Filed 1/12/15 P. v. Snow CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                      (El Dorado)
                                                            ----



THE PEOPLE,                                                                                  C073467

                   Plaintiff and Respondent,                                   (Super. Ct. No. P09CRF0512)

         v.

BRUCE WILLIAM SNOW,

                   Defendant and Appellant.



         Defendant Bruce William Snow and his wife Kathy Snow became Jane Doe’s
foster parents when she was seven years old.1 The couple adopted Jane at the age of
nine. When Jane turned 11 years old, defendant began molesting her. After Jane
confided in a teacher, an investigation began, culminating in an information charging
defendant with continuous sexual abuse of a child. (Pen. Code, § 288.5.)2 A jury found




1The victim in this case is referred to as Jane Doe in the charging document and as
CW01 in the reporter’s transcript. We will refer to her herein as Jane Doe.
2   All further statutory references are to the Penal Code unless otherwise designated.

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defendant guilty, and the trial court sentenced him to 12 years in state prison. Defendant
appeals, contending (1) the court abused its discretion in denying his Marsden motion,
(2) we should independently review the dependency court records, (3) instructional error,
and (4) the court erred in ordering defendant to pay the cost of the probation officer’s
presentence report. We shall affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
       An information charged defendant with continuous sexual abuse of a child and
alleged that he engaged in three or more acts of substantial sexual conduct within the
meaning of section 1203.066, subdivision (b). The following evidence was introduced
during the jury trial.
Jane Doe’s Allegations
       When Jane Doe was seven she went to live with defendant and his wife Kathy
Snow as their foster child. Defendant and Kathy adopted Jane when she was nine. The
couple had adopted another daughter, CW02, who was two and a half years younger than
Jane, and they had two biological sons, CW03 and CW04, who were older than Jane.3
The jury heard a stipulation that one of defendant’s biological sons had raped Jane on
numerous occasions.
       One evening when Jane was 11 years old, Kathy and her two sons went to a
concert, leaving Jane and her sister at home with defendant. Afraid to sleep in her own
room, Jane slept in the living room with CW02. Defendant set up an air mattress for
Jane. After Jane lay down on the air mattress, defendant lay on top of her. He told Jane
he would get off of her when she stopped struggling. When CW02 came into the room,
Jane stopped struggling and defendant got up.




3The reporter’s transcript refers to Jane’s sister and two brothers as CW02, CW03, and
CW04, respectively, and we will do the same.

                                             2
       Also when Jane was 11, defendant began forcing her to sit on his lap. Jane
initially testified that she willingly sat on his lap, but later she testified that she only sat
on his lap when she knew he would not let her go. When she sat on defendant’s lap, she
could feel his penis pressing against her.
       During one incident, Jane came inside after an argument with Kathy. Defendant
pulled her onto his lap and massaged her back. Jane felt his erect penis move up and
down against her rear end. She tried to get up, but defendant pulled her back down onto
his lap.
       On another occasion, Jane got up off defendant’s lap and noticed he had a wet spot
on the crotch of his pants. Jane also testified as to an incident during which she and
CW02 were having a pillow fight. Defendant had Jane sit on his lap, facing him. Jane
fell backwards as she struggled to get off. On direct examination, Jane testified
defendant had her sit on his lap seven times. During cross-examination, Jane testified it
was about 30 times. When asked about the discrepancy, Jane explained she was scared.
       Jane also testified that on other occasions defendant would back her against a wall
and then press his body against hers. During these incidents, Jane could feel defendant’s
penis pressed against her stomach. This occurred four times. Jane later testified it
happened 25 times. When asked about the discrepancy, Jane again stated she was afraid.
       Jane testified that on one occasion, Jane, CW02, and CW03 got into an argument
over the television. Defendant told Jane to go to her room, pushed her into the bedroom,
and she fell. He lay on top of Jane when she tried to get up. She bit defendant and he hit
her in the face.
       Jane also recounted an incident in which, while she was lying on the floor,
defendant started poking her with a broomstick. Defendant poked Jane in the stomach,
grinned, and then touched her vagina with the broomstick.




                                                3
Subsequent Investigation
       After Jane told her teacher, Gail Buhlert, about defendant’s actions, Buhlert
contacted Kathy. Buhlert told Kathy she would report defendant’s conduct if Kathy did
not. Kathy contacted law enforcement. However, twice Kathy told Jane to “tell some
stuff but not everything.”
       Jane participated in an interview at the multidisciplinary interview center, and the
jury heard a recording of the proceeding. During the interview, Jane discussed the
incidents she testified to at trial. She estimated she sat on defendant’s lap when he had an
erect penis about 30 times, and he pressed her against the wall around 25 times.
Defendant’s penis was erect about 10 out of the 25 times.
       During the interview, Jane stated she did not tell Kathy about the incidents
because she “thought it was [her] fault and [she] thought it was normal.” When Kathy
asked her if defendant had done anything to her, Jane told her “part of it.” Jane asked
CW02 if defendant had done anything to her and CW02 answered no.
       One of defendant’s neighbors, Linda Lange, testified that in October or November
of 2009 defendant told her he had touched Jane “inappropriately.” Defendant also told
Lange what he had done was not right. When Lange asked him about the incident,
defendant said “he had not done the deed.”
       Detective Kenneth Barber contacted Kathy concerning Jane’s allegations. In
November 2009 Barber asked Kathy to place a pretext phone call to defendant. The jury
heard the subsequent phone call.
       During his conversation with Kathy, defendant stated his relationship with Jane
“wasn’t the healthiest thing.” Defendant told his wife, “My heart was not in a great
place. But I didn’t pursue some kind of sexual relationship with her ever.” According to
defendant, he sat on Jane’s lap three or four times to try to get her to leave him alone;
Jane sat on his knees but did not sit on his lap. Defendant admitted getting an erection
one time when Jane sat on his knees.

