Filed 11/21/17 P. v. Howell CA5







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT



THE PEOPLE,

Plaintiff and Respondent,

v.

ALLEN E. HOWELL,

Defendant and Appellant.

F073020

(Super. Ct. No. BF156292A)


OPINION

APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge.
John F. Schuck, 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, Catherine Tennant Nieto and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Allen E. Howell was charged under Penal Code sections 288a, 288 and 288.5 with three counts of child molestation involving the same victim. The jury convicted defendant of lewd and lascivious acts against a child under the age of 14 years (§ 288, subd. (a)) (count 2) and continuous sexual abuse of a child under the age of 14 years (§ 288.5, subd. (a)) (count 3). The jury was unable to reach a verdict on the charge of oral copulation of a child under the age of 14 years (§ 288a, subd. (c)(1)) (count 1) and that count was dismissed. The trial court sentenced defendant to the middle term of 12 years on count 3 and, relying on section 667.6, subdivision (c), the full middle term of six years on count 2, for a total determinate prison term of 18 years.
Defendant advances three claims on appeal. He argues the trial court erred in restricting his cross-examination of the victim regarding whether she informed her mental health counselor of any abuse. He also argues he is entitled to reversal of his conviction for lewd and lascivious acts (count 2) because dual convictions for both a discrete act of sexual abuse and continuous sexual abuse against the same victim during the same time period are precluded under section 288.5, subdivision (c). Finally, defendant seeks remand for resentencing because section 667.6, subdivision (c), does not apply and the trial court’s reliance on it in sentencing him to the full, consecutive middle term of six years on count 2 was error. The People concede the trial court erred in relying on section 667.6, subdivision (c), during sentencing, but they otherwise dispute his entitlement to relief.
We reject defendant’s claim the trial court abused its discretion in restricting his cross-examination of the victim and further conclude any error was harmless. However, pursuant to section 288.5, subdivision (c), defendant stands improperly convicted of both count 2 and count 3. We therefore reverse count 2 and remand this matter to the trial court for resentencing. This disposition renders moot defendant’s remaining claim that the trial court committed sentencing error as to count 2 and that claim is not further addressed.
FACTUAL SUMMARY
The victim, Valerie, is defendant’s granddaughter. Valerie was born in 1996 and, when she was eight years old, defendant and his domestic partner, Lora B., adopted Valerie and her brother. In May 2009, defendant and Lora split up. A custody battle over Valerie and her brother subsequently ensued, and, as discussed further, post, Valerie’s interests were represented by Dawn Bittleston, a court-appointed attorney. In August 2009, Valerie moved in with defendant, where she lived with her brother, defendant, his wife and his wife’s two children. In February 2014, Valerie moved in with Lora.
At the end of May 2014, Valerie, her mother and Lora were talking one night. Valerie’s mother, Heather, disclosed that when she was younger, she was raped at home by someone she “considered [her] cousin.” Valerie became quiet, drew her legs up, and began rocking and sobbing. She repeatedly said, “‘He told me not to tell.’” She then disclosed to Heather and Lora that defendant had molested her. Lora called the police.
At trial, Valerie testified that after she moved in with defendant in August 2009, he began conducting monthly “body checks” on her in his locked bedroom. Defendant would direct Valerie to disrobe entirely and lie on his bed. He then fondled her breasts, and visually inspected her vagina and anus, during which his fingers made contact with her vaginal and anal areas. Valerie testified the body checks started in 2009 when she was 12 or 13 years old and occurred until her junior year in high school, approximately. She did not tell anyone until 2014, when she disclosed the abuse to Heather and Lora.
During a pretextual phone call with Valerie that was played for the jury, defendant admitted conducting nude body checks, but said he conducted them because she was not cleaning herself properly and she had complained about bumps on her breasts and vaginal discharge. Defendant said he was wrong for conducting the body checks and apologized, but denied he molested her.
Pursuant to Evidence Code section 1108, the prosecutor also introduced evidence of prior uncharged sexual misconduct. Defendant’s sibling, V.B., testified that when she was around 11 years old and defendant was around 14 years old, he “constantly” asked her to allow him to orally copulate her and when she finally agreed, he did so for months. V.B. testified that the night Valerie disclosed her abuse to Heather and Lora, they then called V.B., who offered support to Valerie. Defendant’s former cousin-in-law, Alicia H., also testified that she and her family moved in with defendant when she was six or seven years old, and he thereafter masturbated in front of her on one occasion and orally copulated her on another. Alicia testified defendant threatened to harm her mother if she told and she did not disclose the abuse to anyone until she was 18 years old.
