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The People v. Vickie Jane Bird


November 14, 2011


(Super. Ct. No. SF112510A)

The opinion of the court was delivered by: Hoch , J.

P. v. Bird



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.


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.

Prosecution Evidence

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.

Defense Evidence

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.

Rebuttal Evidence

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.

Surrebuttal Evidence

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 with defense counsel's request to initiate a new competency hearing.

During a recess, the trial court reviewed the five prior mental health evaluations. The court concluded that no substantial change in circumstances had been shown. The court noted that it had observed defendant during trial and stated:

"And it appears to me that she's been conversing with you, [Defense Counsel], throughout the trial, that the defense has proceeded along well with her assistance. I see her several times a day communicating with you. I see a lot of cases in here where I have people act out quite a bit or have bizarre behavior or things like that. I haven't seen any of that with her.

"I had my own communication with her right before the trial started regarding whether she understood that I would not be able to give her probation if she was convicted of the 288 with the substantial sexual conduct allegation. And she didn't understand what substantial sexual conduct meant. It was a good question she had.

"And then during our jury instruction conference I commented on that, boy, that was a good question. She and I had, you know, communication about that yesterday in front of everyone. And I didn't note anything other than appropriate behavior. I haven't seen her not -- I haven't seen her acting like she doesn't understand what's going on here." The court further noted, "I see her nodding or, you know, agreeing or disagreeing in very appropriate places."

Defense counsel disagreed, stated that defendant was irrational and delusional, and requested an in camera hearing.

During the in camera hearing, defense counsel asserted that defendant was unable to decide whether to testify. He also told the court that when defendant did talk to him "it's to tell me about her affections for me, that she loves me." Defendant thought that she and defense counsel had been "together on a mountain." Defendant also believed that the real victim had been replaced with a "forensic" copy of the child for the purpose of testifying.

The trial court denied the motion based on a finding that there was no substantial change in circumstance from the prior mental health evaluations that found defendant competent. The court stated:

"It does sound like -- and without revealing what was said in the in-camera hearing -- there has been some fairly irrational things that have been said. I don't think -- while it might be difficult to manage that in the true sense of the word in being able to adequately assist her attorney, her -- her position all along is that she has a defense to this case. And the defense is being pursued. And for whatever irrational behavior she may have, it doesn't appear to have a nexus with the ability to adequately assist her attorney because he's pursuing her defense. We all know what that is because she's repeated it over and over to various people. And the defense is consistent with what she said about that."

The court further noted, "I don't think her pre-existing psychiatric condition has much bearing on my decision here whether she should be declared 1368[*fn4 ] or not. It's been stated. It's been thoroughly vetted by all these different psychiatrists. And she's on the right medication and she's been here participating daily."

B. Renewed Requests for Mental Competency Hearings

Both the United States Constitution and California law safeguard criminal defendants from trial or conviction while mentally incompetent. (Drope v. Missouri (1975) 420 U.S. 162, 181 [43 L.Ed.2d 103]; People v. Rogers (2006) 39 Cal.4th 826, 846 (Rogers); § 1367, subd. (a) ["A person cannot be tried or adjudged to punishment while that person is mentally incompetent"].)

In Rogers, supra, 39 Cal.4th 826, the California Supreme Court explained: "A defendant is incompetent to stand trial if he or she lacks '"a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding --- and . . . a rational as well as a factual understanding of the proceedings against him."' (Dusky v. United States (1960) 362 U.S. 402, 402 [4 L.Ed.2d 824]; see also Godinez v. Moran (1993) 509 U.S. 389, 399-400 [125 L.Ed.2d 321]; § 1367; People v. Stewart (2004) 33 Cal.4th 425, 513.) [¶] Both federal due process and state law require a trial judge to suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant's competence to stand trial. (§ 1368; Drope v. Missouri, supra, 420 U.S. at p. 181; Pate v. Robinson [(1966)] 383 U.S. [375,] 384-386 [15 L.Ed.2d 815]; People v. Blair (2005) 36 Cal.4th 686, 711; People v. Pennington (1967) 66 Cal.2d 508, 516-517.)" (Id. at pp. 846-847.) At any time prior to judgment, the trial court must suspend the criminal proceedings when circumstances indicate a defendant is mentally incompetent. (Ibid.)

