PEOPLE v. CARRADUS

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Phillip George CARRADUS, Defendant and Appellant.

No. B068047.

Decided: October 13, 1994

Wesley A. Van Winkle, Berkeley, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Roy C. Preminger and Richard B. Cullather, Deputy Attys. Gen., for plaintiff and respondent.

We hold that under People v. Ewoldt (1994) 7 Cal.4th 380, 27 Cal.Rptr.2d 646, 867 P.2d 757 evidence of uncharged lewd acts upon a child (Pen.Code,1 288, subd. (a)) was properly admitted.   Other claimed errors are either without merit or harmless.   We modify the abstract of judgment to conform to the jury's verdicts and as modified, affirm the judgment.

INTRODUCTION

Phillip George Carradus, appellant, was charged with ten counts  2 of child molestation against three children.   As to one of the children, Jeff L., appellant was charged with one offense allegedly committed on October 19, 1991.   The other two children, Paul D. and Kasey D., were brother and sister.   As to Paul D. there were two offenses allegedly committed between January 1, 1989, and October 19, 1991.   As to Kasey D. there were seven offenses allegedly committed between June 1, 1990, and October 19, 1991.

At the time of trial in April 1992, about 6 months after the last alleged offense, Paul D. was 12, Kasey D. was 11, and Jeff L. was 10, almost 11.

Appellant lived alone in a six-unit apartment building and was good friends with two of the other tenants, the grandmother of Paul and Kasey, and their cousin, an adult woman.   Paul and Kasey frequently visited their grandmother and often saw appellant.

FACTUAL BACKGROUND

There being no insufficiency of evidence claim, we summarize the evidence.   It consists of the testimony of six prosecution witnesses and two defense character witnesses.   The defendant did not testify.

1. PROSECUTION EVIDENCE

Jeff L. (Count I)

Jeff L. and his best friend, Nathan C., took karate lessons on Saturdays.   At one of those lessons Nathan introduced Jeff to Paul D., a neighbor of Nathan's, who had come to the class to watch.

Soon thereafter, on a Saturday in early October 1991, appellant, at Paul's request, took the three boys fishing at El Dorado Park in Long Beach.   Nothing untoward occurred.

On Saturday, October 19, 1991, appellant again took the boys fishing.   This time, after fishing, appellant drove the boys to his apartment building.   On the way there Nathan and Paul told Jeff that appellant had “dirty” magazines at his apartment and asked appellant if they could see them.   Appellant said okay.

The boys left their fishing gear and some clothes in appellant's car and went with him to his apartment.   The four of them sat on appellant's bed and looked at the magazines.   Jeff had never seen magazines like this before.

After awhile Paul asked appellant if they could see “the video.”   Appellant went to the livingroom, set up the equipment, and played the movie.   It was an “adult” video showing sex acts.   Appellant “fast forwarded” the movie a lot.   The boys watched the movie about 20 minutes.   Jeff had never seen an adult video before.

Then Paul and Nathan said they were going to “check” on Paul's grandmother and left appellant's apartment.   Jeff returned to the bedroom to look at the magazines.   Appellant went to the bathroom, adjacent to the bedroom, and with the door ajar said to Jeff, “Do you mind?”   Jeff, not knowing what appellant meant, replied “Not at all.”   Appellant, in full view of Jeff, unzipped his pants, removed his penis, and began masturbating.   After awhile appellant ceased, “pulled in his dick and pulled up his zipper and then came over to [Jeff] and [said] ‘Let me see yours'.”

Jeff said “No, that's okay.”   When the prosecutor asked Jeff how he felt at that time, Jeff testified, “I just like totally freaked out.”   I thought, “Why is he doing this?”

Then appellant “came over to the bed and said ‘Are you sure?” and Jeff replied “ ‘I'm positive’.”

Jeff, who was wearing denim shorts, had one leg on the bed and one leg on the floor.   Appellant sat on the bed next to him and stuck his hand up Jeff's shorts and “made slight contact with [Jeff's] penis.”   Jeff pushed appellant's hand away and said “No.”

Then, to distract appellant, Jeff asked appellant if he could lift the barbells in the corner of the bedroom.   While appellant was lifting them Jeff said “ ‘I'm going to go check on Nathan and Paul’ and [ ] ran out as fast as [he] could.”

Jeff went to the apartment of Paul's grandmother, about 30 feet away, and was introduced to Mrs. Falting, Paul's grandmother.   Because Jeff knew she was “best friends” with appellant he didn't tell her what had happened.   But he did whisper it to Nathan and Paul.   After a few minutes the three boys left Mrs. Falting's apartment and looked for a police officer.   When they couldn't find one they walked to the community hospital, asked for a police officer, and then told the two police officers what had happened.

Paul D. (Counts I and II)

Paul, now 12 and in the 6th grade, had been introduced to appellant about two years earlier by his older sister Keisha.   When he visited his grandmother, Esther Falting, appellant would often be in her apartment.   Appellant and Paul's grandmother were close friends.   They went to dinner, played cards, and socialized.   Mrs. Falting would prepare food for appellant and have Paul take it to appellant's apartment.

Paul went to appellant's apartment often.   Appellant had Nintendo and weights there and Paul liked to play with them.   Paul didn't have them at his own house.   Sometimes he went to appellant's apartment alone and sometimes he went with his younger sister Kasey.

Once when he and Kasey were in appellant's apartment—it was during the summer, either 1990 or 1991—Kasey took some quarters from appellant's dresser and told appellant he'd have to wrestle her to get them back.   During the wrestling appellant “flipped” her skirt up.   Kasey ran out the door and told her grandmother.   But she didn't believe Kasey.   She called Kasey's mother and told her Kasey was lying.

Sometime after that his grandmother sent Paul to appellant's apartment with food.   Appellant gave Paul a soda, sat next to him, rubbed Paul's leg, and touched his privates over Paul's clothes.   He made it look like an accident.

On another occasion appellant rubbed Paul's leg, unbuttoned Paul's pants, and touched his privates, touching Paul's skin.   Paul didn't go to appellant's apartment for several days after that incident.

There were “a few more” times when appellant touched Paul over his clothes.

Kasey continued to go to appellant's apartment.   Once, when Paul was playing Nintendo in appellant's livingroom, appellant called Kasey into the bedroom.   Five minutes later Kasey asked Paul to come in.   Appellant left the bedroom.   Kasey said she had to strip and be videotaped and she wanted Paul, not appellant, to do the videotaping.   Paul said no but appellant entered and said he would hurt their family if Paul didn't do it.   Paul, who had been taught by appellant how to use his video camera, videotaped Kasey.   Kasey did not take all her clothes off.   She danced around in her underwear.

At appellant's direction Paul took other videotapes of Kasey.   In three or four of them she was naked.   Appellant told Paul to photograph her vagina.

The prosecutor played the first part of exhibit 3, a videotape of Kasey naked, and Paul identified it as one he took at appellant's direction.

Appellant gave Paul and Kasey money when they did the videotaping.

Paul described the events of Saturday, October 19, 1991, substantially the same as Jeff had.   He admitted telling the officers appellant had not touched his privates because he was shy and afraid he'd get in trouble.

Paul said that soon after October 19, 1991, Nathan moved out of state.

Kasey D. (Counts IV–X)

Kasey, now 11 and in the 5th grade at Bixby Elementary School, had been in appellant's apartment many times.

Once when she was sitting on his weight bench appellant reached under her clothes and touched her privates, he rubbed it and stuck his finger inside her.  (Count IV.)

On another occasion, when she had gone fishing with appellant, she was sitting in the back seat of his car and appellant put his finger in her vagina.  (Count V.)

On a different fishing trip, with appellant and her brother Paul, she was sitting under a tree and appellant put his finger in her vagina.  (Count VI.)

On a third occasion when she and Paul went fishing with appellant, appellant went inside the women's restroom with her, grabbed her hand and made her touch his exposed penis.  (Count VII.)

Appellant threatened to hurt her family if Kasey refused to be videotaped.   So she made three or four naked videos.  (Count VIII.)   One of them was exhibit 3.  (Count IX.)   Appellant gave her money, $15, for making the videos.

Kasey couldn't remember the circumstances of the skirt “flip” except that she was wrestling with appellant in his apartment and he lifted up her skirt.   She immediately left and told her grandmother but her grandmother said it was just an accident and convinced Kasey's mother it was an accident.  (Count X.)

Once appellant told Kasey “if you fuck me I'll buy you anything ․ and [ ] take [you] any place [you] want.”

In September 1990 3 Kasey went to Disneyland in Orange County with Paul, her younger sister April, their grandmother, and appellant.   On one of the rides appellant “grabbed her privates” over her clothes.4  The Disneyland trip was videotaped with appellant's camera.

In Kasey's presence, appellant “put his hand up and down on his penis” while he was in his bathroom.

Dr. Mark H. Goodman

Dr. Goodman was a pediatrician who had specialized in child molestation cases for 15 years.   He created and headed the Children's Protection Center Unit at Long Beach Memorial Hospital which handled child abuse, child molestation, drug babies, and child neglect cases.   He was board certified in pediatrics and taught both pediatrics and child maltreatment at the University of California, Irvine, Medical School.   He had handled about 800 child maltreatment cases a year for the past 15 years.

Dr. Goodman examined Kasey on November 4, 1991, at the Children's Protection Center.   His purpose was to determine if there was evidence of sexual molestation.

