Defendant Agustin Santillah Uribe was convicted following a jury trial of two counts of aggravated sexual assault of a child (Pen. Code, §§ 269, 261, subd. (a)(2)), 1 and two counts of lewd or lascivious acts on a child (§ 288, subd. (a)). The sex crimes involved defendant’s granddaughter, Anna Doe (Anna). The court denied defendant’s two separate motions for new trial and sentenced defendant to a term of 30 years to life, consecutive to eight years in prison.
Defendant contends that his first new trial motion should have been granted because the prosecution’s nondisclosure of a videotape of a medical examination of Anna—an examination commonly (and hereafter) referred to as a SART (sexual assault response team) exam—constituted prejudicial
Brady
error
(Brady v. Maryland
(1963)
Defendant also argues that Anna’s posttrial execution of a declaration recanting her claims that her grandfather sexually assaulted her constituted newly discovered evidence that required the granting of his second new trial motion. A further claim of error concerns the court’s preclusion of defense counsel’s cross-examination of Anna as to whether her therapist had coached her testimony. Defendant also urges that the trial court erred by permitting the testimony of a prosecution investigator concerning child sexual abuse accommodation syndrome (hereafter CSAAS). Lastly, defendant contends that there was an insufficient basis for giving an instruction concerning CSAAS.
We conclude that nondisclosure of the SART video by the prosecution constituted prejudicial Brady error. We therefore reverse the judgment and remand the matter for a new trial. 2
I., II *
III. Medical Testimony 11
A. Testimony of Mary Ritter (Prosecution)
Mary Ritter is a physician assistant, clinic coordinator, and the primary examiner at the Center for Child Protection (Center) in the department of pediatrics at Santa Clara Valley Medical Center (Valley Medical). As of the time of trial, she had been employed at Valley Medical for over 18 years and had been the primary examiner for nearly that entire time. In that capacity, Ritter saw the majority of children brought to the Center at Valley Medical in the daytime by the police or child protective services for sexual abuse examinations, known as SART exams. She received her training in performing these examinations from Dr. David Kerns, medical director of the Center. As of the time of trial, Ritter had performed roughly 4,000 SART exams. The trial court qualified her as an expert in the field of child sexual assault and the examination of children alleged to have been sexual assault victims.
A SART exam occurs as a result of an initial contact to the Center at Valley Medical by the police or social services. Ritter routinely takes a history from the investigative officer. After performing a physical examination of the child head to toe, Ritter, in the case of a girl, would perform a genital examination, using a special instrument called a colposcope. The colposcope has a camera attached to it that permits the examiner to take magnified photographs. The child is examined while she is lying on her back with her feet in stirrups (supine position). After this portion of the genital examination is completed, “a real[ly] important part of the examination” involves turning the child over so that she is positioned on her hands and knees with her knees brought up to
Ritter explained that for prepubescent girls, the results of SART exams fall within a spectrum. At one end, there would be no objective evidence of injury. At the other end of the spectrum, there would be evidence of “absolute tears of the vaginal opening, the hymenal opening. And then ... in the middle of that spectrum, . . . there would be bruises and abrasions.” Ritter testified that it would often be the case that a child victim of sexual assault would present with normal findings after a SART exam. 12 This would be explained by the fact that, in her experience, between 85 to 90 percent of alleged child victims do not report assaults immediately and are examined at least three days and as long as years after the alleged assault. Thus, injuries resulting from sexual penetration, such as bruising and tearing, may have had enough time to heal because of the victim’s delayed reporting of the assault.
On July 28, 2005, Ritter performed a SART exam of Anna. She was accompanied by a counselor from the children’s shelter. Anna chose to have the counselor wait in the reception area rather than to have her present during the SART exam. Ritter interviewed Anna to obtain a history that would be relevant for the medical examination. She told Anna that she was examining her because she had heard that Anna’s grandfather had sexually assaulted her. Ritter asked whether Anna, around the time of the sexual assault, had experienced pain when she urinated. Anna responded in the negative “and then she proceeded to say that never really did happen.”
