Filed 8/8/16 P. v. Topachikyan CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069939

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. RIF1303246)

AVAG TOPACHIKYAN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County, Michael B.

Donner, Judge. Affirmed.

         Kaplan, Kenegos & Kadin and Jerry Kaplan for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

         A jury convicted Avag Topachikyan of multiple sexual crimes against his step-

daughter (Jane Doe 1), and an additional sexual offense against his daughter (Jane Doe

2), both of whom were under 14 years old at the time of the assaults. For his attacks on
Jane Doe 1, he was convicted of two counts of forcible oral copulation on a child under

the age of 14 (Pen. Code,1 § 269, subd. (a)(4), counts 1 & 2), two counts of forcible

sexual penetration on a child under the age of 14 (§ 269, subd. (a)(5), counts 4 & 5) and

five counts of forcible lewd acts on a child under the age of 14 (§ 288, subd. (b), counts

6-10). For his attack on Jane Doe 2, he was convicted of one count of a lewd act on a

child under the age of 14 (§ 288, subd. (a), count 13). The jury also found true the

allegation, under section 667.61, subdivisions (c) and (e)(4), that the qualifying crimes

were committed against more than one victim. On appeal, Topachikyan contends the

evidence was insufficient to support the guilty verdicts, and the trial court abused its

discretion when it allowed a therapist to interpose a claim of privilege to a question posed

to the therapist.

                                              I

                                          FACTS2

       A. Prosecution Evidence

       Jane Doe 1 was born in June 1999. Jane Doe 2 was born in July 2002.

Topachikyan was married to the mother (Mother) of the two victims.




1      All further statutory references are to the Penal Code unless otherwise specified.

2      Where, as here, a defendant contends that substantial evidence does not support
his conviction, we must "review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980)
26 Cal.3d 557, 578.) We state the facts in the light most favorable to the judgment.
                                              2
      In 2005, Jane Does 1 and 2 moved with Topachikyan and Mother to Lake

Elsinore, when Jane Doe 1 was six or seven years old and in the first or second grade.

The family later moved to Riverside when Jane Doe 1 was 12 or 13 years old, just before

she entered the seventh grade. Most of the time, Topachikyan and Jane Doe 1 got along

well, although he was more of a disciplinarian than Mother and would scold Jane Doe 1

using a loud voice, which scared her and made her feel anxious.

      Mother first told Jane Doe 1 that Topachikyan was not her biological father when

Jane Doe 1 was in the fourth grade. They talked about it again when she was in the

seventh grade. Mother and Topachikyan asked Jane Doe 1 if she wanted Topachikyan to

adopt her, and Jane Doe 1 "was open to it."

      On May 16, 2013, Jane Doe 1 told Mother that Topachikyan had been touching

her inappropriately. Topachikyan stopped living in the house with them that night, and

Mother filed for divorce in July 2013.

      Molestations Occurring in Lake Elsinore

      The prosecution, in addition to evidence of uncharged offenses against Jane Doe 1

that began while the family lived in Lake Elsinore,3 introduced Jane Doe 1's testimony




3      The first time Jane Doe 1 remembered being sexually abused by Topachikyan was
when she was living in Lake Elsinore. On one occasion, after swimming in the public
pool up the street from their house, Topachikyan noticed that Jane Doe 1 had gotten a
sunburn. He insisted upon putting lotion on her. He had her lie down in his bed, moved
her bathing suit out of the way, and began rubbing her vagina with his hand. On another
occasion in the Lake Elsinore house, Topachikyan told her to take a shower and put on
her robe. After she showered, he called her downstairs and told her to sit with him on the
recliner in the living room. Topachikyan had just gotten out of the shower too and was
                                              3
about the numerous charged offenses committed against her while they lived in Lake

Elsinore. On one occasion in their Lake Elsinore house (count 1), Topachikyan and Jane

Doe 1 were watching television on the recliner in their living room. She was wearing a

robe and was sitting on Topachikyan's lap facing towards the television. Topachikyan

picked her up and moved her so that she was lying on her side facing him. He then told

her to reach over him and turn off the living room light. When she did so, he licked her

vagina.

       On a second occasion at the Lake Elsinore house (count 2), Jane Doe 1 and

Topachikyan were on the couch when no one else was home. Topachikyan put a blanket

over her head and told her to put his penis in her mouth and lick it like a lollipop. His

penis was erect at the time. She did as she was told because she was afraid of him.