Although therapists interviewed Kasey and her family, and Kasey was given a general physical examination, Dr. Goodman did not have this information, nor any information from police agencies, when he examined Kasey.   As he characterized it, “I walked in blind․”  Dr. Goodman talked to Kasey for 35–40 minutes and then did a physical examination of her.

He found abnormalities in her genital tract.   Her hymen, in the 10 to 2 o'clock area, was “very narrow and very, very scant as compared to the rest of the hymen.”   A second abnormality was in the 5 o'clock area:  it was “irritated and red and had an abundance of growths of new blood neovascularization and that process represents healing tissue or tissue that's been traumatized over a period of time and is growing new blood vessels in an attempt to heal itself.”

These abnormal injuries “are specific ․ for ongoing rubbing, ongoing fondling.”

The abnormal injuries were inconsistent with self-gratification “because this particular area would not be particularly pleasurable or stimulating.”   Nor could the injuries have been caused by falling off a cabinet or a bike.   Also, the injuries could not have been caused when, during the videotaping of exhibit 3, Kasey was “grabbing her labias and spreading them outward and exposing her genitalia.”

During the examination Kasey was “withdrawn” and didn't want to talk about any of the things that may have happened to her.   She was “disassociating.”   In Dr. Goodman's opinion this type of behavior was consistent with a child who has been sexually molested.

Shortly before testifying Dr. Goodman viewed exhibit 3, the videotape of Kasey.   These were his observations:  “That this was a child in that particular video who was, it appeared to me, she was well coached and well rehearsed in doing a dance routine;  that there were times when she was reluctant;  there were a number of scenes when the camera was going to a close up on her genitals.   That bothered her.   She asked the camera not be shown there;  that there were some expressions on her face particularly when she was lying on her back if you look at her face, it had a blank expression.   There were times during that particular scene that she wasn't there.   There were times when she was almost animated and almost manic.   There was a scene where she [was] swinging a towel around doing almost a striptease performance․  It's consistent with a pattern of a child who's under a great deal of stress.”

Dr. Goodman explained, “There are syndromes in which children who are under stress and who are abused identify with the aggressor, become very aggressive and very hyperactive.   And at times they identify as a victim and become very shy and withdrawn and it just varies under which part is going to show up.”

In Dr. Goodman's opinion there was only one “positive indicator” of sexual molestation, the presence of sperm.   He found none in his examination of Kasey and therefore “could not say whether or not she had been sexually molested.”   But the two abnormalities he found in Kasey's genital tract were “enough to set off bells and to say we need a closer look and closer examination.”

Long Beach Police Officer Peter Anderson

On October 19, 1991, Officer Anderson, a Long Beach Police Officer for seven and a half years, had stopped at the Community Hospital in Long Beach when he and his partner were approached by three young boys.   The time was 5:27 p.m.

One of the boys, Jeff L., was wearing baggy short pants and underwear but had no shirt, shoes, or socks.   The other boys were Paul D. and Nathan C.

Jeff said “he had been touched in his private parts by an elderly male ․ whom he knew only as Phil.”   Jeff described the events which had led to the touching:  going fishing, returning to Phil's apartment, reading magazines, watching the videos, and seeing Phil masturbate.

Officer Anderson and his partner drove the boys to appellant's apartment building where they identified appellant's car.

Officer Anderson contacted appellant and searched his apartment.   The officers recovered a bag of adult magazines, six videotapes, including exhibits 3 (the videotape of Kasey) and 6 (the sex video appellant played for the three boys).   The officers arrested appellant.

Detective Lianne Osendorf

Detective Osendorf, a police officer for 15 years, was assigned to the sex crimes detail in the Long Beach Police Department and was the investigating officer in the instant case.

On October 19, 1991, at about 7 p.m., she interviewed appellant.   After being advised of, and waiving, his rights appellant made the following statements.5

Appellant described the early events of October 19, 1991—in taking Paul, Nathan, and Jeff fishing at El Dorado Park, returning sometime after 4 p.m., and going to his apartment—substantially as had Jeff and Paul.   He said Paul asked if they could see his pornographic magazines and he said okay.   When the boys asked to see his pornographic video he set up the equipment and let them see it.

Paul and Nathan left the apartment, appellant said, and he went to the bathroom to urinate.   While he was urinating Jeff was nearby in the bedroom and, appellant said, Jeff stated something like, looking at magazines “makes me pinzy.”   Jeff pointed to his penis, appellant said, and stated “You know, it makes it hard.”   Appellant said he jokingly asked Jeff if he wanted him to feel it and Jeff said no.

Appellant said he only touched Jeff's knee.   Jeff asked him if he could lift the barbell and when he did, Jeff left the apartment.

When asked about molesting Kasey he denied it and said she was “oversexed and well aware of everything.”   He said Paul wanted to use his video camera to photograph Kasey while she took a bath and he let Paul use the camera.   Afterwards, he watched the video one time.

When asked about fondling himself in front of Kasey appellant initially denied doing so but later said “he fondles himself for sexual gratification and he likes little girls to watch.

Appellant told Detective Osendorf “he did not like to sexually molest little boys but did like to sexually arouse them.”

Appellant denied threatening Kasey if she told her grandmother anything and said her grandmother never questioned him and “did not know his intentions.”   When asked what his intentions were, appellant said “he liked being aroused by little girls.”

Soon after making these statements appellant became distraught and said “I think I need an attorney.”   Detective Osendorf asked appellant if he wanted to stop the interview and consult with an attorney.   But instead of responding to the question appellant made the following statements.6

Appellant stated, “Not all of it's true.”   He continued, saying “He is sexually aroused by little girls and likes to touch little girls outside of their clothing.   He likes them to see his penis.   However, he no longer masturbates in front of them․  He said he would never hurt a child.”   He then asked Detective Osendorf “how much time he was going to spend in prison.”

Detective Osendorf then asked appellant some questions and appellant again became distraught and said “he thought he was cured and that he no longer had this problem.   He said he [ ] is still sexually aroused by little girls ․ and did not think the little kids knew what they [sic] were doing when he was touching them.   He did not think they realized he was molesting them.”

Early in the interview, before appellant said “I think I need an attorney,” Detective Osendorf asked him if he had ever been accused of molesting his children.   Appellant said he had been accused of molesting his two daughters.7  Detective Osendorf then gave the following answers to the prosecutor's questions:

“Q And how old were his daughters when he was accused of molesting them?

“A They were about seven years old.

“Q Did he tell you anything about a report?

“A He said a report that [sic] had been filed in Westminster, but he was never prosecuted and he voluntarily went into counseling for four years.   He thought he was okay now.

“Q Did he tell you anything about those incidents?

“A He admitted that he had touched their vaginal area—this referring to his daughters—over their clothing and he said he fondled them but he did not molest them.”

Later in the interview, after he first became distraught, appellant said “he liked his daughter Carolyn, when she was seven, to watch him urinate because it sexually aroused him.”

Six prosecution exhibits, including exhibit 3,8 the videotape of Kasey which Dr. Goodman had described, were received in evidence.   The prosecution rested.

2. DEFENSE EVIDENCE

Jacqueline Losinger

Ms. Losinger and the mother of Paul and Kasey were cousins, so she was a second cousin to Paul and Kasey.   She lived alone in apartment 4 in the same building with appellant and Esther Falting, her aunt and the grandmother of Paul and Kasey.

She had lived in that apartment building about three years and appellant even longer.   She, Esther Falting, and appellant were “very good friends.”   They “would have dinner together ․ play cards together ․ watch movies together.”   They would go places together:  golfing, to the park, and go listen to music together.   Appellant and Esther were “very good buddies.”

Paul and Kasey put up with Ms. Losinger because she was part of the family.   There wasn't “too much” conflict between her and the children because she “wouldn't put up with it․”

Paul and Kasey “both lie a lot ․ it seems that when they would lie, it was to make something look better for them.”   They also had “foul mouths ․ very bad mouths.”

Appellant never acted abnormal with Paul and Kasey, he was good with them, a gentleman.   Appellant isn't the type of person to touch children in a wrong way.   He was like a grandfather to Paul and Kasey.

On cross-examination, when told that appellant had admitted to Detective Osendorf he had sexually fondled his own daughters and had received counseling for four years, Ms. Losinger said she thought it was true but still had the same good opinion of appellant because “Phil [appellant] has learned his lesson when that happened.”

Esther Falting

She has known appellant for five years.   They are good friends.  “When Phil [appellant] goes to the store, he always stops by to see if I need anything, because I have no transportation.”

She and appellant go to church together, play miniature golf together, and fish together.   Appellant never acted abnormal with Paul and Kasey.   He was like a grandfather to them.  “Kasey dominates everybody.”   Paul is “kind of slow.”   Kasey is “smart as a whip.”   She “had a very vulgar vocabulary.”   She “had it since she was four years old.”   Kasey has “always had a dirty mind.”  “They all lie.”   They would tell me they would stay inside and “first thing I know, there they are, around the block.”   Kasey is “a pushy, undisciplined, foul-mouthed little girl.”

Kasey never told me Phil flipped up her dress.   She told me she took Phil's quarters, Paul tried to get them from her, and she threw them so Phil and Paul would have to pick them up.

The person “who was pushing this thing” was Susan, Paul and Kasey's aunt by marriage.   Beverly, Paul and Kasey's mother, told me “this could have been worked out and talked over between us and Phil, if Susan would have kept her mouth out of it.”

On cross-examination, Ms. Falting stated Kasey had never accused her late grandfather, her father, or any other person—except appellant—of molesting her.   She also stated that if she had known appellant had received counseling for child molestation it would have changed her opinion “about what was going on.”

