Opinion
F071447
07-13-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY JAMES CONKLIN, Defendant and Appellant.
Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1450680)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy Ashley, Judge. Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted Anthony James Conklin of three counts of committing lewd and lascivious acts on a child under the age of 14 years (Pen. Code, § 288, subd. (a); counts I, II and III), and he was also convicted of a lewd act upon a child 14 or 15 years of age (§ 288, subd. (c)(1); count IV). The two victims were appellant's stepdaughters. Because of a multiple victim finding, the trial court sentenced him to three consecutive terms of 15 years to life in counts I, II, and III pursuant to the One Strike law (§ 667.61, subds. (b) & (e)(4)). He also received a consecutive two-year term on count IV.
All future statutory references are to the Penal Code unless otherwise noted.
On appeal, appellant contends that the trial court erred or abused its discretion on five different occasions regarding various rulings. He further argues the imposition of his three life terms was improper, claiming only one life term per victim is authorized under section 667.61. We reject these claims and affirm.
BACKGROUND
I. Relevant Facts From The Prosecution's Case.
A. Appellant's wife learns of the molest allegations.
T. Conklin married appellant in 1998. Her daughters from before the marriage are K.C. and V.C. K.C. was four years old and V.C. was three years old when T. married appellant. T. then gave birth to appellant's daughter, S.C. Appellant, T., K.C., V.C., and S.C., along with T.'s parents, lived together in Turlock, California. Appellant generally had employment during their 13-year marriage while T. stayed at home to care for her ailing parents.
In May or June 2011, T. asked her best friend, Kerri C., to speak with V.C. about her relationship with appellant. V.C. had been acting hostile towards appellant and T. was concerned. After speaking privately with V.C., Kerri C. reported that appellant had molested V.C. On a hunch, T. then spoke to appellant's adult niece, A.C., who had also behaved strangely around appellant in the past. A.C. reported to T. that appellant had also molested her when she was younger. Police were contacted on June 2, 2011.
After learning of V.C.'s and A.C.'s allegations, T. told appellant to leave the house "because he touched the girls." Appellant denied any wrongdoing. He packed a bag and stayed with a friend. Appellant then went to Las Vegas. T. filed for divorce approximately two or three days after learning of the molest accusations. Prior to these accusations, she had not been planning on filing for divorce. Prior to the trial, T. and the girls were evicted from their home due to a failure to pay rent.
B. Law enforcement's investigation.
Detective Brandon Bertram was assigned appellant's case in July 2011. He contacted T. and scheduled a Child Abuse Interview Referrals Evaluation (CAIRE) with V.C. V.C. was interviewed at the CAIRE center by a staff member while Bertram watched. V.C.'s CAIRE interview was recorded and played for the jury during trial. During her CAIRE interview, V.C. said she was 16 years old. She said appellant had sexually molested her. She detailed incidents of appellant touching her, including digital penetration of her vagina with his finger, touching her breasts under her clothes, and sexual intercourse.
When approached by T. and law enforcement, V.C's sister, K.C., initially denied that appellant had ever touched her. About a month later, however, K.C. changed her previous statements and said appellant had also touched her inappropriately. In September 2011, T. called Bertram about K.C.'s molest accusations. K.C. did not want to speak with Bertram, but in January 2012, he interviewed her at T.'s home. The interview was recorded on a digital and audio recorder. The recording was played for the jury. During this interview, K.C. was 17 years old. She recounted her experiences with appellant, including an incident when she was 10 or 11 years old and appellant licked her vagina.
From June 2011 through January 2012, Bertram was unable to contact appellant. Bertram believed appellant was not residing in California. In August 2013, Bertram arrested appellant in Turlock after receiving a tip from T. that he was in town.
C. V.C.'s trial testimony (counts I, II and IV).
V.C. was born in April 1995, making her 19 years old at the time of her trial testimony. At trial, she detailed numerous occasions wherein appellant acted inappropriately with her.
When she was about nine years old, she was in the computer room in their home. Appellant approached her and asked if she was growing pubic hair. She said she did not know, and he asked to see. She said, "I don't really want to show you my area, because I feel like it's a private area." Appellant responded, "Come on, I'm your dad." She pulled down her pants and underpants, and showed him. He said, "Well, okay. I guess there's nothing." He walked away.
At some point later, V.C. was in her parents' bedroom when appellant asked again if she had pubic hair, and he asked her to pull down her pants. He felt around her vagina. She asked what he was doing, and he said he was "checking for hair." He touched her vaginal area under her underwear for "a minute or two." She initially stated this happened when she was 11 or 12 years old. On cross-examination, however, she agreed that this happened about six months after the first incident.
At an unknown later date, appellant sat on the toilet and asked her to get on her knees, open her mouth and close her eyes. She believed this happened twice and it happened less than a year after the first incident. Appellant's penis was visible and erect. She walked away both times.
When she was 10 or 11 years old, V.C. had ongoing back problems. T. and appellant had been giving her back rubs using an oil. One day she was lying down on a bed with her shirt pulled up to her shoulders and her bra unclasped. Appellant gave her a back rub and she felt his hands going too far onto her rib cage. She was going through puberty at the time and he came too close to her developing breasts. He touched her near the sides of her breasts under her clothing. He also moved his hands near her buttocks. V.C. felt uncomfortable.
V.C. talked to her sister, K.C., about appellant's actions. K.C. said appellant was also making her feel uncomfortable. The girls, however, decided to remain quiet and not tell T. When she was about 11 years old, V.C. started writing a journal about appellant's actions. She destroyed the journal when she was 13 or 14 years old.