"When, as here, a competency hearing has already been held and the defendant was found to be competent to stand trial, a trial court is not required to conduct a second competency hearing unless 'it "is presented with a substantial change of circumstances or with new evidence"' that gives rise to a 'serious doubt' about the validity of the competency finding. (People v. Jones (1991) 53 Cal.3d 1115, 1153.) More is required than just bizarre actions or statements by the defendant to raise a doubt of competency. (People v. Danielson (1992) 3 Cal.4th 691, 727, quoting People v. Deere (1985) 41 Cal.3d 353, 358.) In addition, a reviewing court generally gives great deference to a trial court's decision whether to hold a competency hearing. As we have said: '"An appellate court is in no position to appraise a defendant's conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper."' (People v. Danielson, supra, 3 Cal.4th at p. 727, quoting People v. Merkouris (1959) 52 Cal.2d 672, 679.)" (People v. Marshall (1997) 15 Cal.4th 1, 33.)

In this case, the trial court applied the correct standard when presented with defense counsel's expression of doubt about defendant's mental competence during the second trial. In rejecting defense counsel's request to suspend proceedings based on defendant's statements to counsel during trial, the trial court stated, "I don't think any of it adds up to a substantial change in circumstance from what was noted from these doctors who found her competent. And the court found her competent early on." The trial court thus employed the correct test for a renewed request to suspend trial under section 1368 when it found that no substantial change in circumstances had been shown to require a new competency hearing. (People v. Marshall, supra, 15 Cal.4th at p. 33.)

Defendant asserts that, on retrial, the legal proceedings begin anew so that the changed circumstances standard does not apply. Defendant argues that "[t]he competency hearing held during the prior trial cannot be construed as a competency hearing held during this trial." We disagree.

While the declaration of a mistrial requires any subsequent trial to begin anew, it does not affect a defendant's mental competence. A defect in an initial trial does not cause a defect in a defendant's ability to appreciate the nature of the legal proceedings. The changed circumstances test applies on retrial when a defendant was found to be competent under section 1367 during the first trial. The California Supreme Court has applied the substantial change of circumstances test at the penalty phase in a capital case when the competency claim based on the same evidence had been raised at the guilt phase. (People v. Deere (1991) 53 Cal.3d 705, 714 [rejecting claim that defense counsel was ineffective for failing to raise doubt about defendant's mental competence when record showed that "nothing at the penalty retrial suggested that the state of defendant's mental competence had changed for the worse"].)

The trial court properly relied on the substantial change in circumstances test when it ruled on defense counsel's request for a mental competency hearing during defendant's second trial.

C. Whether Trial Counsel Provided Substantial Evidence of Defendant's Mental Incompetency

Defendant next argues that, during the second trial, defense counsel provided substantial evidence of her inability to understand the nature of the legal proceedings. Defendant argues that her trial attorney's statements about her delusional thinking and inability to make decisions compelled a competency hearing under section 1368. Not so. The trial court is not required to conduct a competency hearing based only upon defense counsel's opinion that the defendant is incompetent. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1111-1112.) Instead, the trial court's observations of defendant combined with a review of her past mental health evaluations supported the conclusion that a competency hearing under section 1368 was not required during the second trial. (Rogers, supra, 39 Cal.4th at p. 847.)