                                              4
       Defendant also admitted he had “lustful” thoughts about Jane but said he had
rejected those thoughts. He denied he ever had a “wet spot” on his pants after Jane sat in
his lap. Nor did he ever press Jane against a wall. Defendant told Kathy he was not
trying to “put this on” Jane, but Jane “has a seductive side to her.”
       A few weeks later, Detective Barber spoke with defendant over the telephone; the
recording was played for the jury. Defendant again stated he sat on Jane’s lap; she did
not sit on his lap. However, defendant stated that on one occasion Jane did sit on his lap,
and he had an erection. Defendant denied ever touching Jane inappropriately. When
Barber asked defendant why he would get an erection with a 13-year-old girl on his lap,
defendant explained he was easily stimulated.
       Although defendant admitted having sexual thoughts about Jane, he rejected those
thoughts. According to defendant, Jane asked him to put lotion on her back, and he
initially refused to do so before he “succumbed to her request.” Defendant told Barber he
had always had a problem with “lustful temptation,” but he rejected it. Defendant stated,
“maybe it’s happened and I pushed it out [of] my memory,” but he did not remember
pressing his body against Jane. He denied ejaculating when Jane sat on his lap.
Defense
       CW02’s Testimony
       CW02 began living with defendant and Kathy at the age of two; she was 14 years
old at the time of trial. CW02 recalled a time when Kathy and her two sons went to a
concert. CW02 believed they were gone for a month. She did not remember defendant
holding Jane down on a mattress. Instead, CW02 testified, Jane sat on defendant’s lap for
a good night hug.
       The only time CW02 observed defendant restraining Jane was when she “went
crazy.” CW02 never saw anything take place between Jane and defendant that made
CW02 uncomfortable. CW02 left defendant’s household when she was 11; she did not
want to remember her time with defendant and his family.

                                              5
       Defendant’s Testimony
       Defendant testified on his own behalf. Defendant remembered Kathy taking their
sons to a concert for two days. That night, Jane set up a mattress in the living room. He
did not hold Jane down on the mattress. He was only joking when he said that he would
sleep on the mattress with Jane. Jane did not sit on his lap facing him.
       Defendant testified that although Jane would sit on his knee, he never had her sit
in his lap for sexual purposes. Defendant also testified about an incident when Jane
became angry with him, screamed at him, and hit him.
       Defendant denied poking Jane in her vagina with a broomstick. Instead, defendant
testified he “whacked her in the leg” with the broomstick. Although defendant might
have pushed Jane against the wall one time to discipline her, he did not have an erection
at the time. He had a vague memory of getting an erection when Jane sat on his knee.
       Defendant admitted having “lustful thoughts” for Jane, beginning when she was
11 years old. Defendant found these thoughts “abhorrent” and cast them from his mind.
He also testified that at times he believed Jane was trying to seduce him.
Fontana Interview
       In October 2009 Deputy R. Fontana responded to a dispatch call and spoke with
Jane and Kathy. Fontana’s interview with Jane was played for the jury. Jane recounted
the incident with the mattress in the living room. She stated she lay down on the
mattress, and defendant sat on her stomach and told her he was going to sleep on the
mattress with her. Jane tried to get defendant off of her, but he held her down. Jane told
Fontana that defendant would press her back against a wall and press his body against
her. At the beginning, defendant pressed her against the wall about once a month, but
then he increased it to once a week.
       Jane also told Fontana that defendant forced her to sit on his lap. She could feel
defendant’s penis against her rear end. Once, defendant had a wet spot on his sweatpants
when Jane got up from his lap. Jane also recalled the incident in which she and CW02