The defense rested.

3. JURY VERDICTS AND SENTENCE

The jury found appellant guilty of four counts of child molestation (§ 288, subd. (a):  counts I (the October 19, 1991, touching of Jeff L.), IX (involving the videotape of Kasey, exhibit 3), IV (digital penetration of Kasey on the weight bench), and V (digital penetration of Kasey on the back seat of appellant's car).

The jury found appellant guilty of five lesser included misdemeanor offenses, two counts of contributing to the delinquency of a minor (§ 272;  counts II and III involving Paul D.) and three counts of annoying a child (§ 647.6;  counts VI, VII, and X involving Kasey D.).

The jury found appellant not guilty of count VIII (involving an erased videotape of Kasey D.).

Appellant was sentenced to a 14–year state prison term.   This appeal followed.

DISCUSSION

1. Appellant contends the trial court erred in admitting evidence he committed lewd acts upon his daughters, offenses that were uncharged.

 After an Evidence Code section 402 hearing the trial court admitted certain statements by appellant.   The admitted statements included the following references to appellant's daughters:  that he had been accused of molesting his two daughters when they were seven years old, that a police report had been filed but he wasn't prosecuted, that he went into counseling for four years, that he had touched their vaginal area over their clothing and fondled but didn't molest them, and that when his daughter Carolyn was seven he was sexually aroused by having her watch him urinate.

Appellant contends under People v. Ewoldt, supra, 7 Cal.4th 380, 27 Cal.Rptr.2d 646, 867 P.2d 757 it was error to admit this evidence of uncharged offenses.   As we explain, appellant is mistaken.

In Ewoldt, as in the instant case, admissibility of the uncharged misconduct turned on Evidence Code section 1101.   It states:  “(a) Except as provided in this section and in Sections 1102 and 1103, evidence of a person's character or a trait of his character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his conduct) is inadmissible when offered to prove his conduct on a specified occasion.

“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistaken or accident) other than his disposition to commit such acts.

“(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”  (Emphasis added.)

Ewoldt explained that “ ‘[t]he presence of a design or plan 9 to do or not to do a given act has probative value to show that the act was in fact done or not done.’ ”  (People v. Ewoldt, supra, 7 Cal.4th at p. 393, 27 Cal.Rptr.2d 646, 867 P.2d 757.)  Such a common design or plan “may be proved circumstantially by evidence that the defendant has performed acts having ‘such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’   Evidence of a common design or plan, therefore, is not used to prove the defendant's intent or identity but rather to prove that the defendant engaged in the conduct alleged to constitute the charged offense.”   (Id. at pp. 393–394, 27 Cal.Rptr.2d 646, 867 P.2d 757.   Citations omitted.)

 Ewoldt carefully distinguished proof of common design and plan from proof of intent or identity.  (See People v. Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2, 27 Cal.Rptr.2d 646, 867 P.2d 757.)   When evidence is offered to prove intent the act is conceded or assumed.   For example, if a victim has been fatally stabbed in the heart the act—the fatal stabbing—is conceded or assumed.   Evidence the defendant had stabbed other persons might be probative of his intent in fatally stabbing the victim.

 Similarly, when evidence is offered to prove identity it is conceded or assumed that the charged offense was committed by someone.   If the victim was not only stabbed in the heart but had her ring finger cut off, then evidence the defendant had committed such a murder-amputation on an earlier occasion might be admissible to prove his identity as the instant perpetrator.

Unlike proof of intent or identity, with proof of common design or plan the criminal act is not conceded or assumed, it is contested.   Typically it is the only contested issue.   And typically the criminal act is not a murder (where a dead body evidences the act) or a burglary (where a broken window and ransacked house evidence the act) or a violent assault (where the victim's injuries evidence the act) but a sex crime, often molestation of a child, where the lewd touching or fondling leaves no evidence of the act.

Ewoldt held “that evidence of a defendant's uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan.”  (Id. at p. 401, 27 Cal.Rptr.2d 646, 867 P.2d 757.   Emphasis added.)

By “common design or plan” Ewoldt made clear it did not mean a “single conception or plot.”  (Id. at p. 398, 27 Cal.Rptr.2d 646, 867 P.2d 757.)   Ewoldt expressly disavowed such a meaning of a “grand design” (ibid.) or single all-embracing blueprint by overruling the two cases which had promulgated such a meaning for “common design or plan”:  People v. Tassell (1984) 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1 and People v. Ogunmola (1985) 39 Cal.3d 120, 215 Cal.Rptr. 855, 701 P.2d 1173.  (Id. at p. 401, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

In explaining what it did mean by common design or plan, Ewoldt first observed “it is useful to distinguish the nature and degree of similarity (between uncharged misconduct and the charged offense) required in order to establish a common design or plan, from the degree of similarity necessary to prove intent or identity.”  (Id. at p. 402, 27 Cal.Rptr.2d 646, 867 P.2d 757.)  Ewoldt then stated the least degree of similarity is required to prove intent, a greater degree to prove common design or plan, and the greatest degree to prove identity.  (Id. at pp. 402–403, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

As to the requisite degree of similarity to prove common design or plan, Ewoldt stated:  “Evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if those acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts.   Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive;  it need only exist to support the inference that the defendant employed that plan in committing the charged offense.”  (Id. at p. 403, 27 Cal.Rptr.2d 646, 867 P.2d 757.)  (Emphasis added.   Citations omitted.)

To this point in its analysis Ewoldt had made clear that evidence of common design or plan did not require a single all-embracing plan nor require unusual common features but did require sufficient common features to support the inference “the defendant employed that plan in committing the charged offense.”  (Ibid.)

Ewoldt illuminated the sufficiency of common features when it compared the charged offenses with the uncharged.

The charged offenses all involved one victim, Jennifer, the defendant's stepdaughter.   Jennifer testified defendant molested her over a seven-year period, beginning when she was 6 or 7 and not ending until she was 14.   The touchings occurred weekly or biweekly.   Defendant touched her breasts and vaginal area and frequently digitally penetrated her vagina.

Jennifer specified four touchings, each a separate charged offense.   One occurred when she was 11.   Defendant was in the bathroom and told Jennifer he was dressed and she could turn around.   When she did so she saw defendant was naked and had an erection.   He forced her onto the bed, fondled her vaginal area, undressed her and only stopped when she cried.  (Id. at p. 388, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

The second, when Jennifer was 12 or 13, also occurred when defendant was naked.   He assaulted her on his bed, removed her clothes, fondled her, and again only stopped when she resisted and cried.  (Ibid.)

In the third incident, when Jennifer was 13, she was in bed asleep when defendant entered her room wearing only underwear and smelling of alcohol.   “Defendant uncovered his penis and told Jennifer to touch it, but she refused.   When he forced her to do so, she began to cry and said she had to go to the bathroom.   After using the bathroom, Jennifer proceeded toward her parents' bedroom, intending to wake her mother.   Defendant grabbed her arm ․ [t]hey struggled, and Jennifer screamed ‘No,’ waking her mother.”  (Id. at p. 388, 27 Cal.Rptr.2d 646, 867 P.2d 757.)   Jennifer slept with her mother the remainder of that night.

The fourth and final incident occurred when Jennifer was 14.   She awoke when she felt defendant touching her breasts and asked him what he was doing.   He said he was covering her with a blanket.  (Id. at p. 389, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

The uncharged offenses also all involved one victim, Natalie, the older sister of Jennifer.   Natalie related three incidents which occurred when she was 10 or 11, about 11 years before the last molestation of Jennifer.  Ewoldt described the incidents this way:  “Natalie awoke on three occasions to find defendant beside her bed, touching her breasts and vaginal area.   On the first two occasions, Natalie was uncertain whether she had been dreaming.   On the third occasion, when she asked defendant what he was doing, he said he was ‘straightening up the covers.’   She told him to leave, and no further incidents of this type occurred.   Subsequently, however, on several occasions Natalie and her older sister, Theresa, found defendant peeking into their bedroom window while they were dressing.

Natalie never told anyone defendant had molested her, until she learned defendant had molested Jennifer.”  (Ibid.)

As is plain, the charged offenses and uncharged offenses had both common features and non-common features.

Among the non-common features were the following:  (1) on two occasions defendant was naked when he molested Jennifer;  he was not naked when he touched Natalie (2) defendant used force on Jennifer but not on Natalie (3) defendant undressed Jennifer but not Natalie (4) defendant digitally penetrated Jennifer but not Natalie (5) defendant forced Jennifer to touch his penis but not Natalie.

The common features are described by Ewoldt as follows:  “In the present case, the victims of both the uncharged misconduct and the charged offenses were defendant's stepdaughters, who were residing in defendant's home, and the acts occurred when the victims were of a similar age.   On three occasions, defendant molested Natalie at night while she was asleep in her bed.[[[[[[[10 ]  When discovered, defendant asserted he was only ‘straightening up the covers.’   In two of the charged offenses, defendant molested Jennifer in an almost identical fashion [11 ] and, when discovered, proffered a similar excuse.   On one occasion prior to the commission of the charged offenses, defendant touched either Jennifer's breasts or her vaginal area.   This marked the beginning of an ongoing pattern of molesting Jennifer.”  (Id. at p. 403, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

Based upon these common features, and without reference to the non-common ones, Ewoldt concluded “that evidence of defendant's uncharged misconduct shares sufficient common features with the charged offenses to support the inference that both the uncharged misconduct and the charged offenses are manifestations of a common design or plan.   Such evidence is relevant to establish that defendant committed the charged offenses in accordance with that plan.”  (Id. at p. 403, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

 As the Ewoldt comparison demonstrates, the uncharged misconduct need not share common features with all the charged offenses.   It is sufficient if it shares common features with one or more.