When V.C. was approximately 12 years old, T. was away from home for a short period overnight and S.C. wanted to sleep in the same bed with appellant. V.C. decided to sleep with them to protect S.C., and V.C. positioned herself between appellant and S.C. During the night, appellant touched V.C.'s vagina and penetrated her with his fingers. He felt her breast under her bra for about 30 seconds. He then stopped and she assumed he fell asleep. V.C. did not tell her mother what happened when she came home the next day.
When V.C. was 12 or 13 years old, appellant approached her in his bedroom and asked if she knew why testicles were called "balls." He pulled his pants down and made her feel his testicles for about five to 10 seconds. He grabbed her hand and made her rub his erect penis for about a minute. He ejaculated shortly after. He explained how sperm goes into a female's egg to create a baby.
When V.C. was 13 years old, she was lying on appellant's bed watching television. T. was not home. Appellant approached and asked her to touch him. She refused but he insisted. She gave in because she wanted him to go away. He held her hand and made her touch his erect penis. He pulled her pants down, picked her up, and sat her on top of him. His penis entered her vagina for a few seconds. He asked her what it felt like, and she told him it felt like a pickle. A car door slammed in the front. He pulled her off and told her to put her pants on. T. and V.C.'s grandmother entered the house. She said she did not tell her mother about the sexual intercourse because she did not want to tear the family apart.
During closing arguments, the prosecutor explained that count II applied to the "rape" that happened when V.C. was 13 years old.
When she was 14 years old, the family moved to the other side of Turlock. Appellant stopped touching her inappropriately after the family moved. She was hoping that behavior had stopped. One night, however, V.C. was having stomach pain, which was later diagnosed as appendicitis. She was lying in bed with T. waiting for appellant to come home from work. When she was younger, he had a way of tickling her stomach to make stomachaches go away. She asked her mother if she could lie in bed so that appellant could rub her stomach. T. agreed. Appellant came home, rubbed V.C.'s stomach, and she fell asleep. She woke up with his hand down her pants and his fingers inside her vagina. She sat upright, threw a pillow at him, and called him a "bastard." T. woke up.
Appellant left and washed his hands. V.C. went to her own bedroom to sleep. V.C. felt betrayed because her mother did not do anything. Over the next few months, she had "aggressive mood swings" toward appellant. T. asked V.C. why she did not like appellant, and she answered, "You know why." They did not talk about it very much after that.
When she was 14 years old, V.C. left home one day and failed to call T. as required. She was grounded when she returned home. She became irritated, lashed out, and kicked a wall, which made a hole. She went to her room and appellant came to speak with her. They argued and appellant hit her face several times. He pinned her up in the corner between the headboard of her bed and the wall. T. tried to pull him off. V.C. had a black eye that kept her from school for three days.
When V.C. was approximately 16 years old, she confided to T.'s best friend, Kerri C., about appellant's sexual intercourse with her. After that, the police were notified. During her CAIRE interview, V.C. told the interviewer that appellant put his finger in her vagina about three or four times weekly. At trial, she stated that was incorrect and she recalled appellant touching her inappropriately about three or four times monthly. She said there were three or four times that he actually penetrated her vagina, which occurred over a seven-year period. On cross-examination, she clarified that appellant touched her inappropriately about three or four times a month in the year after she slept in bed with S.C. and appellant.
D. K.C.'s trial testimony (count III).
K.C. was born in April 1994, making her 20 years old at the time of her trial testimony. Growing up, she considered appellant to be her father. At trial, she detailed several occurrences that happened with him.
The first incident occurred when she was 11 years old. She was swimming and she went inside the house to change. Appellant told her to change in the master bedroom, which was cooler. She was in that room with appellant, who told her to pull her bottoms down and lie on the bed with her eyes closed. She did as told and she felt him lick her vagina for a second or two. She got up very fast and left. He followed her and she told him if he ever did it again she would tell her mother. At trial, she could not remember appellant's response. She recalled feeling scared but she did not tell her mother.
When K.C. was about 11 years old, she mentioned to T. that "inappropriate things" were happening to V.C. and herself. T. was upset and she cried a lot. K.C. then retracted her allegation a day or two later because she did not want to see her mom sad. The family was also planning a trip to Disneyland, which K.C. did not want to miss.
When K.C. was 12 or 13 years old she was very sick one day. She lay down on a bed with T. while only wearing a towel after showering. She woke up later to find her towel missing and appellant sleeping next to her. She did not know where T. was.
On another occasion, appellant dropped his pants in front of K.C., exposing his penis. At trial, she could not remember how old she was when this occurred, but she was sure it was after the swimming pool incident. She had been holding a camera and he had been dancing before he dropped his pants. She took a picture of appellant while exposed, and he told her to "come over and touch his penis." She did so, touching it with her hand. She could not remember if he was erect. She walked away. She did not tell anyone what happened because she did not want to get in trouble.
At trial, K.C. recalled that appellant would open the shower curtain every time she showered to ask if she was okay. He would close it back and then leave. He did this since she was little. K.C. stated that appellant would "smack" her across the face when she argued with T.
After police were notified, both T. and the police asked K.C. if appellant had abused her, but she said no. She told the jury she denied it at first because she knew how hard it was for V.C. to come forward and she did not want to do the same thing. After the police were notified, however, K.C. told her best friend, L.S., that what had happened to V.C. had also happened to her.
E. T. Conklin's trial testimony.
At trial, T. recalled a time when both V.C. and K.C. approached her with concerns that appellant was watching them when they were taking showers. T. spoke to appellant about it. She thought it was inappropriate "but not too shocking." The girls were approximately 10 or 11 years old.
V.C. had appendicitis when she was 14 years old and her stomach was hurting. Before it was diagnosed, appellant was working that night. T. told V.C. to lie in bed with her and suggested that appellant could rub her stomach when he came home, which was something he had done when the girls were younger. Appellant returned home after midnight. T. fell asleep in her bed with V.C. next to her. She woke up when V.C. said something like, "You pervert. You fucking touched me." T. told appellant to leave the bedroom. V.C. was very upset. She said appellant had been "rubbing her private area." T. left the bedroom and told appellant to leave V.C. alone. Shortly thereafter, they took V.C. to the emergency room and she was hospitalized for three days.