                                             6
had a pillow fight. Defendant made Jane sit on his lap facing him. He did not have an
erection during this incident. In addition, Jane described the incident in which defendant
pushed her into the bedroom. He tackled her because she was trying to hit him. Jane bit
defendant and he hit her in the face.
Kathy Snow’s Testimony
        In October 2009 Kathy called the sheriff’s department. She never saw defendant
do anything inappropriate with Jane. Kathy called the authorities because Jane told her
what defendant had done, not because Gail Buhlert threatened to do so first. Nor did
Kathy pressure Jane to change her story. Kathy did not believe she could trust Jane “all
the time.”
Rebuttal
        Gail Buhlert, one of Jane’s elementary school teachers, testified. Jane called
Buhlert at home and told her she was scared. The impression Buhlert got from the phone
conversation was that defendant was having sex with Jane. Buhlert called Kathy, who
said she would report the abuse within 24 hours.
                                        DISCUSSION
                         Denial of Defendant’s Marsden Motion
        Defendant argues the trial court abused its discretion in denying his Marsden
motion.4 According to defendant, the relationship between him and defense counsel had
totally broken down to the point that his right to a fair trial was violated.
        Clearly, defendant and his counsel did not form a close bond over the course of
counsel’s representation; they did not end the experience as best friends, or friends at all.
However, mutual admiration is not an essential element of an acceptable attorney-client
relationship. The point of Marsden and its progeny is that a defendant is entitled to




4   People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

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adequate representation. If the defendant and the attorney have become embroiled in
such an irreconcilable conflict that ineffective representation is likely to result, then
substitute counsel must be appointed. (People v. Clark (2011) 52 Cal.4th 856, 912
(Clark).) Here, despite counsel’s scathing assessment of his client’s character and
conduct, in the trial court’s estimation the attorney provided excellent representation to
defendant. Whatever the disagreements between them, no matter how profound, they did
not compromise the attorney’s professionalism or defendant’s right to assistance of
counsel.
Background
       Defendant filed a written Marsden motion, consisting of a preprinted form on
which he checked off several boxes indicating why he believed trial counsel had provided
inadequate representation. Defendant hand wrote the following: “In 3 years counsel has
visited me 2 [times] in jail; once to give me discovery; the 2nd time to discuss the deal
offered by the D.A. Counsel has not discussed his plan for my defense or inquired of my
imput [sic] for my defense. Counsel was told to order a motion to [Sacramento County]
for records & failed to do so. Counsel has stated he wants to put off my trial until next
June; this is what he has done in the past.”
       The trial court held a closed Marsden hearing in November 2012. The court asked
defense counsel if he would be ready for trial on January 22, 2013. Defense counsel
responded that he needed more time to investigate defendant’s case and that he was also
representing another defendant in a special circumstance murder case set for March 5,
2013. Defense counsel told the court, “I would prioritize the special circumstance case
over Mr. Snow’s case. Let there be no bones about it, and I would prefer to spend my
time working on that case.”
       The trial court then told defendant: “I would tell you this, Mr. Snow: I’m familiar
with [defense counsel]. I know that he is a competent lawyer. I know that he will do
what he needs to do in order to prepare your case for trial.

                                               8
       “I note that your concerns, as identified here, that he hasn’t conferred with you
regarding preparation of the Defense -- [defense counsel], how many times have you met
with [defendant]?” Defense counsel responded, “I don’t know for sure. I know he says
two. I know it’s been more than two, but it’s probably no more than five.” The court
asked when defense counsel had last met with defendant. Defense counsel stated, “Oh,
heavens. I would say four to six months ago. And the reason why I met with him then
was to convey with him what I thought was an extremely reasonable offer of credit for
time served.”
       Defense counsel indicated he understood defendant’s defense was that Jane was
crazy. He spent about 30 hours working on a portion of defendant’s defense. Jail visits,
defense counsel asserted, were of little use. In addition, defense counsel pointed out that
defendant owned a home and had been able to hire a private attorney to represent his
wife. Based on this, defense counsel did not believe defendant was eligible to receive
free legal services. Defense counsel told the court: “So I’m stuck here on a flat conflict
rate. I have done more work than most privately retained attorneys do. Most privately
retained attorneys would charge [$]30,000.”
       Defense counsel outlined the problems he had with defendant: “I’m glad that
[defendant] brought this motion, because I was thinking of bringing my own motion,
because I find it very difficult to represent him because I think he cheats. I think he’s a
chiseler in terms of money. I think he’s abusing the system.
       “I’ve done the work I have to do to be confident. I think it would be in his best
interests to get another attorney. I believe there’s an irreparable breakdown in our
relationship. I have no desire to go out to the jail to see him. He’s going to tell me the
same old stuff he’s already told me in his letters and in our previous visits. That’s where
I’m coming from.




                                              9
       “I will tell you this: In addition, I have obtained investigative services on three
separate occasions, only one of particular merit. We went out to investigate some of the
allegations set forth in some [of defendant’s] letters. They came back empty.
       “I mean, there’s only so much -- I understand that you’re entitled to effective
assistance of counsel but, on the other hand, you can’t abuse the system. . . . I mean, you
just can’t abuse the system. You can only get so much for nothing, Judge. That’s where
we are. And if the Appellate Court has a problem with me, they have a problem for [sic]
me.
       “But I will say for the record that I have thoroughly investigated this case. I know
where he’s at. I think his decision not to enter the plea bargain is ill-advised, and I’m
being polite. I think it’s best he get another lawyer.”
       In response, defendant said he did not believe defense counsel was providing
adequate representation because of a lack of communication and defense counsel’s
failure to conduct an adequate investigation. He complained that he and defense counsel
had never had an extensive discussion about his case, and he felt defense counsel was
making his other cases a priority over defendant’s.
       The trial court expressed frustration over the lengthy delays and requested that
defense counsel make defendant’s case a priority. The court also suggested that defense
counsel meet with defendant as defendant requested. Defense counsel responded:
“Judge, any meeting with him is not going to be productive. I’m going to tell that right --
Judge, I’m sorry. I have formed an opinion about this man that -- I don’t want to hear
from him. I don’t want to talk to him. I don’t want to speak to him.”
       Defendant announced he needed to “fire” defense counsel. The trial court
responded that it was not going to replace defense counsel and ordered counsel to meet
with defendant. This colloquy followed:
       “[Defense Counsel]: Judge, here’s the problem: I’m a pretty easygoing guy, and
you know that. You’ve seen me practice law for 30 years. We’ve practiced law together.