In the present case, the common features shared by the uncharged and charged offenses equal or exceed those in Ewoldt.   In the charged offenses the principal victim, Kasey, was like a granddaughter to appellant while the uncharged victims were his daughters.   In both, molestations occurred in appellant's home “and the acts occurred when the victims were of a similar age.”  (Id. at p. 403, 27 Cal.Rptr.2d 646, 867 P.2d 757.)   In both, it was the vaginal area of the victims that appellant touched.   Moreover, appellant's uncharged act of having his 7–year–old daughter Carolyn watch him urinate was similar to his charged conduct with Jeff L. (standing in the bathroom feigning urination) and identical to an incident testified to by Kasey.

We conclude “that evidence of defendant's uncharged misconduct shares sufficient common features with the charged offenses to support the inference that both the uncharged misconduct and the charged offenses are manifestations of a common design or plan.”  (Id. at p. 403, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

 Although relevant, “to be admissible such evidence [of uncharged offenses] ‘must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.’ ”  (People v. Ewoldt, supra, 7 Cal.4th at p. 404, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

Ewoldt considered four factors.   The first and principal factor was the “tendency of [the uncharged offense] evidence to demonstrate the existence of a common design or plan.”  (Ibid.)  As in Ewoldt, in the instant case “[t]hat tendency is strong.”  (Ibid.)

The second factor is whether the source of the uncharged offense evidence is independent of the charged offense evidence.   In Ewoldt it was not independent because Natalie reported the molestations only after she learned of Jennifer's complaint.   In the instant case it is independent:  police reports of appellant's molestations of his daughters were filed before appellant committed the charged offenses.

A third factor is whether the uncharged offenses resulted in convictions.   If not, what was the likely inclination of a jury to convict a defendant of his charged offenses in order to punish him for his uncharged offenses?   In the instant case, as in Ewoldt, the uncharged offenses had not resulted in convictions.   But, as in Ewoldt, the testimony was “no more inflammatory than the testimony concerning the charged offenses.”  (Id. at p. 405, 27 Cal.Rptr.2d 646, 867 P.2d 757.)   And, unlike Ewoldt, in the present case any punishment inclination would have been mitigated by appellant having undergone four years of counseling.

The fourth factor is the time gap between the charged and uncharged offenses.   Although in the present case, as in Ewoldt, the interval was substantial, that circumstance “does not ․ significantly lessen the probative value of this evidence․”  (Id. at p. 405, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

We hold that “[c]onsidering all of the circumstances ․ the trial court did not abuse its discretion in admitting the evidence of defendant's uncharged misconduct.”  (Ibid.)

 Additionally, quite apart from common design or plan, the uncharged offense evidence was admissible to prove appellant's intent.

Intent was in issue regarding Jeff L.   As related by Detective Osendorf, appellant stated he had only touched Jeff's knee and Jeff testified to only a “slight” touching.

Intent was also in issue regarding Kasey.   In count X the alleged conduct consisted only of “flipping up” Kasey's skirt.   As to that conduct appellant was convicted of a lesser included misdemeanor.

As to other counts, Kasey's testimony was so general and unspecific as to put appellant's intent in issue.   Appellant was convicted of lesser included misdemeanors on counts VI and VII and acquitted on count VIII.

Similarly, intent was in issue regarding Paul.   As related by Detective Osendorf, appellant stated “he did not like to sexually molest little boys but did like to sexually arouse them.”   Moreover, Paul's description of the touchings was general and as to the first touching Paul testified appellant made it look like an accident.   Appellant was convicted of lesser included misdemeanors on both counts involving Paul.

As Ewoldt noted, “[t]he least degree of similarity (between the uncharged act and the charge offense) is required in order to prove intent.”  (People v. Ewoldt, supra, at p. 402, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

We conclude the uncharged offense evidence was properly admitted to prove appellant's intent in committing the charged offenses.

2. Appellant claims Miranda error.

 Appellant asserts that after he told Detective Osendorf “I think I need an attorney,” all his statements were inadmissible under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.   We disagree.

During the Evidence Code section 402 hearing, Detective Osendorf testified she advised appellant of his Miranda rights, appellant stated he understood those rights, waived them, and was willing to talk to her.   Appellant then freely answered questions until, sometime later, he became distraught and said “I think I need an attorney.”   Detective Osendorf then “asked him if he wished to stop the interview and consult an attorney?”   Appellant's response was a lengthy, continuous statement.   The trial court ruled this statement admissible because spontaneous and not in response to custodial questioning.   The trial court was correct.

In trying to clarify whether or not appellant “wished to stop the interview and consult an attorney” Detective Osendorf did not breach Miranda nor “interrogate” appellant.  (See People v. Sims (1993) 5 Cal.4th 405, 442, fn. 7, 20 Cal.Rptr.2d 537, 853 P.2d 992;  People v. Carey (1985) 183 Cal.App.3d 99, 103, 227 Cal.Rptr. 813;  People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 526–527, 212 Cal.Rptr. 605.)   Appellant's lengthy, continuous statement was properly admitted.  (People v. Edwards (1991) 54 Cal.3d 787, 814–816, 1 Cal.Rptr.2d 696, 819 P.2d 436.)

 Finally, the last of appellant's statements, made after Detective Osendorf resumed questioning appellant, even if violative of Miranda, were largely repetitious of his earlier admissions and without prejudice.   (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)

3. Appellant contends the trial court erred in admitting evidence of an uncharged offense against Kasey.

 Kasey testified that during a Disneyland outing appellant “grabbed her privates” over her clothing.   This was an uncharged offense which appellant claims should have been excluded.   Appellant is mistaken.

The basis of appellant's contention is People v. Stanley (1967) 67 Cal.2d 812, 63 Cal.Rptr. 825, 433 P.2d 913 “which prohibits the admission of ‘uncorroborated testimony of the prosecuting witness as to noncharged offenses․' ”  (People v. Ewoldt, supra, at p. 407, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

Stanley, although not expressly overruled by Ewoldt, was given its last rites.  Ewoldt stated Stanley was based upon an “incorrect” premise (People v. Ewoldt, supra, at p. 407, 27 Cal.Rptr.2d 646, 867 P.2d 757) and could be distinguished whenever evidence of uncharged offenses against a victim “was relevant to place the charged offenses in context.”  (Id. at p. 408, 27 Cal.Rptr.2d 646, 867 P.2d 757.)   In Ewoldt, although there were only four charged offenses against the victim, the victim testified to being molested weekly or biweekly for over 7 years, a minimum total of 182 uncharged offenses.

The single Disneyland incident Kasey testified about was properly admitted by the trial court.

4. Appellant contends the trial court erred in refusing to view, in camera, privileged documents subpoened by the defense.

 After the instant molestations were reported to the police, Kasey, Paul, and apparently Jeff,12 obtained counseling at the Sarah Center, a child abuse treatment center in Long Beach.   Appellant served a subpoena duces tecum on the Sarah Center for the records of Kasey, Paul, and apparently Jeff.

The records were produced by Dr. Wintersten, of the Sarah Center, and she asserted the psychotherapist-patient privilege.  (Evid.Code, § 1014.)

Appellant conceded the documents were privileged but argued there was good cause to believe they contained exculpatory evidence which required the trial court to view them in camera.   The trial court ruled appellant failed to show good cause and declined to view the documents.   Appellant claims error.

Appellant cited to the trial court, and relies upon in his appeal, People v. Reber (1986) 177 Cal.App.3d 523, 223 Cal.Rptr. 139 and Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 143 Cal.Rptr. 450.

Reber held that where good cause is shown the trial court should review the privileged documents in camera.  (People v. Reber, supra, at p. 532, 223 Cal.Rptr. 139.)   But Lemelle held good cause is shown only by a request which specifies the requested information and provides a plausible justification for its production.  (Lemelle v. Superior Court, supra, 77 Cal.App.3d at p. 162, 143 Cal.Rptr. 450.)

Appellant satisfied one good cause prong by specifying the information he requested:  any statement by a victim denying he/she was molested or any “inconsistent” statement.

However appellant failed to satisfy the second good cause prong, plausibility.   Appellant stated the following to the trial court:  “The plausibility justification is that if these children are going to the Center for the purpose of discussing this alleged sexual assault or molest[at]ion, obviously, they're going to discuss it.   They may discuss it as a family group.   They may discuss it in pairs.   They may have individual and independent discussions with the counselor.   It is our belief that it is very plausible and very likely that during these discussions that either one or both of the victims have made inconsistencies or possibly even an outright denial.”

If, as appellant claimed, the victims went to the Sarah Center “for the purpose of discussing this alleged sexual assault or molestation” then plausibility might have been satisfied.   But to the extent the record reveals a purpose for the victims attending the Sarah Center, it was not to discuss their molestation but to receive treatment for it.   The record is silent as to the nature and mode of that treatment.   Appellant could have asked Dr. Wintersten whether treatment included having victims discuss their molestations.   Appellant did not.

From all indications Kasey was disinclined to discuss the molestations.   She repeatedly testified she “didn't remember” when asked about details.   Dr. Goodman described her as “withdrawn” and said “she didn't want to talk to me about any of the things that may have happened to her.”   He further testified that such reticence was “consistent” with a child who's been sexually molested.