While V.C. was in the hospital, T. talked to her about what had happened. V.C. said appellant had been rubbing her stomach and then he started rubbing her private area. T. was in shock. However, she came to believe that V.C. was just overreacting and she did not contact police. After this incident, V.C. acted more hostile and defensive with appellant.
Appellant at times acted physically violent towards V.C. During an argument, he smacked her in the face. She called him a fucker and he followed her into her bedroom. He started smacking her and she ended up on the bed. He continued to smack her. T. pulled appellant off V.C. T. also saw appellant smack K.C. when she got "mouthy" with him. T. did not report these incidents to the police, but she spoke with appellant and told him it was too much violence.
T. testified that she told appellant to leave shortly after she learned of the accusations. The next day, she received a text message from appellant. When asked if she remembered what he texted, the following occurred:
"[T.]. He had texted that he did what he had to do, or something to that effect. He did what he had to do, and asked if we could -- were [sic] going to get back together. I'm not sure if that conversation might be having [sic] confused with a different conversation we had. He had asked me, 'Are we going to get back together, because I did what I did?'
"I think he told me he had gone to Vegas in one of those text messages as well.
"[PROSECUTOR]. Do you still have those text messages now?
"[T.]. No.
"[PROSECUTOR]. Do you know what happened to them?
"[T.]. They're probably deleted."
F. A.C.'s trial testimony regarding appellant's prior acts.
A.C. was 28 years old at the time of her trial testimony. Her father is appellant's brother. Before appellant married T., he had lived with A.C.'s family at times. A.C. shared a room with her older sister, S.R. They had twin beds, but then later had bunk beds. At trial, A.C. detailed prior uncharged acts which appellant committed with her while living with his brother.
Starting when she was approximately six years old, appellant would come into A.C.'s bedroom at night when S.R. was asleep. He would remove A.C.'s underwear and rub her "vaginal area." He would rub his exposed penis against A.C.'s vaginal area and kiss her on her mouth. She denied that he ever penetrated her. When finished, he would tell her not to tell her parents. A.C. felt scared and believed she was doing something bad. She never told her parents. At trial, A.C. estimated that appellant repeated this behavior more than 10 times over a two-year period. She did not recall appellant ejaculating.
When she was 11 or 12 years old, A.C. moved with her family out of state. Appellant did not make that move. A.C. never told anyone about appellant's actions because he had started a new life and was getting married. However, she continued to feel uncomfortable around him.
When she was an adult, A.C. confided to her eventual husband that appellant had touched her inappropriately as a child. Although her boyfriend was upset, A.C. asked him not to say anything because she did not want to ruin other people's lives. She did not think appellant would touch her cousins, V.C. and K.C. She did not call police or tell other family members.
At trial, A.C.'s husband, Douglas, testified that she told him that appellant had molested her. The conversation happened when A.C. was approximately 18 years old. They were living out of state at the time and they moved back to California about a year later. Appellant was the director of a church at that time. A.C. and Douglas decided not to tell anyone.
After they moved back to Turlock, T. came to A.C.'s house in 2011. T. said that appellant had molested V.C. A.C. felt guilty for not saying anything sooner. She told T. that appellant had also touched her. After police were notified, she told Detective Bertram about appellant's actions with her.
Towards the end of 2011 or in 2012, A.C.'s older sister, S.R., disclosed that she had witnessed appellant touching A.C. as a child. S.R. said she was very sorry for not saying something right away.
G. S.R.'s trial testimony regarding appellant's actions with A.C.
S.R. is two years older than A.C. At trial, S.R. recalled an incident when A.C. was approximately six years old. The two girls were in their bedroom at night. S.R. was sleeping on the floor. A television was on, which cast a light over A.C.'s bed. Appellant entered the room and laid beside A.C., who was asleep. He pulled up her nightgown while she was laying on her stomach. He touched her buttocks over her panties, and then pulled them down. He touched her buttocks when he pulled down her panties. He covered her again and left the room. S.R. did not know if appellant noticed that she was awake and watching. She felt terrified and worried, but she did not tell anyone. She never saw appellant do anything like that again. S.R. came forward with this information after she learned about V.C.'s accusations against appellant.
H. L.S.'s trial testimony regarding appellant's prior acts.
L.S. was 21 years old when she testified at trial. K.C. is her best friend. L.S. lived with appellant's family approximately in 2011 and 2012.
At trial, L.S. testified that K.C. once confided with her that appellant had forced her to give him a "blow job" while in the fifth grade. K.C. disclosed this to L.S. when L.S. was almost 19 years old. L.S. waited a month or two, and then she spoke with T. about K.C.'s accusation.
L.S. testified that she felt "awkward" and "weird" around appellant. In the sixth grade, he would give her "extra-long hugs" and when driving her home he would "pat" her and rub her on the leg. She agreed that his hugs were unusual and unlike how other people hugged her.
Starting in approximately junior high, appellant massaged her once or twice above her clothes. He would rub her around her shoulders and neck while she was sitting. He would offer the massages, which she accepted although they felt "weird" and "awkward."
When she was 14 or 15 years old, appellant would drive L.S. home. During the drives, he would touch or pat her thigh around her lap. One time he was patting her leg and he "rubbed sideways" so that his fingers went into her inner thigh. This made her feel very uncomfortable.
When she was 17 or 18 years old, L.S. was alone in the kitchen with appellant. He was trying to comfort her because she was having dating trouble. Appellant leaned in to hug her and he tried to kiss her, but she turned her cheek and he "caught the corner of [her] mouth." She assumed he was trying to kiss her on the mouth, which she found not normal.