Ritter conducted a SART exam of Anna. She examined Anna in the supine position; Ritter did not note an injury but felt that there was too much tissue for her to get a complete view of the hymenal opening. After this portion of the examination, she had Anna position herself in the knee-chest position.
During the examination, Ritter observed a small red area at the edge of the hymen. She did not believe that it represented an injury, but swabbed it to determine if it was an infection, possibly herpes. Ritter also took a culture of Anna’s vaginal area to mle out the existence of any sexually transmitted diseases. The test results were negative for any infection or sexually transmitted diseases.
Ritter concluded that there was physical evidence “consistent with a penetrating event occurring.” Both Ritter and her superior, Dr. Kems, signed off on a written report containing Ritter’s findings as described in her testimony.
On cross-examination, Ritter confirmed that it was her opinion that the V-shaped configuration represented a hymenal tear that was evidence of penetrating trauma. She testified that “it certainly is a deep tear. It’s not the deepest kind of tear that we have seen.” There would be severe pain associated with the type of tearing Ritter concluded had occurred in this instance. In response to questioning as to whether the condition she had observed could have been consistent with a normal variation as opposed to evidence of a penetrating event, Ritter testified that she had never seen any studies or instances in which such a V-shaped configuration was within limits of a normal condition.
13
She also testified on cross-examination that she would not necessarily expect that there would have been heavy observable bleeding at the time of the penetrating event that resulted in the tearing of the hymen as she concluded had occurred with Anna. There might have been observable bleeding, or, alternatively, the blood might have “essentially [been] absorbed back into the tissue and sitting in the vaginal canal.” Ritter
B. Dr. Theodore Hariton (Defense)
Defendant called an expert, Dr. Theodore Hariton, a retired medical doctor specializing in obstetrics and gynecology who had practiced for 40 years. He reviewed the Valley Medical records, including photographs, concerning the July 2005 SART exam of Anna. Dr. Hariton did not examine or interview Anna and did not speak with Ritter. Although he had sat through a course concerning SART exams, he had never performed or observed one. He testified that he had performed between 150,000 to 250,000 gynecological examinations; of those examinations, approximately 15,000 to 25,000 involved patients under 16 years old and about 250 to 300 were of prepubescent girls. However, Dr. Hariton had never examined a prepubescent girl who had asserted that she had been a sexual assault victim.
From his review of the records and photos, Dr. Hariton arrived at the conclusion that “with reasonable medical certainty this [penetrating trauma] did not happen.” After referring to unidentified photographic exhibits he stated that they depicted a condition “consistent with a partial tear and . . . also consistent with a normal variant of what hymens look like.” He pointed in particular to one defense exhibit (exhibit I) as depicting what “can well be a normal hymen.” He also testified that two photos from the SART exam that he looked at (exhibits H & J) appeared to reflect the examiner’s, as part of standard procedure, stretching out the hymen in order to get a better view.
Dr. Hariton also based his disagreement with Ritter’s opinion that there was physical evidence of penetrating trauma on the absence in the record of a report of pain and bleeding. He testified that there would be severe pain and bleeding associated with an adult male’s putting his penis in the vagina of a five-year-old girl. Dr. Hariton testified that it would not have been possible for the blood associated with such trauma to have been simply reabsorbed inside the vagina. He also opined that he would expect that such a trauma would have resulted in the transection of the girl’s hymen. From a review of the Valley Medical records and photographs from Anna’s SART exam, Dr. Hariton concluded that Anna’s hymen was not completely transected.
On cross-examination, Dr. Hariton stated that it was possible that the photos of Anna’s SART exam did depict a hymenal tear and that such a tear
C. Dr. David Kerns (Prosecution Rebuttal)
As of the time of trial, Dr. David Kerns—a pediatrician, medical director of the Center at Valley Medical, and a clinical professor of pediatrics at Stanford University School of Medicine—had approximately 30 years of experience in the subspecialty of the medical aspects of child abuse. Over the years, he had performed personally or “100 percent reviewfed]” nearly 6,000 SART exams at Valley Medical.
