Filed 2/26/13 P. v. Hernandez CA2/6
                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.111.5.


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                    2d Crim. No. B238998
                                                                             (Super. Ct. No. GA082218)
     Plaintiff and Respondent,                                                 (Los Angeles County)
v.
JOSE FEDERICO HERNANDEZ,
     Defendant and Appellant.


                   Jose Federico Hernandez appeals his conviction by jury for four counts
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of lewd conduct on a child under the age of 14 (Pen. Code §288, subd. (a)) with
multiple victim enhancements (§667.61, subds. (a), (d) & (e)) and three counts of lewd
act on a 14 or 15 year-old child 10 years younger than appellant (§ 288, subd. (c)(1)).
The trial court sentenced appellant to 45 years to life state prison. Appellant contends
that he was denied a fair trial because defense counsel was not permitted to cross-
examine a victim about what she told her psychotherapist. We affirm. (Evid. Code §§
352, 1012, 1014.)
                                        Facts and Procedural History
                   On January 10, 2011, the Pasadena Police Department investigated a
report that appellant had molested his stepdaughters, M. and T. M. told the police that,
in 2005 when she was 10 years old, appellant called her into his bedroom, sat her on
1
    All statutory references are to the Penal Code unless otherwise stated.
his lap, and put his hand down her pants. Appellant inserted his finger into M.'s
vagina and moved it around. Exposing himself, appellant grabbed M. and tried to get
her to touch his penis.
              In 2006, appellant dropped M.'s mother off at work, stopped the car, and
tried to put his hand down M.'s pants. Appellant asked if she "wanted to touch his
cock" and tried to get M. to touch his penis. M. ran into the house crying and asked
her sisters what "cock" meant.
              Sometime between 2007 and December 2010, M. told her mother about
the molestation and pled with mother not to do anything because appellant had
threatened to call immigration. In January 2001, mother told a school counselor that
M. had been molested.
              T., an older sister, was molested in 2000 at age 11. Appellant drove T.
home from her father's funeral, stopped the car, kissed her and put his tongue inside
her mouth.
              After the children moved to appellant's house, appellant pulled T.'s
pajamas down and digitally penetrated her vagina, moving his finger up and down. T.
was too scared to scream and heeded appellant's warning not to say anything.
Appellant continued to molest T. two or three times a week between the ages of 13 and
15.
              T.'s and M's cousin, F., testified that appellant put his arm around her,
touched her thigh, and tugged on her underwear. F was 11 years old. F. tried to get
away but appellant wrapped his arms around her, kissed her three or four times, and
said "You're so beautiful. I bet a lot of boys like you." Appellant pressed his erect
penis against F.'s stomach and kissed her neck and lip. F. was hysterical, called her
mother, and reported the incident to the police on July 30, 2009.
                                 Impeachment Evidence
              Appellant contends that the trial court erred in not permitting counsel to
question M. about what was said or not said in psychotherapy. On cross-examination,



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M. was asked if she was depressed after her father died. M. replied, "Yeah, they sent
me to a bunch of therapists because--"
               The prosecution requested a sidebar conference. Defense counsel argued
that M. was seeing a therapist and, assuming M. told the therapist about the
molestation, it had to be reported under the Child Abuse and Neglect Reporting Act.
(§ 11164 et seq.; see People v. Stritzinger (1983) 34 Cal.3d 505, 512 [child abuse
reporting obligation takes precedence over the psychotherapist-patient privilege].)
Citing Evidence Code section 1012, the prosecution argued that confidential
communications between a patient and his/her psychotherapist are privileged. Defense
counsel argued that M. waived the privilege "by telling people she's been seeing
therapists."
               The trial court ruled that M.'s communications with her therapist were
privileged and "under 352 . . . it's just too speculative. " Appellant was attempting to
ask "about what was not said during that communication, and that goes into what the
nature of the communications were. And that just strikes me as trying to get into what
the -- what is otherwise a privileged communication."
                            Psychotherapist-Patient Privilege
               In California, the psychotherapist-patient privilege is broadly construed
to bar the disclosure of confidential communications between patient and
psychotherapist. (People v. Stritzinger, supra, 34 Cal.3d at p. 511.) M.'s statement
that, "Yeah, they sent me to a bunch of therapists" did not waive the privilege.
(Roberts v. Superior Court (1973) 9 Cal.3d 330, 340.)
               Our Supreme Court has " 'made it clear that the mere disclosure of the
existence of the psychotherapist-patient relationship does not reveal a significant part
of the communication and thus does not constitute a waiver.'" (Ibid.) Even when a
patient reveals the purpose of psychiatric treatment, no waiver of the privilege occurs.
(Ibid.) There is a "vast difference between disclosure of a general description of the
object of . . . psychotherapeutic treatment, and the disclosure of all or a part of the