I. Expert testimony regarding CSAAS.
Anthony Urquiza, a licensed psychologist, testified as the prosecution's child sexual abuse expert. Urquiza directs a treatment program within the department of pediatrics at UC Davis Medical Center. He explained that child sexual abuse accommodation syndrome (CSAAS) was originally an educational tool to help therapists understand the dynamics of a sexually abusive relationship. CSAAS is not used for diagnosis. It has five parts: (1) secrecy; (2) helplessness; (3) accommodation, which has a subpart called entrapment; (4) delayed and unconvincing disclosure; and (5) retraction or recantation. These aspects are present in most cases. Retraction occurs in 20 to 25 percent of child sexual abuse cases. If the victim does not receive supportive feedback, the child may retract a statement. Urquiza informed the jury he could not opine whether V.C. or K.C. had been sexually abused because he received no information about their specific case. He noted it would be inappropriate for him to make such an opinion.
II. Defense Evidence.
Appellant testified in his own defense. He denied that he ever sat on a toilet and asked V.C. to touch his penis. He could not recall any incident in the bathroom as V.C. described. He denied ever raping her or having consensual sex with her. He denied ever telling her to close her eyes and open her mouth. He denied ever doing anything inappropriate with V.C. in the computer room at their house as she described.
Appellant recalled giving V.C. massages. She had fallen off a horse when she was younger and she had some back problems. T. would take V.C. into their bedroom, expose her back, and appellant would come massage her. He denied that he ever reached around and touched her breasts.
He recalled a time when V.C.'s stomach was hurting her, which was eventually diagnosed as appendicitis. He came home from work between 6:00 and 6:30 a.m. T. was awake and said V.C.'s stomach was hurting her. Appellant kneeled on the floor and lightly rubbed V.C.'s stomach. V.C. was lying in bed on her side with her feet and legs curled up. He denied ever rubbing V.C. below the stomach or near her vagina. He denied that V.C. became upset with him.
Appellant admitted he was physical towards V.C. one time. V.C. and T. were arguing because V.C. had not called home as required. V.C. kicked the wall, making a hole. She continued to yell at T. and she refused to go to her room. She called appellant a fucker and he slapped her face. Appellant testified that he overacted. He said he apologized to V.C. about 25 minutes later "for smacking her." He admitted that he gave her a black eye from this incident, which caused her to miss school. He recalled that V.C. was often grounded because she refused to call as required.
Appellant recalled the pool incident about which K.C. testified. K.C. came out of the pool and complained of being overheated. He felt her and she was extremely hot. He told her to take a shower and he turned on the air-conditioning in the master bedroom. He heard her finish showering. He directed her to lie in the bed and watch television. He came back to check on her about 30 minutes later. She was asleep. He felt her forehead and she felt cool to the touch. He said her name and she opened her eyes. He asked if she was okay, and she said she was feeling fine. He went back to the pool to watch the other kids. He denied licking K.C.'s vagina.
Appellant recalled that K.C. liked to take pictures and they bought her disposable cameras. He denied that she ever took a picture of his penis or showed her his penis. He admitted being physically abusive with K.C. one time.
Appellant said he moved to Las Vegas after T. told him to leave the house. His mother lived there. He said he had nowhere else to go. He told T. that he was living with his mother. He called S.C. every night to talk to her, and he tried to talk to V.C. and K.C., but they refused to speak with him.
Appellant described his relationship with T. as "good" and said he raised the girls as his own even though he was not their biological father. He testified that his relationship with T. began to decline over their last year of marriage. He noticed that she went out more at night when he was working. He became suspicious because she spent a lot of time with a person named David. She would meet David in the middle of the night for coffee while appellant was working. He told the jury that he had wanted to stay with her after the separation occurred.
Appellant confirmed that A.C. is his niece. He had lived with his brother's family for approximately 15 years, starting when appellant was 15 years old. He denied that he did anything to A.C. as she described.
Appellant knew L.S. as K.C.'s best friend. He confirmed that L.S. lived with them when she was approximately 16 and 17 years old. He denied ever giving L.S. massages. He admitted giving her hugs, but did so when she went out for the evening. He said the girls were required to give hugs and kisses to T. and him before leaving, and that rule applied to L.S. when she lived there.
DISCUSSION
I. Introduction Of The Victims' Pretrial Interviews Was Harmless.
During trial, defense counsel objected to the prosecution's request to play the entirety of V.C.'s CAIRE interview and K.C.'s interview with Detective Bertram. The trial court ruled that both interviews were admissible.
On appeal, the parties dispute whether the trial court erred in permitting introduction of V.C.'s and K.C.'s interviews. Appellant contends the victims' interviews were largely consistent with their respective trial testimony, and their admission violated the hearsay rule. He maintains he was prejudiced "because the repetition of the same accusations gave the witnesses' testimonies an air of veracity which they would otherwise have lacked." In contrast, respondent argues, in part, that the entirety of the interviews were required for completeness and any presumed error was harmless. We agree with respondent that any presumed error was harmless. As such, we need not resolve the parties' dispute whether the trial court erred.
In the absence of fundamental unfairness, the harmless-error test of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), is used to analyze an evidentiary error that involves state law. (People v. Partida (2005) 37 Cal.4th 428, 439.) Such an analysis requires the reviewing court to ask "whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (Id. at p. 439.)
Here, both V.C. and K.C. provided detailed and specific instances of appellant's repeated inappropriate behavior. V.C. was consistent in her statements to police and her trial testimony regarding appellant's behavior. Although K.C. initially denied that appellant acted inappropriately with her, she explained to the jury why she was hesitant to come forward. V.C.'s and K.C.'s accusations were bolstered by A.C.'s and L.S.'s testimony of appellant's prior acts. A.C.'s testimony was corroborated by S.R. and Douglas.