Dr. Kerns did not personally perform the SART exam of Anna, but he did review the photos and the report of that examination performed by Ritter. In his opinion, Ritter did not do anything that resulted in the hymen falsely appearing on the photos to have had a V-shaped configuration. His medical opinion—which confirmed the opinion in the report—was “that there was definite physical evidence of penetrating trauma to [Anna’s] hymen.” Dr. Kerns described Anna’s condition as being a complete transection of the hymen.
Dr. Kerns singled out one particular photograph of Anna in “the knee-chest position” (exhibit 4) as being the “critical” photograph supporting his conclusion. (He explained that the knee-chest position “gives the best exposure of . . . the hymenal anatomy.”) Dr. Kerns noted that, in that photo, there was a V-shaped area of the hymen that evidenced the absence of hymenal tissue that was in such a “position and [to such a] degree of severity [as to not represent a] congenital variation[].” In Dr. Kerns’s opinion, the finding of the existence of physical evidence of penetrating trauma in this instance was “not a close call.”
According to Dr. Kerns, the most frequent type of hymenal tearing as a result of a penetrating trauma is posterior tearing of the type found in the case of Anna. On cross-examination, he agreed that, if an adult penis were forced into a nine-year-old girl’s hymenal ring, it would be more likely than not that tearing, severe pain, and bleeding would result. Dr. Kerns testified “that the acute injury that led to these changes [in Anna’s hymen] would have . . . likely [resulted in] bleeding.” But “the absence of bleeding in a history is a
Also on cross-examination, Dr. Kerns testified that he was familiar with a California form (No. 925; exhibit L), labeled “Forensic Medical Report: Non-acute . . . Child/Adolescent Sexual Abuse Examination.” He did not specifically recall whether the form was used for Anna’s SART exam. 15 It probably was not used, however, because Valley Medical’s general policy was not to use such forms in nonacute cases; the information sought in the form was redundant to that provided in Valley Medical’s SART exam reports.
Dr. Kerns also testified that one of the photo exhibits (exhibit I) that Dr. Hariton relied on to conclude that Anna did not have a damaged hymen was a bad photo. He did not believe that the hymen was even depicted in the photo.
PROCEDURAL BACKGROUND *
DISCUSSION
I. Issues on Appeal*
II. The Videotape of the SART Exam—Claimed Brady Error
A. Background
On June 23, 2006, defendant filed a (first) motion for new trial. This motion was founded upon defendant’s, after the trial, learning of the existence, and obtaining a copy, of a videotape of Anna’s SART exam. Defendant argued that the new trial motion should be granted because the videotape constituted “new evidence . . . discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial” under section 1181, subdivision 8. He also contended that he was denied due process because the nondisclosure of the SART video constituted a Brady violation.
The motion was also accompanied by the declaration of the defense trial expert, Dr. Hariton. After summarizing in his declaration the substance of his testimony at trial as well as the testimony of the prosecution’s experts, Dr. Hariton stated that (1) there had been “one photo . . . not centered and slightly out of focus that supported [his] opinion regarding [the absence of] penetrating trauma”; (2) “Dr. Kerns testified that this single photo [Dr. Hariton] used to support [his] opinion had no forensic value because it was out of focus and the flash did not work properly in that photo”; (3) Dr. Kerns’s “testimony was highly important and crucial to the case because said single photo contradicted Dr. Kems[’s] and Mary Ritter’s testimony that the alleged victim sustained a transection of her hymen”; (4) he had viewed the SART video following the trial; (5) after isolating the portion of the video that corresponded with the photo on which he relied in his trial testimony, he concluded “[t]hat Dr. Kerns was incorrect when he testified that the picture [Dr. Hariton] referred to . . . did not depict the [hymenal] opening of the alleged victim”; (6) the “video clearly shows a circular [hymenal] opening that is clear, in focus, and similar to the photo [he] referred to in support of [his] opinion”; (7) he had obtained several additional photos from the video that also “clearly show an intact hymen with no evidence of a prior transection or trauma”; (8) although no photos had been available showing an examination of Anna in the supine position, the “video of the [hymenal] area in the supine position again shows an intact hymen with no evidence of a prior transection”; and (9) the “video is extremely important and necessary in this case,” it fully supported his opinions given at trial, and contradicted the opinions of Dr. Kerns and Ritter.
