I concur in the majority’s affirmance of defendant’s judgment of conviction and sentence of death.
I dissent from that portion of the majority’s opinion asserting, albeit in dictum, that a defendant in a criminal case is not “likely” to have a constitutional right to the compulsory process of the court in seeking discovery of a prosecution witness’s psychiatric records that contain material information favorable to the defense but are not in the prosecution’s possession. (Maj. opn., ante, p. 518.)
The pertinent inquiry, in my view, is not whether such records are in the possession of the government. Rather, as several decisions of the Courts of *538Appeal in this state have recognized, the critical question is. whether the records contain information that is favorable to the accused and material to the issue of guilt, and thus necessary for effective cross-examination of the prosecution witness whose psychiatric records are being sought. (Rubio v. Superior Court (1988) 202 Cal.App.3d 1343, 1348-1351 [249 Cal.Rptr. 419]; People v. Boyette (1988) 201 Cal.App.3d 1527, 1531-1534 [247 Cal.Rptr. 795]; People v. Caplan (1987) 193 Cal.App.3d 543, 557-558 [238 Cal.Rptr. 478]; People v. Reber (1986) 177 Cal.App.3d 523, 531-532 [223 Cal.Rptr. 139]; see also Vela v. Superior Court (1989) 208 Cal.App.3d 141, 147 [255 Cal.Rptr. 921]; Farrell L. v. Superior Court (1988) 203 Cal.App.3d 521, 527-528 [250 Cal.Rptr. 25].)
The cases I just cited acknowledge that the constitutional right of a defendant to confront and cross-examine his or her accusers is not absolute, but must be balanced against the privacy interests of the witness in the records that the defendant seeks to discover. Those interests, these authorities point out, can be safeguarded by having the trial court conduct an in camera review of the records to determine whether they contain information that is material to the defense and therefore essential to the fairness of the trial.
In this case, defendant used the compulsory process of the court in an effort to obtain from a private psychiatrist and a county mental health center all records pertaining to psychotherapy undergone by Sharon White Bear, defendant’s girlfriend, before she became a key witness for the prosecution. Arguing that the psychotherapist-patient privilege (Evid. Code, § 1010 et seq.) served to protect the records, the subpoenaed parties submitted the records to the trial court under seal. After conducting an in camera review of those records, the trial court allowed defendant access to those portions of the records that were material to the defense. Because the remainder of the records contained no information favorable to defendant and material to the issue of guilt, the trial court’s refusal to disclose those records did not violate defendant’s constitutional rights.
Mosk, J., concurred.
Appellant’s petition for a rehearing was denied January 26, 1994. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.