We disagree with appellant's contention that V.C.'s and K.C.'s interviews were needed to bolster their respective credibility at trial. The evidence overwhelmingly established appellant's guilt. Based on this record, it is not reasonably probable the verdict would have been more favorable to appellant absent the introduction of the pretrial interviews. Any presumed evidentiary error was harmless. Accordingly, this claim fails.
II. The Trial Court Did Not Err In Failing To Conduct An In Camera Review Of The Victims' Subpoenaed Therapy Records.
Appellant asserts that the trial court erred in refusing to conduct an in camera review of subpoenaed counseling records regarding V.C. and K.C. He seeks reversal of his conviction.
A. Background.
Prior to the presentation of trial evidence, appellant filed a motion to release subpoenaed therapy records regarding V.C. and K.C. In support of the motion, defense counsel filed a personal declaration indicating, in part, that it was believed V.C. and K.C. were attending counseling at a particular location. The declaration asserted that the counseling records "are likely to contain statements by the alleged victims and other witnesses concerning the allegations in this case and [appellant]." Appellant's motion requested the trial court to conduct an in camera review of the therapy records, and disclose any relevant statements or information to the defense. Based on the filed declaration of personal service accompanying the motion, only the district attorney was served a copy of the motion to compel release of the records.
The prosecution filed a motion to quash the defense's subpoena duces tecum. The prosecution argued, in part, that the defense had failed to provide proper notice to the consumer pursuant to Code of Civil Procedure section 1985.3. It was also argued that the motion was not supported by good cause. Finally, the psychotherapist-patient privilege was cited on behalf of V.C. and K.C., and it was asserted that these victims did not want their confidential counseling records disclosed.
Before the presentation of trial evidence, the trial court conducted a hearing regarding this issue. The prosecutor confirmed that he had spoken with T., who represented that both V.C. and K.C. were opposed to their records being released. Defense counsel represented that the custodian of records had been in court "a couple of days ago." The records were not available in court but could be provided if the court wanted to conduct an in camera hearing. The trial court indicated it had read the moving papers and the People's motion to quash. The court ruled a sufficient foundation had not been provided to justify an in camera review. The motion to quash was granted.
Defense counsel requested that the records be produced to the court and kept sealed in the event appellate review determined that an in camera hearing was necessary. The prosecutor opposed that request, arguing the records should be maintained by the custodian. The trial court noted nobody knew how long the custodian would maintain these records. Defense counsel indicated he would contact the custodian to "let her know to keep them as long as possible."
B. Analysis.
Appellant contends the trial court's failure to conduct an in camera review of the subpoenaed records violated his Sixth Amendment right to confrontation. He suggests his subpoena was not pretrial discovery, and he argues the failure to maintain a copy of the records violated his due process right to a full appellate record. We disagree. Based on People v. Hammon (1997) 15 Cal.4th 1117 (Hammon), appellant's claim fails.
In Hammon, supra, 15 Cal.4th 1117, the defendant was convicted of committing lewd and lascivious acts on his foster child when she was under 14 years old. (Id. at p. 1119.) Before trial, the defendant issued subpoenas duces tecum to three psychologists who had treated the victim. The People moved to quash the subpoenas based on the victim's assertion of the psychotherapist-patient privilege. (Id. at p. 1120.) In opposition to the motion to quash, the defendant argued "that information about [her] psychological history was necessary in order to challenge her credibility on cross-examination," including "'her propensity to fantasize and imagine events that never occurred.'" (Ibid.) The trial court quashed the subpoenas, finding no showing of good cause for an in camera review of the records. (Id. at p. 1121.)
On appeal, the Hammon court determined that the Sixth Amendment does not confer a right to discover privileged psychiatric information before trial. (Hammon, supra, 15 Cal.4th at p. 1127.) Hammon noted that before trial, a trial court will typically not have enough information to conduct an inquiry balancing the defendant's need for cross-examination versus the policies underlying the privilege. (Ibid.) Although the defense may issue subpoenas duces tecum to private persons, "this more general right provides no basis for overriding a statutory and constitutional privilege." (Id. at p. 1128.) Hammon concluded that "the trial court was not required, at the pretrial stage of the proceedings, to review or grant discovery of privileged information in the hands of third party psychotherapy providers. We reject defendant's claim that pretrial access to such information was necessary to vindicate his federal constitutional rights to confront and cross-examine the complaining witness at trial or to receive a fair trial." (Hammon, supra, 15 Cal.4th at p. 1119.)
Here, based on Hammon, the trial court was not required to review or grant discovery of V.C.'s or K.C.'s privileged information in the hands of third party psychotherapy providers before trial. Pretrial access to this information was not necessary to vindicate appellant's rights to confront and cross-examine, or to receive a fair trial. Accordingly, the trial court did not err in granting the motion to quash.
Because the trial court did not err in granting the motion to quash, we will not address appellant's alternative argument that he was prejudiced when the trial court did not preserve the therapeutic records for possible appellate review.
III. The Trial Court Did Not Abuse Its Discretion Regarding Testimony From The Prosecution's CSAAS Expert.
Appellant contends the trial court erred by permitting expert testimony at trial regarding CSAAS. He argues CSAAS testimony was not required regarding why a sexual abuse victim might delay reporting the criminal events.
A. Background.
Prior to trial, appellant filed a motion in limine seeking to exclude expert evidence regarding CSAAS. The motion noted the five behavioral stages of CSAAS and cautioned that CSAAS is a treatment tool for sexually abused children and not a diagnostic tool to determine whether sexual abuse occurred or not. The motion argued that expert testimony regarding CSAAS is unreliable to prove a molest occurred.
