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People v. Wong

California Court of Appeals, Second District, Fifth Division
Feb 2, 2011
No. B224395 (Cal. Ct. App. Feb. 2, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA357908 George G. Lomeli, Judge.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Charles S. Lee, Deputy Attorney General, for Plaintiff and Respondent.


MOSK, J.

INTRODUCTION

Defendant and appellant Kenneth Kai Wong (defendant) was convicted of committing lewd acts upon a child (Pen. Code, § 288, subd. (a) ), and of committing continuous sexual abuse (§ 288.5, subd. (a)). The trial court sentenced defendant to 20 years in state prison. On appeal, defendant contends that the trial court erred in excluding testimony of the victim’s therapists and by excluding evidence showing that prior to the alleged abuse, the victim was in therapy and that one of the therapists prescribed Ritalin for the victim. The prosecution contends that the trial court erred in sentencing defendant. We asked the parties to brief other sentencing issues. We affirm the judgment, but reverse the sentence and remand for resentencing.

All statutory references are to the Penal Code unless otherwise stated.

BACKGROUND

A. Factual Background

Defendant was S.C.’s stepfather. S.C. lived with her grandmother and her uncle, until she was about eight and one-half years old. S.C.’s mother also lived with S.C.’s grandmother but moved out of the home to live with defendant when S.C. was less than two years old. When S.C. was about eight and one-half years old, one of her uncle’s hit her for yelling at her grandmother. S.C. began psychological therapy because of the incident and moved in with her mother, defendant, and S.C.’s younger half-sister.

Although S.C.’s grandmother testified that S.C. was eight and one-half years old, S.C. testified that she was ten or eleven years old when she stopped living with her grandmother. But, S.C. testified that she was in the third grade.

S.C. had her first menstrual period in the end of 2007, when she was 11 years old and in the sixth grade. The following month, S.C.’s period was late. Defendant told S.C. that girls should not have late periods, and that he needed to “check what was going on.” Defendant instructed S.C. to lie down and to take off her clothes, and defendant covered S.C.’s face with a shirt. S.C. felt defendant’s finger scrape inside her vagina. S.C. also felt something wet in her vagina and initially thought it was a towel. She felt the stubble of defendant’s mustache. S.C. felt something hard enter her vagina, which she later realized was defendant’s penis. Defendant was breathing hard. Ultimately, defendant’s breath slowed down, he told S.C. that he was almost done, and S.C. heard defendant buckle his belt. Defendant told S.C. not to tell anyone and he left the house. S.C. felt something sticky in her vagina. S.C. looked at her vagina and saw “white stuff” and that her skin was red.

S.C. testified that defendant sexually abused her five times when she was in the sixth grade, once or twice during the summer between sixth and seventh grade, and more than five times when she was in the seventh grade. Each time defendant placed his finger, tongue, and penis in her vagina, except that on one occasion defendant only entered S.C.’s vagina with his penis. The last time defendant sexually abused S.C. was in May of 2009.

The day after the last incident of sexual abuse, S.C. slapped one of her half-sisters, causing defendant to yell at S.C. S.C.’s mother took S.C. to stay with her grandmother for the rest of the weekend. S.C. told her grandmother of the abuse, and through a series of communications, S.C.’s relatives contacted a local church for assistance.

S.C.’s mother introduced evidence that S.C. had a temper, even as a young girl. S.C. often fought with one of S.C.’s half-sisters, and occasionally S.C. would yell, curse, and throw books and other objects at her half-sisters and at her mother. S.C. sometimes hit her step-sisters, and she “lashed out” at and hit her mother. Defendant’s sister testified that on one occasion S.C. and one of her half-sisters engaged in a fistfight, and that S.C. “threw a fit” when her mother tried to stop them from fighting. S.C. often yelled and cursed at defendant and told him that he was not her real father.

