People v. Dancer

molestation. She said that during the summer, defendant told her to pull down her pants and she did. She said they touched each other’s private parts in the garage. She said he put his finger inside her body and it hurt.

At trial, Emily testified that she would play in defendant’s exercise room and with his equipment. One day, he pulled down his pants, opened his underwear, and exposed his penis to her. She touched and manipulated it. They engaged in the same activity a few days later. On another occasion, defendant asked her to suck his penis, but she declined because she “thought it tasted yucky or something.” Emily also said that on more than one occasion, defendant told her to pull down her pants, and he touched and penetrated her vagina. She said it hurt a little the first time and more the second time. Emily said this scared her.^[1] She said the molestation occurred between the summer and her entry into kindergarten. She did not report these incidents to her mother immediately because she was afraid she would get in trouble and would be punished for disobeying her mother.

The prosecutor also presented evidence concerning defendant’s 1982 conviction. Christine H. testified that in June 1982, defendant began living with her, her husband, and her two daughters, Serene aged two and Tuolumne aged thirteen months. During his three months there, defendant played with the girls and would babysit them.

One evening, Christine and her husband went out and left defendant to babysit. They returned early and found defendant on the mattress in their bedroom with Tuolumne. His pants were unzipped, his penis was exposed, and it seemed he was putting it in her mouth. Christine shouted at him and ran out. When she reentered to confront him, he was gathering his things and calmly told her he did not know what was happening but thought it better to leave.

Defendant contends he was denied his right to conflict-free counsel when the court permitted Deputy Public Defender Yolanda Trevino to continue representing him after she declared a conflict of interest. We disagree.

Here, although Trevino declared a conflict, she did not explain what it was. Nor did the court investigate on the record the basis for the declared conflict. Consequently, we are unable to determine its nature.^[2] Presumably, it concerned the fact that a public defender had represented defendant when he pleaded guilty in 1982. This fact alone does not necessarily create an actual conflict. (See People v. Daniels (1991) 52 Cal.3d 815 , 843 [ 277 Cal.Rptr. 122 , 802 P.2d 906 ].) Nevertheless, assuming a conflict, we agree with Trevino’s assessment, implicitly adopted by the court, that the conflict conceivably could have compromised her ability to challenge the validity of defendant’s prior conviction. Since such a challenge might implicate the performance of defendant’s former public defender, Trevino could experience conflicting loyalties, i.e., to her office and fellow public defenders and to defendant.

However, we also agree with Trevino’s view that the conflict was limited to the one issue and could not have interfered with any other decision reasonably necessary to provide constitutionally adequate representation. This is so because the only other issues related to defendant’s prior conviction involved the prosecutor’s use of the prior and underlying facts at trial. However, opposing such use in no way implicates the performance of former counsel and, therefore, could not pose a situation in which Trevino might feel divided loyalty.^[3] In fact, a ruling on the validity of the prior would eliminate Trevino’s professed conflict.

Defendant now argues that there is no such thing as a limited conflict. A conflict is a conflict, and once it was declared, it completely disqualified Trevino unless defendant waived it, which he did not do.

As outlined above, the touchstone for analyzing a conflict and a trial court’s response thereto is defendant’s right to effective, conflict-free representation. Obviously, some conflicts are so basic and implicate so many of the duties and decisions of defense counsel that they completely undermine counsel’s ability to provide effective representation. (See examples of conflicts noted in People v. Bonin, supra, 47 Cal.3d at pp. 835-836; In re Darr (1983) 143 Cal.App.3d 500 , 509 [ 191 Cal.Rptr. 882 ].) Under such circumstances, the only practical means to protect a defendant’s right, other than obtaining a waiver, is to provide for a new attorney.

