*1683 Opinion
I. Statement of the Case
Defendant Don Dancer appeals from a judgment entered after a jury found him guilty of five counts of lewd and lascivious conduct upon a child and one count of attempted lewd conduct and the court found that he suffered a prior conviction for forced oral copulation on a minor. He claims he was denied his right to the assistance of conflict-free counsel. He claims the court erred in admitting evidence concerning the circumstances of his prior felony conviction and in failing to release the victim’s psychological records. Finally, he claims the court erred in imposing an aggravated sentence. We affirm the judgment.
II. Facts
In January 1993, Janet H. (hereafter, mother) and her four-year-old daughter Emily moved into an apartment complex in Campbell. Mother soon met defendant, a friendly, elderly man, who lived downstairs in the same complex. Defendant specially befriended Emily, giving her candy and ice cream, which they would eat on his front porch. They played together in the courtyard of the complex. Emily would also go to an exercise room in defendant’s garage, where she played on his equipment and a mattress he kept there. Emily grew to like defendant.
In February 1993, mother learned that defendant had invited Emily into his apartment for a treat. She told him not to do so again. She made it clear she was upset, and defendant calmly accepted her directive.
In August 1993, mother found Emily and defendant alone inside his garage. The curtains were drawn, and Emily was on an exercycle. Alarmed, mother collected Emily and told her she was no longer allowed to play with defendant. Thereafter, mother never saw Emily playing with defendant. However, Emily continued to do so.
In December 1993, Emily told her mother she no longer wanted to play with defendant because he asked her to play a “yucky” game that involved touching the “area covered by [her] swimming suit.” Mother called child protective services and later spoke to the police.
Officer Russell Patterson of the Campbell Police Department interviewed Emily. She was shy and clung to her mother and was reluctant to discuss the *1684 molestation. She said that during the summer, defendant told her to pull down her pants and she did. She said they touched each other’s private parts in the garage. She said he put his finger inside her body and it hurt.
At trial, Emily testified that she would play in defendant’s exercise room and with his equipment. One day, he pulled down his pants, opened his underwear, and exposed his penis to her. She touched and manipulated it. They engaged in the same activity a few days later. On another occasion, defendant asked her to suck his penis, but she declined because she “thought it tasted yucky or something.” Emily also said that on more than one occasion, defendant told her to pull down her pants, and he touched and penetrated her vagina. She said it hurt a little the first time and more the second time. Emily said this scared her. 1 She said the molestation occurred between the summer and her entry into kindergarten. She did not report these incidents to her mother immediately because she was afraid she would get in trouble and would be punished for disobeying her mother.
The prosecutor also presented evidence concerning defendant’s 1982 conviction. Christine H. testified that in June 1982, defendant began living with her, her husband, and her two daughters, Serene aged two and Tuolumne aged thirteen months. During his three months there, defendant played with the girls and would babysit them.
One evening, Christine and her husband went out and left defendant to babysit. They returned early and found defendant on the mattress in their bedroom with Tuolumne. His pants were unzipped, his penis was exposed, and it seemed he was putting it in her mouth. Christine shouted at him and ran out. When she reentered to confront him, he was gathering his things and calmly told her he did not know what was happening but thought it better to leave.
III. Assistance of Conflict-free Counsel
Defendant contends he was denied his right to conflict-free counsel when the court permitted Deputy Public Defender Yolanda Trevino to continue representing him after she declared a conflict of interest. We disagree.
*1685 Several months before trial, Trevino declared a conflict of interest limited to a single issue: the validity of defendant’s 1982 prior conviction. After an unreported conference in chambers, the court noted on the record that the validity of the prior was an important issue and then appointed conflicts attorney Brenda Malloy to investigate whether to challenge the validity of the prior conviction. Malloy ultimately filed a motion to strike, alleging that defendant’s guilty plea was not knowing or voluntary and that there was no factual basis for the plea. After a hearing, the court denied the motion, relieved the conflicts attorney, and permitted Trevino to continue. Defendant did not object to the procedure or at any time seek to have Trevino replaced as his attorney.
The state and federal Constitutions guarantee defendants effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) This guarantee includes the correlative right to representation free of conflicts of interest.
(People
v.
Bonin
(1989)
Under the Sixth Amendment of the federal Constitution, reversal is required if a defendant, over a timely objection, is forced to continue with conflicted counsel. In the absence of an objection, however, a defendant on appeal must demonstrate that an
actual
conflict of interest adversely affected counsel’s performance. The mere possibility of a conflict is not sufficient to compel reversal of a conviction.
