P. v. Hernandez
Filed 2/26/13 P. v. Hernandez CA2/6
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE
PEOPLE,
Plaintiff and Respondent,
v.
JOSE
FEDERICO HERNANDEZ,
Defendant and Appellant.
2d Crim. No. B238998
(Super. Ct.
No. GA082218)
(
Jose Federico Hernandez
appeals his conviction by jury for four counts of lewd conduct on a
(Pen. Code §288, subd. (a))
name="_ftnref1" title="">[1] with multiple victim enhancements (§667.61,
subds. (a), (d) & (e)) and three counts of lewd act on a 14 or 15 year-old
child 10 years younger than appellant (§ 288, subd. (c)(1)). The trial court sentenced appellant to 45
years to life state prison. Appellant
contends that he was denied a fair trial because defense counsel was not
permitted to cross-examine a victim about what she told her
(Evid. Code §§ 352, 1012, 1014.)
Facts and Procedural History
On January 10, 2011, the Pasadena Police
Department investigated a report that appellant had molested his stepdaughters,
M. and T. M. told the police that, in
2005 when she was 10 years old, appellant called her into his bedroom, sat her
on his lap, and put his hand down her pants.
Appellant inserted his finger into M.'s vagina and moved it around. Exposing himself, appellant grabbed M. and
tried to get her to touch his penis.
In 2006, appellant
dropped M.'s mother off at work, stopped the car, and tried to put his hand
down M.'s pants. Appellant asked if she
"wanted to touch his cock" and tried to get M. to touch his
penis. M. ran into the house crying and
asked her sisters what "cock" meant.
Sometime between 2007
and December 2010, M. told her mother about the
do anything because appellant had threatened to call immigration. In January 2001, mother told a school
counselor that M. had been molested.
T., an older sister, was
molested in 2000 at age 11. Appellant
drove T. home from her father's funeral, stopped the car, kissed her and put
his tongue inside her mouth.
After the
appellant pulled T.'s pajamas down and digitally penetrated her vagina, moving
his finger up and down. T. was too scared to scream and heeded appellant's
warning not to say anything. Appellant
continued to molest T. two or three times a week between the ages of 13 and 15.
T.'s and M's cousin, F.,
testified that appellant put his arm around her, touched her thigh, and tugged
on her underwear. F was 11 years
old. F. tried to get away but appellant
wrapped his arms around her, kissed her three or four times, and said
"You're so beautiful. I bet a lot
of boys like you." Appellant
pressed his erect penis against F.'s stomach and kissed her neck and lip. F. was hysterical, called her mother, and
reported the incident to the police on July
30, 2009.
Impeachment Evidence
Appellant contends that
the trial court erred in not permitting counsel to question M. about what was
said or not said in psychotherapy. On
was depressed after her father died. M.
replied, "Yeah, they sent me to a bunch of therapists because--"
The prosecution
requested a sidebar conference. Defense
therapist and, assuming M. told the therapist about the molestation, it had to
be reported under the Child Abuse and Neglect Reporting Act. (§ 11164 et seq.; see
Cal.3d 505, 512 [child abuse reporting obligation takes precedence over the
psychotherapist-patient privilege].)
Citing Evidence Code section 1012, the prosecution argued that
confidential communications between a patient and his/her psychotherapist are
privileged. Defense counsel argued that
M. waived the privilege "by telling people she's been seeing therapists."
The trial court ruled that M.'s communications
with her therapist were privileged and "under 352 . . . it's just too
speculative. " Appellant was
attempting to ask "about what was not said during that communication, and
that goes into what the nature of the communications were. And that just strikes me as trying to get
into what the -- what is otherwise a privileged communication."
Psychotherapist-Patient Privilege
In California,
the psychotherapist-patient privilege is broadly construed to bar the disclosure of confidential
communications between patient and psychotherapist. (People v. Stritzinger, supra, 34 Cal.3d at p. 511.) M.'s statement that, "Yeah, they sent me
to a bunch of therapists" did not waive the privilege. (Roberts v. Superior Court (1973) 9
Cal.3d 330, 340.)
Our Supreme Court has
" 'made it clear that the mere disclosure of the existence of the
psychotherapist-patient relationship does not reveal a significant part of the
communication and thus does not constitute a waiver.'" (Ibid.)
Even when a patient reveals the purpose of psychiatric treatment, no
waiver of the privilege occurs. (Ibid.) There is a "vast difference between
disclosure of a general description of the object of . . . psychotherapeutic
treatment, and the disclosure of all or a part of the patient's actual
communications during psychotherapy." (Ibid., fn.3; see e.g., San Diego Trolley, Inc. v. Superior
Court (2001) 87 Cal.App.4th 1083, 1092-1093.)