However, we reject defendant’s rigid view that all conflicts are disabling and that the Constitution invariably requires a change of counsel whenever

any sort of conflict is declared. As illustrated by this case, there are conflicts whose potential impact is extremely focused and limited and there are alternative remedies short of replacing counsel that can fully protect a defendant’s constitutional right. In particular, where, as here, the conflict could only affect the counsel’s representation on a discrete, preliminary matter, we believe a court may, and here properly did, appoint separate counsel for the limited purpose of litigating it. As discussed above, this remedy fully guaranteed defendant’s right to conflict-free counsel; it not only prevented the conflict from having any effect, it eliminated the conflict altogether. Furthermore, it provided the added benefit of preserving the preexisting attorney-client relationship between Trevino and defendant, about which defendant had never expressed dissatisfaction or even concern. Although we are not aware of any authority that supports the remedy fashioned by the court below, we are also not aware of any authority prohibiting it.^[4]

In any event, defendant did not object to the procedure employed by the court for dealing with Trevino’s conflict. Thus, under both federal and state law, he must still show that it had a demonstrable and negative effect on his right to effective representation. (People v. Marshall, supra, 196 Cal.App.3d at pp. 1257-1258.) This he cannot do.

Defendant claims that because of the conflict, Trevino “ ‘pulled her punches’ ” in opposing the prosecutor’s motion to use the prior and underlying factual circumstances at trial. In particular, he notes that the People filed a 10-page written motion with 48 pages of exhibits in support of a motion to admit the facts of the prior offense. He points out, however, that “defense counsel offered no written response” and argues that she “was in a very poor position to even argue the factual basis for the prior conviction since her office had advised [defendant] to plead guilty, yet no factual basis for the plea was shown on the record.”

The record refutes defendant’s claim. (See, e.g., People v. Castillo (1991) 233 Cal.App.3d 36 , 62-63 [ 284 Cal.Rptr. 382 ].) The prosecutor’s moving papers were filed on the day his motion was to be heard.^[5] Thus, Trevino’s failure to file a written response fails to imply conflict-induced restraint. Moreover, at the hearing on the motion, Trevino thoroughly opposed the motion with vigor and intelligence. Moreover, at trial, Trevino carefully cross-examined Christine H. about the prior conviction and sought to distinguish it from the instant offenses. During closing argument, Trevino emphasized the distinction and argued that they did not reveal a common plan or scheme pursuant to which defendant committed the offense against Emily. Finally, on appeal, defendant does not suggest what more Trevino could or should have done to oppose the prosecutor’s motion and use of the evidence at trial.

The meaning of defendant’s comment that because of the conflict Trevino “was in a very poor position to even argue the factual basis for the prior conviction” is unclear. Moreover, we agree with the People that given the testimony concerning the prior offense and the undeniable fact that he suffered a prior conviction, it would have been unreasonable for Trevino to argue to the jury that defendant did not commit the offense to which he pleaded guilty. Instead, she “pursued the only tactically feasible goal, i.e., she sought to distinguish the 1982 facts from the 1993 facts . . . .” In our view, defendant leaps from Trevino’s declared conflict to a factually unsupported claim that he received less than effective representation.

Defendant contends the trial court erred in admitting the circumstances of his prior offense as evidence to show a common design or plan. He claims this incident was too dissimilar to the instant offense and too inflammatory to be admitted. We disagree.

Evidence of other, currently uncharged, offenses or misconduct is inadmissible to prove a criminal disposition. (Evid. Code, § 1101, subd. (a).) However, it is admissible if it has a tendency to prove, establish, among other things, identity or a common design or plan or intent. (Evid. Code, §1101, subd. (b).) Here, the main issue was whether the acts described by Emily occurred.

“ ‘The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done.’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380 , 393 [ 27 Cal.Rptr.2d 646 , 867

The jury learned that defendant had been convicted for the prior misconduct, eliminating any incentive to punish him for that conduct regardless of his guilt for the present offense. Evidence concerning the prior incident was not markedly more inflammatory than evidence of the current charge. Although the prior incident involved a toddler, Emily was also very young, his conduct with her was far more extensive, he digitally penetrated her, and he hurt her. Finally, although the remoteness of the prior incident from the current one, 11 years, tends to degrade its probative value, it does not, by itself, warrant or compel its exclusion.