(Cuyler
v.
Sullivan
(1980)
Our state Constitution imposes “a somewhat more rigorous standard.”
(People
v.
Mroczko
(1983)
*1686
Here, although Trevino declared a conflict, she did not explain what it was. Nor did the court investigate on the record the basis for the declared conflict. Consequently, we are unable to determine its nature.
2
Presumably, it concerned the fact that a public defender had represented defendant when he pleaded guilty in 1982. This fact alone does not necessarily create an actual conflict. (See
People
v.
Daniels
(1991)
However, we also agree with Trevino’s view that the conflict was limited to the one issue and could not have interfered with any other decision reasonably necessary to provide constitutionally adequate representation. This is so because the only other issues related to defendant’s prior conviction involved the prosecutor’s use of the prior and underlying facts at trial. However, opposing such use in no way implicates the performance of former counsel and, therefore, could not pose a situation in which Trevino might feel divided loyalty. 3 In fact, a ruling on the validity of the prior would eliminate Trevino’s professed conflict.
Defendant now argues that there is no such thing as a limited conflict. A conflict is a conflict, and once it was declared, it completely disqualified Trevino unless defendant waived it, which he did not do.
As outlined above, the touchstone for analyzing a conflict and a trial court’s response thereto is defendant’s right to effective, conflict-free representation. Obviously, some conflicts are so basic and implicate so many of the duties and decisions of defense counsel that they completely undermine counsel’s ability to provide effective representation. (See examples of conflicts noted in
People
v.
Bonin, supra,
47 Cal.3d at pp. 835-836;
In re Darr
(1983)
However, we reject defendant’s rigid view that all conflicts are disabling and that the Constitution invariably requires a change of counsel whenever *1687 any sort of conflict is declared. As illustrated by this case, there are conflicts whose potential impact is extremely focused and limited and there are alternative remedies short of replacing counsel that can fully protect a defendant’s constitutional right. In particular, where, as here, the conflict could only affect the counsel’s representation on a discrete, preliminary matter, we believe a court may, and here properly did, appoint separate counsel for the limited purpose of litigating it. As discussed above, this remedy fully guaranteed defendant’s right to conflict-free counsel; it not only prevented the conflict from having any effect, it eliminated the conflict altogether. Furthermore, it provided the added benefit of preserving the preexisting attorney-client relationship between Trevino and defendant, about which defendant had never expressed dissatisfaction or even concern. Although we are not aware of any authority that supports the remedy fashioned by the court below, we are also not aware of any authority prohibiting it. 4
In any event, defendant did not object to the procedure employed by the court for dealing with Trevino’s conflict. Thus, under both federal and state law, he must still show that it had a demonstrable and negative effect on his right to effective representation. (People v. Marshall, supra, 196 Cal.App.3d at pp. 1257-1258.) This he cannot do.
Defendant claims that because of the conflict, Trevino “ ‘pulled her punches’ ” in opposing the prosecutor’s motion to use the prior and underlying factual circumstances at trial. In particular, he notes that the People filed a 10-page written motion with 48 pages of exhibits in support of a motion to admit the facts of the prior offense. He points out, however, that “defense counsel offered no written response” and argues that she “was in a very poor position to even argue the factual basis for the prior conviction since her office had advised [defendant] to plead guilty, yet no factual basis for the plea was shown on the record.”
*1688
The record refutes defendant’s claim. (See, e.g.,
People
v.
Castillo
(1991)
The meaning of defendant’s comment that because of the conflict Trevino “was in a very poor position to even argue the factual basis for the prior conviction” is unclear. Moreover, we agree with the People that given the testimony concerning the prior offense and the undeniable fact that he suffered a prior conviction, it would have been unreasonable for Trevino to argue to the jury that defendant did not commit the offense to which he pleaded guilty. Instead, she “pursued the only tactically feasible goal, i.e., she sought to distinguish the 1982 facts from the 1993 facts . . . .” In our view, defendant leaps from Trevino’s declared conflict to a factually unsupported claim that he received less than effective representation.
IV. Evidence of Prior Molestation
Defendant contends the trial court erred in admitting the circumstances of his prior offense as evidence to show a common design or plan. He claims this incident was too dissimilar to the instant offense and too inflammatory to be admitted. We disagree.