We agree with Justice Gilbert that an in camera review of psycho-therapeutic records is not required upon such a minimal showing.  (People v. Pack (1988) 201 Cal.App.3d 679, 686, 248 Cal.Rptr. 240.)  “A person's credibility is not in question merely because he or she is receiving treatment for a mental health problem.   To subject every witness in a criminal prosecution to an in camera review of their psychotherapist's records would be the invasion of privacy which the psychotherapist-patient privilege is intended to prevent.”   (Ibid.)

We find no error by the trial court.

5. Appellant contends the trial court coerced the jury verdicts.

 Appellant contends the trial court coerced the jury verdicts by requiring the jury to resume deliberations after, on several occasions, they declared they were deadlocked.   The contention does not bear scrutiny.

“The applicable legal principles are well established.   Under section 1140, the trial court is precluded from discharging the jury without reaching a verdict unless both parties consent or ‘unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.’   We have explained that ‘[t]he determination whether there is reasonable probability of agreement rests in the sound discretion of the trial court.   The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury's independent judgment ‘in favor of considerations of compromise and expediency.’ ”  (People v. Sheldon (1989) 48 Cal.3d 935, 959, 258 Cal.Rptr. 242, 771 P.2d 1330.)

There is no suggestion the trial court made any coercive remarks or exerted any undue pressure on the jury.   He simply requested them to resume deliberations and attempt to reach verdicts if they conscientiously could do so.   In fact, jury progress was continuous.   The trial court did not abuse its discretion in requiring the jury to resume deliberations.  (People v. Rodriguez (1986) 42 Cal.3d 730, 775, 230 Cal.Rptr. 667, 726 P.2d 113.)

6. Correction of abstract of judgment.

Appellant notes, and respondent concedes, the abstract of judgment incorrectly indicates convictions of section 288, subdivision (a) on counts VI, VII, and X.

We shall order the abstract of judgment corrected to show convictions of misdemeanor section 647.6 on each of those counts.

DISPOSITION

The abstract of judgment is ordered corrected to show convictions of section 647.6 (not section 288, subd. (a)) on counts VI, VII, and X.

As corrected, the judgment is affirmed.

I respectfully dissent.

Despite the Supreme Court's attempt in People v. Ewoldt (1994) 7 Cal.4th 380, 27 Cal.Rptr.2d 646, 867 P.2d 757 to clarify the type of evidence of uncharged offenses which may properly be introduced to prove the existence of a common design or plan, and its attempt to define the circumstances under which it may be properly admitted, the majority reach their conclusion the uncharged act evidence was properly admitted in this case by largely ignoring the court's detailed guidance in Ewoldt.   In addition, the majority support their conclusion by misconstruing the Supreme Court's analysis of the factual similarities between the charged and uncharged offenses in that case.   I believe a faithful application of the Supreme Court's reasoning should lead to a finding evidence of uncharged acts in this case should have been excluded as too dissimilar to constitute evidence of a common design or plan, as well as too remote in time to have probative value for any purpose.   I would also find on this record admission of evidence of the uncharged acts resulted in prejudicial error.   Accordingly, I would reverse the judgment of conviction on this ground alone.

I further disagree with the majority the trial court did not abuse its discretion in refusing to review the victims' psychiatric records in camera.   As does the majority opinion, I find defendant's request for an in camera review of the records was sufficiently specific.   However, I disagree with the majority's conclusion defendant failed to present a plausible explanation to trigger the trial court's duty for an in camera review of those records.   The majority's conclusion rests on the supposition the victims probably did not discuss the very molestations which prompted them to seek treatment.   The majority's hypothesis stretches credulity beyond what is reasonable in this case.   On this record I would find it not only plausible to find discussions of the molestations took place during the counselling sessions, but more than likely those discussions dominated every session.   Unlike the situation in People v. Pack (1988) 201 Cal.App.3d 679, 248 Cal.Rptr. 240, on which the majority rely, here the victims' treatment for mental health problems was a direct result of and inextricably linked to the offenses for which defendant was charged.   In contrast with People v. Pack, the request in this case restricted itself to discussions of the charged offenses and was not a “fishing expedition” for any mental health problems bearing on the victims' credibility having no relation to, and not prompted by, any act of the accused.   Accordingly, I would hold the trial court abused its discretion in rejecting defendant's request to even review the victims' psychiatric records in camera.

Because I believe the errors and omissions which occurred in this case deprived defendant of a fair trial, I dissent from the majority opinion affirming the convictions.

DISCUSSION

I. IT WAS PREJUDICIAL ERROR TO ADMIT EVIDENCE OF PRIOR UNCHARGED ACTS OF SEXUAL MOLESTATION.

An expanded factual explanation is required to place in context the rationale behind the trial court's decision to admit evidence of the uncharged acts of molestation of defendant's daughters.   As the trial court conceded, the evidence was relevant to prove defendant had previously molested children, was not cured, and therefore likely committed the offenses of which he was accused.   In other words, the evidence tended to prove defendant had a “predisposition” to commit the charged crime, a reason for exclusion under Evidence Code section 1101 et seq.   Also, because I do not agree with the majority's limited interpretation of the Supreme Court's recent decision in People v. Ewoldt, supra, 7 Cal.4th 380, 27 Cal.Rptr.2d 646, 867 P.2d 757, a more complete discussion of that decision is warranted.

The trial court held an evidentiary hearing regarding defendant's statements to the detective after he was arrested.   Defense counsel argued defendant's statements about his prior misconduct with his daughters should be excluded as improper character evidence.   Counsel argued the evidence was not relevant to prove intent as, due to the nature of the charges, intent was not seriously at issue.   Counsel further argued the evidence was not relevant to prove a common design or plan because there were few if any similarities between the current charges and the prior acts with his daughters.   Counsel pointed out the alleged molestations of his daughters occurred between 12 to 15 years ago and were therefore too remote to have probative value.   For these reasons, counsel urged the court to exclude the evidence under Evidence Code section 352 as unduly prejudicial.

The prosecutor sought to introduce evidence of defendant's prior molestation of his daughters to give meaning to his later comment he thought he was cured.

The trial court agreed with defense counsel the evidence was too dissimilar to constitute evidence tending to prove a common design or plan.   The court also appeared to agree the evidence may be too remote to have any probative value.   However, the court ruled the statements concerning the prior molestation of defendant's daughters and his statement he thought he was cured, taken together, were admissible as implied admissions he was “not okay.”

Subdivision (a) of Evidence Code section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of a person on a specified occasion.   Subdivision (b) of Evidence Code section 1101 1 clarifies, however, this rule does not prohibit admission of uncharged misconduct when such evidence is relevant to prove some fact other than criminal disposition, such as intent or common scheme or plan.   The Supreme Court decision in People v. Ewoldt, supra, 7 Cal.4th 380, 27 Cal.Rptr.2d 646, 867 P.2d 757 offers guidance concerning when evidence of uncharged offenses may be properly used to prove a common design or plan in child molestation prosecutions.

The Ewoldt court reviewed the requirements for admissibility of prior uncharged act evidence to prove intent, common scheme or plan and identity in the context of a child molestation case.   The court attempted to define when acts could be held to be “sufficiently similar” so as to be admissible as a manifestation of a common design or plan by comparing and contrasting the degree of similarity required to prove intent, common design or plan and identity.

The court found the least degree of similarity is necessary to prove intent.   “In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant probably harbor[ed] the same intent in each instance.”  (7 Cal.4th at p. 402, 27 Cal.Rptr.2d 646, 867 P.2d 757, internal citations and quotation marks omitted.)

However, the court found a greater degree of similarity is required to prove the existence of a common design or plan.   Generally, as in this case, evidence of a common design or plan is admitted to prove defendant committed the act alleged.   When used for this purpose the evidence must demonstrate defendant committed the uncharged act “in a markedly similar manner to the charged offense.”  (7 Cal.4th at p. 394, fn. 2, 27 Cal.Rptr.2d 646, 867 P.2d 757.)   The court emphasized, it is not sufficient to prove common design or plan for the evidence merely to show a “series of similar spontaneous acts, ․” (7 Cal.4th at p. 403, 27 Cal.Rptr.2d 646, 867 P.2d 757.)   To be relevant, the “uncharged misconduct must demonstrate not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.”  (7 Cal.4th at p. 402, 27 Cal.Rptr.2d 646, 867 P.2d 757, internal citations and quotation marks omitted, italics added.) 2

The Supreme Court concluded the greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity.  “For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts.   The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.”  (7 Cal.4th at p. 403, 27 Cal.Rptr.2d 646, 867 P.2d 757, internal citations and quotation marks omitted.)

The court then turned to the case at hand.   In Ewoldt the defendant was charged with molesting his young stepdaughter.   At trial, the victim's sister, who was then 23 years old, testified the defendant had also molested her when she was 10 or 11 years old.   The evidence revealed both the charged and uncharged offenses concerned molestation of his stepdaughters who resided in his home.   The acts occurred when the victims were of similar age.   The defendant molested his victims while they were sleeping in their bed.   On these occasions he touched their breasts and vaginal area.   Significantly, when the girls confronted the defendant he used the same excuse of claiming he was straightening up their covers.