Dr. Jayme Jones, a clinical psychiatrist specializing in child psychology with an emphasis in trauma, testified, inter alia, about the reasons why children who have suffered sexual abuse may delay or later retract their disclosure of the abuse. Dr. Jones also testified that, as a result of the sexual abuse, some child victims are prone to depression or angry outbursts. On cross-examination, Dr. Jones stated that angry and violent outbursts prior to the sexual abuse, without more information, may or may not be consistent with a child being sexually abused.

B. Procedural Background

The District Attorney of Los Angeles County filed an information charging defendant with nine counts. Counts 1 through 4 and 6 through 9 charged that defendant with committing lewd acts upon a child in violation of section 288, subdivision (a). Count 5 charged defendant with continuous sexual abuse in violation of section 288.5, subdivision (a). Defendant pleaded not guilty to all counts.

At trial, defendant sought to introduce the testimony of two therapists S.C. saw prior to the charged abuse. The trial court ruled that information concerning the “parameters” of the therapy was privileged, and that the testimony of S.C.’s therapists was irrelevant.

During the prosecution’s closing argument, the trial court granted the prosecution’s motion to strike counts 4 and 9. Following trial, the jury convicted defendant on all of the remaining counts-counts 1 through 3 and counts 6 through 8. The trial court sentenced defendant to 20 years in state prison. The trial court selected count 5 as the base count, and imposed the upper term of 16 years. The trial court also imposed one-third of the middle term on counts 1 through 3, with the sentences to run concurrently with each other but consecutive to count 5. On counts 6 through 8, defendant was similarly sentenced to one-third of the middle term, with the sentences to run concurrently with each other but consecutive to count 5.

The trial court ordered defendant to pay a $30 court security assessment for each count. The trial court also ordered defendant to pay a $30 criminal conviction assessment, a $200 restitution fine, and a $300 sex offender fine. The court stayed a $200 parole revocation restitution fine. The trial court ordered defendant to register as a sex offender and to carry proof of the registration at all times. Defendant was credited with 482 days in custody consisting of 322 actual custody credits and 160 conduct credits.

DISCUSSION

A. Standard of Review

The principles we apply are well settled that, “all relevant evidence is admissible at trial and... the trial court ‘has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence.’ [Citations.]” (People v. Riggs (2008) 44 Cal.4th 248, 289.) “A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 ; People v. Ledesma (2006) 39 Cal.4th 641, 705.)

B. Evidence Of S.C.’s Pre-Sexual Abuse Psychological Therapy and Medical Treatment

1. Background

Defendant sought to introduce the testimony of S.C.’s therapists who treated S.C. prior to the alleged abuse. Defendant’s counsel told the trial court that he wanted to introduce testimony of S.C.’s therapists concerning “the parameters” of the therapy prior to the sexual abuse. Defendant’s counsel said he wanted to ask S.C.’s therapists to testify as to the circumstances under which they came in contact with S.C, but he admitted that the responsive information may be privileged. Defendant’s counsel told the trial court that he also wanted to introduce evidence through one of S.C.’s therapists that she prescribed Ritalin for S.C. and the reason it was prescribed. Defendant’s counsel argued that the evidence was relevant because S.C. “was sufficiently troubled that she was in counseling” and S.C. was “disturbed [and] in counseling, ” prior to the sexual abuse. The court excluded this evidence because the substance of S.C.’s psychological therapy and reasons for prescribing medication were confidential and it was irrelevant.

Dr. Jones, the prosecution’s psychiatric expert, testified that as a result of the sexual abuse some child victims are prone to depression or angry outbursts. Defendant contends on appeal that the testimony of S.C.’s therapists was relevant because it would have established that S.C. “was angry and agitated well before any purported acts of abuse....” According to defendant, S.C.’s therapy raised “issues relative to [S.C.’s] character....”