Defendant’s wife, Amber Howell, and his stepdaughter, Amy Dowda, testified on his behalf. Amber testified defendant and Valerie were very close, and defendant was alone with Valerie only two or three times between 2009 and 2014. Amy, who is a year younger than Valerie, testified that Valerie never disclosed any abuse to her even though they were very close during a one to two year period and they shared a bedroom. She described defendant as “[v]ery nice, loving, [and] supportive,” and she testified he never behaved inappropriately or made her uncomfortable. Amber and Amy both testified nothing seemed out of the ordinary between defendant and Valerie. Dr. Gary Longwith, a clinical psychologist, testified that based on his evaluation, defendant “tended to be truthful,” was at very low risk for sexual or violent behavior and there was no indication he had abnormal sexual interests or interests in children.
DISCUSSION
I. Restriction on Cross-examination of Valerie
A. Background
During the time period when the body checks were occurring, defendant and Lora were engaged in a custody dispute over Valerie and her brother, and Valerie had been seeing a counselor. Defendant sought to cross-examine Valerie about whether she ever revealed any allegations of abuse to her counselor. Based on psychotherapist-patient privilege, the trial court disallowed defendant from this line of questioning, but permitted him to question Valerie about whether she ever reported the abuse to her appointed counsel—Bittleston—during that time.
On appeal, defendant broadly asserts that the trial court’s restriction on his cross-examination of Valerie with respect to whether she revealed any abuse to her counselor violated his constitutional rights to a fair trial and to confront the witnesses against him.
B. Psychotherapist-patient Privilege
“The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment .…” (Strickland v. Washington (1984) 466 U.S. 668, 684-685.) Among the rights guaranteed by the Sixth Amendment is “the right of an accused in a criminal prosecution ‘to be confronted with witnesses against him.’” (Davis v. Alaska (1974) 415 U.S. 308, 315; accord, People v. Stritzinger (1983) 34 Cal.3d 505, 515 (Stritzinger).) “‘[A] primary interest secured by [the confrontation clause] is the right of cross-examination’” (Davis v. Alaska, supra, at p. 315), which “is the principal means by which the believability of a witness and the truth of his testimony are tested” (id. at p. 316). The right of confrontation is not absolute, however. (People v. Carpenter (1999) 21 Cal.4th 1016, 1051; Stritzinger, supra, at p. 515.)
“[T]he psychotherapist-patient privilege … is ‘an aspect of the patient’s constitutional right to privacy’ .…” (Sorenson v. Superior Court (2013) 219 Cal.App.4th 409, 445; Evid. Code, § 1014; see Stritzinger, supra, 34 Cal.3d at p. 511.) While this privilege is also not absolute and must yield to compelling state interests, it is “broadly construed in favor of the patient.” (Stritzinger, supra, at p. 511; accord, Sorenson v. Superior Court, supra, at p. 446.) Where, as here, “a defendant proposes to impeach a critical prosecution witness with questions that call for privileged information, the trial court may be called upon … to balance the defendant’s need for cross-examination and the state policies the privilege is intended to serve.” (People v. Hammon (1997) 15 Cal.4th 1117, 1127.)
We review defendant’s claim that the trial court improperly limited his cross-examination of Valerie for abuse of discretion. (People v. Peoples (2016) 62 Cal.4th 718, 765; People v. Linton (2013) 56 Cal.4th 1146, 1187–1188.) The trial court enjoys wide latitude in restricting cross-examination and its ruling will be upheld unless it “‘exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’” (People v. Ledesma (2006) 39 Cal.4th 641, 705.)
C. Analysis
1. No Error
Valerie’s confidential communications with her counselor are protected by the psychotherapist-patient privilege and that privilege is construed broadly in favor of Valerie, as set forth above. While the privilege is not absolute, as we have recognized, defendant fails to advance any specific argument demonstrating how the trial court’s straightforward application of the privilege was, under the circumstances of this case, an abuse of discretion. Notably, defendant does not identify in this appeal any specific considerations that weighed in favor of a finding the privilege must yield to his need for cross-examination. Rather, he relies on the broad argument that he has a constitutional right to due process and fair trial, and the court’s ruling prevented him from impeaching Valerie with the information that she did not reveal the abuse. Neither defendant’s broad constitutional argument nor his mere desire to impeach Valerie with the information suffices to support his claim that the trial court abused its discretion in this case.