When defense counsel presents the trial court with "'substantial evidence of [the defendant's] incompetence to stand trial, due process requires that a full competence hearing be held as a matter of right.'" (People v. Smith (2003) 110 Cal.App.4th 492, 499-500 (Smith), quoting People v. Welch (1999) 20 Cal.4th 701, 738.) Nonetheless, "to be entitled to a competency hearing, 'a defendant must exhibit more than . . . a pre-existing psychiatric condition that has little bearing on the question . . . whether the defendant can assist his defense counsel.'" (Rogers, supra, 39 Cal.4th at p. 847, quoting People v. Ramos (2004) 34 Cal.4th 494, 508.)

The mere existence of a mental illness is not enough to trigger a competency hearing. In Smith, the reviewing court considered a challenge to a conviction of a defendant who "suffered from a mental illness and was on psychotropic medication . . . ." (110 Cal.App.4th at p. 502.) During the bench trial, the court suspended the proceedings when the defendant became mentally incompetent. (Id. at pp. 497-498.) After several months of psychiatric care, the defendant was declared to be mentally competent. (Id. at p. 499.) The court trial resumed and resulted in the defendant's murder conviction. (Id. at pp. 497, 499.) On appeal, the defendant argued he was mentally impaired when he waived his right to a jury trial, and the defective waiver required reversal of his conviction. (Id. at p. 497.) The Smith court concluded that the defendant entered a valid waiver of a jury trial because "the mere presence of a mental illness does not mean [the defendant] was unable to understand the proceedings or assist in his own defense. (People v. Laudermilk (1967) 67 Cal.2d 272, 285.)" (Id. at p. 502.) Despite the defendant's mental illness at the time and his subsequent mental incompetence, no substantial evidence showed that the defendant failed to understand the nature of the proceedings or to appreciate the consequences of his jury trial waiver. (Id. at pp. 501-502.)

In reviewing defendant's contention that defense counsel established sufficient grounds for a mental competency hearing, we abide by the rule that "[a] trial court's decision whether or not to hold a competence hearing is entitled to deference, because the court has the opportunity to observe the defendant during trial. (See People v. Danielson, supra, 3 Cal.4th at p. 727; see also Drope v. Missouri, supra, 420 U.S. at p. 181.)" (Rogers, supra, 39 Cal.4th at p. 847.) Thus, we view the record in the light most favorable to the determination and affirm the ruling if supported by substantial evidence. (People v. Marshall, supra, 15 Cal.4th at p. 31.)

Here, the record supports the trial court's conclusion that defendant was competent to stand trial. In considering defense counsel's expression of doubt about defendant's mental competence, the trial court reviewed defendant's five prior mental health evaluations, four of which concluded that defendant was competent to stand trial even with a mental illness. Dr. Hart's report found defendant competent even though she sometimes lapsed in concentration and occasionally had auditory hallucinations. Dr. Cavanaugh found defendant incompetent during his second evaluation, but the contemporaneous conclusions of Drs. Weiss and Rogerson found defendant competent. Dr. Weiss noted that defendant's problems in the courtroom were "primarily the result of her personality makeup, rather than being the result of a mental disorder or developmental disability." Similarly, Dr. Rogerson concluded that defendant "has the ability to rationally assist counsel in presenting her defense, if she chooses to do so." (Italics added.)

The trial court noted that it had observed defendant throughout the trial and found her behavior to be appropriate. Moreover, defendant displayed an awareness of the proceedings when she indicated agreement and disagreement with the testimony at times consistent with her defense. Indeed, defendant's query to the court at the outset of the second trial demonstrated that she comprehended the nature of the proceedings well enough to ask a "good question." The court further noted that the defense tendered to the jury was consistent with defendant's claims of innocence. Finally, the court stated that defendant was taking the psychotropic medication that she needed. On these bases, the trial court did not err in concluding that section 1368 did not require the trial to be suspended for a competency hearing. (People v. Marshall, supra, 15 Cal.4th at p. 31.)


Admission of Testimony Regarding Defendant's Violent Character

Defendant contends the trial court erred in admitting testimony by Katie regarding defendant's violent character and instructing the jury on character evidence. We disagree.

