(Super. Ct. No. 06F00122)
The opinion of the court was delivered by: Blease , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Charles Smith was accused of five separate crimes as the result of two incidents occurring on the same evening in the same neighborhood within a short time of one another. The first incident involved the attempted robbery of Robert Eady. The second incident involved the carjacking, kidnapping and forcible oral copulation of Jane Doe. At the time of the attempted robbery Eady saw the man who attempted to rob him, an African American, get into a pickup truck at the same place that Jane Doe was carjacked. Eady and Jane Doe were the principle witnesses against defendant.
Defendant, who is African-American, was picked up by the authorities when he was walking down a sidewalk in the area in which the crimes had been committed. When defendant was detained, he matched the only description authorities had of the perpetrator of the Jane Doe incident -- a black male.
Jane Doe, who was Caucasian, was brought to the scene of the crimes where defendant was being detained. After looking at defendant for several minutes, she identified him as the man who had forced his way into her pickup and forced her to orally copulate him. Eady was unable to identify defendant as the person who attempted to rob him or the person he had seen enter the pickup truck.
In addition to the testimony of the victims, the prosecution presented the expert testimony of Jeffrey Herbert, a criminalist from the Sacramento County District Attorney's crime lab. He analyzed a penile swab taken from defendant for DNA.*fn1 The purpose was to determine the likelihood that it contained the victim's DNA. He determined that the swab contained a mixture of at least two persons' DNA, that the victim, Doe, was a potential contributor to the DNA found on defendant's penile swab, and that only 1 in 95,000 Caucasians could be a possible contributor.
Defense experts assailed Herbert's statistical analysis, and claimed the correct conclusion to draw from the DNA evidence was that the results were inconclusive because there was insufficient DNA to perform a test. Herbert's supervisor, Mary Hansen, was put on the stand in an attempt to reinforce his expert credibility. She did not. Hansen defended Herbert's statistical methodology, but claimed that the question Herbert had been attempting to address was the frequency of two people being a possible contributor to the mixture. However, this was clearly inconsistent with Herbert's testimony. Hansen proceeded to give two additional frequency statistics. She first stated that 1 in 47 Caucasians would be included as a contributor, then later claimed the correct number was 1 in 66. Thus, the jury had before it three different statistical results from the prosecution ranging from 1 in 47 Caucasians to 1 in 95,000.
The trial court refused to strike the prosecution's expert DNA testimony despite defendant's argument that the testimony did not comply with the third prong of the Kelly*fn2 rule that expert scientific testimony is not admissible unless it can be shown that the procedure utilized complied with accepted methodologies.
In addition to claiming the admission of the DNA evidence constituted prejudicial error, defendant argues that the trial court should have sua sponte ordered a hearing as to his competence to stand trial, that the prosecution knowingly presented false evidence and suppressed evidence favorable to defendant, that there was insufficient evidence of attempted robbery, and that his multiple convictions for kidnapping were improper.
We shall conclude that the prosecution's DNA testimony should have been stricken as in violation of the third prong of the Kelly rule. However, we conclude, given the facts of the case, the failure to strike the prosecution's expert DNA testimony was not prejudicial, because the non-DNA evidence was sufficient to identify defendant as the perpetrator under any standard of review.
We also conclude defendant should not have been convicted of multiple kidnapping charges, and that the imposed crime prevention fine was unauthorized. We shall otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The charges against defendant stem from a series of three events that occurred in the early evening of January 4, 2006. Because the prosecution relied in part on the proximity of time and place in identifying defendant as the perpetrator of all the charged crimes, the timing of the events is important.
Around 5:30 in the evening, Robert Eady was walking from his residence near the intersection of Watt Avenue and Hurley Way to the Safeway store in the shopping center at Watt Avenue and Arden Way. It was just getting dark and the lighting was terrible. As he walked into the parking lot of an Adventure Sports store, an African-American male accosted him. Eady later described defendant as between 25 and 35 years of age, approximately 180 pounds, about 5 feet 7 inches to 5 feet 10 inches tall, with a thin but muscular build, and hair pulled back in a ponytail.