The defense theory was
that if M. did not tell her therapist about the molestation, the jury could
infer that no molestation occurred. The
trial court reasonably concluded that such an inquiry, "by definition,
goes into the nature of the communication. . . [Y]ou have to ask about what was
talked about to show that there was no discussion of molestation."
Although the prosecution
could not assert the privilege on behalf of the victim, the existence of the
privilege was properly brought to the trial court's attention. (See People v. Superior Court (Humberto
S.) (2008) 43 Cal.4th 737, 751-752.) Evidence Code section 916, subdivision
(a) provides that a trial court, on its
own motion or the motion of a party, "shall exclude information that is
subject to a claim of privilege under this division if: [¶] . . .
[¶] (2)
There is no party to the proceeding who is a person authorized to
claim the privilege." (Emphasis
added.)
Pursuant to Evidence
Code section 352 a trial court has broad discretion in determining whether the
probative value of specific evidence is outweighed by concerns regarding undue
prejudice, confusion, or consumption of time. (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1124.) No abuse
of discretion occurred here. The trial
court reasonably concluded that questions about what M. said or did not say in
psychotherapy would cause an undue consumption of time, create a substantial
danger of undue prejudice, and confuse or mislead the jury.
Sixth Amendment
Appellant's assertion
that his Sixth Amendment right to confront and cross-examine witnesses was
violated is without merit. The argument
"fails to account for the general rule that the application of the
ordinary rules of evidence under state law does not violate a criminal
defendant's federal constitutional right to present a defense. . . .
[Citation.]" (People v. Abilez (2007)
41 Cal.4th 472, 503; see Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [89 L.Ed.2d 674,
683]; People v. Cornwell (2005) 37 Cal.4th 50, 82.) Trial courts have wide latitude in
restricting cross-examination on " 'collateral credibility issues.' [Citation.]" (People v. Ayala (2000) 23 Cal.4th
225, 301.) A constitutional violation
occurs only if a reasonable jury might have received a significantly different
impression of the witness's credibility if the excluded cross-examination had
been permitted. (People v.
Quartermain (1997) 16 Cal.4th 600,
623-624.)
Assuming that the trial
court erred in limiting the cross-examination of M., the error was harmless
under any standard of review. (Chapman
v. California (1967)
386 U.S. 18, 24
[17 L.Ed.2d 705, 710]; People v. Watson (1956) 46 Cal.2d 818,.
836.) M.'s testimony was corroborated by
her sister (T.), her cousin (F.), other family members, and the police
investigation. The molestation of M. was
strikingly similar to the other molestations:
appellant targeted young girls (10 to 11 years old) in the family,
abused his trust and authority, and carried out the sexual assaults at home or
in his vehicle when the victim was left in his care. M. feared that appellant would turn the
family over to immigration if she said anything and feared that family members
would blame her for any punitive action if the matter was reported to the
police.
Appellant makes no
showing that a reasonable jury might have received a significantly different
impression of M.'s credibility had the trial court permitted counsel to
question M. about what was said or not said in psychotherapy. (People v. Quartermain, supra, 16 Cal.4th at p. 624.) "[T]he Confrontation Clause guarantees
an opportunity for effective cross-examination, not cross-examination
that is effective in whatever way, and to whatever extent, the defense may
wish. [Citation.]" (Delaware v. Fensterer (1985) 474 U.S. 15, 20
[88 L.Ed.2d 15, 20].)
The judgment is
affirmed.
NOT TO BE PUBLISHED.
YEGAN,
J.
We
concur:
GILBERT, P.J.
PERREN, J.
Darrell Mavis, Judge
Superior
Court County
of Ventura
______________________________
Vanessa
Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Kimberly J. Baker-Guillemet, Deputy Attorney General, for Plaintiff
and Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal Code
unless otherwise stated.
Eisen, a forensic psychologist, testified about Child Sexual Abuse
Accommodation Syndrome and why some child victims do not report a
molestation. The trial court instructed
that "Dr. Eisen's testimony about child sexual abuse accommodation
syndrome is not evidence that the defendant committed any of the crimes that
are charged against him. You may
consider this evidence only in deciding whether or not each of the victim's
conduct was not consistent with the conduct of someone who has been molested in
evaluating the believability of her testimony." (CALCRIM 1193.) On review, it is presumed that the jury
understood and followed the instruction.
(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 83.)