The court concluded the uncharged misconduct shared sufficient common features with the charged offenses to support the inference both the charged and uncharged misconduct were manifestations of a common design or plan.   Thus, the court held the evidence was relevant to prove a fact other than criminal disposition.  (7 Cal.4th at p. 403, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

The court next analyzed whether the evidence should be excluded as unduly prejudicial despite its relevance.  “Since substantial prejudicial effect [is] inherent in [such] evidence, uncharged offenses are admissible only if they have substantial probative value.”  (7 Cal.4th at p. 404, 27 Cal.Rptr.2d 646, 867 P.2d 757, emphasis in original, internal citation and quotation marks omitted.)   The court analyzed two factors bearing on the probative value of the evidence:  (1) the tendency of the evidence to demonstrate the existence of a common design or plan and (2) whether the source of the evidence is independent of the evidence of the charged offense.   The court found the tendency of the evidence to prove a common design or plan was very strong because the uncharged misconduct was committed in a manner “nearly identical” to two of the three charged counts.   However, the court found the probative value of the evidence was lessened because its source was not wholly independent of the evidence of the charged offenses.   The older sister only accused defendant of molesting her after learning her younger sister had accused defendant of molestation.  (7 Cal.4th at pp. 404–405, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

The court then weighed the prejudicial effect of the evidence.   The court expressed concern the jury might be inclined to punish the defendant for the uncharged offense despite a lack of evidence of the charged offenses.   However, the court found the uncharged offense no more inflammatory, and the evidence no stronger than the charged offenses, thereby reducing the potential for prejudice.  (7 Cal.4th at p. 405, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

Finally the court analyzed the remoteness of the evidence.   The court noted the uncharged offense occurred approximately 12 years prior to trial.   However, the court held the probative value of the evidence was not significantly lessened in that case because the evidence established only two to three years elapsed between the last molestation of the older sister and the time he began molesting the younger sister.  (7 Cal.4th at p. 405, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

However, the court warned evidence of uncharged acts of misconduct in sexual molestation cases may still be inadmissible, even in cases where the evidence bears sufficient similarity to the charged acts to demonstrate a common design or plan, and even where the probative value of the evidence is great.   The court acknowledged there would be many cases where the evidence would be merely cumulative regarding an issue not reasonably subject to dispute and therefore more prejudicial than probative.  “This is so because evidence of a common design or plan is admissible only to establish that the defendant engaged in the conduct alleged to constitute the charged offense, not to prove other matters, such as the defendant's intent or identity as to the charged offense.”  (7 Cal.4th at p. 406, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

The Supreme Court explained that in such a case evidence of the uncharged misconduct would be inadmissible to prove intent.   The victim testified the defendant fondled her breast and genital area and forced her to touch his penis.  “If defendant engaged in this conduct, his intent in doing so could not reasonably be disputed.   As to these charges, the prejudicial effect of admitting evidence of similar uncharged acts, therefore, would outweigh the probative value of such evidence to prove intent.”  (7 Cal.4th at p. 406, 27 Cal.Rptr.2d 646, 867 P.2d 757, emphasis in original, internal citations omitted.)

Turning now to the facts in the case at bar, unlike the majority, I would hold evidence of the uncharged acts of molestation was inadmissible to prove intent.   Jeff testified defendant reached under his shorts to touch his penis.   Paul testified defendant once fondled his penis over his clothes and on another occasion unbuttoned his pants and fondled his penis.   Kasey testified defendant fondled her genital area and digitally penetrated her vagina, forced her to touch his penis and forced her to make a sexually explicit video.   If these acts occurred, defendant's intent in doing so could not reasonably be disputed.  (People v. Ewoldt, supra, 7 Cal.4th at p. 406, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

Nor was the evidence admissible to establish defendant's intent in the skirt lifting incident charged in count 10.   While initially proffered on the issue of intent, the evidence ultimately was not admitted for that limited purpose.   In addition, the jury was not instructed to consider the evidence only as to that charge.  (People v. Ewoldt, supra, 7 Cal.4th at pp. 406–407, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

The majority, by contrast find evidence of the uncharged acts of misconduct was admissible to prove intent.   They suggest the victims' testimony describing the offenses was so general and unspecific as to put defendant's intent in issue.   I find it strange, if not contradictory, the majority relies on this same testimony to find sufficient specific instances of similarity with the uncharged offenses to qualify the evidence as proof of a common design or plan.   The record establishes if defendant committed the acts, he did so with the intent of sexual gratification.   The majority dispute this conclusion by pointing to the example of Paul who testified defendant touched his penis over his clothes trying to make it look as if his hand inadvertently slipped.   However, Paul's testimony made it plain he was not fooled, and knew defendant's touching was not accidental.

Nor was the evidence necessary to prove defendant's intent in the skirt lifting incident involving Kasey.   There was considerable additional evidence which, if believed, more than established the requisite intent for conviction of the charged offenses.   Thus, for purposes of proving intent, the evidence can only be deemed cumulative to other properly admitted evidence.  (Ewoldt, supra, 7 Cal.4th at p. 406, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

Moreover, I would hold evidence defendant had previously molested his own daughters and his statement he thought he was cured was not admissible to prove a common design or plan.   As noted, to be admissible, such evidence must demonstrate “not merely a similarity in the results,” but must have such a “concurrence of common features” to indicate the acts were manifestations of a common plan.  (Ewoldt, supra, 7 Cal.4th at p. 402, 27 Cal.Rptr.2d 646, 867 P.2d 757.)   In this case, except for the similarity of result, there is very little resemblance between the uncharged acts and the charged acts.

The uncharged acts occurred in his own home and involved touching his daughters' vaginal area over their clothing, having his seven-year-old daughter watch him urinate and masturbating in front of his daughter.   The charged offenses, on the other hand, occurred in a variety of public and private settings and involved sexually arousing little boys as well as girls, making nude videotapes, forced touching of his penis, fondling the genital area and digital penetration of a 10–year–old girl under her clothes.   Accordingly, in my view, the acts do not share sufficient common features to support an inference both the charged and uncharged offenses were but manifestations of a common design or plan.   Instead the acts resemble a “series of similar spontaneous acts”, and therefore inadmissible to prove a common design or plan.  (Ewoldt, supra, 7 Cal.4th at p. 403, 27 Cal.Rptr.2d 646, 867 P.2d 757;  see also People v. Sam (1969) 71 Cal.2d 194, 205, 77 Cal.Rptr. 804, 454 P.2d 700 [evidence defendant had previously kicked other victims inadmissible in murder prosecution where defendant stomped on victim's stomach, as acts were independent of one another and apparently spontaneous in each instance].)

The majority, on the other hand, construe Ewoldt to hold dissimilarities between the uncharged acts and the charged acts may be disregarded.   By doing so they somehow conclude the common features shared by the uncharged acts and the charged offenses equals or exceeds that in Ewoldt.   However, the only similarities the majority can point to cannot be deemed “substantial” as Ewoldt requires:  Those alleged similarities are confined to evidence defendant touched one victim's vaginal area (which could describe untold numbers of child molestation cases) and urinating, or feigning urination, while the children watched (involving a male child in the charged offense and his daughter in the uncharged offense).

Inexplicably, the majority contends this is all the similarity Ewoldt demands.   The majority can only reach this conclusion by ignoring the substantial amount of shared characteristics in two of the three charged offenses and the uncharged offense in the Ewoldt case which formed the basis for the court's resolution of the issue.   In Ewoldt both the uncharged offense and the charged offenses involved the same type of victim.   Both victims were his stepdaughters, of the same gender and of similar age.   In both the uncharged offense and charged offenses the molestations occurred in the same physical location.   The fondling of the breasts and vaginal area occurred in their own beds and in their own home.   The defendant molested both girls while they were asleep.   The most distinctive common feature linking the charged and uncharged offenses, however, was evidence the defendant used the identical excuse with both girls when confronted.

In comparison to Ewoldt, where the uncharged offense shared common features with two-thirds of the charged offenses, the charged and uncharged offenses in this case do not come close to the degree of similarity required to qualify as evidence of a common design or plan tending to establish defendant committed the charged acts.   Here, by contrast, dissimilarities between the charged and uncharged offense predominate.   Consequently, they were not committed in a “markedly similar manner” as Ewoldt requires for admissibility.

Instead in this case evidence of the uncharged acts of misconduct merely tended to prove defendant was a child molester and still had a propensity for committing unlawful sexual acts on children.   As the trial court noted, this evidence tended to prove he was “not okay.”   Evidence which is not relevant to prove any fact other than criminal disposition is expressly excluded by Evidence Code section 1101, subdivision (a).   Because evidence of the uncharged misconduct was neither relevant to prove defendant's intent nor sufficient to establish evidence of a common design or plan, it did not meet the threshold requirement of relevancy and should have been excluded.

Moreover, even if the evidence could be considered relevant on some issue, it is doubtful whether it could pass muster under Evidence Code section 352.   Because the acts were so dissimilar, any tendency to prove defendant committed the acts alleged was weak.   On the other hand, because defendant was the source of the evidence, the weight to be given the evidence was strong.   However, for the same reason the tendency of the evidence to create prejudice and encourage the jury to punish him for those uncharged acts was also strong.   Most significantly, the uncharged acts of misconduct occurred so long ago, and without any intervening offenses, whatever probative force the evidence might have had in other circumstances was substantially weakened.   (See also People v. Thomas (1978) 20 Cal.3d 457, 466, 143 Cal.Rptr. 215, 573 P.2d 433 [“The fact that defendant had molested one daughter a decade or more ago would not establish the fact he had a continuing common plan or scheme to molest all of his daughters.”].)