The trial court, in a lengthy written order, denied the motion for new trial on July 26, 2006. There was no hearing on the first motion for new trial that preceded the order. 18 The court concluded that there was no Brady error because “[mjedical or psychiatric evidence in the possession of a county hospital or clinic are not in the possession of the ‘prosecution team’ for purposes of the Brady rule.” To the extent defendant’s new trial motion was based upon newly discovered evidence, the court found Dr. Hariton’s testimony to have not been credible; attached little weight to his declaration as a result; and, after its own review of the SART video, concluded that “[t]he existence of an intact hymen as described in the Defendant’s moving papers and in the defense expert’s declaration is not found in the videotape.” The court therefore concluded that “[t]here is nothing exculpatory in the videotape. In fact, the videotape refutes the defendant’s trial position that the SART nurse manipulated the vagina into a position that created the look of a hymenal tear that did not exist.” The court thus concluded that the videotape, if it had been produced before trial, “would not have made a difference to the outcome.”
B. Brady Error Generally
In
Brady,
the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
(Brady, supra,
Further, irrespective of whether the defendant made a request for discovery from the prosecution, “favorable evidence is material, and constitutional error results from its suppression by the government, ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ”
(Kyles v. Whitley
(1995)
The Supreme Court in
Kyles
has identified four aspects to the materiality (i.e., prejudice) component of a
Brady
violation.
(Kyles, supra,
514 U.S. at pp. 434-437; see also
In re Brown
(1998)
Second, “it is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. The possibility of an acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict. One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” (Kyles, supra, 514 U.S. at pp. 434-435, fn. omitted.)
Third, “once a reviewing court applying
Bagley
has found constitutional error there is no need for further harmless-error review. Assuming,
arguendo,
that a harmless-error enquiry were to apply, a
Bagley
error could not be treated as harmless, since ‘a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,’ [citations] necessarily entails the conclusion that the suppression must have had “ ‘substantial and injurious effect or influence in determining the jury’s verdict,’ ” [citation].”
(Kyles, supra,
Fourth, “while the tendency and force of undisclosed evidence is evaluated item by item, its cumulative effect for purposes of materiality must be considered collectively.
([Kyles, supra,
514 U.S.] at pp. 436-437 & fn. 10 . . . ; see also
[United States
v.]
Agurs
[(1976)] 427 U.S. [97,] 112 [
We utilize independent review in deciding whether
Brady
error occurred.
(People v. Salazar
(2005)
C. Whether Brady Violation Occurred
Although the term
“Brady
violation” is often broadly used to refer to any failure on the part of the prosecution to disclose favorable information to the defense, a true violation occurs only if three components coexist; “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.”
(Strickler
v.
Greene
(1999)
1. Whether SART video evidence was favorable to defendant
In establishing a potential Brady violation, “[e]vidence is ‘favorable’ if it either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses. [Citation.]” (In re Sassounian, supra, 9 Cal.4th at p. 544.) Although neither party specifically addresses this element, we do so here.
Dr. Hariton in his declaration in support of the first new trial motion specifically stated that the portion of the SART video that corresponded with the photo (exhibit I) he relied on in his trial testimony contradicted Dr. Kerns’s testimony that that photo did not depict Anna’s hymen at all. The defense expert declared further that several photos he obtained from the SART video—including ones taken while Anna was in the supine position— offered additional evidence to support his trial testimony that Anna had “an intact hymen with no evidence of a prior transection or trauma.” Dr. Hariton concluded that the SART video constituted “extremely important and necessary [evidence] in this case” that fully supported his opinions given at trial, and contradicted the opinions of Dr. Kerns and Ritter.