When Eady walked past defendant, defendant said, "Come here, come here for a minute . . . ." Eady walked over to him. Defendant had a deep voice. At trial, Eady could not remember if defendant next asked him if he wanted to buy drugs, or demanded Eady give him Eady's wallet, but he thought defendant asked for his wallet.*fn3 Eady, who thought at first that defendant was kidding, told him "No," and turned to walk away. When Eady was about halfway to the sports store, defendant said, "You want me to shoot you in the back?" Eady turned to look, and defendant was pointing his index finger at Eady as if he were holding a gun. Defendant had a "punky grin" on his face. Eady took defendant's actions as a threat, decided defendant was not kidding, and went to call police. Eady testified he got scared because he was not a fighter.
Eady turned back before entering the store and saw a blue Chevrolet Silverado step side pickup being driven by a woman. He said that the person who had accosted him walked up to the truck and put his hands on the passenger side window. Eady thought that the truck driver was defendant's getaway driver. Eady saw the man get into the truck. He went inside the store and called 911.
He reported that someone tried to rob him. Eady told the operator that defendant told him he wanted his wallet. Eady said that when he walked away from the man he said, "Oh, okay, now walk away. . . . You want me to shoot you in the back[?]" Eady said he thought at first that the man was playing around, but then he saw that he was serious. Eady reported to the police that the incident had occurred about 10 minutes prior to his call. Deputy Brett Anderson was dispatched to respond to the call at 5:58 p.m.
As Deputy Anderson was en route to the attempted robbery call, he received another call of a possible carjacking. The carjacking call came in about one minute after the robbery call. Another deputy, Douglas Mukai, responded to the attempted robbery, and Deputy Anderson responded to the carjacking. Deputy Anderson arrived at the 1400 block of Watt Avenue at around 6:07 p.m. There, he met the victim, Jane Doe.
Doe, a registered nurse who had served as a combat nurse in Vietnam, was 62 years old at the time of trial. At the time of the incident, she was working as a supervisor at the Kaiser Annex off of Watt and Arden.
Doe had parked in the Safeway parking lot that day. She was driving her son's Chevy pickup because her car was having work done on it. She left work sometime between 5:15 and 5:30 p.m. When she left, she drove down the alley behind Safeway to get onto Watt Avenue. At that time of day the traffic on Watt Avenue was very heavy, so she stopped before pulling out. Out of the corner of her eye she saw a figure. She turned her head, and the next thing she knew a man was opening the door of the truck and climbing in.
Doe described the man as a black man with his hair pulled back in what looked like dreadlocks. His hair was about chin length. He had no beard and no mustache. He was wearing a short-sleeved T-shirt and a very baggy pair of pants that were gray in color. He smelled of alcohol. He said in a low, bass voice, "If you scream, I'll kill you."
Doe thought defendant must be on some kind of drug because he appeared very jittery. His body was constantly moving and much of what he said was nonsensical, although he was talking constantly. After a brief conversation, he told her to pull out onto Watt Avenue. She headed south, and he told her to turn right on the first street. With one of his hands, defendant kept touching Doe's hand and the gear shift. His other hand was inside his pants around his crotch area, moving back and forth.
At defendant's direction, Doe drove to a dead end street. It took no more than four or five minutes to get there. Doe turned off the engine and tried to jump out of the car, but defendant grabbed her around the neck and started choking her. She could not breathe, and thought she was going to die. He let go and forcefully pushed her head down to his crotch. He made her suck his penis.
After a few seconds, she pulled back. Defendant hit her in the side of the face. He told her to drive again. She started the engine, and he directed her where to drive. When they were out of the subdivision and back onto Watt Avenue, he told her to pull over into the bike lane after they had gone a short distance. He had been looking out the window as if he were looking for something. The traffic on Watt Avenue was still heavy.
He told her to pull into the driveway of a house that was either for sale or rent. The house was located at 1333 Watt Avenue. It looked empty and unkempt. She pulled into the driveway, stopped the car, and turned off the engine. He told her to get out of the car. He was holding her loosely, and she jerked away and ran from him.
Doe ran into the street and tried to stop several cars. She pounded on the windows and asked them to help her, but the people just looked straight ahead and made sure their doors were locked. She looked back and saw defendant was still chasing her, so she ran across the median into the other lanes of traffic. She looked back, defendant said, "Fuck it," and stopped chasing her. She ran through some bushes and started running toward some houses. She saw a man out in the front yard of 1410 Watt Avenue, and ran to him for help.
At trial, Doe estimated that the entire episode lasted an hour to an hour and a half, although "[i]t seemed much longer." She told the 911 dispatcher that the abduction lasted approximately 20 minutes. At trial she admitted that time had no meaning during the incident.