On balance, we believe the trial court could reasonably conclude that the probative value of the prior incident outweighed any prejudicial effect. Thus, we do not find that the court abused its discretion in admitting the evidence.

V. Discovery of Psychological Records

Defendant contends the trial court erred in refusing to provide him with the psychological records of two therapists who saw Emily.^[6] We disagree.

The records sought were protected from discovery by the psychotherapist-patient privilege. (Evid. Code, § 1014.) This privilege, however, is not absolute and in appropriate cases must yield to a criminal defendant’s right to a fair trial. (People v. Boyette (1988) 201 Cal.App.3d 1527 , 1532 [ 247 Cal.Rptr. 795 ]; People v. Caplan (1987) 193 Cal.App.3d 543 , 555 [ 238 Cal.Rptr. 478 ].)

In People v. Reber (1986) 177 Cal.App.3d 523 [ 223 Cal.Rptr. 139 ], the court opined that in determining whether to release privileged psychiatric records, the trial court should (1) obtain the records and review them in camera; (2) weigh the constitutional right to cross examination against the statutory privilege; (3) determine which if any of the privileged material is essential to vindicate the defendant’s constitutional right; and (4) create an adequate record for review. (Id. at p. 532.)

However, to obtain a Reber review, a defendant must establish “good cause” for doing so, which in this context means the defendant must describe the records sought “with reasonable specificity” and provide a “plausible justification” for producing them. (Lemelle v. Superior Court (1978) 77 Cal.App.3d 148 , 162 [ 143 Cal.Rptr. 450 ].)

With these principles in mind, we turn to the facts of this case. On appeal, defendant explains that he sought the documents because “they might contain information relevant to Emily[’s] credibility as a witness, as well as shedding light on a ‘rage condition’ that Emily had apparently been suffering with for several months prior to accusing [defendant] of molestation.”^[7]

Putting the cart before the horse, the trial court reviewed the psychological records to determine whether defendant had made a sufficient “initial showing,” in effect rendering a showing of “good cause” unnecessary. The court then found that defendant failed to do so.^[8] The court further found that despite defendant’s failure to make an “initial showing,” the records contained nothing relevant or likely to lead to relevant evidence and, therefore, nothing to balance against the right to a fair trial and to confront the witnesses against him. Consequently, it denied the request for discovery.

The People claim the trial court correctly found that defendant’s “initial showing” of good cause was insufficient to warrant a Reber review. However, the propriety of this finding is essentially moot because the court did in fact review the records. Thus, we proceed to the ultimate issue of whether the trial court’s decision after review was proper.

The psychological records are before us, and both parties request that we review them. Defendant asks us only to determine whether their release is required now to help him better argue his claim on appeal. The People ask us to directly review the court’s ruling.

The People’s approach is more sensible and efficient. We are fully capable without further briefing of determining whether discovery should have been allowed. Having reviewed the psychological records, we concur with the trial court’s ultimate conclusion. They contain no information whose release was potentially essential to vindicate defendant’s right to a fair trial and to confront Emily. (People v. Reber, supra, 111 Cal.App.3d at p. 532.) Thus, we concur with the trial court’s implicit finding that defendant’s rights did not outweigh the victim’s right to privacy as reflected by the privilege protecting the confidentiality of her psychologists’ records.

Moreover, we can say with confidence that even if we assume, for purposes of argument, that the scales did tip in favor of defendant’s right to

discovery, the failure to release the records was harmless beyond a reasonable doubt because the records did not contain relevant and material information, that is, “information that probably would have changed the outcome . . . .” (Pennsylvania v. Ritchie (1987) 480 U.S. 39 , 58 [ 94 L.Ed.2d 40 , 58, 107 S.Ct. 989 ]; see People v. Boyette, supra, 201 Cal.App.3d at pp. 1538-1539.)

