People v. Castro, No. H011481

• Court: California Court of Appeals
• Writing for the Court: MIHARA; COTTLE, P.J., and WUNDERLICH
• Citation: 35 Cal.Rptr.2d 839,30 Cal.App.4th 390
• Parties: The PEOPLE, Plaintiff and Respondent, v. Daniel Richard CASTRO, Defendant and Appellant.
• Decision Date: 21 November 1994
• Docket Number: No. H011481

Page 839

35 Cal.Rptr.2d 839 30 Cal.App.4th 390 The PEOPLE, Plaintiff and Respondent,
v.
Daniel Richard CASTRO, Defendant and Appellant. No. H011481. Court of Appeal, Sixth District, California. Nov. 21, 1994.
Certified for Partial Publication ^*.
Review Denied Feb. 22, 1995.

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[30 Cal.App.4th 392] Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Mark S. Howell, Supervising Deputy Atty. Gen., Peggy S. Ruffra, Deputy Atty. Gen., for respondent.

J. Frank McCabe, Goorjian & McCabe, Under Appointment by Sixth District Appellate Program, for appellant.

MIHARA, Associate Justice.

Defendant was convicted of six counts of lewd conduct on a child (Pen.Code, § 288, subd. (a)), and an allegation that he had committed a prior serious felony (Pen.Code, § 667, subd. (a)) was found true. He was committed to state prison for 23 years. On appeal, he contends that (1) the trial court prejudicially erred in excluding testimony of a psychotherapist that the victim was lying, (2) the trial court prejudicially erred in admitting evidence of defendant's prior molestation of the same victim, (3) the [30 Cal.App.4th 393] prosecutor committed misconduct, (4) the trial court prejudicially erred in excluding evidence that the victim had also accused another man of molesting her, (5) the trial court prejudicially erred in admitting hearsay evidence, (6) the trial court's instruction to the jury defining the crime was prejudicially erroneous, (7) defendant's trial counsel was ineffective and (8) the trial court prejudicially erred in imposing an aggravated term. For the reasons expressed below, we affirm the judgment.

FACTS

Sarah S. lived with her sister Sylvia, her mother Corrine and defendant in a house in Sunnyvale. Corrine and defendant had originally planned to be married in July 1990. However, in April 1990, when Sarah was nine years old, defendant molested her. He was prosecuted, pleaded no contest, was convicted and granted probation. In May 1991, Corrine and defendant became engaged to be married in late July 1992. On a Friday night in early July 1992, Sarah told her best friend Nicole that defendant had "touched her in her 'private.' " Sarah was upset, crying and shaking. Defendant married Corrine on July 25, 1992. Around August 10, 1992, Sarah told Corrine that defendant "was doing that to me again." Sarah explained that defendant's lewd acts had occurred "about one to two weeks before the wedding."

There were five occasions of lewd conduct, one of which involved multiple charged offenses. One incident occurred after Sarah and Sylvia had played Monopoly with defendant. Defendant suggested the loser be on the bottom of a "dog pile." Since Sylvia was the loser, Sylvia was on bottom with Sarah lying on top of her and defendant on top of Sarah. Defendant pushed Sarah's shorts and underwear aside and "was rubbing his face on my behind." This lasted for ten to fifteen minutes before Sarah got defendant to stop by telling him that Sylvia could not breathe. A second incident occurred when Sarah, Sylvia and defendant were watching television. Sarah and defendant were lying on the couch covered by a blanket. Defendant moved Sarah's clothing aside and rubbed her behind, her vagina and her breasts. On a third occasion, Sarah and Sylvia were sleeping on the living room floor

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when defendant woke Sarah up and said "Come sleep by me." Then, defendant began rubbing Sarah's behind. On a fourth occasion, defendant approached Sarah when she was in the living room, knelt beside her, took her hand and placed it on his penis. He moved her hand up and down and moaned.

On a fifth occasion, Sarah was sleeping in her bedroom at night when she was awakened by defendant licking her vagina. Sarah pretended to be asleep. After awhile, defendant got up and went into the bathroom next to Sarah's [30 Cal.App.4th 394] bedroom. About ten to fifteen minutes later, defendant returned to Sarah's bedroom and began licking her vagina again. Sarah turned over to let defendant know that she was awake. He immediately got up and went back to the bathroom. After another ten to fifteen minutes, defendant returned and licked Sarah's vagina a third time. Defendant continued to leave and return until eventually Sarah got up, went into Sylvia's room and went to sleep on the floor.