2. Privilege

Absent a waiver under Evidence Code section 912, and except as otherwise provided in Evidence Code sections 1016 through 1027, “the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the patient and psychotherapist....” (Evid. Code, § 1014.) “‘Confidential communication between patient and psychotherapist’ means information... transmitted between a patient and his psychotherapist in the course of that relationship and in confidence....” (Evid. Code, § 1012.) It is presumed that the subject communications were confidential. (Evid. Code, § 917, subd. (a).) The patient is the holder of the privilege. (Evid. Code, § 1013, In re Mark L. (2001) 94 Cal.App.4th 573, 582; In re Kristine W. (2001) 94 Cal.App.4th 521, 525-526.) The psychotherapist is affirmatively required to assert the privilege on the patient’s behalf if present when the communication is sought to be disclosed. (Evid. Code, § 1015; Roberts v. Superior Court (1973) 9 Cal.3d 330, 341.)

Evidence Code section 912 provides in part that, “(a) Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section... 1014 (psychotherapist-patient privilege)... is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege.”

Evidence Code section 1014 provides in part that, “Subject to Section 912 and except as otherwise provided in this article, the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by: [¶] (a) The holder of the privilege. [¶] (b) A person who is authorized to claim the privilege by the holder of the privilege. [¶] (c) The person who was the psychotherapist at the time of the confidential communication, but the person may not claim the privilege if there is no holder of the privilege in existence or if he or she is otherwise instructed by a person authorized to permit disclosure.”

Evidence Code section 1012 provides, “As used in this article, ‘confidential communication between patient and psychotherapist’ means information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses the information to no third persons other than those who are present to further the interest of the patient in the consultation, or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted, and includes a diagnosis made and the advice given by the psychotherapist in the course of that relationship.”

Evidence Code section 917, subdivision (a) provides in part that, “If a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the... psychotherapist-patient... relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential.”

Evidence Code section 1013, provides in part that, “As used in this article, ‘holder of the privilege’ means: [¶] (a) The patient when he has no guardian or conservator. [¶] (b) A guardian or conservator of the patient when the patient has a guardian or conservator. [¶] (c) The personal representative of the patient if the patient is dead.”

Defendant does not contend that the psychotherapist-patient privilege does not apply or that it has been waived. Thus, he tacitly concedes that he was precluded from calling the therapists to inquire about the substance of any communications between S.C. and those therapists, including the reason for and the nature of S.C.’s therapy, and the reason for the medication that was prescribed by one of her therapists, as such information was privileged under Evidence Code section 1014. Defendant, therefore, was unable to establish that the reason S.C. was in therapy or was prescribed Ritalin was because she was “angry and agitated.”

3. Relevance

“‘Relevant evidence’ means evidence, including evidence relevant to the creditability of a witness..., having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Because of the privileged nature of S.C.’s pre-abuse therapy, defendant could only have asked the therapist to confirm the fact that S.C. had been in therapy and had been prescribed medication. That evidence, by itself, is irrelevant. “It is a fact of modern life that many people experience emotional problems, undergo therapy, and take medications for their conditions. ‘A person’s credibility is not in question merely because he or she is receiving treatment for a mental health problem.’ [Citation.]” (People v. Anderson (2001) 25 Cal.4th 543, 579.) Indeed, the legislature has specifically prohibited trial courts from ordering “any prosecuting witness, complaining witness, or any other witness, or victim in any sexual assault prosecution to submit to a psychiatric or psychological examination for the purpose of assessing his or her credibility.” (Pen. Code, § 1112.) Thus, the trial court properly ruled that the non-privileged information to which the therapists could have testified was irrelevant.

4. Harmless Error

Even assuming the trial court erred in excluding the testimony of S.C.’s therapists, the erroneous exclusion of evidence is governed by the standard of prejudice set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. McAlpin (1991) 53 Cal.3d 1289, 1311 [erroneous exclusion of character evidence].) Under that standard, the erroneous exclusion of evidence is harmless unless it is reasonably probable that a result more favorable to defendant would have been reached had the evidence been admitted. (People v. Watson, supra, 46 Cal.2d at p. 836.)