       Either immediately after the act constituting count 1, or perhaps on an entirely

different occasion but in the same living room, Topachikyan committed the offense

charged in count 6. Topachikyan shifted her so she was sitting on his lap and facing him,

and his penis was outside of his pants and between her legs, touching the outside of her

vagina. He moved her around in a "grinding fashion" until his penis was positioned

where he wanted it. He told her to look toward the television so she did not see what was

happening.

       When Jane Doe 1 was in the fifth grade, Topachikyan molested her in his truck

(count 4). He was driving Jane Does 1 and 2 home from his parents' house in Los


wearing his robe. When she sat down next to him, Topachikyan began "playing" with her
vagina. He then put his finger inside her.
                                             4
Angeles. Jane Doe 1 was sitting in the front seat, and Jane Doe 2 was asleep in the

backseat behind Jane Doe 1. Topachikyan unbuttoned Jane Doe 1's purple skinny jeans,

had her pull them down "a bit," and stuck his hand inside. She had to listen to him when

he told her to pull her pants down because otherwise she would get in trouble. First, he

rubbed her vagina over her underwear. Then, he moved his hand under her underwear

and started rubbing her vagina. While he was doing that, he said that she should not be

wearing such tight jeans. She was happy "[h]e couldn't do it for very long because of the

jeans."

          On another occasion in Lake Elsinore (count 5), Topachikyan and Jane Doe 1

were driving home from dinner in his truck; her brother and sister were in another car

with Mother. Again, Topachikyan stuck his hand in Jane Doe 1's pants and touched her

on top of her underwear. He then put his hand underneath her underwear and moved his

fingers in and out of her vagina. This was the first time he put multiple fingers inside her,

and it hurt "a little bit." When they drove past their house, he asked her, "Do you want

me to keep going?" She said, "Sure," even though she did not, because she did not want

to upset him and was afraid of him. At some point, they got stuck in a ditch, and after

Topachikyan got the truck out of the ditch, he told her "[D]on't tell mom." Previously, he

had told her not to tell anyone about the molestations because it was their "special little

secret."

          On another occasion at the house in Lake Elsinore (count 8), Topachikyan was

playing Call of Duty on his PlayStation, and Jane Doe 1 was in her pajamas on the couch.



                                              5
Topachikyan reached inside her pajamas and underwear and put his finger inside her

vagina while his game was loading. He stopped when his game began.

       On another occasion at the house in Lake Elsinore (count 9), Topachikyan called

Jane Doe 1 into his bedroom and then signaled for her to come into his closet. Once

inside the closet, he inserted a vibrator inside her vagina for a few seconds. Topachikyan

asked her if that felt good. She did not remember what she said, but remembered feeling

"[w]eird and unnatural."

       Molestations Occurring in Riverside

       The prosecution, in addition to evidence of uncharged inappropriate touchings that

occurred after the family moved to Riverside, introduced Jane Doe 1's testimony about

the offenses committed against her after the family moved to Riverside. On one occasion

(count 7) in Riverside, Topachikyan made Jane Doe 1 rub his penis while he was in his

recliner. He said, "hey, try this," as he took her hand, made a circle with her fingers, and

moved her hand up and down. His penis was erect at the time. On the last occasion

(count 10), which occurred when she was 11 or 12 years old, she and Topachikyan were

in her room. He again stuck his finger inside her vagina. She thought this may have been

the same incident when Topachikyan took her shirt off, touched her breasts, and took a

picture of her breasts with his phone. Jane Doe 1 explained that she knew what he was

doing was wrong, but she was too scared to say "no." However, when Topachikyan tried

to molest her the next time, she told him that she wanted the abuse to stop. He said,

"Okay," and never did it again.



                                             6
       Topachikyan touched Jane Doe 2 inappropriately (count 13) when she was in the

fourth grade. She and Topachikyan were alone in the pool in their backyard in Riverside,

although Mother was home inside the house. Topachikyan told her to swim over to

where he was leaning against the wall, in the shallow end, and had her sit on his lap. At

first, she was facing away from him, but he turned her around to face him. When he did

so, his thumb was on her back and the rest of his hand was on her chest, and he kept his

hands on her chest for a "little bit." At some point, she noticed that Topachikyan's penis,

which was erect and either sticking out of the hole in the front of his swim trunks or out

of the top, was touching her thigh and private area. When she swam away, Topachikyan

"poked" his penis back in his trunks.