A. Trial Testimony

At the second trial, the defense elicited testimony from Rebecca, Delores Dail, and Rose Ann that Edward was abusive toward defendant and that defendant did not fight back. Defense counsel called Rebecca and questioned her as follows:

"Q. How would you characterize the verbal exchanges you witnessed?

"A. Fifty percent of the time Eddie was very caring. The other 50 percent of the time . . . just seemed like he demoral -- very demeaning type of yelling and stuff. It just went back and forth, but just a lot of demeaningness. I would say. Just totally talking her down, yelling at her.

"Q. You say 'back and forth.' Was this going both ways or was it one sided?

"A. Well, I would say years ago it probably went both ways. You know, there were issues there. The last several years, you know, she . . . I don't know. Very -- you know, she could -- she's better. And she didn't. I don't know what to say. She wasn't like her old self. She was very quiet and subdued. I think, you know, she felt like she deserved a lot of it maybe. So she would just take the -- take it. And she didn't much say anything, you know, about it. And I couldn't understand that part. I would ask -- you know, that part bothered me."

Subsequently, defense counsel questioned Dail as follows:

"Q. Were these one sided arguments or did it go back and forth between the two of them?

"A. I think pretty much one-sided, him yelling at her. Because she -- she wouldn't yell back at him."

Defense counsel also questioned defendant's sister, Rose Ann, about the nature of the arguments between Edward and defendant as follows:

"Q. . . . During those times when you were present, did -- were those two sided or was that one sided?

"A. That's why me and Vickie [defendant] would fight. I saw it as one sided. That's my opinion. Because she would not stick up for herself. Very passive. Say, well, I told him. Well, he's not responding so you need to do something about it. You know, she was very -- she didn't want to cause trouble. She's not that kind of person."

The court allowed testimony from Rebecca, Dail, and Rose Ann because defense counsel sought to introduce evidence that Edward was hostile toward defendant and was motivated to fabricate the accusation against her.

The prosecutor argued, and the trial court agreed, that the defense opened the door on testimony regarding defendant's character. The prosecution then called Katie to ask her the following two questions about defendant's character:

"Q. Okay. And being that she is your mother, do you have an opinion as to your mother's character for violence or peacefulness?

"A. Um, yeah. She can be violent.

"Q. Okay. And is she always a peaceful person?

"A. No."

B. Jury Instruction on Character Evidence

Based on the character evidence adduced by the parties, the trial court instructed the jury with CALCRIM No. 350 as follows:

"You have heard character testimony that the defendant is a peaceful, nonviolent person or a nonpeaceful, violent person. You may take that testimony into consideration along with all the other evidence in deciding whether the People have proved that the defendant is guilty beyond a reasonable doubt. Evidence of a defendant's character for peacefulness or nonviolence can by itself create a reasonable doubt. However, evidence of a defendant's good character may be countered by evidence of her bad character for the same trait. You must decide the meaning and importance of the character evidence.

"If the defendant's character for certain traits has not been discussed among those who know her, you may assume her character for those traits is good."

C. Admissibility of Character Evidence

Generally, the prosecution may not introduce evidence of defendant's character to prove the defendant committed the charged offense. To this end, Evidence Code section 1101 provides that "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." Evidence Code section 1102 creates an exception to this rule by providing that "[i]n a criminal action, evidence of the defendant's character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is: [¶] (a) Offered by the defendant to prove his conduct in conformity with such character or trait of character. [¶] (b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a)." Thus, subdivision (b) of Evidence Code section 1102 "allows the prosecution to present relevant opinion evidence regarding a defendant's character, but only when the defendant has first offered evidence placing his character in issue." (People v. McFarland (2000) 78 Cal.App.4th 489, 494.)