Evidence of other, currently uncharged, offenses or misconduct is inadmissible to prove a criminal disposition. (Evid. Code, § 1101, subd. (a).) However, it is admissible if it has a tendency to prove, establish, among other things, identity or a common design or plan or intent. (Evid. Code, §1101, subd. (b).) Here, the main issue was whether the acts described by Emily occurred.
“ ‘The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done.’ [Citation.]”
(People
v.
Ewoldt
(1994)
For example, in
People
v.
Balcom
(1994)
At trial, evidence of a rape that occurred six weeks earlier was admitted. In that incident, a single woman was in her car driving out of the parking area of her apartment complex. The defendant, who was wearing a cap, stopped her for directions, and then put a gun to her head, opened the door, and entered. He said he only wanted money, but when she looked for it, he jumped on top of her, removed her clothes, and raped her. Thereafter, he took her “ATM” card, demanded the “PIN” number, and left in her car.
(People
v.
Balcom, supra,
Although there were marked dissimilarities between the two incidents, our Supreme Court found that they nevertheless shared sufficient common features to support an inference that both were manifestations of a common design.
(People
v.
Balcom, supra,
In this case, the incidents share numerous common features. Defendant resided near the victims and was acquainted with their parents. *1690 He selected very young girls as victims; he had a history of unsupervised access to the victims and played or babysat with them. The victims knew and trusted him. In committing the molestations, he selected locations out of public view, where mattresses were located. He exposed his penis through his clothing, the victims had contact with it, and he tried to have both orally copulate him. Finally, when confronted by Janet about being alone with Emily and by Christine about molesting Tuolumne, defendant responded calmly.
In our view, these common features reasonably support an inference that each incident was a manifestation of a common design or plan rather than two unrelated spontaneous acts. Indeed, the inference, in our view, is strong.
We reject defendant’s claim that because the distinctions between the two incidents render their similarities more apparent than real, the evidence was inadmissible. For example, he notes specific differences between the victims’ ages, his place of residence, his relationship with the victims’ parents, his access to the victims, the rooms in which the mattresses were located, and the circumstances in which he responded calmly. However, these specific differences, like those in Balcom, do not negate the basic similarity between the two incidents or render unreasonable the inference therefrom that defendant acted according to a common design or plan. Rather, these differences affect the strength of the inference.
In short, the trial court properly found that the prior incident was sufficiently similar to be admissible to prove a common design or plan. Such a finding, however, does not mean that admitting the evidence was proper. “Evidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis. [Citations.]’ ”
(People
v.
Ewoldt, supra,
In People v. Ewoldt, supra, 7 Cal.4th at pages 404-405, the court identified various relevant factors: (1) whether the inference of a common design or plan is strong; (2) whether the source of evidence concerning the present offense is independent of and unaffected by information about the uncharged offense; (3) whether the defendant was punished for the prior misconduct; (4) whether the uncharged offense is more inflammatory than the charged offense; and (5) whether the two incidents occurred close in time.
As noted above, the evidence showing a common design or plan was strong. The evidence of both incidents came from independent sources. *1691 The jury learned that defendant had been convicted for the prior misconduct, eliminating any incentive to punish him for that conduct regardless of his guilt for the present offense. Evidence concerning the prior incident was not markedly more inflammatory than evidence of the current charge. Although the prior incident involved a toddler, Emily was also very young, his conduct with her was far more extensive, he digitally penetrated her, and he hurt her. Finally, although the remoteness of the prior incident from the current one, 11 years, tends to degrade its probative value, it does not, by itself, warrant or compel its exclusion.
On balance, we believe the trial court could reasonably conclude that the probative value of the prior incident outweighed any prejudicial effect. Thus, we do not find that the court abused its discretion in admitting the evidence.
V. Discovery of Psychological Records
Defendant contends the trial court erred in refusing to provide him with the psychological records of two therapists who saw Emily. 6 We disagree.
The records sought were protected from discovery by the psychotherapist-patient privilege. (Evid. Code, § 1014.) This privilege, however, is not absolute and in appropriate cases must yield to a criminal defendant’s right to a fair trial.
(People
v.
Boyette
(1988)
In
People
v.
Reber
(1986)
However, to obtain a
Reber
review, a defendant must establish “good cause” for doing so, which in this context means the defendant must describe the records sought “with reasonable specificity” and provide a “plausible justification” for producing them.
(Lemelle
v.