       Mother Learns of Molestations

       On May 16, 2013, Jane Doe 1 approached Mother and said there was something

important she wanted to talk about with her and Topachikyan. Jane Doe 1 appeared

nervous, and Mother suggested Jane Doe 1 tell her what was wrong first, and they could

talk with Topachikyan about it later. Jane Doe 1 agreed, but said that she did not want to

talk about it in front of Jane Doe 2 or her little brother. Jane Doe 2 then asked, "[T]his

isn't about that thing that could break up the family?" Mother sent Jane Doe 2 and her

brother to their bedrooms, and then and sat down with Jane Doe 1 and asked if something

happened to her. Jane Doe 1 nodded and started to cry, and Mother then asked if

someone did something to her. Jane Doe 1 nodded and Mother asked if someone had

touched her. Jane Doe 1 again nodded and, by that point, was sobbing. Mother asked if

someone in their family touched her, and Jane Doe 1 again nodded. Mother told her that

                                              7
she needed to tell Mother who the person was, and explained that she could not do

anything unless she knew. Jane Doe 1 shook her head, and Mother then asked if it was

someone who lived in their house, and Jane Doe 1 responded by nodding. Mother then

asked, "[A]re you telling me that your dad has touched you?" and Jane Doe 1 said he had

and cried even more.

       When Mother asked for details, Jane Doe 1 did not want to provide them,

explaining she felt as though it was her fault because she allowed it to continue for so

long. Topachikyan stopped living in the house with them that night, and Mother reported

the crimes to the Riverside Police Department.

       Other Evidence

       When Jane Doe 2 was initially asked by a police officer and someone from CPS

whether anyone had ever touched her inappropriately, she lied and said they had not. In

fact, Jane Doe 2 tried to convince herself that what happened with her father was an

accident in order to make herself feel better. However, when they were living in Las

Vegas, Jane Doe 2 texted a suicide hotline so she could get what happened off her chest,

and the person on the hotline told her to tell Mother. Thereafter Jane Doe 2 wrote Mother

a note telling her what Topachikyan had done and slipped it under Mother's bedroom

door. The note read:

          "I never told anyone this except for a suicide hotline. He put his
          thing in between my legs in the pool in 4th grade. I tried to swim
          away, but he yelled at me to come back. I never said because I
          thought it would be too late, and you wouldn't believe me when I felt
          like saying it. I wish my make up was water proof. When you asked
          me if I've been touched, I lied through my teeth."


                                             8
       Jane Doe 2 explained she wrote the note instead of telling Mother in person

because she was afraid to see Mother's reaction. Mother went into Jane Doe 2's room

with the note in hand and asked who she was talking about, and Jane Doe 2 then handed

Mother a picture of Topachikyan. Mother and Jane Doe 2 met with investigators in Las

Vegas, and Jane Doe 2 revealed that when she was sitting on Topachikyan's lap and his

penis was out, Topachikyan moved his body around.

       Melissa Merejil, Jane Doe 1's youth leader at church, testified that in May 2013,

Jane Doe 1 called her on the telephone crying and said she did not want to "mess her

family up" and was not sure what she should do. However, Jane Doe 1 refused to explain

exactly what she was talking about. Merejil told Jane Doe 1 that she should talk to

Mother about whatever was bothering her. On July 14, 2013, Jane Doe 1 filled out a

"communication card" at her church on which she wrote, "My parents are going through

a divorce, and I thought I was over it because he made a—he made a mistake and I told

on him. And I feel as if it was my fault, but I'm not over it. Help." She filled out another

"communication card" on July 21, 2013, on which she wrote, "I forgive my dad, and for

my mom." She explained she was asking for prayers to help her forgive her father for

molesting her and for prayers for Mother.

       In January 2014, Riverside Police Detective Flores examined a Samsung Galaxy

S3 looking for text messages to a crisis hotline and found six such texts, which had

previously been deleted. Mother had called a detective to tell her about Jane Doe 2's

accusations on December 14, 2013, the same day the telephone records show the texts to

the crisis hotline.