In People v. Tuggles (2009) 179 Cal.App.4th 339, this court noted the implications of defense counsel's introduction of evidence regarding a defendant's peaceable character: "A defendant who elicits character or reputation testimony opens the door to the prosecution's introduction of hearsay evidence that undermines testimony of his good reputation or of character inconsistent with the charged offense. 'When a defendant elects to initiate inquiry into his own character, presumably to establish that one with his lofty traits would be unlikely to commit the offense charged, an anomalous rule comes into effect. Opinion based upon hearsay is permitted. (Evid. Code, § 1324; People v. Cobb (1955) 45 Cal.2d 158.) But the price a defendant must pay for attempting to prove his good name is to throw open a vast subject which the law has kept closed to shield him. (Evid. Code, §§ 1101, 1102.)" (Id. at pp. 357-358.)

Although admission of irrelevant or emotionally charged propensity evidence may violate a criminal defendant's due process rights (McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1384-1385), the testimony by Katie was not irrelevant or inflammatory. Katie's testimony constituted a brief but direct response to defense counsel's introduction of testimony about defendant's nonviolent and peaceful character. The testimony elicited by the defense portrayed defendant as passive during the arguments and nonviolent in disposition. Katie's testimony rebutted the evidence of defendant's non-aggressive nature. After the defense directly questioned witnesses about defendant's character, the trial court did not abuse its discretion in allowing the prosecution to introduce rebuttal evidence on the same topic. (People v. Tuggles, supra, 179 Cal.App.4th at pp. 357-358)

Defendant argues that the testimony of Rebecca, Dail, and Rose Ann was intended to show only that Edward had a motive to fabricate an allegation against defendant. Thus, defendant reasons that the testimony of the defense witnesses did not open the door to testimony about her character. Not so. Whatever the motivation for eliciting the testimony, defense counsel's exploration of defendant's good character on direct examination allowed the prosecution to rebut that evidence. (Evid. Code, § 1102, subd. (b); People v. McFarland, supra, 78 Cal.App.4th at p. 494.)

D. Jury Instruction on Character Evidence Was Proper

Defendant argues that the trial court allowed the jury to convict her "based on inadmissible character evidence" by giving CALCRIM No. 350. We also conclude that the court did not err in giving CALCRIM No. 350.

As the California Supreme Court has reiterated, "'"'in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.' [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]"' (People v. Breverman (1998) 19 Cal.4th 142, 154.)" (People v. Valdez (2004) 32 Cal.4th 73, 115.)

In reviewing a challenge to a jury instruction, we examine the jury instructions as a whole to assess whether it was reasonably likely that the jury interpreted the instruction in the manner suggested by the defendant. (People v. Posey (2004) 32 Cal.4th 193, 218; People v. Clair (1992) 2 Cal.4th 629, 662-663.)

As we held in part II-C., ante, the trial court did not err in admitting evidence of defendant's sometimes violent character after the defense opened the door on character evidence during its case-in-chief. Granted, a jury may not convict a defendant based on bad character alone. (Michelson v. United States (1948) 335 U.S. 469, 475-476 [93 L.Ed. 168].) Thus, the trial court may not instruct a jury that it may infer guilt from character evidence alone. (See People v. James (2000) 81 Cal.App.4th 1343, 1353 [propensity evidence by itself fails to support a criminal conviction].)

Defendant argues that CALCRIM No. 350 misinformed the jury that bad character alone could establish her guilt. We reject the argument because it is refuted by the express language of the instruction, which states: "You may take that testimony into consideration along with all the other evidence in deciding whether the People have proved that the defendant is guilty beyond a reasonable doubt." (Italics added.) In addition, CALCRIM No. 1110 instructed the jury that the People were required to prove every element of the charged offense beyond a reasonable doubt. The instructions as a whole did not invite the jury to convict defendant simply because she might have a bad or violent character.


Exclusion of Expert Testimony about Child Suggestibility

Defendant contends the trial court erroneously disallowed Dr. O'Donahue from testifying as an expert on the suggestibility of child witnesses. Defendant asserts that the jury would have benefitted from expert testimony explaining that "by repeatedly encouraging [the victim] not to be afraid to talk about the molestation, Edward could have been suggesting to him that the molestation [did occur]." We are not persuaded.