At the hearing, defense counsel argued that the jury did not need CSAAS expert opinion testimony regarding why a reporting delay occurred. The defense requested that the court prevent the prosecution from introducing CSAAS evidence. In response, the prosecutor argued that such evidence was appropriate because the victims did delay in reporting, which placed credibility at issue. The prosecutor agreed it was not appropriate to use CSAAS to establish that molest had in fact occurred, or to diagnose appellant as a pedophile. The trial court ruled that the prosecution's expert witness could testify.
B. Standard of review.
We review a trial court's decision to admit expert testimony for an abuse of discretion. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299.) Under this standard, we will not disturb the trial court's decision on appeal unless "'the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)
C. Analysis.
1. The trial court did not abuse its discretion.
In raising this claim on appeal, appellant concedes that his victims delayed in reporting events. However, he argues the defense did not use the delay to infer the victims were less truthful. As such, he contends CSAAS opinion testimony was not relevant and this evidence prejudiced him. We disagree.
Evidence Code section 801, subdivision (a), permits the introduction of testimony from a qualified expert related to a subject that is sufficiently beyond common experience. Even if the jurors have some knowledge of the matter, expert opinion is admissible if it would assist them. (People v. McAlpin, supra, 53 Cal.3d at p. 1300.)
Here, each of the testifying victims waited a number of years to report the abuse. Urquiza's testimony was admissible to explain why the victims may not have immediately reported the sexual abuse they experienced as children. This evidence assisted the jurors by giving them information to evaluate the victims' credibility. This record does not establish that the trial court acted in an arbitrary, capricious or absurd manner in permitting this opinion testimony. Accordingly, the court's ruling does not demonstrate an abuse of discretion. Moreover, even when we presume error occurred, prejudice is not present.
2. Any presumed error was harmless.
To analyze the erroneous admission of expert testimony, we ask whether it is reasonably probable its admission affected the judgment. (People v. Bledsoe (1984) 36 Cal.3d 236, 252, citing Watson, supra, 46 Cal.2d at p. 836.)
Here, even when we presume the trial court abused its discretion in admitting Urquiza's opinion testimony, no prejudice resulted. The court instructed the jury with CALCRIM No. 1193. The jury was told that Urquiza's opinion testimony was not evidence that appellant committed any of the charged crimes. To the contrary, the jury was told to consider this evidence only in deciding the credibility of the complaining witnesses. We presume the jurors understood and followed the trial court's instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Moreover, Urquiza informed the jury he could not opine whether V.C. or K.C. had been sexually abused because he received no information about their specific case. He noted it would be inappropriate for him to make such an opinion.
Finally, during closing argument, the prosecutor told the jury they could not find appellant guilty based on Urquiza's testimony about CSAAS. To the contrary, the prosecutor asked the jury to review the five parts of CSAAS when evaluating the victims' credibility.
The prosecution's case was overwhelmingly strong against appellant. It is not reasonably probable the admission of Urquiza's opinion testimony affected the judgment. Accordingly, any presumed error was harmless and this claim fails.
IV. Any Presumed Error Was Harmless Regarding The Admission Of Evidence Of Appellant's Text Messages.
Appellant asserts that the trial court erred by permitting T. to testify about the existence of a text message she received from appellant, which she subsequently deleted. He argues the message, as explained by T., admitted his molestation. He contends his confrontation rights were violated when T. was permitted to testify about the contents of the deleted text message.
A. Background.
Prior to trial, the prosecution filed a trial brief which argued T. should be permitted to testify to the content of text messages which she claimed to have received from appellant shortly after he moved from the family home following the accusations. The prosecution contended that the failure to retain the messages went to their weight and not admissibility.
At oral argument, defense counsel contended that a dispute existed regarding the content of appellant's text messages. The defense argued that law enforcement could have subpoenaed the records from the telephone company to preserve this evidence. In contrast, the prosecutor asserted this was an issue for cross-examination. The trial court ruled T. could testify about the text messages, but noted this did not look favorably on either law enforcement or T.
B. Standard of review.
In the absence of fundamental unfairness, the harmless-error test of People v. Watson, supra, 46 Cal.2d 818, is used to analyze an evidentiary error that involves state law. (People v. Partida, supra, 37 Cal.4th at p. 439.) In contrast, a federal constitutional error is harmless when the reviewing court determines beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Aranda (2012) 55 Cal.4th 342, 367.) An error did not contribute to the verdict when the record reveals the error was unimportant in relation to everything else the jury considered on the issue in question. (Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.)
C. Analysis.
The parties disagree whether T. had a fraudulent intent to delete appellant's text messages and whether the prosecution properly authenticated their contents at trial. Appellant suggests T. was motivated to lie about the content of his text messages.
The parties also disagree whether the prosecution had a duty to preserve the text messages and whether a due process violation occurred. Respondent contends appellant forfeited any due process challenge on appeal from a failure to raise this issue below. Appellant argues he preserved his constitutional challenge when raising his evidentiary objections in the trial court. Given the state of this record, however, we need not resolve the parties' various disputes regarding this issue. It is clear that the admission of this evidence was not prejudicial.
As noted before, the victims' testimony overwhelmingly established appellant's guilt. Moreover, during closing arguments, the prosecutor did not mention appellant's text message as grounds to find him guilty. To the contrary, the prosecutor focused primarily on the victims' testimony. She also mentioned that appellant's flight to Las Vegas showed his consciousness of guilt. She referenced Urquiza's testimony as a way to judge the victims' credibility despite their delay in reporting appellant's actions. Finally, she contended appellant's own testimony corroborated many aspects of the victims' testimony, lending credibility to the prosecution's case.
Even if we presume that introduction of T.'s testimony regarding appellant's text messages amounted to a federal constitutional error, a position we do not hold, any error was harmless. This evidence was unimportant in relation to the witnesses' testimony regarding appellant's guilt. It is beyond a reasonable doubt that this presumed error did not contribute to the verdict. Accordingly, this claim fails.