                                             9
       Defense Case

       Topachikyan testified on his own behalf and denied ever molesting his daughters.

(2 RT 480-485, 496-497.) He explained that he had owned an iPhone 3Gs, an iPhone 4,

and a Samsung 3Gs. He gave the iPhone, which was searched by the police, to Mother

when they lived in the Riverside house, after he bought the Samsung. He denied that he

took a picture of Jane Doe 1's breasts with his phone.

                                             II

                                       ANALYSIS

       A. The Substantial Evidence Challenge

       Topachikyan contends the evidence is insufficient to support his convictions. He

asserts (1) Jane Doe 2's testimony was not credible due to various inconsistencies; (2)

Jane Doe 2's testimony did not establish he had the intent of arousing, appealing to, or

gratifying the lust, passions, or sexual desires of himself or Jane Doe 2 when he touched

her in the pool; (3) Jane Doe 1's testimony was not credible because she had an animus

toward Topachikyan and her testimony contained some inconsistencies; and (4) there was

no evidence corroborating Jane Doe 1's description of the events because neither the

vibrator nor the photographs were found.

       "When considering a challenge to the sufficiency of the evidence to support a

conviction, we review the entire record in the light most favorable to the judgment to

determine whether it contains substantial evidence—that is, evidence that is reasonable,

credible, and of solid value—from which a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt." (People v. Lindberg (2008) 45 Cal.4th 1,

                                            10
27.) Our inquiry on appeal in light of the whole record is whether any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.

(People v. Osband (1996) 13 Cal.4th 622, 690.)

       As a preliminary matter, Topachikyan has waived his claim of insufficiency of the

evidence, because his brief recites only a few snippets of the evidence, all of which are

the most favorable to his view of the evidence, and ignores the evidence supporting the

verdict. (People v. Battle (2011) 198 Cal.App.4th 50, 62; People v. Dougherty (1982)

138 Cal.App.3d 278, 282 [where "contentions are bereft of factual underpinning, record

references, argument, and/or authority," claims are waived].)

       Even assuming the issue was not waived, the testimony of the victims provided

ample evidence to support the verdicts. It is the exclusive province of the jury to

determine the credibility of the witnesses and resolve conflicts or inconsistencies in their

testimony. "Conflicts and even testimony which is subject to justifiable suspicion do not

justify the reversal of a judgment . . . ." (People v. Maury (2003) 30 Cal.4th 342, 403;

Evid. Code, § 312.) The reasons for any inconsistencies may be explored by both the

prosecutor and defense counsel and it is for the jury to decide which statements are true

and which statements are false. (See People v. Cuevas (1995) 12 Cal.4th 252, 273;

People v. Jones (1990) 51 Cal.3d 294, 314.) Before an appellate court may reject the

statements given by a witness at trial who the jury has chosen to credit, " ' "there must

exist either a physical impossibility that they are true, or their falsity must be apparent

without resorting to inferences or deductions" [(quoting People v. Huston (1943) 21

Cal.2d 690, 693)], [and] [s]uch cases are rare indeed.' " (People v. Ennis (2010) 190

                                              11
Cal.App.4th 721, 728-729.) The jury's verdicts demonstrated they credited the testimony

of Jane Does 1 and 2, and this is not the rare case that would permit us to ignore that

determination, because there is nothing either physically impossible or patently false in

any of the testimony given by either victim. We conclude Topachikyan's claim

concerning the sufficiency of the evidence lacks merit.

       B. The Evidentiary Claim

       Topachikyan also asserts the court abused its discretion when it permitted a

witness, Ms. Norris, to claim the psychotherapist/patient privilege and refuse to answer

defense counsel's question about whether she made a report to CPS after meeting with

Jane Doe 1.

       Background

       Outside the presence of the jury, defense counsel stated his intent to have Norris

testify: (1) she was a therapist who met with Jane Doe 1 eight times; (2) Norris was a

mandatory reporter who was required by law to report suspected sexual abuse; and (3)

she did not file a report with CPS after her sessions with Jane Doe 1. Defense counsel

argued Norris's testimony suggested Jane Doe 1 never told Norris about the abuse, which

in turn supported an inference the abuse never happened. The prosecutor argued the

proffered testimony should be excluded, but the trial court agreed to admit Norris's

testimony.

