § 70372, subd. (a).) When recalculated based on a $200 section 290.3 fine,
the Government Code section 70372 penalty is $100.
                                             9
       There are certain penalty assessments in effect now that were not in effect when
defendant committed his crimes. The DNA Identification Fund penalty went into effect
on July 12, 2006. (Former Gov. Code, § 76104.7; Stats. 2006, ch. 69, § 18.) The
emergency medical services penalty went into effect on September 30, 2006. (Former
Gov. Code § 76000.5; Stats. 2006, ch. 841, § 1.) Neither applies here.
       To sum up, the judgment must be modified to reflect a section 290.3 fine of $200
and a total of $480 in penalty assessments attached to the section 290.3 fine, specifically,
(1) $200 under former section 1464, (2) $40 under former section 1465.7, (3) $30 under
former Government Code section 76104.6, (4) $110 under former Government Code
section 76000, and (5) $100 under former Government Code section 70372.


                          D. Ineffective Assistance of Counsel
       Defendant contends that his trial counsel rendered ineffective assistance by failing
to object to the trial court’s imposition of a $240 restitution fund fine under former
section 1202.4 and a corresponding $240 parole revocation fine under former
section 1202.45. He notes that the trial court expressed its intent to impose the statutory
minimum fine, which did not increase from $200 to $240 until 2012. He argues that the
court’s imposition of the higher minimum mandated by a later version of the statute
violated the constitutional prohibition against ex post facto punishment. He maintains
that “there was no conceivable reason” for his trial counsel’s failure to object to the
prosecutor’s mistaken representation to the court that the statutory minimum fine was
$240. We agree.
       A defendant seeking reversal for ineffective assistance of counsel must prove by a
preponderance of the evidence that his counsel’s performance was deficient and that his
defense was prejudiced by those deficiencies. (People v. Ledesma (1987) 43 Cal.3d 171,
218; Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) When counsel’s
conduct can reasonably be attributed to sound strategy, a reviewing court will presume
                                             10
that the conduct was the result of a competent tactical decision, and [the] defendant must
overcome that presumption to establish ineffective assistance. (Strickland, at p. 690.)
        The version of section 1202.4 in effect at the time of defendant’s crimes provided
that “[i]n every case where a person is convicted of a crime, the court shall impose a
separate and additional restitution fine, unless it finds compelling and extraordinary
reasons for not doing so, and states those reasons on the record. [¶] . . . The restitution
fine shall be set at the discretion of the court and commensurate with the seriousness of
the offense, but shall not be less than two hundred dollars ($200), and not more than ten
thousand dollars ($10,000), if the person is convicted of a felony . . . .” (Former
§ 1202.4, subd. (b); Stats. 2004, ch. 223, § 2.) Former section 1202.45 required the court
to “assess an additional parole revocation restitution fine in the same amount as that
imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation
restitution fine shall be suspended unless the person’s parole is revoked.” (Former
§ 1202.45, subd. (a); Stats. 2004, ch. 223, § 4.) The minimum restitution fund fine was
raised to $240 on January 1, 2012. (Former § 1202.4, subd. (a); Stats. 2011, ch. 358,
§ 1.)
        The probation report recommended imposition of a $10,000 restitution fund fine.
At sentencing, the trial court said, “I am going to reduce the restitution fine. The
minimum is -- is it $200?” The prosecutor replied that he believed the minimum fine was
$240. Defendant’s trial counsel said nothing. The court then stated, “$240. And that is
being done for a couple of reasons: One, Mr. Scott’s financial situation in light of his
custodial status. And also, if there is any money that can be in any way collected from
Mr. Scott, I would rather have it paid toward restitution. [¶] An additional restitution
fine in an equal amount is imposed pursuant to 1202.4 . . . and suspended pursuant to
1202.45 . . . .”
        Although the trial court had the discretion to impose a higher fine, the record in
this case makes it abundantly clear that the court intended to impose the statutory
                                             11
minimum fine. The problem is that it imposed the statutory minimum fine under the
wrong version of section 1202.4. The minimum fine at the time of defendant’s crimes
was $200, not $240. (Former § 1202.4, subd. (b).) On the facts of this case, imposition
of a $240 fine violated the constitutional prohibition against ex post facto punishment.
(People v. Souza (2012) 54 Cal.4th 90, 143.)
       Defense counsel should have objected to the trial court’s error. (People v. Le
(2006) 136 Cal.App.4th 925, 935-936 (Le).) As a general rule, “the failure to object is a
matter of trial tactics that an appellate court will seldom second-guess . . . .” (People v.
Carter (2003) 30 Cal.4th 1166, 1209.) But an exception applies when “there simply
could be no satisfactory explanation.” (Id. at p. 1211.) Here, the trial court intended to
impose the minimum fine and expressly sought the parties’ input on what that minimum
was. The mistake originated with the prosecutor, not with the court. In these
circumstances, there can be no satisfactory explanation for defense counsel’s failure to
object to the trial court’s imposition of a fine that exceeded the statutory minimum.
       We reject the Attorney General’s argument that counsel “could have had a tactical
reason for choosing not to contest such a de minimus difference ($40) in light of the
substantial reduction in sentence he was requesting.” We cannot agree with the
suggestion that pointing out a clear error would have affected the trial court’s other
sentencing decisions to defendant’s detriment. This is particularly so where the court
expressly invited counsel to clarify the statutory minimum fine amount. Nor do we agree
with the Attorney General’s argument that defense counsel could reasonably have chosen
to focus his energies on other issues “rather than researching the legislative history of a
statute that was only going to save [defendant] $40.” As our high court has observed, “a
defense attorney who fails to adequately understand the available sentencing alternatives,
promote their proper application, or pursue the most advantageous disposition for his
client may be found incompetent. [Citations.]” (People v. Scott (1994) 9 Cal.4th 331,
351.) There was no need for exhaustive research here. Defense counsel could have told
                                              12
the court that he was not sure what the minimum fine was when defendant committed his
crimes. Had he done so, it would have taken only a moment to check the language of the
former statute.
       In Le, the trial court clearly expressed an intent to calculate the restitution fund
fine “ ‘under the formula permitted by [section] 1202.4.’ ” (Le, supra, 136 Cal.App.4th at
p. 932.) But the court misapplied the formula, which resulted in much larger restitution
fund and parole revocation fines. This court held that the trial court’s misapplication of
the statute was error and that defense counsel’s failure to object constituted ineffective
assistance. (Le, at pp. 934-936.) The same reasoning applies here. Here, the trial court
unequivocally expressed its intent to impose the statutory minimum restitution fund fine.
It initially (and correctly) identified the statutory minimum as $200. It invited the
parties’ input. The prosecutor’s mistaken representation and defense counsel’s apparent
acquiescence in that mistaken representation caused the court to believe that the
minimum fine was not $200 but instead $240. As in Le, the error was prejudicial because
there was “a reasonable probability” that the trial court would have imposed the smaller
restitution fine and a smaller corresponding parole revocation fine had defendant’s trial
counsel pointed out the error. (Strickland, supra, 466 U.S. at p. 694; Le, at pp. 935-936.)
       Defendant asks us to modify the judgment to state the proper amount of the fines.
We will reduce the restitution fund fine and the corresponding parole revocation fine to
$200 each. (Former § 1202.4, subdivision (b), former §1202.45; see Le, at p. 936.)