On numerous other occasions, defendant exposed his penis to Sarah. Sarah did not tell her mother about these incidents because she was scared "that my mom would not believe me and get angry" and "[b]ecause my mom was really happy with him [defendant]." Sarah was also reluctant to reveal the molestations because, after she reported defendant's 1990 molestation of her, she and her sister were removed from her mother's custody. She did not want to be removed from her mother's custody again. Sarah understood that if she reported these molestations she would break up her family, and she did not want that to happen. However, Sarah told her friend Isaac about the molestations, and he convinced her that she had to tell her mother. Corrine did not believe Sarah's allegations. Sarah thereafter reported the molestations to their family therapist and to a social worker.

Defendant was charged by information with six counts of lewd conduct on a child (Pen.Code, § 288, subd. (a)), and it was further alleged that he had suffered a prior serious felony conviction (Pen.Code, §§ 667, 1192.7). Defendant was convicted and sentenced to state prison for a total term of 23 years. He filed a timely notice of appeal.

DISCUSSION

A. RESTRICTION ON THERAPIST'S TESTIMONY

Constance Chrysoglou is a licensed marriage and family therapist who was counseling Sarah, Corrine and defendant as their family therapist at the time of the offenses and their disclosure. The prosecution sought an in limine ruling excluding "all those statements by the counselor, any statements made or any opinion rendered by her as to the believability of a witness." Defendant's trial counsel argued that it was "premature to deal with these evidentiary points" in limine. After noting that the defense could use any inconsistent statements to Chrysoglou by Sarah to impeach Sarah's testimony, the trial court declined to rule further in limine. Defendant subsequently called Chrysoglou as a defense witness and attempted to qualify her as "an expert in the area of psychological diagnosis and counseling." The [30 Cal.App.4th 395] trial court refused to qualify her as an expert. ¹ The defense was thereafter precluded from eliciting from Chrysoglou her opinion about the truth of Sarah's claim that defendant had molested her. The defense was limited to asking Chrysoglou "about specific items that Sarah may have said that might be in conflict in any way with [her] testimony...."

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In an offer of proof outside the presence of the jury ², defense counsel asserted that Chrysoglou should be permitted to testify to "opinions which explain Sarah's allegations in a way to show that they are not based upon the truth." "[T]he victim is psychologically angry at her mother. And that that anger and that emotional state, in Ms. Chrysoglou's view, explains the allegations, that it relates to the victim's anger with her mother ... [p] ... And that all of these factors combine to produce ... a psychological recreation of the molest that comes from the psychological state of Sarah S[.], and not from a true state of affairs." "[The] allegations are the projection of Sarah's own severe emotional problems. [p] ... I want to put the information before the jury that Sarah's allegations are the projection of, or the result of Sarah's own severe emotional problems, according to Ms. Chrysoglou."

Defendant now claims that the trial court "misapplied the psychotherapist-patient privilege and erred in refusing to allow the defense to elicit this highly significant testimony from the family's therapist." He claims that he had a constitutional right to present this evidence which outweighed Sarah's right to privacy and hence overcame the psychotherapist-patient privilege. We disagree. The only potential basis for admission of any psychiatric evidence regarding Sarah was extremely tenuous. A rule applicable only to "cases involving sex violations" permits a trial court, in its discretion, to allow "the admission of psychiatric evidence as to the mental and emotional condition of a complaining witness for the purpose of impeaching her credibility...." (People v. Russel (1968) 69 Cal.2d 187, 193, [30 Cal.App.4th 396] 70 Cal.Rptr. 210, 443 P.2d 794; Ballard v. Superior Court (1966) 64 Cal.2d 159, 174-175, 49 Cal.Rptr. 302, 410 P.2d 838.) "[E]xpert opinion is admitted in this area in order to inform the jury of the effect of a certain medical condition upon the ability of the witness to tell the truth--not in order to decide for the jury whether the witness was or was not telling the truth on a particular occasion." (People v. Russel, supra, 69 Cal.2d at p. 196, 70 Cal.Rptr. 210, 443 P.2d 794, emphasis added.) "[T]he psychiatrist may not testify to the ultimate question of whether the witness is telling the truth on a particular occasion." (People v. Ainsworth (1988) 45 Cal.3d 984, 1012, 248 Cal.Rptr. 568, 755 P.2d 1017, emphasis added.)

While, under the rule expressed in Russel, the trial court could have, in its discretion, admitted evidence of Sarah's mental or emotional condition for the purpose of assessing her ability to tell the truth, the trial court was not authorized by this rule to admit Chrysoglou's proposed testimony that Sarah's specific claim that defendant had...