(Super. Ct. No. SF112510A)
The opinion of the court was delivered by: Hoch , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Vickie Jane Bird of committing a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a))*fn1 and found true the allegation that she engaged in substantial sexual conduct with the child (§ 1203.066, subds. (a)(8) & (b)). Accordingly, the trial court sentenced defendant to three years in state prison.
On appeal, defendant contends (1) the trial court erred by failing to suspend trial when defense counsel expressed doubt about her mental competence, (2) the trial court erred by allowing the prosecution to introduce inadmissible evidence to show defendant's character for violence and instructing the jury on inadmissible character evidence, (3) the trial court erred by excluding testimony from a defense expert on the suggestibility of children, (4) the prosecutor committed misconduct in quantifying the standard of proof required for a criminal conviction, (5) the trial court ignored defendant's Marsden motion,*fn2 and (6) a $2,500 fine imposed under section 294 must be stricken.
We strike the fine imposed under section 294 but affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL HISTORY
In May 2009, defendant's first jury trial on two counts of committing a lewd act on a child under the age of 14 (§ 288, subd. (a)) resulted in an acquittal on one count and a hung jury on the other. A new information subsequently charged defendant with one violation of section 288, subdivision (a), and alleged substantial sexual conduct as defined by subdivision (b) of section 1203.066. Defendant was retried, and the following evidence was admitted during her second jury trial.
In September 2008, defendant was living in an apartment with her son, Edward,*fn3 and her grandson, the victim. The victim was six years old at the time. Edward worked the graveyard shift, and defendant looked after the victim while Edward worked and slept.
On the morning of September 27, 2008, Edward returned home from work and watched television with his son and defendant for a few hours. Edward fell asleep in the living room. When he awoke around 3:00 p.m., he heard defendant and his son talking in a back room of the apartment. Edward opened the door to find defendant lying on the floor, topless, next to the victim, who was naked. Defendant and the victim were facing each other. Defendant had her hand on his penis.
Edward asked, "What's going on?" Defendant grabbed a shirt from behind her and covered herself. She then replied, "I'm asleep." At the same time, her grandson jumped up and hid behind a blanket. Edward announced, "We're leaving" and "I cannot believe this is going on." He grabbed his son's clothes and a cell phone before taking his son from the apartment.
Once outside, Edward called his grandmother and told her what happened. His grandmother told him to come over to her house. On the drive over to the house, the victim seemed confused and scared. The victim told Edward, "that grandma was squeezing his pee pee."
At trial, the victim testified that defendant touched his "private area." He further testified that he told Edward what happened in the room with defendant.
Edward's grandmother took the victim aside and asked him what had happened. Edward's sister, Heather, soon joined them at Edward's grandmother's house, and they collectively decided to report the incident.
Edward drove the victim to the Stockton Police Department, where the victim was interviewed by Officer Nicholas Bloed. At the outset, the victim was upbeat and happy to discuss "kid stuff" and video games. However, the victim became visibly embarrassed when the topic moved to the incident with defendant. The victim stated that he and defendant were lying on the floor of the bedroom with the door shut. The victim reported that defendant did not have a shirt on. When the officer asked if defendant had touched the victim's "privates," the victim began answering every question by stating, "I don't know."
Defendant later arrived at the police station and voluntarily gave a statement to Officer Patrick High. At trial, Officer High recalled defendant wearing a fleece, button-up pajama shirt. Defendant claimed it was the same shirt she had worn earlier in the day. Defendant calmly explained that she lived with Edward and her grandson in an apartment. She watched him during the day while Edward slept. That day, her grandson walked up to her, took off his clothes, and began kissing her. He told defendant that he wanted her as his girlfriend instead of his grandmother. Defendant was upset by the remark and began to spank him just as Edward walked into the room. Defendant stated that the buttons on her pajama top had been coming off throughout the day and caused her breasts to be exposed while spanking her grandson. Officer High did not observe defendant's pajama top accidentally expose her breasts at any time during the interview.
