People v. Anderson , 106 Cal. Rptr. 2d 575 ( 2001 )

KENNARD, J.

I concur in the majority’s affirmance of defendant’s judgment of conviction and sentence of death. I write separately because I think a bit more should be said about defendant’s contention that the trial court erred when it barred him from cross-examining prosecution witness Deborah Baros about her past treatment for mental illness. (See maj. opn., ante, at pp. 578-579.)

The Sixth Amendment to the federal Constitution guarantees the defendant in a criminal prosecution the right “to be confronted with the witnesses against him.” In almost identical words, the California Constitution, in section 15 of article I, also secures the right of confrontation. The primary interest protected by the confrontation guarantee is the right of cross-examination, which is “the principal means by which the believability of a witness and the truth of his testimony are tested.” (Davis v. Alaska (1974) 415 U.S. 308, 316 [94 S.Ct. 1105, 1110, 39 L.Ed.2d 347].) Because cross-examination implements the constitutional right of confrontation, a trial court should give the defense wide latitude to cross-examine a prosecution witness to test credibility. (People v. Cooper (1991) 53 Cal.3d 771, 816 [281 Cal.Rptr. 90, 809 P.2d 865]; Curry v. Superior Court (1970) 2 Cal.3d 707, 715 [87 Cal.Rptr. 361, 470 P.2d 345].) But the trial court retains discretion to restrict cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. (People v. Frye (1998) 18 Cal.4th 894, 946 [77 Cal.Rptr.2d 25, 959 P.2d 183].) The test for determining whether a trial court has abused its discretion in restricting defense cross-examination of a prosecution witness is whether a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted. (People v. Quartermain (1997) 16 Cal.4th 600, 623-624 [66 Cal.Rptr.2d 609, 941 P.2d 788]; People v. Cooper, supra, at p. 817.)

Mental illness, insofar as it affects a witness’s ability to accurately perceive, remember, or describe the events about which the witness is testifying, or establishes a bias against the defendant, is relevant to credibility and may be established by cross-examination concerning the witness’s clinical history of diagnosis or treatment. (People v. Herring (1993) 20 Cal.App.4th 1066, 1072 [25 Cal.Rptr.2d 213]; People v. Cooks (1983) 141 Cal.App.3d 224, 302 [190 Cal.Rptr. 211]; Boggs v. Collins (6th Cir. 2000) 226 F.3d 728, 742; Chnapkova v. Koh (2d Cir. 1993) 985 F.2d 79, 81; U.S. v. Butt (1st Cir. 1992) 955 F.2d 77, 82, 86; United States v. Lindstrom (11th Cir. 1983) 698 F.2d 1154, 1160; Annot., Cross-examination of Witness as to His Mental State or Condition, to Impeach Competence or Credibility (1972) 44 A.L.R.3d 1203, 1222-1226, § 6, and cases cited; 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 261, p. 332.)

“Factors a court should consider in allowing in such evidence are the nature of the psychological problem, the temporal recency or remoteness of the condition, and whether the witness suffered from the condition at the time of the events to which she is to testify.” (Boggs v. Collins, supra, 226 F.3d at p. 742.) For example, a mental illness that causes hallucinations or delusions is generally more probative of credibility than a condition causing only depression, irritability, impulsivity, or anxiety. (See U.S. v. Butt, supra, 955 F.2d at pp. 82-83; United States v. Lindstrom, supra, 698 F.2d at p. 1160.) And a trial court generally may preclude cross-examination about psychiatric treatment occurring many years before the trial or hearing at which the witness testifies and long before the events to which the witness testifies. (See People v. Rodriguez (1986) 42 Cal.3d 730, 749 [230 Cal.Rptr. 667, 726 P.2d 113]; Hodges v. Keane (S.D.N.Y. 1995) 886 F.Supp. 352, 355.)

Here, the trial court did not abuse its discretion in disallowing the proposed defense cross-examination of prosecution witness Deborah Baros about her clinical history of mental illness. The defense offer of proof, based on Baros’s testimony at the hearing to determine her competence, indicated only that Baros’s children were taken away from her, Baros had been diagnosed as “emotionally disturbed,” she had taken prescription medications, and she had received therapy for a condition called “mental anguish.” This evidence would not have been particularly helpful in attacking her credibility because it did not demonstrate a condition likely to affect her ability to perceive or recall, nor is it apparent that it would give her a motive to falsely accuse defendant, who apparently had nothing to do with Baros’s loss of her children. Moreover, the defense was allowed to effectively demonstrate Baros’s mental illness by showing that she was fantasizing or hallucinating about the existence of the child she referred to as Anthony and her pregnancy at the time of the 1978 Mackey murder. Because a reasonable jury would not have received a significantly different impression of Baros’s credibility had the excluded cross-examination been permitted, the trial court did not abuse its discretion.

Werdegar, J., concurred.

Appellant’s petition for a rehearing was denied June 20, 2001.