A. Trial Court Ruling

Defense counsel moved to allow Dr. O'Donahue to testify regarding child witness suggestibility in addition to his critique of CSAAS. Counsel argued that suggestibility in response to Edward's anger may have been the motivating factor that caused the victim to change his denial of being molested at the first trial to his testimony at the second trial that defendant did put her hand on his penis.

The trial court held a hearing outside the presence of the jury during which Dr. O'Donahue stated that repeated and leading questioning can impel a child to change a story to please the questioner. Dr. O'Donahue also noted studies showing that children of preschool age are particularly suggestible. The defense moved to introduce the testimony regarding child suggestibility.

The court denied the request to allow Dr. O'Donahue to testify regarding child witness suggestibility. The court explained:

"[I]n this area, I'm concerned that first of all [the victim] reports it to his dad. The dad has been ably cross-examined. He doesn't say anything to the police. He doesn't say anything -- I'm -- I'm generalizing, because he said some things. But as to what we call a core incident, the core incident, touching him in the area of the penis, he tells the police no. He tells [the Child Advocacy Center] no. And then he tells you, [Defense Counsel], that he was touched there. And I didn't hear anything about your questioning being inappropriate in that trial. And I heard the way he was asked here in this court, and it was fairly open-ended. So I just -- I just don't think that there is a foundation or a nexus for me to allow him to testify about that. I think it's speculative. [¶] . . . [¶] But basically it doesn't appear to me that there is a sufficient foundation. There wasn't any suggestive questioning by the father and there wasn't any suggestive questioning by [Defense Counsel] or [the Prosecutor]. And, therefore, there isn't any foundation for it to come in."

B. Admissibility of Expert Testimony

Trial courts have broad discretion to admit or exclude expert testimony. (People v. Manriquez (1999) 72 Cal.App.4th 1486, 1492.) Even so, the trial court is governed by Evidence Code section 801, which allows expert testimony when "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) "The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.) However, "[e]xpert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness." (People v. Torres (1995) 33 Cal.App.4th 37, 45.)

On appeal, we will not disturb the trial court's exercise of discretion "'unless it is clearly abused.'" (People v. Manriquez, supra, 72 Cal.App.4th at p. 1492.)

The trial court did not abuse its discretion by disallowing Dr. O'Donahue from testifying as an expert on the issue of child witness suggestibility. As the court noted, the testimony showed that the questioning of the victim by the police and at the Child Advocacy Center had been open ended. So too, at trial, questioning by the attorneys was not leading. Thus, Dr. O'Donahue's testimony about the suggestibility of child witnesses in response to leading questioning lacked evidentiary foundation.

Although the victim's father, aunt, and great-grandmother asked several times about the incident prior to the first trial, the jury was fully capable of determining whether these interactions were likely to result in a false accusation. As a general matter, the veracity of those who report crimes is not a matter "sufficiently beyond common experience to require the testimony of an expert." (People v. Sergill (1982) 138 Cal.App.3d 34, 39.) The trial court's ruling was consistent with the "judicial policy disfavoring attempts to impeach witnesses by means of psychiatric testimony." (People v. Alcala (1992) 4 Cal.4th 742, 781.) The trial court did not abuse its discretion in excluding Dr. O'Donahue's testimony on suggestibility of child witnesses.


Claimed Prosecutorial Misconduct During Closing Arguments

Defendant contends the prosecutor committed prejudicial misconduct during closing arguments by quantifying the standard of proof required for a criminal conviction. We find the issue has not been preserved for appellate review. In any event, the claimed error is harmless.