                                             10
And there’s some -- [defendant] is correct. If I go see him, all I’m going to do is yell at
him. I’m telling you that. I’m just going to yell at him. And if you want me to do that,
that’s fine. I will do that.
       “The Court: [Defense counsel], I don’t expect you to yell at him. I expect you to
go over there and to proceed in a professional manner to do what is necessary and to
abide by your professional responsibilities --
       “[Defense Counsel]: I understand.
       “The Court: -- no matter what you think of [defendant].
       “[Defense Counsel]: Judge, you know than I’m a professional. I behave
professionally. I’ve represented other people that I can’t stand, but I’m telling you he’s at
the apex of the list.
       “The Court: Okay.
       “[Defense Counsel]: That’s all I’m saying.
       “The Court: I expect you to do what your professional duties require you to do,
[defense counsel].
       “[Defense Counsel]: Yes, sir.”
Discussion
       Defendant labels the trial court’s denial of his Marsden motion an abuse of
discretion. According to defendant, he and defense counsel had become embroiled in an
irreconcilable conflict requiring substitute counsel.
       If a defendant requests substitute counsel, the trial court is obligated to give the
defendant an opportunity to state any grounds for dissatisfaction with current appointed
counsel. In turn, if the defendant establishes that his or her right to counsel has been
“substantially impaired,” substitute counsel must be appointed. (People v. Sanchez
(2011) 53 Cal.4th 80, 90.) Substantial impairment can be established in two ways: when
the attorney is providing constitutionally substandard representation, or when the



                                              11
defendant and defense counsel have become embroiled in such an irreconcilable conflict
that ineffective representation is likely to result. (Clark, supra, 52 Cal.4th at p. 912.)
       Appointment of new counsel is appropriate in the face of an irreconcilable conflict
between a defendant and defense counsel because such conflict is fatal to an effective
attorney-client relationship. (People v. Ortiz (1990) 51 Cal.3d 975, 984.) In determining
whether such a destructive conflict exists, we consider the degree of hostility and the
impact such hostility has on communication between the defendant and defense counsel.
(Hudson v. Rushen (9th Cir. 1982) 686 F.2d 826, 832; People v. Daniels (1991)
52 Cal.3d 815, 843.)
       We review the denial of defendant’s Marsden motion for an abuse of discretion.
We do not reverse unless the defendant has shown the trial court’s failure to replace
counsel substantially impaired the defendant’s right to assistance of counsel. (People v.
Taylor (2010) 48 Cal.4th 574, 599.)
       Defendant argues just such an abuse of discretion occurred in his case. Defendant
states: “By [defense] counsel’s own admission, his relationship with [defendant] had
become irreparably broken. He personally disliked, if not hated, [defendant] and it
impacted his professional relationship with [defendant]. Counsel admitted that he would
not be able to meet with [defendant] and have a rational discussion about the case.
According to counsel, any attempt at a productive meeting would devolve into a session
of yelling at [defendant].”
       We acknowledge the testimony by both defense counsel and defendant at the
Marsden hearing reflected a schism between the two. Defense counsel found defendant
difficult to represent and described him as a chiseler who abused the system. Counsel
also stated, “I believe there’s an irreparable breakdown in our relationship” and expressed
no desire to visit him in jail. If defense counsel did meet with defendant, “all I’m going
to do is yell at him.” Finally, defense counsel put defendant at the apex of the list of
people he had represented whom he could not stand.