The People’s opposition contained no evidence to refute the statements in Dr. Hariton’s declaration. Rather, the People in their points and authorities
Dr. Hariton’s declaration established that the SART video was favorable both because it offered potential evidence impeaching a prosecution expert’s testimony, and it was supportive of the opinions of defendant’s expert. We have little difficulty concluding from the record presented here that the SART video constituted “favorable” evidence under
Brady.
(See
Salazar, supra,
2. Whether SART video was suppressed
The prosecution need not affirmatively suppress evidence favorable to the defense in order for there to be “suppression” under
Brady. A
good faith failure to disclose, irrespective of the presence of a defense request for the materials, may constitute the “suppression” necessary to establish a
Brady
violation.
(People v. Zambrano
(2007)
“[A]ny favorable evidence known to the others acting on the government’s behalf is imputed to the prosecution. ‘The individual prosecutor is presumed to have knowledge of all information gathered in connection with the
We acknowledge that the parties have cited no authority—and our independent research has disclosed none—addressing whether a SART examiner (or the equivalent person or facility examining alleged sexual assault victims) is a member of the “prosecution team” for purposes of establishing the suppression element of a
Brady
violation. We therefore consider the circumstances presented here to ascertain whether the knowledge of the SART video gained by the personnel conducting Anna’s SART exam at the Center at Valley Medical (Ritter and Dr. Kerns) will be imputed to the prosecution. As stated by the Fourth District Court of Appeal, “[t]he important determinant is whether the person or agency has been ‘acting on the government’s behalf’
([Kyles], supra,
Dr. Kerns is the director of the Center, which he founded in 1985. The Center is “recognized as the place for evaluation in Santa Clara County in virtually 100 percent of the cases that come to [it].”
21
Ritter is the daytime
There is a statutory scheme addressing the function of SART exams in connection with the criminal investigative process. By legislative enactment, one hospital training center in the state was established for the purpose of, inter alia, “training] medical personnel on how to perform medical evidentiary examinations for victims of child abuse or neglect, sexual assault, . . . [and] shall provide training for investigative and court personnel involved in dependency and criminal proceedings, on how to interpret the findings of medical evidentiary examinations.” (§ 13823.93, subd. (b), italics added.) 22 Section 13823.93 was enacted in 1995 because of the Legislature’s recognition that adequate training of medical professionals was essential both to provide for the medical needs of victims of domestic violence, child abuse, elder abuse, and sexual assault “and to provide comprehensive, competent evidentiary examinations for use by law enforcement agencies.'” (Stats. 1995, ch. 860, § 1, p. 6541, italics added.) 23
In their opposition to the first motion for new trial, the People argued, inter alia, that Valley Medical was not part of the “prosecution team” because the videotaping was not performed for an investigative purpose. They asserted that, while the written report containing the findings of the SART exam “is provided to the investigating police agency,” Dr. Kerns and his staff “do not perform their examinations with the intention of aiding law enforcement.”
We reject any suggestion that the SART exam here was not investigative. It was clearly spearheaded by the police, who advised Ritter of a report of alleged sexual abuse in which Anna was the victim. A major purpose of the examination was to determine whether the allegation could be corroborated with physical findings. Ritter collected and preserved physical evidence, consistent with statutory protocol. (See §§ 13823.11, 13823.7, subds. (e), (f).) And according to her practice—after completion of the SART examination and after she and Dr. Kerns reach concurrence as to their findings as contained in the written report—Ritter provided a copy of the forensic report to the police. (See §§ 13823.11, subds. (a), (h)(4), 13823.7, subd. (a).)
We believe that the circumstances presented in this case are aligned with those in
Brown, supra,
The court below cited
People
v.