Superior Court
(1978)
*1692 With these principles in mind, we turn to the facts of this case. On appeal, defendant explains that he sought the documents because “they might contain information relevant to Emily[’s] credibility as a witness, as well as shedding light on a ‘rage condition’ that Emily had apparently been suffering with for several months prior to accusing [defendant] of molestation.” 7
Putting the cart before the horse, the trial court reviewed the psychological records to determine whether defendant had made a sufficient “initial showing,” in effect rendering a showing of “good cause” unnecessary. The court then found that defendant failed to do so. 8 The court further found that despite defendant’s failure to make an “initial showing,” the records contained nothing relevant or likely to lead to relevant evidence and, therefore, nothing to balance against the right to a fair trial and to confront the witnesses against him. Consequently, it denied the request for discovery.
The People claim the trial court correctly found that defendant’s “initial showing” of good cause was insufficient to warrant a Reber review. However, the propriety of this finding is essentially moot because the court did in fact review the records. Thus, we proceed to the ultimate issue of whether the trial court’s decision after review was proper.
The psychological records are before us, and both parties request that we review them. Defendant asks us only to determine whether their release is required now to help him better argue his claim on appeal. The People ask us to directly review the court’s ruling.
The People’s approach is more sensible and efficient. We are fully capable without further briefing of determining whether discovery should have been allowed. Having reviewed the psychological records, we concur with the trial court’s ultimate conclusion. They contain no information whose release was potentially essential to vindicate defendant’s right to a fair trial and to confront Emily. (People v. Reber, supra, 111 Cal.App.3d at p. 532.) Thus, we concur with the trial court’s implicit finding that defendant’s rights did not outweigh the victim’s right to privacy as reflected by the privilege protecting the confidentiality of her psychologists’ records.
Moreover, we can say with confidence that even if we assume, for purposes of argument, that the scales did tip in favor of defendant’s right to
*1693
discovery, the failure to release the records was harmless beyond a reasonable doubt because the records did not contain relevant and material information, that is, “information that probably would have changed the outcome . . . .”
(Pennsylvania
v.
Ritchie
(1987)
VI. Aggravated Sentence
Defendant contends the trial court abused its discretion in selecting the aggravated term for one count and imposing consecutive sentences on three other counts. He claims the court based these sentencing choices on invalid reasons.
The court imposed the aggravated sentence because Emily was “particularly vulnerable" due to her young age. (See Cal. Rules of Court, rule 421(a)(3).) The court also cited the fact that “the manner in which the crime was carried out indicates some planning, sophistication or professionalism evidenced by its repetition.” (Cal. Rules of Court, rule 421(a)(8).) Finally, the court opined, “I am not convinced that these events all occurred on the same day and I think they occurred over a period of time which goes back to the violation of a position of trust that I was making [sic] earlier.” 9 (See Cal. Rules of Court, rule 421(a)(11).)
Defendant challenges the validity of all of these reasons. He first claims “particular vulnerability" due to Emily’s age is not a proper reason because her age was an element of the offense.
Defendant did not object below to the trial court’s reliance on Emily’s “particular vulnerability." Thus, he waived any challenge to it on appeal.
(People
v.
Scott
(1994)
In any event, we would reject this claim. Defendant is correct that aggravating a sentence due to “particular vulnerability,” where vulnerability
*1694
is based
solely
on age, is improper when age is an element of the offense. (See
People
v.
Ginese
(1981)
Here, Emily was between four and five years old at the time of the offense. Her brother was living elsewhere with her father, and a neighbor boy had moved away. Thus, as the court noted, she had no playmates her age. The record also reveals that the molestation took place in defendant’s garage, outside of public view, and Emily had played there before, making her unaware of any potential danger there. On the other hand, she had been specifically told by her mother not to go there and later was afraid to reveal the molestation, fearing punishment for her disobedience.
In our view, Emily’s lack of playmates, the location of the molestation, Emily’s playful experiences there, her fear about being punished for being there, and her extreme youth reasonably support a finding that she was “particularly vulnerable.” (Cf.
People
v.
Valdez
(1994)
Defendant next argues that the record does not support a finding that he took advantage of a position of trust or confidence to commit the offense. He notes that he was not a parent, relative, quasi-parent, volunteer or authorized babysitter, religious figure, or day-care provider. Moreover, mother did not trust defendant to be alone with Emily.
As defendant acknowledges, this potential aggravating factor focuses on his “ ‘special status’ ” vis-a-vis Emily.
(People
v.
Franklin
(1994)
These circumstances support the trial court’s finding that defendant committed his offenses by exploiting the trust and confidence he had cultivated. (Cf.
People
v.