V. The Trial Court Did Not Abuse Its Discretion In Permitting L.S. To Testify Regarding The Prior Sex Offense Allegations.
Appellant argues that the trial court abused its discretion by permitting the jury to hear and consider L.S.'s testimony about appellant's prior acts with her.
A. Background.
1. Relevant pleadings.
In count IV, the amended information alleged, in part, that appellant committed a lewd and lascivious act upon V.C., who was 14 or 15 years old.
2. Appellant's motion in limine.
Prior to trial, appellant filed a motion in limine to exclude, in part, testimony from L.S. as more prejudicial than probative. Appellant argued that L.S.'s allegations were "dramatically different" from the charged crimes.
In its trial brief, the prosecution asserted that L.S. was K.C.'s best friend. The prosecution proffered that L.S. was expected to testify that appellant rubbed her leg while they were driving when she was 17 years old, which made her feel uncomfortable. On another occasion, he hugged her and tried to kiss her on the lips, but she turned her face away and he kissed the side of her mouth.
During oral arguments, the prosecutor contended that L.S.'s testimony related directly to appellant's conduct with V.C. because it was alleged in count IV that he committed lewd and lascivious acts with V.C. when she was 14 or15 years old. The trial court ruled that L.S.'s testimony was admissible, determining it was not more prejudicial than probative.
B. Standard of review.
The issue of whether uncharged prior acts are admissible is a determination of relevance, which is reviewed for an abuse of discretion. (People v. Carter (2005) 36 Cal.4th 1114, 1147.) The trial court's ruling will not be disturbed on appeal unless its ruling fell outside the bounds of reason. (Id. at p. 1149.) We evaluate the trial court's ruling based on the facts before it at the time of the hearing. (People v. Hartsch (2010) 49 Cal.4th 472, 491.)
C. Analysis.
Appellant argues that his conduct with L.S. "did not amount to criminal child sexual molestation." He asserts his actions with her were "comparatively innocuous" and are dissimilar to the charged crimes, requiring exclusion. We disagree.
1. The trial court did not abuse its discretion in permitting L.S. to testify.
a. The proffered evidence tended to establish a violation of section 647.6 , subdivision (a)(1).
Section 647.6 imposes imprisonment in a county jail not exceeding one year and/or a fine on every person who "annoys or molests" a child under 18 years of age. (§ 647.6, subd. (a)(1).) "'Annoy and molest' are synonymous and mean to disturb or irritate, especially by continued or repeated acts; to vex, to trouble; to irk; or to offend. [Citations.]" (People v. Kongs (1994) 30 Cal.App.4th 1741, 1749.) An objective standard is used to determine whether a defendant has violated section 647.6. (Id. at p. 1749.)
Here, at the time of the trial court's ruling, the prosecution proffered that L.S. was expected to testify that appellant rubbed her leg while they were driving when she was 17 years old, which made her feel uncomfortable. On another occasion, he hugged her and tried to kiss her on the lips, but she turned her face away and he kissed the side of her mouth. Although this proffered testimony did not rise to the level of the charged crimes, appellant's actions with L.S. were objectively annoying to a reasonable person under the age of 18 years. This evidence tended to establish a violation of section 647.6, subdivision (a)(1).
b. This evidence was relevant to prove appellant's intent.
It is impermissible to introduce evidence of prior crimes to prove that a defendant has a criminal disposition or a bad character. (Carter, supra, 36 Cal.4th at p. 1147.) However, evidence of uncharged crimes is admissible to prove, in part, a defendant's intent regarding the charged crimes. (Ibid.) To establish a defendant's intent, only a small degree of similarity is required between the charged and uncharged crimes. The uncharged crimes need only to support an inference that the defendant probably held the same intent in each instance. (Id. at p. 1149.) Beyond this requirement, the probative value of the uncharged offenses must be substantial and must not be largely outweighed by a probability of undue prejudice, confusion of the issues, or of misleading the jury. (Ibid.)
Here, the proffered evidence regarding L.S.'s testimony tended to have probative value to the charged crime in count IV. Appellant's actions with L.S. tended to show his intent to engage in acts with teenage girls that violated section 288, subdivision (c). Especially in light of the other proposed evidence against appellant, it was not probable that this proffered evidence would cause undue prejudice, confusion of the issues, or mislead the jury. This record does not demonstrate that the trial court ruled in an arbitrary and capricious manner in permitting L.S. to testify at trial. Accordingly, an abuse of discretion is not present.
2. Any presumed error was harmless.
Moreover, even if we presume that the trial court abused its discretion in permitting L.S. to testify, any presumed error was harmless. As compared to the other victims, it is beyond a reasonable doubt that this evidence did not contribute to the verdict as it was unimportant in relation to everything else the jury considered regarding appellant's guilt. Accordingly, no prejudice is present and this claim fails. VI. Appellant's Indeterminate Sentences In Counts I, II and III Are Proper.
"Enacted in 1994, California's One Strike law, section 667.61, requires indeterminate life sentences for enumerated sex offenses committed under certain aggravating circumstances. (§ 667.61, subd. (b).)" (People v. Valenti (2016) 243 Cal.App.4th 1140, 1174 (Valenti).) One of those aggravating circumstances is committing an enumerated offense against more than one victim. (§ 667.61, subd. (e)(4).)
Prior to September 2006, the One Strike law contained former subdivision (g), which imposed an indeterminate term "once for any offense or offenses committed against a single victim during a single occasion." In contrast, if multiple victims were present during a single occasion, then the trial court was to impose the appropriate indeterminate term "on the defendant once for each separate victim." (See former § 667.61, subd. (g) (2005).) However, effective in September 2006, former subdivision (g) was removed from section 667.61 and the legislature mandated consecutive life sentences for each One Strike conviction if the crimes involve separate victims or involve the same victim on separate occasions. (Stats. 2006, ch. 337, § 33, pp. 2163-2165; see also § 667.61, subd. (i).)
