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                                          NOT TO BE PUBLISHED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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----



THE PEOPLE,                                                                            C066033

                   Plaintiff and Respondent,                               (Super. Ct. No. 09F09112)

         v.

ROBERT LINDSAY COWAN,

                   Defendant and Appellant.




         A jury found defendant Robert Lindsay Cowan guilty of five counts 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, defendant unsuccessfully moved
for third party discovery, seeking records regarding the victims’ paternal grandfather’s




1 Undesignated statutory references are to the Penal Code.



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(hereafter grandfather) section 288 conviction from 2003.2 Defendant argued that due to
the victims’ parents’ experiences with sexual molestation, the parents may have been
overly wary of sexual contact, thereby instilling in their children a hypersensitivity to
sexual contact. This, combined with the victims’ sheltered upbringing, 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 effectively cross-examine
witnesses. Defendant further contends that 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 led to the discovery of evidence, and defense
counsel had the opportunity to fully and effectively cross-examine the witnesses.
Additionally, we have reviewed the records sought and agree with the pretrial court that
they contain no discoverable information. Therefore, we shall affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

       On October 22, 2009, defendant went to the victims’ family 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 underwear, 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 when he put his hand beneath 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 charged in the current case—there is no third party culpability
argument being presented.”


                                               2
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 was 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 nine counts following a preliminary hearing
in early March 2010 (Judge David I. Brown). During the pretrial phase (Judge Sawtelle),
defendant sought third party discovery, requesting records relating to the girls’
grandfather’s section 288 conviction from 2003. Defendant’s motion referenced specific
pages from the preliminary hearing transcript and included an offer of proof . K.G. knew
that her grandfather had “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. may have been especially wary of sexual contact and may
have instilled in their daughters a hypersensitivity 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 motion for third party discovery, defense counsel argued, “It may
be, for example, that one of the complaining witnesses—if not both—have misinterpreted
a benign or innocent touch by [defendant] due to what their father had told them to be
wary of.” Furthermore, defense counsel “ask[ed] the Court to review the materials and
release materials that are appropriate for me to know in order to intelligently 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 department records relating to grandfather’s
investigation and prosecution; and (3) superior court records from grandfather’s case.


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The pretrial court (Judge Sawtelle) denied defendant’s motion as to the district attorney’s
file and the court records. The pretrial court then performed an in camera review of the
sheriff’s department records, and found nothing discoverable therein.

       Subsequently, defense counsel asked the trial 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 declined “to disturb Judge
Sawtelle’s decision” to deny the motion. However, the trial court explicitly stated that
defense counsel could cross-examine the parents and both victims about the victims’
knowledge of specifics relating to their mother’s molestation and their grandfather’s
molest history. That is, “If the children were affirmatively told by either or both of their
parents of the specifics of their mother’s prior history or their grandfather’s prior history,
that is fair game because it goes 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 the children were raised, and they are
misinterpreting the nature of the conduct that’s alleged against the defendant.”

       At trial, defense counsel had the opportunity to cross-examine the witnesses and
presented the theory that the children lived in “an overly cautious, extremely isolating
environment which resulted in oversensitivity 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 involving K.G. and one count involving R.G.), and
the trial court sentenced defendant to 15 years to life in state prison for each count (see
§ 667.61, former subd. (e)(5), multiple victims), with counts one and five to run
consecutively and counts two, three, and four to run concurrently.




                                              4
                                       DISCUSSION

       Defendant’s argument on appeal is two-fold.

       First, defendant contends that the pretrial court’s (Judge Sawtelle) in camera
review of the sheriff’s department records was inappropriately limited, 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 information “that might lead to the
discovery of evidence.”

       Second, defendant argues “[t]he trial court compounded the earlier error by
refusing to review [grandfather’s prior court] records,” thereby infringing on defendant’s
“ability to conduct effective cross-examination” as he could not “challenge or test the
veracity of [K.G.’s and R.G.’s] statement[s]” on cross-examination, “render[ing] th[is]
questioning meaningless.” As such, defendant argues 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 subject to abuse of discretion review.


3 Despite defendant’s contentions at trial and again in the briefing, a subpoena duces
tecum was an inappropriate avenue for the records sought. “No order requiring discovery
shall be made in criminal cases except as provided in this chapter. This chapter shall be
the only means by which the defendant may compel the disclosure or production of
information from prosecuting attorneys, law enforcement agencies which investigated or
prepared the case against the defendant, or any other persons or agencies which the
prosecuting attorney or investigating agency 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 criminal case [is] to serve a subpoena duces
tecum requiring the person or entity in possession of the materials sought to produce the
information in court for the party’s inspection.” (Id. at p. 1045.) Defendant notes that,

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(People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 46 (Meraz).) As such, the
decision will be upheld unless we find (1) “ ‘the [trial] court exceed[ed] the bounds of
reason,’ ” and (2) the defendant suffered substantial prejudice to justify reversal. (Id. at
pp. 46, 49.) We find that the pretrial court was well within the bounds of reason in
denying defendant’s motion, and moreover, defendant suffered no prejudice. Therefore,
the pretrial court and the trial court 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 the 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 for anything that may relate to [defendant]
or be ‘exculpatory’ to [defendant]. Although appropriate, it was far short of what the
court should have been reviewing. The court was tasked with reviewing 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 the Court found no relevant
information regarding the prosecution of [defendant] therefore the motion to release
records is denied.” We do not interpret this statement to indicate 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 inappropriately limited.


pursuant to Alford, he need not present theories of relevance to the prosecution.
However, in so relying, defendant fails to recognize that relevance is still part of the trial
court’s analysis in granting 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”].)