Deputy Anderson arrived at 1410 Watt Avenue at 6:07 p.m. Doe described her attacker as wearing a gray T-shirt and baggy, light gray sweatpants, with braids in his hair.
Deputies Anderson and Mukai met in the area of the carjacking. Because both the carjacking and attempted robbery occurred in the same area and because the descriptions of the suspect were similar, they connected the two crimes as having been perpetrated by the same person.
Thien Nguyen was visiting his friend who lived on Watt Avenue. He parked his car on a side street near his friend's house. He got to his friend's house at 4:00 p.m., and left sometime before 8:00 p.m. His car locks were broken, so the car was not locked. When he got into his car to leave, his car smelled of alcohol. He looked over and saw defendant sitting in the front passenger seat. Nguyen was scared, so he ran out of the car and back to his friend's house. As he was running, he looked back and saw defendant following him. Nguyen called 911.
Detective Bradley Jones arrived at 1333 Watt Avenue at 6:48 p.m. He conferred with the other officers on the scene, and directed CSI to process the exterior of Doe's pickup. He walked back to his car, which was parked about three houses up from 1333 Watt Avenue, to retrieve his jacket. While he was at his car, he noticed defendant walking behind him on the sidewalk. Detective Jones described defendant as a skinny black male, wearing a gray T-shirt and only one black shoe. Defendant was mumbling to himself, his eyes were bloodshot, and he appeared to be on some type of narcotics or drugs.
Detective Jones had defendant sit on the ground in front of 1333 Watt Avenue. He asked defendant for his name and date of birth. Defendant said his name was James Brown and birth date was May 8, 1973.*fn4
When Nguyen saw the police officers arrive down the street, he drove his car and pulled up next to the police car. Defendant was sitting on the grass in front of 1333 Watt Avenue. Nguyen pointed to defendant and said that defendant had just been inside his vehicle. Defendant became agitated, and yelled at Nguyen and said "bad words."
The officers looked inside Nguyen's car and found a black shoe. The shoe was a right-foot black Faded Glory lace-up work shoe. When defendant was booked into jail, he was wearing a black Faded Glory lace-up work shoe on his left foot.
Doe was transported from the hospital to 1333 Watt Avenue for a field show-up to look at someone officers had found in the vicinity. The officers had defendant stand up, and had spotlights on him. Doe seemed scared because the incident had just occurred. She had just been on Watt Avenue running away from the person that had attacked her, and the officers brought her back to the same location for the identification.
Doe observed defendant for about five minutes. Based upon defendant's clothes, his general appearance, and jittery behavior, Doe was certain defendant was the person who had accosted her. Doe told Officer Sophia McBeth-Childs, who was with her at the show-up, "That's him. I'm positive it's him." Doe said that she remembered her attacker had a thin face, but that she had not thought he had facial hair because she had not seen any on his cheeks. Doe said she thought he had braids, but that she remembered his hair was parted down the center, and that it seemed to go back as if it were braided. She said the man had been small and skinny, and had been wearing a dark gray short-sleeved T-shirt. She had thought he was wearing sweatpants, but she knew his pants were baggy. Defendant was wearing blue jeans.
The next day, Eady was interviewed and shown a stack of six photographs, including a photo of defendant taken the night before. Eady described defendant as a black male between 30 and 40 years of age, with a skinny build, possibly longer hair that was possibly tied back in a ponytail. When shown the photographs, Eady at first stated, "I don't think it's any one of these six." Then, he indicated the photograph of defendant and said that one looked familiar, but that he did not think it was the person. A second later he indicated defendant's photograph and said, "This could be him."
Defendant's blood was tested for the presence of alcohol and drugs. Defendant's blood tested negative for alcohol. It tested positive for cocaine. The prosecution's expert witness calculated that defendant would have had from .3 milligrams per liter to over 5 milligrams per liter in his bloodstream at the time of the offense. Anything over 1 milligram per liter can be lethal. It would not kill someone who is very tolerant to it. Cocaine causes euphoria. It causes a decrease in fatigue, a decrease in appetite, and nervousness. A person may become very fidgety, and can also experience sexual excitement. It can also produce paranoia, aggressive behavior, and hallucinations at higher levels or with prolonged use.