Defendant acknowledged that she might have touched her grandson's genitals when she had changed his diapers, but at no other time. She also mentioned that he had "kissed her in the chest area before," but did not see it as inappropriate.
Officer High arrested defendant at the conclusion of the interview. Defendant became very upset and "stated that Edward was an angry person and would make up an allegation against her."
The victim was interviewed at the Child Advocacy Center, where he stated that he did not know why defendant was in jail or what she had done to him.
At trial, Edward testified that he and defendant had lived together for several years in a house owned by his grandmother. Edward's son began living with them when he was two or three years old. When the house burned down, they moved to an apartment. Edward and defendant had a normal relationship, but would sometimes argue because defendant did not always pay her share of the bills. Edward also disliked that defendant allowed others to stay overnight with them. Prior to the incident on September 27, 2008, Edward never had concerns about defendant engaging in inappropriate conduct with the victim.
The jury was read the victim's testimony from the first trial when he testified as a defense witness. During that testimony, the victim denied that he had been asked questions about what happened at the Child Advocacy Center. However, the victim stated that defendant touched his private part for one minute while helping him get dressed at the apartment. The victim stated that he did not kiss his grandmother and she was not spanking him. He told his father what happened. The victim further testified that he never denied being touched when interviewed by the police or asked by his aunt. No one told him how he should answer questions or testify.
The defense introduced evidence on three theories: (1) Edward misinterpreted the incident because he had been molested as a child; (2) Edward fabricated the incident as a way to get his grandmother to give him her house in order to get the victim away from the defendant; and (3) the victim was not credible in recounting the incident.
Defendant's niece, Rebecca, testified that she took care of the finances for Edward's grandmother. Of the relationship between defendant and Edward, Rebecca stated that "they love each other very much, but there was a lot of resentment. So there was . . . you know, Eddie had a lot of resentment towards his mom." Rebecca also explained that Edward often yelled at defendant and would say demeaning things. After arguments with defendant, Edward would eventually become contrite.
Rebecca testified that Edward once stated that he had been molested as a child. However, on cross-examination, Rebecca admitted that she never actually discussed the issue with Edward.
Defendant told Rebecca that the victim approached her while naked and said he wanted her to be his girlfriend, not grandmother.
Delores Dail testified that she lived next door to defendant and Edward for five years before the fire. Dail often observed Edward and defendant fighting. Edward was extremely verbally abusive to defendant. During fights Dail would "hear screaming and fighting and stuff being thrown . . . ." However, Dail did not know who was doing the throwing and she never called the police.
Heather is defendant's daughter and Edward's sister. She described defendant as a loving and caring grandmother to the victim. Heather accompanied Edward and the victim to the police station when they first reported the incident. After the police station, Heather went to defendant to tell her about the accusations. Despite Edward instructing her not to discuss the incident with the victim, Heather three times asked the victim about what happened. Each time the victim denied being touched inappropriately by defendant.
Heather recalled that Edward told her he would inherit his grandmother's house and that defendant would live there with him. After the incident, Edward stated that "he was still gonna get the house" but defendant would no longer be living with him. Heather thought it unfair that defendant would have no place to live after Edward inherited the house. However, Heather did not subsequently attempt to outbid Edward for the purchase of the house.
Defendant's sister, Rose Ann, testified that Edward was verbally abusive toward defendant and would get angry enough to "go around the house knocking holes in the walls." Rose Ann herself would fight with defendant "[b]ecause [defendant] would not stick up for herself. Very passive." However, defendant "didn't want to cause trouble. She's not that kind of person."
Rose Ann gave defendant the pajama top that she was wearing on the date of the incident. Rose Ann told her, "Vic, you're going to need to do something with the buttons because it keeps opening."
