People v. Baugh CA1/3

Filed 10/23/26 P. v. Baugh CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, A173499 v. (Contra Costa County CORY VIRGIL BAUGH, Super. Ct. No. 04002018133) Defendant and Appellant. A jury convicted Cory Virgil Baugh of various sex offenses against two minors. (People v. Baugh (2024) 107 Cal.App.5th 739 (Baugh).) On appeal, he asked us to independently review subpoenaed law enforcement records to determine whether the trial court abused its discretion by withholding the records. (Id. at p. 741.) In the nonpublished portion of our prior opinion, the majority conditionally reversed the judgment on that basis, explaining the record did not allow us to “ascertain whether or not the trial court erred.” (People v. Baugh (Dec. 20, 2024, A166277); Baugh, at p. 754 (dis. opn. of Tucher, P. J.) [dissenting from conditional reversal on this ground].) We remanded so the court could reconsider its discovery order and create a record that would permit meaningful appellate review. (Baugh, at pp. 753– 754.) We also directed the court to correct errors in the probation report. (Id. at p. 754.) 1  On remand, the trial court conducted another hearing concerning the subpoenaed records. After its in camera review of the records and consideration of factors identified in Facebook, Inc. v. Superior Court (Touchstone) (2020) 10 Cal.5th 329, the court again concluded there was nothing relevant in the records to disclose. Consistent with our opinion, the court also corrected some misstatements in the probation report. In this appeal, Baugh once more asks us to independently review the subpoenaed records to determine whether the trial court erred by withholding them. He also contends the probation report continues to contain inaccuracies requiring correction. We remand the matter to the court for it to make further corrections to the probation report but otherwise affirm. BACKGROUND We take the relevant facts from our prior opinion. The prosecution charged Baugh with sodomy of a person under the age of 16 (count 1); sodomy of an unconscious person (count 2); lewd acts on a 14 year old or a 15 year old at least 10 years younger than defendant (counts 3 & 5); and lewd acts on a child under the age of 14 (count 4). (Baugh, supra, 107 Cal.App.5th at p. 742.) “Counts 1 through 3 involved John Doe 1 (Doe 1), while count 4 involved his younger brother John Doe 2 (Doe 2) and count 5 involved their older sister Jane Doe (Jane). The People further alleged defendant had one prior ‘strike’ conviction . . . , along with a number of aggravating circumstances.” (Ibid., citations omitted.) At trial, “Doe 1 testified he was 11 or 12 years old when he became friends with defendant, who was then 25 or 30 years old. Doe 1 stayed with defendant off and on in the summer of 2014, when defendant was renting a basement residence in Contra Costa County. An incident occurred one night, 2 sometime between July and the beginning of the school year. In short, Doe 1 and defendant were drinking whiskey and smoking marijuana in defendant’s basement residence; both were intoxicated. At some point in the night, Doe 1 fell asleep then awoke to a sharp pain to his anus. Defendant’s face was above Doe 1, and he was holding up Doe 1’s bent legs. Doe 1 eventually realized the pain was caused by defendant’s penis. Doe 1 felt panic, kicked defendant away, and ran to the bathroom to ‘push [defendant’s] semen out.’ Doe 1 could see what he believed was semen. Doe 1 called Jane to pick him up and left immediately; he recalled placing that call at around 4:00 a.m.” (Baugh, supra, 107 Cal.App.5th at p. 742.) “Doe 1 told no one of the incident, and he continued to hang out with defendant because he feared losing friends if he did not. In 2017, Doe 1 cut off as many ties to the Bay Area as possible, and left to ‘move on and grow up.’ He never confronted defendant about what happened. However, in 2020 defendant showed up at Doe 1’s place of work and acted like they were friends; this caused Doe 1 to have a ‘breakdown’ and he was unable to ‘hold it in anymore.’ Doe 1 first told his mother, who then pressured him to report it. Though he made the report, he refused to conduct a pretext call. The last time Doe 1 talked to Detective Ruth Talley, who was assigned to investigate the case, his phone ran out of batteries and he never called her back.” (Baugh, supra, 107 Cal.App.5th at p. 742.) “Jane testified she met defendant when she was 14 years old, and he was in his early thirties. Doe 1 lived with defendant in the summer of 2014, and she recalled going to defendant’s residence twice, once to pick up Doe 1 in the middle to end of 2014. When Doe 1 moved back home, his demeanor had changed from outgoing, smiling, and energetic to reserved and unhappy.” (Baugh, supra, 107 Cal.App.5th at pp. 742–743.) 