Defendant was charged in count one with carjacking (Pen. Code, § 209.5, subd. (a)), in count two with kidnapping to commit rape or forcible oral copulation (§ 209, subd. (b)(1)), in count three with kidnapping (§ 207, subd. (a)), in count four with forcible oral copulation (§ 288a, subd. (c)(2)), and in count five with attempted robbery (§ 664/211).*fn5 Two prior convictions were alleged. Defendant entered a plea of not guilty and not guilty by reason of insanity to all the charges against him. The trial court appointed Dr. Chamberlain and Dr. Nakagawa to evaluate defendant and prepare a report for the court. After the doctors submitted their reports, defendant personally withdrew his not guilty by reason of insanity plea.
The jury acquitted defendant of the charge of kidnapping for the purpose of oral copulation (count two), and found him guilty of the lesser included offense of simple kidnapping. The jury convicted defendant of all the remaining charges, and the trial court found true the prior conviction allegations. The trial court sentenced defendant to 20 years plus 100 years to life in prison.
Mental Competence to Stand Trial
Defendant claims the trial court erred by failing to order, sua sponte, a hearing as to his competence to stand trial. As evidence of his incompetence, he points to the reports of the two experts who were appointed to evaluate his mental state at the time of the offense, his claim that he had no knowledge of why he was arrested or the charges against him, his history of suicide attempts, and his bizarre behavior at the time of the offense.
A defendant is incompetent to stand trial if he or she is unable to understand the nature of the criminal proceedings or rationally to assist counsel in the conduct of the defense because of a mental disorder or developmental disability. (§ 1367, subd. (a).) A trial court is required to conduct a hearing pursuant to section 1368 into a defendant's competency to stand trial whenever substantial evidence of incompetence has been introduced. (People v. Frye (1998) 18 Cal.4th 894, 951 (Frye), overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) "Substantial evidence is evidence that raises a reasonable doubt about the defendant's competence to stand trial." (Id. at p. 952.) A. Additional Facts
The trial court appointed Dr. Janice Y. Nakagawa and Dr. John R. Chamberlain "to examine the defendant and investigate his mental status."
1. Dr. Chamberlain's Reports
Dr. Chamberlain was unable to answer the specific questions posed by the court in his first report. He cited the lack of collateral information as the cause of his inability. Dr. Chamberlain, who examined defendant for almost two hours, reported that defendant was "a poor historian and was minimally engaged in the interview." Defendant was "unable or unwilling" to provide an account of the offenses or the period of time leading up to the offenses. Defendant claimed he had forgotten what crime he had been accused of committing, but that his lawyer knew everything.
Defendant told Dr. Chamberlain that he was brought to the Rio Cosumnes Correctional Center because he did not take his medicine. Defendant said he was receiving psychiatric medications, but he forgot the names of the medicine. Defendant claimed he did not know or had forgotten most of his medical history. He did not remember the highest grade he had completed, but said he did not graduate from high school. He said he had been in juvenile hall, but forgot why he was there or how many times he was there. He admitted he had been in prison twice, then said he was only in prison once. He claimed he had experienced auditory hallucinations, but did not know if he had ever experienced visual hallucinations.
Dr. Chamberlain gave defendant a SIMS psychological test designed to detect evidence of feigned or exaggerated neurological, cognitive mood, and psychotic symptoms. Defendant responded true to all items, indicating he was feigning or exaggerating symptoms of all types.
Dr. Chamberlain submitted a supplemental report after receiving additional information. In the supplemental report Dr. Chamberlain stated that defendant met the diagnostic criteria for Schizophrenia Paranoid Type and a Depressive Disorder Not Otherwise Specified. The schizophrenia was characterized by hallucinations and paranoia, but those symptoms were well controlled. The depressive disorder was characterized by depressed mood and suicidal thought. Defendant had attempted suicide three years before, and reported three to five suicide attempts. Dr. Chamberlain noted the significant difference between defendant's behavior as documented and his presentation during the evaluation, and stated that this led him to question the validity of defendant's presentation during the evaluation.