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       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 exculpatory 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 pretrial court reviewed the
documents simply for exculpatory information. We disagree. While the pretrial court’s
comments include the term “exculpatory information,” this was in the context of
reminding the prosecutor of her Brady obligations, not in discussing the court’s own in
camera review. Therefore, referring 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 defendant’s contention that the pretrial court’s
review was inappropriately limited, we will proceed 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 because 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 knowledge will assist
him in preparing his defense.” ’ ” (Id. at p. 531 [emphasis added 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 use to impeach or cross-examine an adverse
witness . . . .” ’ [Citation.] ‘ “[A]bsent some governmental requirement that information
be kept confidential . . . the state has no interest in denying the accused access to all
evidence that can throw light on issues in the case, and in particular it has no interest in
convicting on the testimony of witnesses who have not been as rigorously cross-

4 Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215].



                                               7
examined and as thoroughly impeached as the evidence permits.” ’ ” (Reber, supra,
177 Cal.app.3d at p. 531.)

       While these principles apply to criminal discovery motions, the records sought
regarding grandfather’s case could not have reasonably led “to the discovery of evidence”
or “throw[n] light on issues in the case.” Defendant contends otherwise. Defendant
points out that K.G. testified at trial, as anticipated in the pretrial proceedings on this
matter, that her father had told her grandfather touched a little girl’s parts and went to jail
for it; this was how K.G. knew defendant’s actions were wrong. Defendant contends, “If
the conduct alleged by [K.G.] was identical to that alleged against [grandfather], then the
veracity of [K.G.’s] statement of what occurred by [defendant] is called into question.”
Therefore, according to defendant, “[t]he underlying facts of her grandfather’s
misconduct should have been disclosed so that 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 the ability to discover evidence and effectively
cross-examine K.G. and her parents.

       Defendant’s contention—that comparing the nature of grandfather’s conduct from
the 2003 case with the nature of the alleged conduct in the present case could, if
sufficiently similar, shed light on the allegations and/or lead to the discovery of
evidence—only has merit if the victims knew the nature of grandfather’s conduct.
However, there is nothing to indicate the victims 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 Stephanie 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.




                                                 8
       Nothing in the records of grandfather’s case—records from a different case with a
different perpetrator and a different victim who 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 led to the discovery of
evidence or shed any light on the issues in this case. Accordingly, denying defendant’s
motion for third party discovery did not “exceed[] 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 argument 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] statement[s], [which] renders the[ir] questioning on
[cross-examination] meaningless.” Defendant concedes he had the ability to cross-
examine the witnesses, but argues that the inability to use records 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 discussion. Defendant posits, “If the conduct
alleged by [K.G.] was identical to that alleged against [grandfather], then the veracity of
[K.G.’s] statement of what occurred by [defendant] is called into question.” Again, the
People correctly point out that defendant’s contention—that similarities between the facts
of this case and those of grandfather’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 defendant with “the ability to challenge or test the veracity of [K.G.’s
and R.G.’s] statement[s],” because the documents would be wholly irrelevant as to the
victims’ knowledge.



                                              9
       Moreover, contrary to his contentions, defendant at trial had the opportunity to,
and did, fully and effectively cross-examine the witnesses to further 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-examined the witnesses to further 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 had told their children
about grandfather’s conviction. And yet, there was never any evidence presented that the
victims knew the details of the 2003 case.

       Specifically, defendant put forth evidence that R.G. and K.G. lived a sheltered life:
They were home-schooled; they were not allowed to have sleepovers; they had never
been to a movie theatre; and they attended church three times per week, in addition to a
nightly Bible study. Defendant put forth evidence 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 oversensitivity to otherwise innocuous acts.”
Furthermore, “[c]hildren this young are likely not able to process the difference between
a good touch, an innocent touch, and a true molest, an innocuous blunder versus
something that’s truly bad.” Therefore, contrary to defendant’s assertion that his ability
to cross-examine or impeach witnesses was thwarted by the pretrial court denying his
motion for third party discovery, defendant had the opportunity to, and did, fully and
effectively cross-examine the witnesses on the pertinent issue—whether R.G. and K.G.
knew the details of grandfather’s prior conviction.



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              II. The Trial Court Did Not Compound Any Previous Error

       Defendant additionally contends that when the trial court (Judge Oros) declined to
re-review the records sought, “the trial court 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 vacate 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 difference 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 Pitchess5 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 abuse 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 discovery 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).


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                                    DISPOSITION

     The judgment is affirmed.




                                                  BUTZ   , J.



We concur:



             HULL                , Acting P. J.



             HOCH                , J.




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