                     E. Review of B. Doe’s Mental Health Records
                                      1. Background
       The defense subpoenaed B. Doe’s mental health records before trial on the ground
that they “would have a direct bearing on the credibility of [B. Doe] and may prove
exculpatory for [defendant].” The prosecution moved to quash the subpoena. The
defense responded with a motion to release the records. The trial court conducted an in
                                              13
camera review on the day it heard motions in limine. It determined that some but not all
of the records were responsive and relevant and should be provided to the defense. The
court ruled with respect to those records that defendant’s right to present a defense
trumped B. Doe’s Evidence Code section 1014 and Welfare & Institutions Code section
5328 rights to keep the records confidential. The court withheld the remaining records.
                                        2. Analysis
       Defendant asks that we review the records that the trial court withheld to
determine whether he was “inappropriately deprived . . . of access to any documents
relevant to the impeachment of [B. Doe’s] credibility.” The Attorney General
acknowledges that such review is appropriate under People v. Hammon (1997) 15 Cal.4th
1117 (Hammon) and Davis v. Alaska (1974) 415 U.S. 308. We agree.
       In Hammon, the California Supreme Court declined to “extend the defendant’s
Sixth Amendment rights of confrontation and cross-examination to authorize pretrial
disclosure of privileged information.” (Hammon, supra, 15 Cal.4th at p. 1128.) But the
court also recognized that “[w]hen a defendant proposes to impeach a critical prosecution
witness with questions that call for privileged information, the trial court may be called
upon . . . to balance the defendant’s need for cross-examination and the state policies the
privilege is intended to serve.” (Hammon, at p. 1127.) We review the trial court’s ruling
for abuse of discretion. (People v. Jackson (2003) 110 Cal.App.4th 280, 291.)
       The documents that the trial court ruled were not discoverable were sent to this
court under seal. We reviewed them and found nothing relevant to impeaching B. Doe’s
credibility. We conclude that the trial court properly declined to release the remaining
documents to the defense. No abuse of discretion appears.


                                     III. Disposition
       The judgment is modified to reflect a sex offender fine of $200 under former
section 290.3.
                                             14
       The judgment is further modified to reflect a total of $480 in penalty assessments
attached to the section 290.3 fine, specifically, (1) $200 under former section 1464, (2)
$40 under former section 1465.7, (3) $30 under former Government Code section
76104.6, (4) $110 under former Government Code section 76000, and (5) $100 under
former Government Code section 70372.
       The judgment is further modified to reflect a $200 restitution fund fine under
former section 1202.4, subd. (b) and a stayed $200 parole revocation fine under former
section 1202.45, subd. (a).
       The trial court is directed to prepare an amended abstract of judgment and to
forward a certified copy of the amended abstract to the Department of Corrections and
Rehabilitation.
       As modified, the judgment is affirmed.



                                          ___________________________
                                          Mihara, J.


WE CONCUR:




_____________________________
Premo, Acting P. J.




_____________________________
Grover, J.



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