“‘[U]nless the defendant can show that the prohibited cross-examination would have produced “a significantly different impression of [the witnesses’] credibility” [citation], the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]’” (People v. Linton, supra, 56 Cal.4th at p. 1188.) Here, Valerie testified that she did not tell anyone about the abuse until 2014, even though there were others she could have told, including Bittleston. Thus, this was not a circumstance where “‘[d]efendant was … denied the opportunity to place the witness in proper perspective.’” (People v. Redmond (1981) 29 Cal.3d 904, 913, disapproved on other grounds in People v. Cortez (2016) 63 Cal.4th 101, 117–121.)
2. No Prejudice
In any event, even if we were to assume an error of constitutional magnitude, as defendant argues, he suffered no prejudice. (People v. Jones (2017) 3 Cal.5th 583, 600.) Federal constitutional errors are evaluated under the standard articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman). “The beyond-a-reasonable-doubt standard of Chapman ‘requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ [Citation.] ‘To say that an error did not contribute to the ensuing verdict is … to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’ [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is ‘whether the … verdict actually rendered in this trial was surely unattributable to the error.’” (People v. Neal (2003) 31 Cal.4th 63, 86; accord, People v. Pearson (2013) 56 Cal.4th 393, 463.)
Defendant sought to impeach Valerie through this desired line of questioning. Counsel’s proposed line of cross-examination was very limited and was designed, he hoped, to elicit from Valerie an acknowledgement that she could have but did not inform her counselor of any abuse while it was allegedly occurring during the period of the custody dispute. However, this evidence would have been cumulative since the jury was already aware that Valerie did not tell anyone about the abuse until 2014, despite having opportunities to do so.
Notably, while the trial court precluded defendant from pursuing any cross-examination that involved Valerie’s communications with her counselor, the court permitted defendant to pursue that very line of questioning with respect to Valerie’s court-appointed counsel. To that end, defendant cross-examined Valerie regarding whether she told Bittleston. Valerie testified she and her brother met with Bittleston alone a few times, and Bittleston seemed nice and trustworthy to her. Valerie also testified the touching began prior to the time she met with Bittleston, but she nevertheless told Bittleston defendant was a good parent and she wanted to live with him rather than Lora. Valerie also agreed she could have told Bittleston about the touching but did not. As well, she testified she had her own cell phone at the time and could have called 911 but did not. Thus, while defendant was not able to pursue his desired line of questioning as it related to Valerie’s communication with her counselor, he was able to pursue it effectively as it related to her communication with her appointed counsel.
The evidence adduced at trial included the pretextual phone call during which defendant denied molesting Valerie but admitted to conducting the nude body checks, the prior uncharged sex offenses, Valerie’s unequivocal testimony that she did not report any abuse until 2014 and testimony regarding the circumstances under which Valerie told of the abuse for the first time. The pretextual phone call was particularly damaging and we observe that the jury deadlocked on the oral copulation count, which was based on conduct defendant denied during the call. However, defendant admitted the nude body checks occurred and agreed it was wrong, although he denied any improper motive. In light of the evidence, and given that the proposed cross-examination was limited in scope and the anticipated testimony would have been cumulative of other evidence before the jury, we conclude without any difficulty that “[a]ny erroneous restriction of cross-examination was harmless beyond a reasonable doubt.” (People v. Jones, supra, 3 Cal.5th at p. 601.)
II. Dual Convictions in Contravention of Section 288.5
A. Parties’ Positions
The abuse against Valerie underlying both count 2 and count 3 occurred during the same period of time and defendant argues that section 288.5, subdivision (c), prohibits him from standing convicted on both counts. Anticipating the People’s argument, defendant also contends his failure to demur to the information does not forfeit his challenge to the improper dual convictions.
The People do not dispute section 288.5, subdivision (c), required the prosecutor to charge the counts in the alternative since the conduct involved the same victim during the same time period. However, they assert defendant’s dual convictions do not violate the statute’s intent because during closing argument the prosecutor focused the jury’s attention on August 2009 as the time of the first body check, with the body checks giving rise to the continuous abuse charge occurring thereafter. Alternatively, as anticipated, they argue defendant forfeited his challenge to the dual convictions by failing to demur to the information. Should we reject these arguments, however, they agree with defendant that count 2 must be reversed.
B. Background
Section 288.5 provides:
“(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.
“(b) To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number.