                                              12
       We find these comments problematic and indicative of defense counsel’s
frustration with his client. However, defense counsel also testified he had met with
defendant, obtained investigative services, and “thoroughly investigated this case.”
Defense counsel also assured the court he would do what his professional duties required.
       The People argue such animosity does not require substitution of counsel, citing
People v. Smith (1993) 6 Cal.4th 684 (Smith). In Smith, the defendant sought to
withdraw a guilty plea, arguing defense counsel performed ineffectively. At a Marsden
hearing defense counsel admitted arguing with the defendant, becoming “ ‘a little
irritated’ ” with him, and using foul language when he became “ ‘fed up’ ” with the
defendant’s accusations of inadequate representation. (Id. at p. 688.) The Supreme Court
upheld the trial court’s denial of the defendant’s Marsden motion. The court concluded:
“Although clearly some heated words were spoken between client and attorney during the
events preceding the guilty plea, that alone does not require a substitution of counsel
absent an irreconcilable conflict.” (Id. at p. 696.)
       Defendant argues his situation differs from that in Smith, since in his case an
irreconcilable conflict did exist. However, defendant’s argument rests on the words
spoken during the Marsden hearing by defense counsel, words the trial court heard and
evaluated. We have access only to the printed transcript and cannot truly assess the
impact of defense counsel’s statements. In assessing the trial court’s decision, we apply
the deferential abuse of discretion standard. (People v. Jones (2003) 29 Cal.4th 1229,
1245 (Jones).)
       We reiterate that, despite defense counsel’s dislike of defendant, defense counsel
stated he had reviewed the discovery in defendant’s case, read the letters defendant had
written him, and spent hours litigating defendant’s defense. He assured the court he had
thoroughly investigated the case and would perform the professional duties required of
him.



                                              13
       Defendant was given an adequate opportunity prior to the court’s ruling on his
motion to explain his dissatisfaction with trial counsel. To the extent there was a
credibility question between counsel and defendant at the hearing, the trial court was
entitled to accept counsel’s testimony. (Jones, supra, 29 Cal.4th at pp. 1245-1246.) In
Jones, the defendant stated the grounds for requesting substitute counsel: (1) the
defendant and counsel were not “ ‘getting along’ ”; (2) counsel did not visit the defendant
prior to an earlier hearing; (3) counsel did not do everything on the “ ‘long list’ ” of tasks
the defendant assigned him; and (4) counsel believed the defendant guilty, as evidenced
by his discussion of a possible plea bargain. Counsel addressed each of the defendant’s
complaints: (1) although the defendant and counsel had disagreements, counsel saw
“ ‘no reason’ ” why he could not continue to represent the defendant; (2) counsel visited
the defendant on numerous occasions; (3) counsel provided lengthy and detailed
investigation requests; and (4) counsel discussed possible sentences at the defendant’s
request. (Id. at p. 1245.)
       The Supreme Court found no abuse of discretion in the trial court’s denial of the
defendant’s motion, noting: “If a defendant’s claimed lack of trust in, or inability to get
along with, an appointed attorney were sufficient to compel appointment of substitute
counsel, defendants effectively would have a veto power over any appointment, and by a
process of elimination could obtain appointment of their preferred attorneys, which is
certainly not the law.” (Jones, supra, 29 Cal.4th at p. 1246.) Similarly, we find no abuse
of discretion of the trial court’s denial of defendant’s Marsden motion. The trial court
allowed defendant to present his arguments in favor of the motion, heard defense
counsel’s responses, and ultimately found defense counsel able to continue representing
defendant. We defer to the trial court’s analysis of the testimony before it.




                                              14
                         Review of Dependency Court Records
       Defendant requests that we review Jane’s dependency court records to determine
whether the trial court properly ruled on his petition to discover certain records. We find
no error.
Background
       Prior to trial, defendant requested access to Jane’s dependency court records. In
his in limine motion, defendant stated that Jane and CW02 were placed together in foster
care. Jane accused the son of her foster parent of sexual battery. The son denied the
accusation and Jane was placed in another foster home. The foster mother adopted
CW02. The court held a hearing on the request.
       At the hearing, defense counsel stated that Jane had accused her foster parent’s
son, A.D., of grabbing her vaginal area. Welfare and Institutions Code section 827
makes such information confidential; defendant sought an order for formal access to
A.D.’s name and the right to interview him.
       A.D.’s court appointed attorney explained that A.D. did not deny the incident.
A.D. was eight at the time and it was a “misunderstanding.” A.D.’s attorney explained:
“I think what happened happened, but to this boy who’s -- I don’t know. . . . And I don’t
think there’s any dispute that the events that [Jane] claimed happened happened. I think
there was just a very different view on it based on . . . who was there and the age.” The
trial court agreed to review the relevant confidential records and determine whether they
should be disclosed to defense counsel.
       Defense counsel argued: “The argument for the Defense is going to be is that if,
in fact, this allegation was true, you can bet the minor victim’s sister [CW02] would have
been moved out of the foster home as well.” Thus, the evidence that Jane made an
accusation against A.D. reflected on her credibility.
       The trial court, after reviewing the documents in camera, issued the following
ruling: “On 2/2/12 with the authority of the Presiding Judge and the Juvenile Court