Robinson
(1992)
Finally, defendant challenges the court’s reliance on the manner and sophistication of the offense as “evidenced by its repetition.” He argues that if by repetition, the court was referring to his prior conviction, then the court improperly relied on his prior to enhance and aggravate the term for count one. (See Cal. Rules of Court, rule 420(c);
People
v.
Bowen
(1992)
Again, defendant failed to object to the aggravated term on this ground and therefore waived any error. (People v. Scott, supra, 9 Cal.4th at p. 348.)
In any event, defendant misses the point of the trial court’s reason: that the offense was planned and sophisticated, rather than a single spontaneous instance of aberrant behavior. As noted above, defendant cultivated a trusting relationship with Emily, played with her, got her used to playing in his garage, and then took advantage of her. Moreover, he did this on more than one occasion. Thus, the circumstances leading to the first offense plus its repetition thereafter indicate planning and sophistication, thereby making it worse than a sudden spontaneous act. (Cf.
People
v.
Jones
(1992)
In sum, the record fully supports all three of the trial court’s reasons for imposing the aggravated term. Moreover, as defendant acknowledges, a single appropriate factor is sufficient to support an aggravated term.
(People
v.
Forster
(1994)
Disposition
The judgment is affirmed.
Premo, Acting P. J., and Elia, J., concurred.
Appellant’s petition for review by the Supreme Court was denied September 18, 1996.
Notes
Officer Jeffrey Miller of the Los Gatos Police Department testified as an expert on “child sexual abuse accommodation syndrome.” He explained that the syndrome is a diagnostic tool and not a means to determine whether a child has, in fact, been molested. He noted that the syndrome has five components: secrecy; helplessness; entrapment and accommodation; delayed, conflicted, and unconvincing disclosure; and retraction. However, not all components will necessarily manifest themselves in a given case. Miller was unfamiliar with the facts of this case and, therefore, did not offer an opinion about whether Emily’s conduct reflected elements of the syndrome.
A conflict involves any situation “ ‘in which an attorney’s loyalty to, or efforts on behalf of, a client are threatened by his [or her] responsibilities to another client or a third person or by his [or her] own interests.’ ”
(People
v.
Clark, supra,
In fact, the validity of the prior and the admission of facts concerning the underlying offense are so unrelated that those facts could be admitted even if the prior conviction were deemed invalid. (See People v. Daniels, supra, 52 Cal.3d at pp. 842-843, fn. 2.)
We note that in
People
v.
Makabali
(1993)
The circumstances here are materially distinguishable from
Makabali.
Defendant made no
Marsden
motion.
(People
v.
Marsden
(1970)
The exhibits submitted by the prosecutor included police reports and copies of two California Supreme Court cases.
Prior to trial, defendant subpoenaed the psychological records of psychotherapists Barbara Wyman and Linda Henry concerning Emily. Both therapists asserted the psychotherapist-patient privilege against disclosure. (Evid. Code, § 1014.)
The transcript of the hearing below indicates that defendant submitted moving papers to the court at the time of the hearing. However, those papers are not part of the record on appeal.
We do not approve of this procedure because an in camera review is itself a breach of the privilege and an invasion of privacy. (See
People
v.
Pack
(1988)
In denying probation, the court rejected defendant’s claim that he did not occupy a position of trust vis-á-vis Emily. “I understand your position that there was no official position of trust here, but it occurs to me that when a young child who is four or five years old is playing in a neighbor’s residence or garage on a repeated basis, that a relationship develops, a position of—somewhat of a position of trust. It’s not like a babysitter or parent or someone entrusted with the safety of the child. FR] On the other hand, [defendant] definitely had some sort of relationship with Emily. She would come down and play down there, I guess because there weren’t other kids to play with her age. So there was a breach of faith there with regard to that relationship such as it was.”
Defendant suggests defense counsel ought not be held responsible for “intracacies” of
Scott
because it was decided only six weeks before sentencing. We disagree. The rule
*1694
propounded in
Scott
is not “intricate” and merely mirrors the general rule that the failure to object to alleged errors at trial, and thereby give the court an opportunity to correct them, constitutes a waiver of the errors on appeal.
(People
v.
Scott, supra, 9
Cal.4th at p. 354;
People
v.
Clark
(1990)
For this reason, defendant could not prevail on a claim that counsel was ineffective in failing to make specific objections to some of the court’s sentencing reasons. Simply put, defendant cannot establish that he would have received a more favorable sentence had counsel made the particular objections.
(In re Clark
(1993)