       When Norris took the stand, she testified she was a marriage/family therapist and a

mandatory reporter, which meant she was required by law to report any reasonable

suspicion of child abuse, including sexual molestation. Norris further explained Jane Doe

                                             12
1 came to her for eight to 10 counseling sessions a couple years earlier. Defense counsel

then asked whether Norris made any reports to CPS after meeting with Jane Doe 1, and

Norris stated that she wished to assert the therapist/patient privilege on behalf of Jane

Doe 1. When defense counsel asked the question again, the court responded, "She just

asserted that privilege to her—that very question. Her privilege." Defense counsel asked

to approach the bench, but the court said, "No."

       Analysis

       Evidence Code section 1014 provides that confidential communications between a

patient and his or her psychotherapist are privileged and not subject to disclosure

provided the privilege is claimed by the patient, someone the patient authorizes to claim

the privilege, or the psychotherapist. The psychotherapist is required to assert the

privilege on the patient's behalf if present when the communication is sought to be

disclosed. (Evid. Code, § 1015.) Confidential communications are defined as

"information . . . transmitted between a patient and his psychotherapist in the course of

that relationship and in confidence . . . ." (Evid. Code, § 1012.) The psychotherapist-

patient privilege must be broadly construed in favor of the patient, while exceptions to

the privilege must be narrowly construed. (People v. Stritzinger (1983) 34 Cal.3d 505,

511, 513.)

       Topachikyan argues the question asked of Norris did not call for privileged

information because Evidence Code section 1026 provides: "There is no privilege under

this article as to information that the psychotherapist or the patient is required to

report . . . ." However, this argument ignores that this section provides in full that,

                                              13
"There is no privilege under this article as to information that the psychotherapist or the

patient is required to report to a public employee or as to information required to be

recorded in a public office, if such report or record is open to public inspection." (Evid.

Code, § 1026, italics added.) Topachikyan presents no argument on appeal, and made no

proffer below, that a mandatory reporter's report to CPS would qualify as a "report . . .

open to public inspection" to which an exception to the privilege was applicable, and it

appears the law is generally to the contrary. (See generally § 11167.5, subd. (a) ["The

reports required by Sections 11166 and 11166.2, or authorized by Section 11166.05 . . .

shall be confidential and may be disclosed only as provided in subdivision (b)."].)

       However, even assuming the trial court erred in upholding Norris's claim of

privilege, and thereby prevented the jury from drawing an inference (from the fact Norris

did not file a report with CPS after meeting with Jane Doe 1) that Jane Doe 1 did not tell

Norris of Topachikyan's assaults, we are convinced such error was harmless under the

standard of prejudice set forth in People v. Watson (1956) 46 Cal.2d 818, 836, the test we

apply for the erroneous exclusion of evidence. (See. e.g., People v. Fudge (1994) 7

Cal.4th 1075, 1103.) Under Watson, an error is harmless unless it is reasonably probable

that a result more favorable to the defendant would have been reached had the evidence

been admitted. (Fudge, at p. 1104.) Here, the jury heard testimony that Jane Doe 1 saw a

counselor for therapy at the beginning of seventh grade, shortly after moving to

Riverside, and also heard testimony that the first time Jane Doe 1 ever told anyone about

the abuse was years later when she spoke with Mother about it on May 20, 2013. Thus,

the jury was necessarily aware of the fact that Jane Doe 1 did not disclose the abuse to

                                             14
anyone (including Norris) prior to May 20, 2013.4 Because the jury already knew Jane

Doe 1 did not disclose the abuse to Norris, it is not reasonably probable that the result of

the trial would have been any different even had Norris specifically testified she did not

file a report with CPS after meeting with Jane Doe 1.

                                      DISPOSITION

       The judgment is affirmed.




                                                                            McDONALD, J.

WE CONCUR:


NARES, Acting P. J.


O'ROURKE, J.




4      During closing argument, defense counsel specifically argued this point even
though Norris's testimony on the matter had been excluded, arguing: "So what happens
next? Sends her to that mandatory reporter. And there's no reports made because she
admits she never tells them about any sexual abuse that's been going on for years and
then quit. And it's going to be approximately a year and a half before at the Riverside
address, and there's absolutely no report made to anybody . . . ."

                                             15