                                              15
Judge this court conducted an in camera review of the CPS files referenced to this matter.
After weighing th[e] best interest of the minors and the information contained within the
reviewed files the court declines to order the records be provided to counsel in the matter
of People v Snow. The court orders the documents reviewed in camera be placed in the
file identified as CONFIDENTIAL NOT TO BE OPENED EXCEPT BY COURT
ORDER.”
Discussion
       Defendant contends the trial court’s refusal to release the information potentially
violated his right to present a defense. He requests that we review the documents to
determine whether the trial court erred in refusing to disclose them to the defense.
       A prior false accusation of sexual molestation is relevant to the issue of a victim’s
credibility. Such evidence is admissible under Evidence Code section 1103,
subdivision (a)(1). (People v. Franklin (1994) 25 Cal.App.4th 328, 335-336.) The trial
court possesses the discretion, under Evidence Code section 352, to exclude evidence of
prior reports of sexual assault if such evidence would consume considerable time and
divert the jury from the crimes charged at trial. (People v. Miranda (2011)
199 Cal.App.4th 1403, 1424.)
       The People oppose defendant’s request that we review the sealed records, arguing
A.D.’s attorney testified A.D. did not deny the incident occurred and defendant forfeited
the issue by failing to object in the trial court. However, without reviewing the sealed
documents we cannot assess either contention.
       Confidentiality gives way when the requested information facilitates the pursuit of
facts and the goal of a fair trial. (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536-
537.) Confidential files may be disclosed if defense counsel makes a plausible
justification for disclosure or a good cause showing of a need for the documents.
(Alford v. Superior Court (2003) 29 Cal.4th 1033, 1045.) The trial court reviews the



                                             16
confidential documents in camera to determine whether or not disclosure is warranted.
(§ 1326, subd. (c).)
       In turn, we review the confidential records the trial court declined to disclose to
determine whether they are material only if there is a reasonable probability that had the
evidence been disclosed, the result of the trial would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome of the trial.
(People v. Martinez (2009) 47 Cal.4th 399, 453-454.)
       Our review of the confidential records reveals no material evidence that should
have been disclosed to the defense.
                                     Instructional Error
Instruction on Intent
       Defendant argues the trial court erred in instructing the jury on the intent required
to find him guilty of continuous sexual abuse of a child. Defendant notes that it is a
general intent crime if the jury finds a defendant committed three acts of substantial
conduct, but it is a specific intent crime if the jury bases its verdict on the theory that
defendant committed three acts of lewd and lascivious conduct. He argues the trial court
should not have instructed with CALCRIM Nos. 1120 and 250. We are not persuaded.
       Background
       During the discussion of jury instructions, the parties considered whether the
crime of continuous sexual abuse is a general or specific intent crime. The prosecution
believed it was a general intent crime. However, the court noted that CALCRIM
No. 1120, the instruction setting forth the elements, “appears to say that it’s with intent to
sexually arouse the perpetrator or the child.” Defense counsel agreed.
       Later, the court stated, “with regards to the [section] 288.5, I think that the
instruction is pretty clear that some judges do instruct on specific intent, and it’s included
in the instruction itself under lewd and lascivious conduct. So I don’t know that we need
any additional instruction on that issue.” Defense counsel asked whether a general intent

                                               17
instruction was required. The trial court responded: “Yeah. And, clearly, in this note it
says that continuous sexual abuse does not necessarily require specific intent, while lewd
and lascivious conduct always does.”
         The court instructed on the crime of continuous abuse of a child with a version of
CALCRIM No. 1120: “The defendant is charged with continuous sexual abuse of a child
under the age of 14 years in violation of Penal Code section 288.5(a).
         “To prove that the defendant is guilty of this crime, the People must prove that:
         “1. The defendant lived in the same home with/or had recurring access to a minor
child;
         “2. The defendant engaged in three or more acts of substantial sexual conduct/or
lewd or lascivious conduct with the child;
         “3. Three or more months passed between the first and last acts;
         “AND
         “4. The child was under the age of 14 years at the time of the acts.
         “Substantial sexual conduct can be masturbation of either the child or the
perpetrator[.]
         “Lewd or lascivious conduct is any willful touching of a child accomplished with
the intent to sexually arouse the perpetrator or the child. The touching need not be done
in a lewd or sexual manner. Contact with the child’s bare skin or private parts is not
required. Any part of the child’s body or the clothes the child is wearing may be touched.
Lewd or lascivious conduct also includes causing a child to touch his or her own body or
someone else’s body at the instigation of a perpetrator who has the required intent.
         “Someone commits an act willfully when he or she does it willingly or on purpose.
It is not required that he or she intend to break the law, hurt someone else, or gain any
advantage.




                                              18
       “You cannot convict the defendant unless all of you agree that he/she committed
three or more acts over a period of at least three months, but you do not all need to agree
on which three acts were committed.
       “Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires
of the perpetrator or child is not required for lewd or lascivious conduct.
       “It is not a defense that the child may have consented to the act.
       “Under the law, a person becomes one year older as soon as the first minute of his
or her birthday has begun.
       “Conviction of a sexual assault crime may be based on the testimony of a
complaining witness alone.” (Original brackets and parentheses omitted.)
       In addition, the court instructed with a modified version of CALCRIM No. 250:
“The crime charged in this case requires proof of the union, or joint operation, of act and
wrongful intent.
       “For you to find a person guilty of the crime of Continuous Sexual Abuse, that
person must not only commit the prohibited act or fail to do the required act, but must do
so with wrongful intent. A person acts with wrongful intent when he or she intentionally
does a prohibited act or fails to do a required act; however, it is not required that he or she
intend to break the law. The act or intent required is explained in the instruction for that
crime or allegation.” (Italics added; original brackets omitted.)
       On the issue of intent, the court further instructed with CALCRIM No. 225: “The
People must prove not only that the defendant did the acts charged, but also that he/she
acted with a particular intent/ and/or mental state. The instruction for the crime explains
the intent/ and/or mental state required.
       “An intent/ and/or mental state may be proved by circumstantial evidence.”
(Original parentheses and brackets omitted.)