Webb
(1993)
In contrast to
Webb,
here the SART exam performed by Ritter did not constitute “private treatment” of Anna; the examination was initiated through a referral by the police in their investigation of a report of criminal conduct. And the prosecution had greater access to the records generated from the
We thus conclude that, when it performed Anna’s SART exam, including the collection of data necessary for the report, the Center at Valley Medical was, in fact, “ ‘acting on the government’s behalf’ ” or “ ‘assisting the government’s case.’ ”
(People
v.
Superior Court (Barrett), supra,
3. Whether SART video was material (prejudice) *
4. Conclusion re Brady violation
We have carefully reviewed and considered the entire record in this case, including all of the trial testimony, exhibits, arguments of counsel, defend
The SART video was favorable to the defense. And it constituted suppressed evidence under
Brady,
because the Center at Valley Medical was part of the “prosecution team.” The determination of whether defendant established the third element, namely, the materiality of the SART video under
Brady,
boils down to an overall assessment of whether, giving full consideration of the evidence presented at trial, the suppression of the SART video “ ‘undermines confidence in the outcome of the trial.’ ”
(Kyles, supra,
We are mindful that the purpose of the
Brady
rule is “to ensure that a miscarriage of justice does not occur.”
(Bagley,
The judgment is reversed and remanded for a new trial.
Mihara, Acting P. J., and McAdams, J., concurred.
Respondent’s petition for review by the Supreme Court was denied September 10, 2008, S164724.
Notes
All further statutory references are to the Penal Code unless otherwise stated.
In his separate petition for habeas corpus that we ordered to be considered with this appeal (In re Uribe (H032506)), defendant raises factual material outside of the record at trial in support of his contention that he did not receive effective assistance of counsel with respect to a failure to obtain an evaluation of the physical evidence by a SART examiner expert both at trial and in connection with the first motion for new trial. Because we conclude in the appeal that the judgment must be reversed, the issues in the habeas corpus petition are moot. Accordingly, by separate order of this date, we deny the petition for habeas corpus on that basis.
Because our evaluation of defendant’s claim of Brady error requires us to give significant consideration to the totality of the evidence adduced at trial in the context of determining the potential significance of the omission of the SART video, we necessarily recite the testimony in detail here.
See footnote, ante, page 1457.
Mary Ritter was the first witness called for the prosecution. Defense expert Dr. Theodore Haritan and prosecution expert Dr. David Kerns did not testify until seven days and 15 days after Ritter testified, respectively. We present the medical evidence together here in order to provide a more cohesive recitation of the facts.
Ritter estimated that of the approximate 4,000 SART exams she had performed, she found “definite evidence of penetrating trauma in about 10 percent of those cases.”
In response to the court’s questioning as to “whether it is possible that that V-shape narrowing at the end . . . could be a normal variation in Anna Doe,” Ritter responded: “I have to— ... in medicine you can’t ever say that anything is impossible so I suppose it’s possible. I’ve never seen anything in scientific literature saying that that is normal, but she could be the one example.”
After Dr. Kerns testified on rebuttal, Dr. Hariton was recalled as a witness by the defense. He reiterated that, after hearing Dr. Kerns’s testimony, he was still of the opinion that there was “no real evidence that the penetration occurred in [Anna].” He also repeated that one of the photographs (exhibit I) depicted a normal-looking hymen in which one could “see a significant rim of hymen all the way on the top.”
That form has spaces in which the examiner can identify the nature and extent of any photographic, colposcopic, or videographic methods used to document the examination of the body and genitals of the patient.
See footnote, ante, page 1457.
Prior to filing the first new trial motion, defense counsel brought a motion for issuance of a subpoena duces tecum directed to the custodian of records of Valley Medical in which he sought production of the SART video. That motion was accompanied by a declaration in which defense counsel noted that he learned about the SART video as a result of a March 28, 2006 conversation with Ritter. After obtaining an order from the trial court requiring Valley Medical to produce the videotape, defendant filed the first motion for new trial.