“(c) No other act of substantial sexual conduct, as defined in subdivision (b) of Section 1203.066, with a child under 14 years of age at the time of the commission of the offenses, or lewd and lascivious acts, as defined in Section 288, involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative. A defendant may be charged with only one count under this section unless more than one victim is involved in which case a separate count may be charged for each victim.” (§ 288.5, italics added.)
In People v. Johnson (2002) 28 Cal.4th 240 (Johnson), the California Supreme Court addressed section 288.5 in circumstances analogous to those here: the defendant was charged with the continuous sexual abuse of a child under section 288.5 and with discrete acts of sexual abuse under other statutes. (Johnson, supra, at p. 243.) The prosecutor did not charge the offenses in the alternative and the time periods charged overlapped. (Ibid.)
The court explained that section 288.5 was enacted in 1989 to solve “a recurrent problem in the prosecution of so-called resident child molesters: Because of the age of the victim and the repeated and continual nature of the offenses, trial testimony often failed to identify with specificity the date or place of particular charged acts, and the defense’s ability to respond to specific charges arguably was impaired.” (Johnson, supra, 28 Cal.4th at p. 242.) Prior to the statute’s enactment, Courts of Appeal were reversing “convictions obtained through the use of such ‘generic’ testimony .…” (Ibid.) Following its enactment, “the trier of fact need unanimously agree only that the requisite number of specified sexual acts occurred, not which acts constituted the requisite number.” (Id. at p. 243.)
In Johnson, the Court of Appeal had reversed the defendant’s convictions on five of the six counts on the ground “that the plain language of section 288.5, subdivision (c) precluded convictions on both the continuous sexual abuse charge and the individual sexual offenses.” (Johnson, supra, 28 Cal.4th at p. 244.) In doing so, the Court of Appeal disagreed with People v. Valdez (1994) 23 Cal.App.4th 46 (Valdez), an earlier decision in which another Court of Appeal “held that the charge-in-the-alternative language of section 288.5, subdivision (c) precluded multiple punishment, but not multiple convictions .…” (Johnson, supra, at p. 244, citing Valdez, supra, at p. 48.)
The California Supreme Court disapproved the holding in Valdez. (Johnson, supra, 28 Cal.4th at p. 244.) It found the statutory language clear and unambiguous, and it recognized that “[p]rosecutors in sexual abuse cases possess a variety of means to seek convictions and severe punishments in cases involving sexual offenses against vulnerable young victims. They may, for example, plead and prove discrete sexual offenses and seek consecutive sentencing when permitted; they may bring a charge of continuous sexual abuse, with its relatively severe range of punishments (§ 288.5, subd. (a)); they may charge continuous sexual abuse and discrete sexual offenses outside the period of the alleged continuous abuse [citation]; in appropriate circumstances, they may plead and prove the allegations required by section 667.61, the ‘One Strike’ law; or they may charge discrete sexual offenses and continuous sexual abuse in the alternative. Because, however, section 288.5, subdivision (c) clearly mandates the charging of continuous sexual abuse and specific sexual offenses, pertaining to the same victim over the same period of time, only in the alternative, they may not obtain multiple convictions in the latter circumstance.” (Id. at p. 248.)
C. Forfeiture
Defendant did not demur to the information charging him with both a discrete act and continuous abuse during the same time period. Defendant argues People v. Goldman (2014) 225 Cal.App.4th 950, 954 (Goldman), in which the Court of Appeal held that the defendant’s failure to demur resulted in the forfeiture of his challenge to dual convictions for discrete acts and continuous abuse during an overlapping time period, was wrongly decided and is distinguishable. The People counter defendant’s failure to demur to a technical pleading deficiency forfeits his claim and Goldman was neither wrongly decided nor distinguishable. We are not persuaded defendant’s claim is grounded in a mere pleading deficiency and, therefore, we reject the People’s argument.
Relying on sections 1004 and 1012, which govern in relevant part legal bars to prosecution and waiver by failure to demur, the Goldman court concluded that “[b]ecause [section 288.5 contains] a legal bar to prosecution, a defendant must demur to preserve for appeal an objection to the improper charging.” (Goldman, supra, 225 Cal.App.4th at p. 956.) Goldman cited to People v. Alvarez (2002) 100 Cal.App.4th 1170, 1176–1177 (Alvarez) for this proposition. However, Alvarez did not hold that a defendant’s failure to demur at trial forfeits any challenge on appeal to convictions obtained in violation of section 288.5, subdivision (c). (Alvarez, supra, at pp. 1176–1177.) Rather, the defendant in Alvarez waived trial by jury and was convicted by the court. (Id. at pp. 1173–1174.) After trial but before the court rendered its decision, the court told the parties that if it found the defendant guilty of the continuous sexual abuse offense pursuant to section 288.5, it could not find him guilty of certain other discrete sexual abuse offenses. (Alvarez, supra, at p. 1174.) The prosecutor then moved to dismiss the continuous abuse charge and, over the defendant’s objection, the court granted the motion, dismissed the continue abuse charge and found defendant guilty of various discrete sexual abuse offenses. (Ibid.)