                                              19
         Discussion
         Section 288.5 requires that the defendant must have engaged in three or more acts
of “substantial sexual conduct” with a child, or have engaged in three or more acts of
“lewd or lascivious conduct” with a child. “[T]he ‘lewd or lascivious conduct’ aspect of
section 288.5 requires the specific intent of sexual gratification, but the ‘substantial
sexual conduct’ aspect does not.” (People v. Whitham (1995) 38 Cal.App.4th 1282,
1294.)
         However, the court’s instructions, defendant contends, could have allowed the jury
to find him guilty of violating section 288.5 under the lewd or lascivious conduct aspect
without finding he had the specific intent of sexual gratification. According to defendant,
the court’s version of CALCRIM No. 250 told the jury that a violation of section 288.5
was a “general-intent crime regardless of whether the underlying conduct was substantial
sexual conduct or lewd and lascivious conduct.”
         Defendant argues: “The trial court may not have come out and expressly told the
jury that. However, that was the inference a reasonable juror would draw from reading or
hearing CALCRIM 250. By ubiquitously referring to the crime of continuous sexual
abuse as a general intent crime without differentiating between the two types of conduct
that can underlie the offense, CALCRIM 250 led the jury to believe that the crime is
always a general intent offense.”
         The court must instruct, even in the absence of a request, on the general principles
of law relevant to the issues raised by the evidence. These general principles refer to
those principles closely and openly connected with the facts before the court and that are
necessary to the jury’s understanding of the case. (People v. Sedeno (1974) 10 Cal.3d
703, 715.) We consider the instructions as a whole to determine whether they correctly
state the law. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237 (Campos).)
         Here, the court instructed with CALCRIM No. 1120, which states that lewd or
lascivious conduct “is any willful touching of a child accomplished with the intent to

                                              20
sexually arouse the perpetrator or the child.” CALCRIM No. 1120 told the jury that lewd
or lascivious conduct requires specific intent. The court modified CALCRIM No. 250 to
state that “the act or intent required [for the crime charged] is explained in the instruction
for that crime.” CALCRIM No. 250, as modified, did not, as defendant insists, tell the
jurors that the crime of continuous sexual abuse is always a general intent crime. Instead,
the phrase “act or intent” explained that defendant could commit continuous sexual abuse
by performing a prohibited act, “substantial sexual conduct,” or by committing an act
with a prohibited intent, lewd or lascivious conduct as defined in CALCRIM No. 1120.
We do not find the instructions as given ambiguous or misleading, and we presume the
jurors understood and followed the court’s instructions. (Campos, supra, 156
Cal.App.4th at p. 1237; People v. Wilson (2008) 44 Cal.4th 758, 803.)
                                  Unanimity Instruction
       Defendant contends the trial court’s instructions violated his constitutional right to
a unanimous jury verdict. Although defendant concedes this argument has been rejected
in several appellate decisions, including our opinion in People v. Higgins (1992)
9 Cal.App.4th 294, he urges us to reject this precedent.
       Defendant cites Richardson v. United States (1999) 526 U.S. 813 [143 L.Ed.2d
985] in support of his argument that the court erred in failing to give a unanimity
instruction and infringed on his constitutional right to a unanimous verdict. However, the
court in People v. Cissna (2010) 182 Cal.App.4th 1105 rejected this very argument. The
court held: “In Richardson, the court, as a matter of statutory interpretation, concluded
that a federal offense requiring a series of drug offenses to prove a continuing criminal
enterprise required unanimous agreement as to which three specific drug transactions
supported the conviction. [Citation.] In reaching this conclusion, Richardson noted that
‘the Constitution itself limits a State’s power to define crimes in ways that would permit
juries to convict while disagreeing about means, at least where that definition risks
serious unfairness and lacks support in history or tradition.’ [Citation.] However, citing