The record furnishes no explanation as to why there was no hearing on the first motion for new trial. There was initially a July 21, 2006 hearing date that was postponed one week. At the hearing on July 28, 2006 (two days after entry of the court’s order), there was no reference to defendant’s first new trial motion; rather, discussion concerned only the filing of the People’s opposition to, and the scheduling of a hearing on, the second new trial motion that defendant had filed on July 27, 2006.
“We have not previously addressed the standard of review applicable to
Brady
claims. [Citation.] Conclusions of law or of mixed questions of law and fact, such as the elements of a
Brady
claim [citation], are subject to independent review. [Citation.] Because the referee can observe the demeanor of the witnesses and their manner of testifying, findings of fact, though not binding, are entitled to great weight when supported by substantial evidence. [Citation.]”
(Salazar, supra,
We use the term “suppression” advisedly and because it is the term used by the Supreme Court to identify the second element of a claimed Brady violation. (See Strickler, supra, 527 U.S. at pp. 281-282.) We acknowledge, however, that in light of the fact that a Brady violation may be proved without a showing that the prosecution intentionally concealed the evidence from the defense, the term “suppress” in this context may be somewhat misleading in that it might incorrectly suggest affirmative misconduct by the prosecution. (See Merriam-Webster’s Collegiate Diet. (10th ed. 2001) p. 1181 [“suppress: ... 2: to keep from public knowledge: as a: to keep secret b: to stop or prohibit the publication or revelation of . . . ”].)
Section 13823.9, subdivision (b) provides: “Each county with a population of more than 100,000 shall arrange that professional personnel trained in the examination of victims of sexual assault, including child molestation, shall be present or on call either in the county hospital which provides emergency medical services or in any general acute care hospital which has contracted with the county to provide emergency medical services. In counties with
In addition, the agency designated by the Department of Finance (as provided in § 13820) is responsible for establishing sexual assault examination training courses for qualified health professionals with curricula that include training in the collection and documentation of physical evidence (§ 13823.13, subd. (b)(2)), and in “[p]resent[ing] testimony in court” (§ 13823.13, subd. (b)(4)).
The findings and declarations of the Legislature relative to the enactment of section 13823.93 were as follows: “The Legislature finds and declares all of the following: [f] (a) The response of California’s health care system to victims of violence, especially women and children, is inconsistent, in terms of both access to services and competence of health care workers. While services provided in some metropolitan centers may be excellent, access to
This assertion is not supported by any citation to the record. Instead, the Attorney General states in a footnote that Ritter’s duties at Valley Medical included matters other than SART exams, i.e., performing physical examinations of girls detained in juvenile hall. This fact does nothing to negate the essentially investigative function that Ritter and others at the Center played in performing SART exams on children referred by the police or social services based upon reports of child sexual abuse. Furthermore, defendant, in his supplemental opening brief, included some six pages of further argument on the suppression issue. While we do not assume that the issue is conceded, it is perhaps of some significance that the Attorney General, neither in the supplemental respondent’s brief nor in oral argument, even addresses the legal question of whether the Center was part of the “prosecution team.” Rather, the Attorney General argues only that defendant failed to establish the materiality element of a Brady violation.
In opposition to defendant’s first new trial motion, the People argued that the videotaping of SART exams was not done by the Center at Valley Medical for any investigative purpose but was simply for the training of potential SART examiners. The People offered no evidentiary support for these claims. And it is readily apparent that the photos taken from the SART video here were used by Ritter and Dr. Kerns for the investigative purpose of arriving at their findings concerning Anna’s SART exam. Thus, since the photos were used for an investigative purpose, it would make no sense to conclude (particularly where there is no evidence to support the conclusion) that the source material for the photos was not used for an investigative purpose.
See footnote, ante, page 1457.
Because of this conclusion, we need not address defendant’s remaining contentions of error. (See
People
v.
Jenkins
(2000)