Here, in count I, the jury found appellant guilty of conduct with V.C. in violation of section 288, subdivision (a), for acts occurring "on or about and between April 19, 2004 to April 18, 2008[.]" Likewise, in count III, he was found guilty of conduct with K.C. under this same statute for acts occurring "on or about and between June 11, 2004 to April 21, 2008[.]" Accordingly, for these two counts, appellant's convictions straddle the 2006 amendment date when former subdivision (g) was removed from section 667.61.
In contrast, in count II, the jury found appellant guilty of conduct with V.C. in violation of section 288, subdivision (a), for acts that occurred after 2006. --------
Appellant asserts ex post facto requires his sentence to comply with former subdivision (g), and he argues only one life term per victim is authorized under section 667.61. He further suggests the trial court abused its discretion in not understanding it had discretionary authority to impose concurrent life sentences in this matter.
In contrast, respondent argues that the three consecutive life sentences in counts I, II and III are valid, and ex post facto was not violated. Respondent relies primarily upon People v. Valdez (2011) 193 Cal.App.4th 1515 (Valdez). We agree with respondent and reject appellant's claims.
In Valdez, supra, 193 Cal.App.4th 1515, the defendant committed, among other things, multiple One Strike offenses against three victims. (Id. at p. 1518.) There, as here, the defendant claimed the One Strike law only permitted one life term for each victim. (Valdez, at p. 1518.) Valdez rejected this argument, finding it contradicted the statute's legislative intent (id. at p. 1522) and that section 667.61, subdivision (g), did not support the defendant's argument. (Valdez, at p. 1523.) To the contrary, Valdez determined section 667.61 evidenced an intent to ensure the greatest possible punishment. (Id. at pp. 1522-1523.) Consequently, Valdez affirmed the imposition of four consecutive terms of 15 years to life on four counts, two of which involved the same victim. (Id. at p. 1518.)
Valdez was subsequently followed in People v. Andrade (2015) 238 Cal.App.4th 1274 (Andrade), which affirmed a sentence of 13 consecutive terms of 15 years to life pursuant to the current version of section 667.61. (Andrade, at pp. 1306-1307.) Andrade rejected the defendant's argument that he should have been sentenced, at most, to five indeterminate terms because only five victims were involved in the 13 counts. (Id. at p. 1305.)
Here, appellant provides no decisional authority to support his claim that he should have received, at most, two indeterminate terms based on the number of his victims. We decline his invitation to hold that Valdez was incorrectly decided. Based on Valdez, the imposition of the three indeterminate terms in counts I, II and III was appropriate under section 667.61.
In his reply brief, appellant cited Valenti, supra, 243 Cal.App.4th 1140 as authority mandating resentencing in this matter. Valenti was filed January 14, 2016, after both parties filed their initial briefs. Valenti addressed, in part, an ex post facto challenge to the One Strike law. On May 19, 2017, we directed respondent to file a letter brief responding to Valenti and the application of ex post facto. On May 26, 2017, respondent filed a letter brief, and on May 31, 2017, appellant filed his responsive letter brief. As discussed below, Valenti is inapplicable to the present matter.
In Valenti, supra, 243 Cal.App.4th 1140, the defendant was sentenced to numerous indeterminate sentences for convictions of crimes that fell under the One Strike law. (Id. at pp. 1151-1152.) The Valenti court vacated indeterminate sentences which were imposed against the defendant for offenses pursuant to section 288, subdivision (c), that were alleged to have occurred prior to 2006, the year that statutory offense was added to the One Strike law. (Valenti, at pp. 1173-1174.) In addition, Valenti found error when the defendant was sentenced to indeterminate terms for violation of five counts of section 288.5, which involved his continuous sexual abuse of victims. Two of the five counts involved conduct that partially occurred before the 2006 amendment. (Valenti, at p. 1175.) Valenti determined that error occurred because the jury was not instructed that at least one act of abuse must have occurred after the 2006 amendment to the One Strike law. (Id. at p. 1176.) The error, however, was found not prejudicial because the evidence established beyond a reasonable doubt that the defendant continued his sexual abuse of the victims after the 2006 amendment. (Id. at pp. 1177, 1178.)
Here, similar to Valenti, the jury was not instructed, and it was not asked to find, that at least one criminal act occurred in counts I and III after the One Strike law was amended in 2006. However, unlike in Valenti, error did not occur here because section 288, subdivision (a), was a One Strike offense before 2006. (See former § 667.61, subd. (c)(7) (2005).) Further, the prosecution's filed sentencing statement argued that sentencing in counts I and III must occur under the former version of section 667.61 because the jury did not make a finding regarding the exact date of these crimes. Based on Valdez, supra, 193 Cal.App.4th 1515, appellant's life sentences in counts I and III do not violate former section 667.61, subdivision (g). (Valdez, supra, 193 Cal.App.4th at p. 1523.) Accordingly, appellant's life sentences do not violate ex post facto and Valenti, supra, 243 Cal.App.4th 1140, is not applicable.
Finally, during the sentencing hearing, the court heard oral argument from both counsel regarding whether consecutive or concurrent life terms should be imposed. The prosecution argued that imposition of consecutive indeterminate sentences was not mandatory but that the trial court should exercise its discretion. In imposing sentence, nothing indicates the trial court believed it had to impose consecutive life sentences. As such, we reject appellant's argument that the trial court did not understand its discretionary sentencing authority.
Based on this record, sentencing error did not occur under section 667.61. Accordingly, this claim fails.
DISPOSITION
The judgment is affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
POOCHIGIAN, J. /s/_________
PEÑA, J.