Defendant sought to introduce testimony from S.C.’s therapists that she was in therapy and prescribed medication because she was angry. S.C., however, testified that she had been in therapy when she moved in to live with her mother. Defendant also introduced other evidence that S.C. had angry outbursts prior to the sexual abuse. Therefore, the testimony of S.C.’s therapists was unnecessary to establish the fact that she received prior therapy, and that she was “angry and agitated.” It is not reasonably probable that a result more favorable to defendant would have been reached had the evidence been admitted.

C. Sentencing

1. Imposition of Concurrent, One-Third Middle Term Sentences

The prosecution contends that the trial court erred in sentencing defendant. Defendant was sentenced to one-third of the middle term in counts 1 through 3, with the sentences to run concurrently with each other and consecutive to count 5. On counts 6 through 8, defendant was similarly sentenced to one-third of the middle term, with the sentences to run concurrently with each other and consecutive to count 5. The prosecution contends this was improper and requests that we remand the matter to the trial court to impose either a consecutive one-third of the middle term, or a concurrent full upper, middle or lower term on each of counts 1 through 3 and 6 through 8. Defendant offers no argument in opposition to the prosecution’s contention. “Because concurrent terms are not part of the principal and subordinate term computed under section 1170.1, subdivision (a), they are imposed at the full base term, not according to the one-third middle term formula....” (People v. Thompson (2009) 177 Cal.App.4th 1424, 1432.) We agree.

2. Other Sentencing Issues

We asked the parties to brief whether a Government Code section 70373(a)(1) assessment of $30 must be imposed on each of defendant’s convictions; whether the sex offender fine pursuant to section 290.3, subdivision (a) is subject to certain penalties and surcharges; and whether the maximum presentence conduct credit is limited to 15 percent of his actual time in custody. The parties briefed the issues and they agree that a Government Code section 70373, subdivision (a)(1) assessment of $30 must be imposed on each of defendant’s convictions (People v. Lopez (2010) 188 Cal.App.4th 474, 478-480), that defendant’s sex offender fine imposed pursuant to section 290.3, subdivision (a), in the sum of $300, should be supplemented by a $300 section 1464, subdivision (a)(1) penalty assessment, a $210 Government Code section 76000, subdivision (a)(1) penalty assessment, a $60 section 1465.7, subdivision (a) state surcharge, and a $150 Government Code section 70372, subdivision (a)(1) state court construction penalty (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249); and that the maximum presentence conduct credit is limited to 15 percent of defendant’s actual time in custody because he was convicted of violating section 288, subdivision (a). We agree with the parties. The judgment is modified consistent with this opinion. As to Penal Code section 290.3, the matter is remanded for the trial court to make a determination of the defendant’s ability to pay, taking into account the additional penalties and surcharges. If the trial court determines that the defendant has the ability to pay, it must assess the additional penalties and surcharges.

DISPOSITION

Defendant’s sentence is modified as follows: Government Code section 70373, subdivision (a)(1) assessment of $30 is imposed on each of defendant’s convictions and the maximum presentence conduct credit is limited to 15 percent of defendant’s actual time in custody. The matter is remanded for the trial court to make a determination of the defendant’s ability to pay the Penal Code section 290.3 fine taking into account the additional penalties and surcharges. If the trial court determines that the defendant has the ability to pay, it must assess the additional penalties and surcharges required by law. In all other respects, the judgment is affirmed.

We concur: TURNER, P.J., KRIEGLER, J.


Summaries of

People v. Wong

California Court of Appeals, Second District, Fifth Division
Feb 2, 2011
No. B224395 (Cal. Ct. App. Feb. 2, 2011)
Case details for

People v. Wong

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KENNETH KAI WONG, Defendant and…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Feb 2, 2011

Citations

No. B224395 (Cal. Ct. App. Feb. 2, 2011)