On appeal, the defendant challenged the trial court’s ruling and argued the court should have dismissed the discrete lewd conduct counts and convicted him on the continuous sexual abuse count. (Alvarez, supra, 100 Cal.App.4th at p. 1175.) The Court of Appeal addressed the California Supreme Court’s then-recent decision in Johnson and stated, “Unlike in Johnson, [the] appellant here was not subjected to multiple convictions since he was not convicted of both continuous sexual abuse and specific sexual offenses. The issue presented, which Johnson was not called upon to resolve, is whether Johnson’s prohibition against multiple convictions can be achieved by dismissing the continuous sexual abuse count, rather than the specific sexual offenses.” (Alvarez, supra, at p. 1176.) The court concluded that by failing to demur to the pleading, the defendant forfeited his claim on appeal “that the prosecution lost its right to proceed on all of the counts and to elect to seek conviction of the specific sexual offenses.” (Id. at p. 1177, fn. omitted.) Accordingly, to the extent Goldman stands for the broad proposition that the failure to object in the trial court forfeits a challenge on appeal to multiple convictions obtained in contravention of section 288.5, subdivision (c), as it appears, the court’s reliance on Alvarez for that proposition is misplaced.
“[N]either forfeiture nor application of the forfeiture rule is automatic.” (People v. McCullough (2013) 56 Cal.4th 589, 593.) The California Supreme Court has held that section 288.5, subdivision (c), prohibits prosecutors from obtaining multiple convictions for continuous sexual abuse and specific sexual offenses involving the same victim over the same period of time. (Johnson, supra, 28 Cal.4th at p. 248.) Moreover, “[a] sentence is said to be unauthorized if it cannot ‘lawfully be imposed under any circumstance in the particular case’ [citation], and therefore is reviewable ‘regardless of whether an objection or argument was raised in the trial and/or reviewing court.’” (In re Sheena K. (2007) 40 Cal.4th 875, 887; accord, People v. Shabtay (2006) 138 Cal.App.4th 1184, 1192 [“While a demurrer does lie to challenge an improper charging of more than one offense under section 954, the failure to demur does not justify a multiple conviction that is improper as a matter of law.”].) The crux of defendant’s challenge is that his dual convictions on counts 2 and 3 are unauthorized as a matter of law under section 288.5, subdivision (c). Under these circumstances, we conclude defendant did not forfeit this issue on appeal, which renders moot his derivative ineffective assistance of counsel claim.
D. Propriety of Dual Convictions
The parties agree the offenses underlying counts 2 and 3 were the body checks that occurred during the same time period. However, the People argue that “[d]espite the identical charging periods of the offense, the prosecutor made it clear during closing argument that count two was for the first body check, and count three was for the subsequent monthly body checks.” Thus, “even though the time periods alleged in the information were the same, [defendant’s] convictions in counts two and three do not violate the intent underlying the proscription against charging and convicting defendants of discrete lewd acts and continuous abuse within the same timeframe as the continuous abuse because the charges were for separate and distinct acts.”
We note the absence of citation to authority for this specific proposition but, in any event, we are bound by decisions of our high court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Following Johnson, it is clear prosecutors may not obtain multiple convictions under the circumstances of this case. (Johnson, supra, 28 Cal.4th at p. 248.) The prosecutor could have elected to charge defendant in count 2 based on a body check that occurred outside of the continuous abuse period charged in count 3. Having failed to do that and having failed to charge counts 2 and 3 in the alternative, the People’s position that defendant may nevertheless stand convicted on both counts 2 and 3 is untenable. (Ibid.)
Courts have held that where one of two convictions must be vacated for violating section 288.5, subdivision (c), defendant shall be left “standing convicted of the alternative offenses that are most commensurate with his culpability.” (People v. Torres (2002) 102 Cal.App.4th 1053, 1059; accord, People v. Bautista (2005) 129 Cal.App.4th 1431, 1437–1438.) In this case, the continuous sexual abuse of Valerie vis-à-vis the body checks charged in count 3 is “most commensurate with [defendant’s] culpability.” (People v. Torres, supra, at p. 1059.) Accordingly, count 2 shall be reversed and this matter remanded for resentencing on count 3.
DISPOSITION
Defendant’s conviction on count 2 for violation of Penal Code section 288, subdivision (a), is reversed. The judgment is otherwise affirmed and this matter is remanded for resentencing on count 3. After resentencing, the trial court shall prepare an amended abstract of judgment and forward it to the appropriate authorities.




MEEHAN, J.
WE CONCUR:



LEVY, Acting P.J.



DETJEN, J.