For some reason the majority misconstrues the facts of Ewoldt and claims the time gap between the charged and uncharged offenses was equally lengthy.   However, the Ewoldt court took pains to point out only two or three years elapsed between the “time defendant last molested Natalie and the time he began his ongoing pattern of molesting Jennifer.”  (7 Cal.4th at p. 405, 27 Cal.Rptr.2d 646, 867 P.2d 757.)   For this reason, the fact the uncharged molestation occurred approximately 12 years before trial did not, in the context of that case, “significantly lessen the probative value” of the evidence.  (Ibid.)

In sum, I would hold it was an abuse of discretion for the trial court to admit evidence of defendant's statements relating to the prior molestation.

In reviewing the prejudicial effect of the erroneous admission of evidence of the uncharged acts of molestation, I would conclude there is a reasonable probability defendant would have achieved a more favorable result had the error not occurred.  (People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.)

The prosecution's case in chief was not particularly strong.   Kasey was the victim in seven of the ten counts alleged against defendant.   Her testimony was hesitant and often appeared scripted.   She described each act of molestation in the same perfunctory fashion and in the same terminology.   She repeatedly claimed she could not remember when questions on direct or cross-examination inquired into details of the acts or circumstances of the molestation.   Notably, the doctor who examined Kasey could not conclude she had been sexually molested.

Paul initially denied ever being molested by defendant and the officer testified defendant consistently denied molesting any of the children.

By contrast, the defense case was quite strong.   Two of the victims' own relatives, who were closest to the children and knew them best, testified the children were chronic liars and were not to be believed.

In addition, the prosecutor relied heavily on the evidence of defendant's molestation of his daughters in argument and in cross-examining the defense witnesses.   For example, the prosecutor inquired whether the witnesses knew defendant had admitted molesting his own daughters.   He then asked whether knowing defendant was a confessed child molester would change their opinion of him.

Defendant's statements regarding the uncharged acts of molestation of his daughters, his subsequent treatment and ineffective cure amounted to admissions he was still a child molester.   A reasonable inference from this evidence, and one the jury likely drew, was if defendant admitted molesting his own daughters he likely committed the charged offenses.

The jury deliberated nearly as long as the case took to present.   On three different occasions the jury announced they were deadlocked and could not reach verdicts on the majority of the counts.   When the jury ultimately rendered their verdicts, on half of the counts they convicted defendant of the lesser included misdemeanor offenses of annoying or molesting a child, or contributing to the delinquency of a minor.

It can reasonably be inferred from these circumstances this was a very difficult and close case in which many of the jurors were not convinced of defendant's guilt beyond a reasonable doubt regarding several of the counts.   Because of the strength of the defense case and the lack of compelling evidence on all of the charged offenses, it is reasonably probable the jury relied on evidence of the uncharged acts of molestation to convict him of some of the charged offenses.   It thus appears reasonably probable had the jury not learned of the prior molestation defendant may well have achieved a more favorable result.

Accordingly, I would reverse the judgment of conviction and remand for a new trial.

II. IT WAS AN ABUSE OF DISCRETION TO REFUSE IN CAMERA REVIEW OF THE VICTIMS' PSYCHIATRIC RECORDS.

The majority agree defendant's request the trial court review the victims' psychiatric records in camera was sufficiently specific to satisfy the requirement of a showing of good cause.   However, the majority concludes the trial court did not abuse its discretion in refusing to review the records by finding defendant failed to advance a plausible explanation why the records might contain information relevant to the instant prosecution.   I disagree with the majority's analysis and conclusion.   A review of relevant authority and the actual arguments advanced to support his request, establish defendant demonstrated good cause for at least an in camera review of the prosecuting witnesses' records.

People v. Reber (1986) 177 Cal.App.3d 523, 223 Cal.Rptr. 139 was apparently the first California decision to consider the implications of a criminal defendant's constitutional right of cross-examination in relation to the statutory psychotherapist-patient privilege.   After an analysis of decisions from other jurisdictions, the Reber court concluded “[w]here psychotherapy records contain evidence of such disorders especially probative of the ability of an important prosecution witness to comprehend and accurately relate the subject of his testimony, the constitutional confrontation clause has been held to prevail over a statutory privilege.  [Citations.]  While the state has an important interest in assuring the confidentiality of communications between patient and psychotherapist so as to encourage persons freely to seek counseling in time of mental or emotional distress [citations], ․ the truth through cross-examination may be more compelling [Citations.]”  (177 Cal.App.3d at pp. 530–531, 223 Cal.Rptr. 139.)

Drawing on principles gleaned from United States and California Supreme Court cases, the Reber court outlined procedures to balance the various competing concerns.   The court concluded once good cause is shown, a trial court should (1) obtain the privileged records and review them in camera (People v. Memro (1985) 38 Cal.3d 658, 679, 214 Cal.Rptr. 832, 700 P.2d 446);  (2) weigh the constitutional right to cross-examine (Davis v. Alaska (1974) 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347) against the constitutional right of privacy and statutory privilege (People v. Stritzinger (1983) 34 Cal.3d 505, 194 Cal.Rptr. 431, 668 P.2d 738);  (3) determine which if any of the privileged materials are essential to vindicate the defendant's constitutional right;  and (4) create an adequate record for review.  (177 Cal.App.3d at p. 532, 223 Cal.Rptr. 139;  see also Pennsylvania v. Ritchie (1987) 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 [authorizing similar in camera review of privileged records for possible exculpatory information in criminal prosecution].)

However, in order to trigger the trial court's duty to implement these procedures, a defendant must demonstrate “good cause.”  “Good cause” in this context means a criminal defendant's motion for discovery must describe the requested information “with reasonable specificity” and the request must be accompanied by a “plausible justification” for production of the items requested.  (Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 162, 143 Cal.Rptr. 450.)   These latter terms, in turn, have been elucidated by decisional authority.

For example, in People v. Memro, supra, 38 Cal.3d 658, 214 Cal.Rptr. 832, 700 P.2d 446, in the context of a request for police records, the court found the defendant had made a satisfactory showing of good cause.   The request was directed at 16 police officers and requested the identity of persons who had filed complaints against them for violent or excessive force and any investigative reports prompted by the complaints.   The defendant alleged the purpose of the information was to bolster a claim his confession had been coerced, i.e., the police had a habit or custom of obtaining confessions by the use of violence, threats or force.  (38 Cal.3d at p. 674, 214 Cal.Rptr. 832, 700 P.2d 446.)   Citing its earlier decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305, the court reiterated the purpose for the specificity requirement was to preclude the possibility a defendant was engaging in a “fishing expedition.”  (38 Cal.3d at p. 678, 214 Cal.Rptr. 832, 700 P.2d 446.)   However, the court emphasized the requirement is not too stringent in these circumstances because “[t]o require specificity in this regard would place an accused in the Catch–22 position of having to allege with particularity the very information he is seeking.”  (38 Cal.3d at p. 684, 214 Cal.Rptr. 832, 700 P.2d 446.)

In People v. Reber, supra, 177 Cal.App.3d 523, 223 Cal.Rptr. 139 the defendants in a prosecution for sex crimes requested the complaining witnesses' psychotherapy records insofar as those records contained evidence of psychotic or hallucinatory behavior relevant to credibility.   From information already released, the defendants knew the female victim had hallucinated sexual attacks.   The defendants were not aware of any similar incidents concerning the male victim but requested review of his psychiatric records to determine whether he had experienced similar hallucinations or delusions.   Because the defendants had no prior access to the male victim's psychotherapy records, the appellate court stated it was unnecessary for the defendants to allege with particularity the information they sought concerning him.   The court found the defendants had made an adequate showing of good cause and the trial court abused its discretion in failing to review all of the victims' psychiatric records in camera to determine whether the records contained information necessary for a proper defense.  (177 Cal.App.3d at pp. 531–532, 223 Cal.Rptr. 139.)

In People v. Caplan (1987) 193 Cal.App.3d 543, 238 Cal.Rptr. 478 the defendant was prosecuted for various sex crimes.   Prior to trial he sought discovery of the victim's psychiatric records concerning treatment she received before, during and after the sexual abuse.   The defendant sought discovery of the victim's statements, or lack of statements, concerning his alleged abuse of her and to learn whether her trial testimony had been coached.   The defendant wanted the information, if it existed, to prepare an adequate defense.   The trial court ruled the psychotherapist-patient privilege precluded disclosure of any and all evidence bearing on her psychiatric treatment.  (193 Cal.App.3d at p. 545, 238 Cal.Rptr. 478.)   The appellate court disagreed.   It concluded the defendant's showing was adequate and remanded the matter for the trial court to conduct an in camera review of the records to determine whether any of the information would have assisted the defendant's cross-examination or case-in-chief.  (193 Cal.App.3d at pp. 558–559, 238 Cal.Rptr. 478.)

In People v. Boyette (1988) 201 Cal.App.3d 1527, 247 Cal.Rptr. 795 the principal prosecution witness in a burglary prosecution was a minor.   The defendant requested disclosure of the minor's medical and psychiatric records relative to his competency and credibility as a witness.   The defendant identified the records and declared they were relevant and material “in order to prepare and present an adequate defense” and “will aid the court in making a determination as to the competency” of the minor witness.   In addition, the defendant asserted the records may describe an occasion when the minor witness had made a false accusation.  (201 Cal.App.3d at p. 1533, 247 Cal.Rptr. 795.)   The appellate court found the defendant had demonstrated good cause to trigger an in camera review of the records.  “Under the circumstances, we consider defense counsel's statements sufficient at least to invoke review by the trial court in chambers of the records sought.”  (201 Cal.App.3d at p. 1534, 247 Cal.Rptr. 795.)