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patient's actual communications during psychotherapy." (Ibid., fn.3; see e.g., San
Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1092-1093.)
              The defense theory was that if M. did not tell her therapist about the
molestation, the jury could infer that no molestation occurred. The trial court
reasonably concluded that such an inquiry, "by definition, goes into the nature of the
communication. . . [Y]ou have to ask about what was talked about to show that there
was no discussion of molestation."
              Although the prosecution could not assert the privilege on behalf of the
victim, the existence of the privilege was properly brought to the trial court's attention.
(See People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 751-752.)
Evidence Code section 916, subdivision (a) provides that a trial court, on its own
motion or the motion of a party, "shall exclude information that is subject to a claim of
privilege under this division if: [¶] . . . [¶] (2) There is no party to the proceeding
who is a person authorized to claim the privilege." (Emphasis added.)
              Pursuant to Evidence Code section 352 a trial court has broad discretion
in determining whether the probative value of specific evidence is outweighed by
concerns regarding undue prejudice, confusion, or consumption of time. (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1124.) No abuse of discretion occurred here. The
trial court reasonably concluded that questions about what M. said or did not say in
psychotherapy would cause an undue consumption of time, create a substantial danger
of undue prejudice, and confuse or mislead the jury.
                                     Sixth Amendment
              Appellant's assertion that his Sixth Amendment right to confront and
cross-examine witnesses was violated is without merit. The argument "fails to account
for the general rule that the application of the ordinary rules of evidence under state
law does not violate a criminal defendant's federal constitutional right to present a
defense. . . . [Citation.]" (People v. Abilez (2007) 41 Cal.4th 472, 503; see Delaware
v. Van Arsdall (1986) 475 U.S. 673, 679 [89 L.Ed.2d 674, 683]; People v. Cornwell



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(2005) 37 Cal.4th 50, 82.) Trial courts have wide latitude in restricting cross-
examination on " 'collateral credibility issues.' [Citation.]" (People v. Ayala (2000) 23
Cal.4th 225, 301.) A constitutional violation occurs only if a reasonable jury might
have received a significantly different impression of the witness's credibility if the
excluded cross-examination had been permitted. (People v. Quartermain (1997) 16
Cal.4th 600, 623-624.)
              Assuming that the trial court erred in limiting the cross-examination of
M., the error was harmless under any standard of review. (Chapman v. California
(1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710]; People v. Watson (1956) 46 Cal.2d
818,. 836.) M.'s testimony was corroborated by her sister (T.), her cousin (F.), other
family members, and the police investigation. The molestation of M. was strikingly
similar to the other molestations: appellant targeted young girls (10 to 11 years old) in
the family, abused his trust and authority, and carried out the sexual assaults at home
or in his vehicle when the victim was left in his care. M. feared that appellant would
turn the family over to immigration if she said anything and feared that family
members would blame her for any punitive action if the matter was reported to the
          2
police.
              Appellant makes no showing that a reasonable jury might have received
a significantly different impression of M.'s credibility had the trial court permitted
counsel to question M. about what was said or not said in psychotherapy. (People v.

2
 Appellant complains that Doctor Mitchell Eisen, a forensic psychologist, testified
about Child Sexual Abuse Accommodation Syndrome and why some child victims do
not report a molestation. The trial court instructed that "Dr. Eisen's testimony about
child sexual abuse accommodation syndrome is not evidence that the defendant
committed any of the crimes that are charged against him. You may consider this
evidence only in deciding whether or not each of the victim's conduct was not
consistent with the conduct of someone who has been molested in evaluating the
believability of her testimony." (CALCRIM 1193.) On review, it is presumed that the
jury understood and followed the instruction. (People v. Coffman and Marlow (2004)
34 Cal.4th 1, 83.)



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Quartermain, supra, 16 Cal.4th at p. 624.) "[T]he Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense may wish. [Citation.]" (Delaware v.
Fensterer (1985) 474 U.S. 15, 20 [88 L.Ed.2d 15, 20].)
              The judgment is affirmed.
              NOT TO BE PUBLISHED.



                                          YEGAN, J.
We concur:


              GILBERT, P.J.


              PERREN, J.




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                                Darrell Mavis, Judge

                          Superior Court County of Ventura

                        ______________________________


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


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A.
Taryle, Supervising Deputy Attorney General, Kimberly J. Baker-Guillemet, Deputy
Attorney General, for Plaintiff and Respondent.




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