Unreported / Non-Citable
Background
A jury convicted Cory Virgil Baugh of sex offenses involving two minors and acquitted him of the count concerning a third sibling. The trial court dismissed a prior-strike allegation and imposed an aggregate eight-year prison sentence, consisting of six years on count 2 and two years on count 4, while staying the sentences on counts 1 and 3 under Penal Code section 654. In the earlier appeal, Baugh sought independent appellate review of subpoenaed law enforcement records that the trial court had withheld. The majority conditionally reversed because the existing record did not permit the court to determine whether the discovery ruling was erroneous, and it also directed corrections to the probation report.
On remand, the trial court held another hearing, reviewed the records in camera, and addressed the factors identified in Facebook, Inc. v. Superior Court (Touchstone). It again found nothing relevant to disclose and changed only "three minors" to "two minors" on page 15, line 10 of the amended probation report. Baugh then brought this second appeal, renewing his request for independent review of the withheld records and arguing that the amended probation report still contained inaccuracies. The appellate court granted his unopposed request for judicial notice of the subpoenas and the record in the earlier appeal.
The Court’s Holding
The court explained that materials sought through a criminal subpoena duces tecum must be delivered to the superior court for in camera review rather than directly to the requesting party. A defendant must establish good cause, including a plausible justification supported by specific facts showing that the documents are admissible or might lead to admissible evidence reasonably useful in preparing a defense. Touchstone's factors also address specificity, availability, privacy or governmental interests, timeliness, delay, and burden, and the trial court should memorialize its consideration of the relevant factors in the reporter's transcript.
Applying abuse-of-discretion review, the court examined the subpoenas, the remand-hearing transcript, the earlier appellate record, and the subpoenaed documents themselves. It found no error and agreed that the records contained little of plausible value to the defense. The trial court had found several Touchstone factors favored Baugh, but explained that one report concerned an unrelated firearm-brandishing incident in which a sibling was a victim, another duplicated reports of the charged offenses, and another concerned an arrest for driving under the influence without charges. The appellate court specifically concluded that the brandishing report would not have led to the kind of discoverable information Baugh hypothesized.
The court nevertheless required further probation-report corrections. It agreed that page 15 should refer to two rather than three young individuals. It also sided with Baugh concerning language about alcohol and two victims in compromised states because the trial evidence did not show that Doe 2 had been drinking and Baugh had been acquitted of the charge involving Jane. The court further agreed that page 1 should no longer say "(TWO)" after count 5 was removed, but rejected Baugh's claim that count 3 involved Penal Code section 288, subdivision (a); the record showed subdivision (c)(1). The judgment was affirmed, and the matter was remanded to the trial court to correct the first full paragraph on page 15 of the probation report and the number of crimes of which Baugh was convicted on page 1, line 23.
Key Takeaways
- Independent appellate review of the actual subpoenaed records supported the trial court's decision to withhold them.
- A trial court's consideration of the Touchstone factors and creation of an adequate transcript can enable meaningful appellate review of criminal discovery rulings.
- The appellate court found no discovery error even though the trial court had determined that several Touchstone factors favored Baugh's request.
- The probation report required additional changes to reflect the acquittal and accurately describe the number of victims and facts underlying the convictions.
- The judgment itself was affirmed, and the remand was limited to specified corrections on pages 1 and 15 of the probation report.
Why It Matters
The decision resolves the record-development problem identified in Baugh's earlier appeal by reviewing the subpoenas, hearing transcript, prior record, and underlying documents. It distinguishes a defendant's plausible justification and other procedural showings from the ultimate question whether withheld materials have sufficient defense value to make nondisclosure an abuse of discretion.
The limited remand also underscores that probation reports must accurately reflect acquittals, convictions, and the facts supporting them. The court accepted two disputed corrections and one conceded correction while preserving the report's correct identification of the statute underlying count 3.