Defendant contends the trial court abused its discretion in selecting the aggravated term for one count and imposing consecutive sentences on three other counts. He claims the court based these sentencing choices on invalid reasons.

The court imposed the aggravated sentence because Emily was “particularly vulnerable" due to her young age. (See Cal. Rules of Court, rule 421(a)(3).) The court also cited the fact that “the manner in which the crime was carried out indicates some planning, sophistication or professionalism evidenced by its repetition.” (Cal. Rules of Court, rule 421(a)(8).) Finally, the court opined, “I am not convinced that these events all occurred on the same day and I think they occurred over a period of time which goes back to the violation of a position of trust that I was making [sic] earlier.”^[9] (See Cal. Rules of Court, rule 421(a)(11).)

Defendant challenges the validity of all of these reasons. He first claims “particular vulnerability" due to Emily’s age is not a proper reason because her age was an element of the offense.

Defendant did not object below to the trial court’s reliance on Emily’s “particular vulnerability." Thus, he waived any challenge to it on appeal. (People v. Scott (1994) 9 Cal.4th 331 , 348 [ 36 Cal.Rptr.2d 627 , 885 P.2d 1040 ] [“[D]efects in the trial court’s statement of reasons are waived unless challenged at the time of sentencing."].)^[10]

In any event, we would reject this claim. Defendant is correct that aggravating a sentence due to “particular vulnerability,” where vulnerability

that he, an elderly man, intentionally ingratiated himself to a very young child, who had no resident father, brother, or playmates. He played with her, gave her things to eat, let her use his exercise equipment, and fostered a relationship in which Emily trusted and had confidence in him, so much so that she would defy her mother’s warning not to go into defendant’s garage.

These circumstances support the trial court’s finding that defendant committed his offenses by exploiting the trust and confidence he had cultivated. (Cf. People v. Robinson (1992) 11 Cal.App.4th 609 , 615 [ 14 Cal.Rptr.2d 88 ].)

Finally, defendant challenges the court’s reliance on the manner and sophistication of the offense as “evidenced by its repetition.” He argues that if by repetition, the court was referring to his prior conviction, then the court improperly relied on his prior to enhance and aggravate the term for count one. (See Cal. Rules of Court, rule 420(c); People v. Bowen (1992) 11 Cal.App.4th 102 , 104-105 [ 14 Cal.Rptr.2d 40 ].) He further argues that the subsequent repetition of lewd acts does not render the first act worse.

Again, defendant failed to object to the aggravated term on this ground and therefore waived any error. (People v. Scott, supra, 9 Cal.4th at p. 348.)

In any event, defendant misses the point of the trial court’s reason: that the offense was planned and sophisticated, rather than a single spontaneous instance of aberrant behavior. As noted above, defendant cultivated a trusting relationship with Emily, played with her, got her used to playing in his garage, and then took advantage of her. Moreover, he did this on more than one occasion. Thus, the circumstances leading to the first offense plus its repetition thereafter indicate planning and sophistication, thereby making it worse than a sudden spontaneous act. (Cf. People v. Jones (1992) 10 Cal.App.4th 1566 , 1577 [ 14 Cal.Rptr.2d 9 ].)

In sum, the record fully supports all three of the trial court’s reasons for imposing the aggravated term. Moreover, as defendant acknowledges, a single appropriate factor is sufficient to support an aggravated term. (People v. Forster (1994) 29 Cal.App.4th 1746 , 1758-1759 [ 35 Cal.Rptr.2d 705 ].) Thus, errors, if any, by the court in articulating these reasons are harmless and a remand for resentencing would serve no purpose.^[11] (People v. Garcia, supra, 166 Cal.App.3d at p. 1070.)