3  “Jane recounted an incident between herself and defendant when she was 14 or 15 years old and went camping with defendant and other friends. After Jane lay down to sleep in the group’s tent, she felt defendant lay behind her, put his arm around her, and rub his pelvic area against her while having an erection. After about two minutes, she left the tent to go sleep in defendant’s car. Jane testified she never told anyone because she thought defendant was drunk and acted unintentionally. Jane finally disclosed the incident after her brother, Doe 1, disclosed what defendant did to him.” (Baugh, supra, 107 Cal.App.5th at p. 743.) “Doe 2 testified that around Christmas in 2014, when he was 13 years old, there was a holiday party at his home. Defendant, who was in his thirties at the time, attended the party. Doe 2 fell asleep on a couch, but awoke in the middle of the night to find himself face to face with defendant, whose hand was in Doe 2’s boxers and squeezing his buttocks. Defendant appeared to be sleeping because he was breathing heavily and his eyes were closed. This went on for about two minutes. When Doe 2 felt defendant’s other hand traveling towards his front side, he ‘freak[ed] out’ and went into another room. When Doe 2 woke up in the morning, defendant was sleeping nearby on the floor. Doe 2 did not tell anyone about the incident until Doe 1 disclosed what defendant did to him. Doe 2 acknowledged telling Detective Talley the incident might have occurred in 2014 or 2015. Doe 2 also recalled a period of time when Doe 1 stayed with defendant, and that when Doe 1 returned home, his demeanor was different.” (Baugh, supra, 107 Cal.App.5th at p. 743.) The jury acquitted Baugh of the count concerning Jane but convicted him of the remaining counts. (Baugh, supra, 107 Cal.App.5th at p. 743.) It also “found true the aggravating circumstances that the victims were 4 particularly vulnerable and that defendant took advantage of a position of trust or confidence to commit the offenses.” (Ibid.) “The trial court dismissed the prior strike allegation and sentenced [Baugh] to a total of eight years in prison: six years for count 2 and two years for count 4. The court stayed the sentences on counts 1 and 3 pursuant to [Penal Code] section 654.” (Id. at pp. 743–744.) DISCUSSION As before, Baugh asks us to independently review the subpoenaed law enforcement records to determine whether the trial court abused its discretion by withholding them. Having done so, we conclude no error appears. At trial, Baugh subpoenaed law enforcement reports related to the Doe siblings from the Calaveras County Sheriff’s Office and the Brentwood Police Department.1 (People v. Baugh, supra, A166277.) Our prior opinion noted the “only document in the record addressing the subpoenaed materials in any detail” was a minute order. (Ibid.) The minute order recounted that the defense subpoenaed incident reports involving the Doe siblings from the two agencies, “ ‘the relevance of the subpoenaed records is for impeachment of the victims,’ ” and the trial court conducted an in camera review of the records at the parties’ request. (Ibid.) The court concluded there were “ ‘no records to disclose.’ ” (Ibid.) On appeal, Baugh asked us to independently review the records “to ensure the trial court ‘properly exercised its discretion and fully protected [defendant’s] due process and statutory rights.’ ” (Ibid.) Both 1 We grant Baugh’s unopposed request for judicial notice of the subpoenas served on the two law enforcement agencies and the record on appeal in case No. A166277. (Evid. Code, § 452, subd. (d).) 5 parties acknowledged our authority to independently review the records. (People v. Dworak (2021) 11 Cal.5th 881, 912.) “Under Penal Code section 1326, subdivision (a), various officials or persons—including defense counsel, and any judge of the superior court— may issue a criminal subpoena duces tecum.” (Touchstone, supra, 10 Cal.5th at p. 343.) But “a criminal subpoena does not command, or even allow, the recipient to provide materials directly to the requesting party. Instead, under subdivision [(e)] of section 1326, the sought materials must be given to the superior court for its in camera review so that it may ‘determine whether or not the [requesting party] is entitled to receive the documents.’ ” (Id. at p. 344, italics omitted.) To obtain the subpoenaed materials, a defendant must make a showing of good cause. (People v. Madrigal (2023) 93 Cal.App.5th 219, 256.) As part of that showing, the defendant must “show a ‘plausible justification’ for inspection. [Citations.] In assessing whether this burden is satisfied, we consider whether defense counsel has presented ‘specific facts demonstrating that the subpoenaed documents are admissible or might lead to admissible evidence’ that will reasonably assist counsel in preparing a defense. [Citation.] Furthermore, the documents must be ‘requested with adequate specificity to preclude the possibility that defendant is engaging in a “fishing expedition.” ’ ” (Id. at p. 257.) In Touchstone, supra, 10 Cal.5th 329, the California Supreme Court identified seven factors a trial court should consider when deciding “whether good cause has been shown to enforce a [criminal] subpoena that has been challenged by a motion to quash.” (Id. at p. 345.) “(1) Has the defendant carried his burden of showing a ‘ “plausible justification” ’ for acquiring documents from a third party [citations] by presenting specific facts 6 demonstrating that the subpoenaed documents are admissible or might lead to admissible evidence that will reasonably ‘ “assist [the defendant] in preparing his defense” ’?” (Ibid.) “(2) Is the sought material adequately described and not overly broad?” (Id. at p. 346.) “(3) Is the material ‘reasonably available to the . . . entity from which it is sought (and not readily available to the defendant from other sources)’?” (Ibid.) “(4) Would production of the requested materials violate a third party’s ‘confidentiality or privacy rights’ or intrude upon ‘any protected governmental interest’?” (Ibid.) “(5) Is defendant’s request timely?” (Id. at p. 347.) “(6) Would the ‘time required to produce the requested information . . . necessitate an unreasonable delay of defendant’s trial’?” (Ibid.) “(7) Would ‘production of the records containing the requested information . . . place an unreasonable burden on the [third party]’?” (Ibid.) In making a record to facilitate appellate review, “a trial court should, at a minimum, articulate orally, and have memorialized in the reporter’s transcript, its consideration of the relevant factors.”2 (Touchstone, at p. 358.) We turned to Baugh’s request that we independently review the records to determine whether the trial court abused its discretion by withholding them but noted “the record is so sparse that we cannot ascertain whether or not the trial court erred.” (People v. Baugh, supra, A166277.) The record lacked a reporter’s transcript, copies of any subpoena, and any other document filed in support or in opposition to the subpoena. (Ibid.) And the minute order, by itself, was insufficient to permit meaningful review. (Ibid.) Accordingly, we conditionally vacated the convictions, remanded the matter 2 We acknowledged Touchstone dealt with a motion to quash a criminal subpoena, but we noted “those factors appear properly applied even if no such motion or objection is filed.” (People v. Baugh, supra, A166277.) 7 to the trial court to reconsider its discovery order, and directed it to create a record to facilitate meaningful appellate review. (Ibid.; contra, Baugh, supra, 107 Cal.App.5th at p. 754 (dis. opn. of Tucher, P. J.).) On remand, the trial court addressed the factors in Touchstone as we directed, finding Baugh had shown a plausible justification for the documents; the sought material was adequately described and not overly broad; the request for the documents was timely; producing the material would not delay the trial; and producing the records would not place an unreasonable burden on the third party. Nevertheless, the trial court again concluded there was nothing to disclose. The court noted a report produced by the Calaveras County Sheriff’s Office concerned an incident where one of the Doe siblings “was a victim in a brandishing of a firearm case in San Andrea. So as a victim in the San Andrea case, the police reports were not relevant to the -- to attack the credibility of that victim in Mr. Baugh’s case.” As for the records produced by the Brentwood Police Department, the court explained one report “was a