Two weeks before the incident, Edward told Rose Ann that he had been molested as a child by his cousin. Edward also was angry at defendant for letting the cousin who molested him into his apartment to make repairs. Rose Ann testified that she was molested as a child too. In 2009, Rose Ann made 20 to 25 harassing telephone calls to her younger sister, Catherine, to blame her for allowing the molestations of Rose Ann to occur. Rose Ann admitted that her sister was only seven years old at the time. Rose Ann also acknowledged that she was angry at Catherine for supporting Edward and the victim after the incident.
The prosecution called defendant's adult daughter, Katie. Katie testified that defendant "could be violent."
David Love, a licensed marriage and family therapist, testified as an expert on Child Sexual Abuse Accommodation Syndrome (CSAAS). Love explained that clinical observations led to the conclusion that sexually abused children typically exhibit five behaviors: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed, unconvincing disclosure, and (5) retraction. Love stated that research indicates approximately 18 percent of boys who are sexually molested are molested by women. On cross-examination, Love admitted that false accusations about child sexual abuse occur, but that they occur in less than one percent of cases.
The defense called William O'Donahue, a professor of clinical psychology. Dr. O'Donahue critiqued CSAAS, explaining that it was based on a clinical opinion rather than on scientific research. No scientific studies have been conducted to assess its validity. Dr. O'Donahue characterized CSAAS as a vague opinion, using antiquated terminology, and founded on inaccuracies regarding recantation rates of victims. Dr. O'Donahue also noted that no professional organization or diagnostic manual recognizes the validity of CSAAS. On cross-examination, Dr. O'Donahue acknowledged that he has treated child sexual abuse victims who displayed behaviors consistent with CSAAS.
Request to Suspend the Second Trial to Reassess Defendant's Mental Competence
Defendant contends the trial court erred in failing to suspend trial to assess her mental competency. We are not persuaded.
A. Trial Court Proceedings
Proceedings in defendant's first trial were twice suspended and reinstated in order to assess defendant's mental competence. The first time, defendant was assessed by Drs. Robert Hart and Gary Cavanaugh. Both found defendant competent to stand trial in October 2008 even though she suffered from schizophrenia.
When proceedings were suspended a second time, defendant was evaluated by three mental health professionals, Drs. Cavanaugh, Weiss and Rogerson. Defendant was again examined by Dr. Cavanaugh, who concluded that she had become incompetent to stand trial. Even though she was "able to know and understand the nature and purpose of the proceedings taken against her," Dr. Cavanaugh concluded that in February 2009, she exhibited illogical and inconsistent thinking that rendered her "incapable of rationally assisting counsel in presenting her defense."
Dr. Wendy Weiss concluded that defendant was able to understand the nature of the proceedings and to assist counsel in her defense "in a rational manner." Weiss opined that "any impediment at this time in terms of her capacity to assist counsel in her defense is due primarily to personality traits and characteristics, rather than being the direct result of a mental disorder or developmental disability."
Dr. Kent Rogerson stated that "[a]lthough the defendant does suffer from a major mental illness and likely has shown some impairment at times during the proceedings, at the time of my interview, she was receiving treatment with psychotropic medication and appeared to be in adequate remission, with intact cognition and logical thought process." Thus, Dr. Rogerson concluded that defendant was competent to stand trial.
During defendant's second trial and after the prosecution rested, her attorney expressed doubt about her mental competence. Defense counsel stated: "Part of my concern is about [defendant's] inability to interact with me and answer questions, make decisions, her tending to shut down when things get stressful." Counsel added, "I'm also concerned about her being delusional." The prosecutor acknowledged that "defendant does have some mental health issues" but noted that four of the five prior psychiatric evaluations concluded she was competent to stand trial. The prosecutor argued that "a second competency hearing is required only if evidence discloses . . . a substantial change of circumstances or new evidence [is] presented casting a serious doubt on the validity of the prior findings of defendant's competency."
On questioning by the court, defendant stated that she was still taking Seroquel (a psychotropic mediation) but stopped taking medications for diabetes and other physical ailments. Defendant expressed her wish to continue with trial and disagreed ...