                                              21
and distinguishing the Gear decision, the Richardson court recognized that this
constitutional concern did not necessarily apply to state statutes that involved difficult
problems of proof. Richardson noted that state statutes that permit conviction for sexual
abuse of a minor based on a continuous course of conduct ‘may well respond to special
difficulties of proving underlying criminal acts [citation] which difficulties are absent
here.’ [Citation.] Thus, Richardson supports the constitutionality of the continuous-
course-of-conduct exception applied by the Legislature in section 288.5, subdivision (b).
[Citations.]” (Cissna, at pp. 1125-1126, citing People v. Gear (1993) 19 Cal.App.4th 86,
90-92.) Accordingly, we find no error.
            Failure to Instruct Regarding Weighing Conflicting Testimony
       Defendant faults the trial court for failing to instruct sua sponte pursuant to
CALCRIM No. 302, which discusses weighing conflicting witness testimony. This
failure, defendant asserts, was prejudicial. We disagree.
       CALCRIM No. 302 states: “If you determine there is a conflict in the evidence,
you must decide what evidence, if any, to believe. Do not simply count the number of
witnesses who agree or disagree on a point and accept the testimony of the greater
number of witnesses. On the other hand, do not disregard the testimony of any witness
without a reason or because of prejudice or a desire to favor one side or the other. What
is important is whether the testimony or any other evidence convinces you, not just the
number of witnesses who testify about a certain point.”
       CALCRIM No. 302 must be given as an instruction in a criminal case in which
there is conflicting testimony. (People v. Anderson (2007) 152 Cal.App.4th 919, 939.) A
court’s failure to so instruct is prejudicial only where there is a reasonable likelihood the
error caused juror misunderstanding. In applying this standard, we consider the record as
a whole and the totality of the court’s instructions. (People v. Snead (1993)
20 Cal.App.4th 1088, 1097 (Snead), overruled on other grounds in People v. Letner and
Tobin (2010) 50 Cal.4th 99, 181.)

                                              22
       The People concede that the court should have instructed with CALCRIM
No. 302, since there was conflicting testimony at trial. However, the People argue the
error did not result in prejudice. We agree.
       In Snead, the court found a similar failure to instruct pursuant to CALCRIM
No. 302’s predecessor, CALJIC No. 2.22, not prejudicial. The Snead court determined
the trial court had instructed the jury with other standard instructions providing guidance
to the jury in its consideration and evaluation of the evidence. (Snead, supra,
20 Cal.App.4th at p. 1097.) Here, the trial court also provided numerous instructions on
reasonable doubt, evidence, direct and circumstantial evidence: defined, circumstantial
evidence: sufficiency of the evidence, and single witness testimony. (CALCRIM
Nos. 220, 222, 223, 224, 301.)
       In addition, the court instructed with CALCRIM No. 226, which states in part:
“Do not automatically reject testimony just because of inconsistencies or conflicts.
Consider whether the differences are important or not. People sometimes honestly forget
things or make mistakes about what they remember. Also, two people may witness the
same event yet see or hear it differently.” Given the court’s instructions, we find no
reasonable likelihood that the failure to give CALCRIM No. 302 caused juror
misunderstanding.
                          Ability to Pay Presentence Report Fee
       Finally, defendant argues the trial court erred in ordering him to pay the cost of the
probation officer’s presentence report. According to defendant, insufficient evidence
supports his ability to pay the fee.
Background
       The probation officer’s report recommended that the court “find the defendant is
able to pay for the costs of the probation report in the amount of $460.00 pursuant to
§ 1203.1b of the Penal Code.” At sentencing, the trial court stated it had reviewed the
probation report and ordered defendant to pay the $460 fee. Defendant did not object to

                                               23
the order. Defendant forfeited his right to raise the issue by failing to object in the trial
court.
Discussion
         Defendant outlines the procedure codified in section 1203.1b, requiring the
probation officer to inquire as to a defendant’s ability to pay costs, and to inform the
defendant that he or she is entitled to a hearing in which the court will determine the
defendant’s ability to pay and the payment amount. He cites People v. Pacheco (2010)
187 Cal.App.4th 1392, 1401 (Pacheco), overruled on other grounds in People v.
McCullough (2013) 56 Cal.4th 589, 599, which reversed an order to pay the cost of a
monthly probation supervision fee due to the trial court’s failure to determine the
defendant’s ability to pay. The Pacheco court also concluded that a defendant need not
object in the trial court to preserve the issue on appeal. (Id. at p. 1397.) However,
defendant also acknowledges that People v. Valtakis (2003) 105 Cal.App.4th 1066
reached a different result.
         In People v. McCullough (2013) 56 Cal.4th 589, 599 (McCullough), the Supreme
Court disapproved Pacheco. McCullough held that the defendant forfeited his challenge
to the sufficiency of the evidence supporting the finding that he had the ability to pay a
jail booking fee by failing to object in the trial court. (People v. Snow (2013)
219 Cal.App.4th 1148, 1151 (Snow).)
         Defendant argues that McCullough is inapplicable because it “did not address the
issue of whether objection below is required to challenge an order requiring the defendant
to pay the cost of a presentence report without the determination of the ability to pay.”
However, in Snow we addressed this specific issue. The defendant in Snow claimed
insufficient evidence supported his ability to pay a presentence report fee. Defense
counsel failed to object to the imposition of the fee. (Snow, supra, 219 Cal.App.4th at
pp. 1149-1150.) As we stated in Snow, “[b]ased on the reasoning of McCullough, we
conclude that defendant forfeited his challenge to the cost of the probation report . . .

                                              24
and monthly supervision . . . imposed pursuant to Penal Code section 1203.1b.” (Snow,
at p. 1151.) We decline defendant’s request that we reconsider our analysis in Snow.
                                    DISPOSITION
      The judgment is affirmed.



                                                         RAYE              , P. J.



We concur:



         ROBIE             , J.



         MAURO             , J.




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