duplicate of the police reports of the charged offenses” in which Baugh was convicted of sex offenses. A second report concerned another incident where a Doe sibling “who was a minor at the time was driven home by Mr. Baugh. Mr. Baugh was determined to be drunk driving . . . and he was arrested for that though no charges were filed.” The court determined “there was nothing to disclose that had anything to do with the credibility of the victim witness. That is why the Court did not disclose any records in this case.” We review the trial court’s ruling for abuse of discretion. (People v. Thompson (2016) 1 Cal.5th 1043, 1105.) Having reviewed the record — including Baugh’s subpoenas, the reporter’s transcript of the hearing on remand, and the record on appeal in case No. A166277 — and having 8 independently reviewed the subpoenaed records, we conclude no error appears. We agree with the “trial court’s assessment that [the subpoenaed records] contain little of any plausible value to the defense.” (People v. Dworak, supra, 11 Cal.5th at p. 912.) For example, with regard to the report addressing a brandishing incident in which a Doe sibling was the victim, our review of this document persuades us it would not have led to discoverable information of the sort Baugh hypothesizes on appeal. Next, Baugh contends the trial court corrected some misstatements in the probation report but failed to address others. In our prior opinion, we directed the court to correct a clear misstatement of fact on page 15 of the probation report — to wit, the report stated Baugh had been convicted of offenses involving three minors despite the fact he had been acquitted of the charge concerning Jane. (People v. Baugh, supra, A166277.) We also directed the court to review the entire paragraph containing that sentence for accuracy. (Ibid.) The court changed “three minors” (capitalization omitted) to “two minors” (capitalization omitted) on line 10 of page 15 of the amended probation report. Baugh argues further changes are warranted. First, on line 12 of page 15, the amended report indicates Baugh “violated these three young individuals.” (Capitalization omitted.) The parties agree the word “three” (capitalization omitted) should be changed to “two.” Second, Baugh notes lines 14 through 16 on page 15 read: “police reports indicate that the defendant provided the alcohol in at least two of the offenses and then took advantage of two of the victims in their compromised state.” (Capitalization omitted.) He contends the evidence at trial was that Doe 2 was not drinking at the party where he was later molested, so the statement could only refer to Doe 1 and Jane. Because Baugh was acquitted 9 of the charge concerning Jane, he argues the sentence should be corrected to refer to “at least one of the offenses” and that Baugh “took advantage of one of the victims.” The Attorney General argues no correction to lines 14 through 16 is warranted because the statement refers to police reports rather than evidence presented at trial and because the evidence indicated Doe 2 was asleep when assaulted, so he was a victim in a compromised state. We think Baugh has the better argument. Finally, we directed the trial court to correct the first page of the probation report to reflect his acquittal on count 5. (People v. Baugh, supra, A166277.) In response, where the report read, “Count 3, 5: 288(c)(1) PC (LEWD ACT UPON A CHILD), FELONY (TWO)” (some capitalization omitted), the court blacked out “5.” Baugh contends the court should also have omitted “(TWO)” given his acquittal on count 5. The Attorney General concedes the point, and we agree. Baugh also argues his conviction on count 3 was for Penal Code section 288, subdivision (a), and the report should be corrected to so reflect. He is mistaken. As the Attorney General notes, and as the record reflects, his conviction on count 3 was for Penal Code section 288, subdivision (c)(1), as is correctly reflected in the report. DISPOSITION The judgment is affirmed. The matter is remanded to the trial court to correct (i) the first full paragraph on page 15 of the probation report, to reflect the accurate number of victims and facts underlying the convictions; and (ii) the number of crimes of which Baugh was convicted on page 1, line 23 of the probation report. 10  _________________________ RODRÍGUEZ, J. WE CONCUR: _________________________ TUCHER, P. J. _________________________ FUJISAKI, J. A173499; People v. Baugh 11