People v. Pack (1988) 201 Cal.App.3d 679, 248 Cal.Rptr. 240, the case on which the majority relies, was also a prosecution for various sex crimes.   At the defendant's request the trial court reviewed the victim's mental health records in camera to determine if they contained information relevant to the credibility, memory and capacity of the witness.   The trial court concluded nothing in the record warranted disclosure.   On appeal the defendant requested the appellate court to conduct an independent review.   The appellate court refused to review the records de novo.   It also found the defendant had failed to make a showing of good cause in the first instance.   In his request the defendant merely asserted the victim “apparently received treatment for some mental health problem, the nature of which is unknown” and requested judicial review to determine whether the victim's psychiatric records contained any relevant information.  (201 Cal.App.3d at 686, 248 Cal.Rptr. 240.)   The Court of Appeal held defendant's showing of good cause was too insubstantial and speculative to warrant judicial review of the records.   (Ibid.)

Turning now to the facts in the case at bar.   Kasey and Paul began the counseling sessions as a direct result of the child abuse alleged in this case.   Defense counsel prepared and served a subpoena duces tecum on the Sarah Center requesting records of these counseling sessions.   Because the counseling sessions directly pertained to the events which gave rise to the prosecution, defense counsel asserted it was likely in the discussions of the child abuse one or more of the victims said something exculpatory or inconsistent with their earlier reports.   Defense counsel explained:  “The contact of Paul and Casey [sic ] ․ with the Sarah Center is a direct result and consequence of the accusations concerning my client.   It is our position that it is plausible and reasonable that inconsistencies and possibly outright denials which are directly contradictory to what Paul and Casey [sic ], the victims in this case have told authorities exist.  [¶]  These records may also reflect undue influence placed on the children by the parents, the family friends and law enforcement to make these accusations that in reality, they are false.

“We believe that the psychotherapist-patient privilege ․ must yield as the undisclosed information would deprive [sic] Mr. Carradus the constitutional right to cross-examine adverse witnesses under the Sixth Amendment to the United States Constitution.  [¶]  For these reasons we request that the court follow the procedures outlined in People v. Reber (1986) 177 Cal.Ap[p].3d 523 [223 Cal.Rptr. 139].

“Now the specificity is any remarks going to a denial of the accusations against my client, or any inconsistencies concerning the accusations of my client with any other statements that the victims may have made to the police officers or the district attorney or any other governmental agency.  [¶]  The plausibility justification is that if these children are going to the Center for the purpose of discussing this alleged sexual assault or molestation, obviously they're going to discuss it․  It is our belief that it is very plausible and very likely that during these discussions that either one or both of the victims have made inconsistencies [sic] or possibly even an outright denial.”

The showing of a plausible justification in the case at bar was at least as substantial as that made in Memro, Reber, Caplan and Boyette and far more detailed and particularized than the request condemned in Pack.   Moreover, unlike Pack, where the victim had been undergoing psychiatric treatment for some time for reasons unrelated to the offenses in that case, here, the victims' treatment was a direct result of the alleged offenses for which defendant was being prosecuted.   Because defendant had no prior access to the children's records, his request was sufficiently specific under the circumstances.  (People v. Memro, supra, 38 Cal.3d at p. 678, 214 Cal.Rptr. 832, 700 P.2d 446;  People v. Boyette, supra, 201 Cal.App.3d at pp. 1533–1534, 247 Cal.Rptr. 795.)   It was clear the request was only for information which (1) pertained directly to the charged offenses and (2) was either exculpatory or (3) inconsistent with the victims' earlier statements to the authorities or which (4) tended to indicate the victims' statements had been coached.

The justification asserted for in camera review of the records was also plausible.   The purpose of the counselling sessions was to deal with the child abuse which was the subject of the prosecution.   The crimes were presumably discussed at nearly all, if not all, sessions.   Counsel believed it was likely the children could have recanted some of their statements about what actually occurred in one or more of the incidents.   If the records contained any such information it could have been critical to an effective defense or cross-examination of the complaining witnesses.

I do not mean to suggest defendant's showing was sufficient to require disclosure of the victims' records.   I would simply conclude this was a sufficient showing of good cause to warrant an in camera review of the relevant documents by the trial court.   Consequently, I would hold the trial court abused its discretion in refusing an in camera examination to determine whether the victims' psychotherapy records disclosed information which would have assisted defendant in his case-in-chief or in cross-examining witnesses.   (Pennsylvania v. Ritchie, supra 480 U.S. at p. 39, 107 S.Ct. at 991–92;  People v. Caplan, supra, 193 Cal.App.3d at p. 558, 238 Cal.Rptr. 478;  People v. Boyette, supra, 201 Cal.App.3d at p. 1534, 247 Cal.Rptr. 795.)

For the foregoing reasons, I would reverse the judgment of conviction and direct the trial court to conduct an in camera review of the prosecuting witnesses' psychiatric records for potentially exculpatory information.

FOOTNOTES

FN1. Statutory references, unless otherwise noted, are to the Penal Code..  FN1. Statutory references, unless otherwise noted, are to the Penal Code.

2.   The information originally contained 11 counts but count II was stricken and the other counts renumbered.

3.   The date was established by a videotape dated 9/7/90, exhibit 5.

4.   This was an uncharged offense.   We consider this evidence, and appellant's contention, in the Discussion portion of our opinion.

5.   The trial court conducted an Evidence Code section 402 hearing concerning the admissibility of appellant's statements.   Some were admitted, some were excluded.   We later consider appellant's contentions concerning those that were admitted.   Appellant does not contest the admissibility of his initial statements.Detective Osendorf did not tape record appellant's statements but did take notes during the interview and then prepared a five-page report.   She referred to that report in testifying to appellant's statements.   The report is not part of the record on appeal.

6.   In the Discussion portion of our opinion we consider appellant's contention that his post-“I think I need an attorney” statements were erroneously admitted.

7.   We consider the admissibility of this uncharged offense evidence in the Discussion portion of our opinion.

8.   The trial court had conducted an Evidence Code section 402 hearing concerning the admissibility of this videotape.   In urging its exclusion defense counsel argued that if “the jury sees this film [ ] they may forget about the rest of the evidence in the case ․ and convict my client.”   The trial court stated:  “That was the most shocking film I had ever seen.”The videotape was played for the jury during Paul D.'s testimony.   There were pauses in its playing with Paul stating what was said or done when the sound was unclear or the picture incomplete.   On appeal, no error is claimed in admitting the videotape.

9.   Although Evidence Code section 1101, subdivision (b) only uses the word “plan,” Ewoldt amplifies “plan” into the phrase “common design or plan,” a transmutation of significance, as we explain.

10.   But “[o]n the first two occasions, Natalie was uncertain whether she had been dreaming.”  (Id. at p. 389, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

11.   But one of these “almost identical” molestations, the third incident, had little in common with the in-bed fondling of Natalie.  (See supra, p. 469.)

12.   Defense counsel represented to the trial court that all three victims attended the Sarah Center.

1.   Evidence Code section 1101, subdivision (b) provides in pertinent part:“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident․”

2.   The court examined several cases which helped to illustrate the degree of similarity required to prove a common design or plan.   In People v. Lisenba (1939) 14 Cal.2d 403, 94 P.2d 569 the defendant was charged with murdering his wife in order to collect on her life insurance.   She was found floating in a fish pond in the garden of their home.   She had a snake bite on her leg but died by drowning.   A confederate of defendant's testified the defendant had deliberately caused the snake bite, but when the bite did not prove fatal, defendant drowned his wife in the bathtub and later removed her body to the pond.   The trial court admitted evidence three years earlier defendant's prior wife, who had also been insured under a provision providing double indemnity for accidental death, had also drowned in a bathtub.   At the time of her death she was recovering from a car accident which the defendant had deliberately caused.In People v. Peete (1946) 28 Cal.2d 306, 169 P.2d 924 the defendant provided home care for Mrs. Logan's senile husband.   Mrs. Logan disappeared and the defendant and her husband moved into the Logan home and treated it as their own.   The defendant moved Mr. Logan to a mental hospital claiming he had attacked his wife.   The defendant claimed Mrs. Logan had permanently left to seek plastic surgery after the attack.   Mrs. Logan's body was found buried in the backyard of her home.   She had been shot in the back of the neck.   Evidence was introduced at trial 24 years earlier the defendant's landlord disappeared shortly after she had leased his residence.   The defendant explained the landlord left after being shot in the arm.   Defendant rented the landlord's residence to third parties, attempted to sell the residence and forged the landlord's name to certain documents.   Several months later the landlord's body was found buried under his residence.   He had been shot in the back of the neck.In People v. Ing (1967) 65 Cal.2d 603, 55 Cal.Rptr. 902, 422 P.2d 590 a doctor was convicted of raping unconscious patients who sought counselling and treatment regarding their pregnancy.   At trial evidence was admitted several patients who had consulted the doctor regarding their pregnancy had also been drugged and then raped by the doctor.In People v. Archerd (1970) 3 Cal.3d 615, 91 Cal.Rptr. 397, 477 P.2d 421 the defendant was convicted of murdering two of his wives and a nephew by administering a lethal dose of insulin.   The trial court allowed evidence the defendant had used the same method to murder a third wife, ex-husband of another wife and a friend.

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.