Dr. Chamberlain concluded that defendant suffered from Schizophrenia Paranoid Type at the time of the offense. His disorder was characterized by hallucinations, paranoia, and disorganized speech at the time of the offense. Nonetheless, Dr. Chamberlain opined that defendant had: (1) the ability to understand the nature and quality of his acts; (2) the capacity to predict the natural and probable consequences of his acts; (3) the capacity to distinguish right from wrong at the time of the offense; (4) the capacity to make a plan of action; (5) the capacity to act in a purposeful, goal directed way to execute a plan of action; (5) the capacity to act in a considerate, calculating, and controlled way; and (6) the capacity to understand and consider the lawful rights of others. Part of the additional information reviewed by Dr. Chamberlain were records from the jail psychiatric services. Those reports showed that in the days after defendant's arrest he complained of being suicidal and needing his medications. His initial psychiatric assessment noted that defendant reported suicidal thoughts and auditory hallucinations. However, his thought process was linear and coherent. He had only a vague recollection of the actions leading to his arrest, but the evaluation concluded that his amnestic periods were likely the result of substance use. Defendant's subsequent progress reports indicated he continued to claim no recollection of why he was in jail.
Defendant was diagnosed with paranoid schizophrenia, and was started on Zyprexa, Seroquel and Wellbutrin. After he was started on medication, he reported being able to ignore the auditory hallucinations. Defendant's progress reports from January 13, 2006, to January 19, 2007, show consistent improvement. In his January 13, October 9, and November 21, 2006, progress reports he reported no visual hallucinations or suicidal thoughts, and either no or few auditory hallucinations. The last progress report, dated January 19, 2007 (more than two years prior to trial), stated that defendant reported he was all right. "He was pleasant and cooperative. His mood was normal. His thought process was linear with no evidence of a thought disorder. He referred to auditory hallucinations but seemed to indicate the incidence was lower. He denied visual hallucinations and had no paranoia. He was stable on his current regimen. He was to be continued on Seroquel and Wellbutrin."
Dr. Nakagawa's report was dated February 15, 2007. She described defendant as being "not very forthcoming" in his evaluation. Dr. Nakagawa believed that the manner in which defendant responded to questions raised doubts as to his genuineness in cooperating in the assessment. She believed defendant was "making efforts to present in a negative way for secondary gain," and that his responses were contrived. Dr. Nakagawa asked defendant about his auditory hallucinations, and he told her that he was not experiencing them currently. She asked what the voices said to him, and he said he forgot. Dr. Nakagawa opined that defendant's thought processes did not suggest he was manifesting or suffering from psychotic thinking at the time.
Dr. Nakagawa summarized: "Overall, [defendant] was disinclined to be very cooperative in this assessment. There was an emphasis on his part of not remembering or not knowing what was going on. The manner and tenor of his responses suggested he was presenting in the worst possible light for secondary gain. He was probably much more aware than he was willing to acknowledge but was being rather uncooperative and claiming poor memory or not knowing to avoid taking responsibility for his actions (i.e., malingering)."
Dr. Nakagawa performed two tests on defendant. The first was the TOMM, a neuropsychological test to assess for malingering and to differentiate between malingering and dementia, low intellectual functioning, brain damage, and/or memory problems.*fn6 Defendant's results were indicative of malingering.
Dr. Nakagawa also performed the M-FAST test, which screens people who are suspected of malingering psychiatric symptoms in a forensic setting. Defendant's results indicated he was likely malingering. Nevertheless, Dr. Nakagawa stated that the data indicated defendant suffered from a mental disorder that was stabilized with medications. Defendant's diagnosis appeared to be Paranoid Schizophrenia, but Dr. Nakagawa opined that a more likely diagnosis was Psychotic Disorder Not Otherwise Specified, likely secondary to drug use.
Dr. Nakagawa's conclusion was that even though defendant was pleading not guilty by reason of insanity, "he likely has much more knowledge, awareness, and recollection of himself presently and at the time of the instant offense than he is willing to acknowledge."
3. Actions at the Time of the Offenses
Doe told Officer Sophia McBeth-Childs that defendant rambled the whole time he was in the car, and that his ramblings were nonsensical. Eady described defendant as pointing an imaginary gun at him. Nguyen stated that defendant walked back and forth in front of his friend's house, swaying like a drunk person.
4. Defendant's Behavior During Trial
Defendant had several interactions with the trial judge during the course of the trial, and these interactions are evidence of his competency to stand trial.
When defendant dropped his not guilty by reason of insanity plea, the following exchange occurred:
"THE COURT: Mr. Smith, do you understand that [you are dropping the insanity plea]?
THE COURT: At one point, you entered dual pleas, that is not guilty and not guilty by reason of insanity. Ms. Rogers is indicating that you no longer wish to pursue the not guilty by reason of ...