A. Trial Court's Admonitions and Jury Instruction

During closing arguments, the prosecutor told the jury:

"That is the standard, beyond a reasonable doubt. And sometimes it's easier to describe what reasonable doubt is by looking at the opposite, what it is not. And first of all, if you -- if you are talking about reasonable doubt, imagine a puzzle that you put together. And as you are putting the puzzle pieces together, first you don't know what the picture is like. But as you begin to put the puzzle together, all the pieces, all the facts, all the evidence in the case, you begin to see what the picture is.

"Now, you may not have all of the pieces of the puzzle. For example, you may not know why, why in the world would a grandma do this to her grandson? We may never know why. We may not know that piece of the puzzle. But just because there are some pieces missing, does not mean that once you have that puzzle you don't know what the picture is, what it's showing you. If the majority of the puzzle is there, that is what the picture is." (Italics added.)

Defense counsel did not object to the prosecutor's argument. Instead, the prosecutor finished her argument, and the trial court raised the issue later in the day and outside the presence of the jury.

"THE COURT: I thought about this over lunch. And I was concerned about one thing that you argued in your closing argument. But I wanted to think about it. And I didn't insert myself into your closing argument in front of the jury. There wasn't any objection from the defense. What it was that I was concerned about is the statement 'if the majority of the pieces are there, that is what the picture is,' when you were talking about the puzzle. And, you know, we are to be vigilant about putting a numerical value on the burden of proof."

When the court instructed the jury on reasonable doubt, it paused before the pattern instruction to tell them:

"Okay. I'm digressing for a minute from the instructions to just say this to you: If the attorneys argued reasonable doubt in their closing arguments in a manner that it [was] different from what I instruct you, you are instructed to follow the law as I give it to you here."

The trial court proceeded to give CALCRIM No. 220, the pattern instruction on reasonable doubt.

B. Lack of Prejudice

In seeking a criminal conviction, the prosecution is prohibited from engaging in "a pattern of misconduct 'so egregious that it infects the trial with such unfairness that it makes the conviction a denial of due process.'" (People v. Hill (1998) 17 Cal.4th 800, 819, quoting People v. Gionis (1995) 9 Cal.4th 1196, 1214.) Nonetheless, "'[c]onduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "'"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."'" (People v. Samayoa (1997) 15 Cal.4th 795, 841.)'" (People v. Navarette (2003) 30 Cal.4th 458, 506.) However, "[a] defendant's conviction will not be reversed for prosecutorial misconduct . . . unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1133.) Also, a claim of prosecutorial misconduct is not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury. (People v. Scott (1997) 15 Cal.4th 1188, 1217.)" (People v. Crew (2003) 31 Cal.4th 822, 839.)

Here, defense counsel did not object on any ground to the portion of the prosecutor's closing argument regarding the standard of proof or assert a prosecutorial misconduct claim. Consequently, the defense failed to preserve the issue of prosecutorial misconduct in misdescribing the requirement of proof beyond a reasonable doubt. (People v. Crew, supra, 31 Cal.4th at p. 839; People v. Scott (1997) 15 Cal.4th 1188, 1217.)

Even if we assume for the sake of argument that the prosecutor erred in quantifying the burden of proof (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1267 [improper for prosecutor to quantify burden of proof by stating that six of eight jigsaw puzzle pieces were enough to recognize that it showed the Statue of Liberty]), no prejudice resulted that would warrant reversal of the judgment. The trial court did admonish the jury that arguments of counsel on the burden of proof did not state the law and that the jury was required to follow the instructions given by the court. To this end, the jury was correctly instructed with CALCRIM No. 220 on the definition of proof to prove beyond a reasonable doubt. On appeal, "[w]e assume the jury abided by the court's admonitions and instructions, and thereby avoided any prejudice." (People v. Stitely (2005) 35 Cal.4th 514, 559.) For lack of prejudice, defendant's claim of prosecutorial misconduct cannot succeed.


Whether the Trial Court Ignored Defendant's Marsden Motion

Defendant contends the trial court erred by failing to conduct a Marsden hearing after she requested a substitution of counsel. We reject the contention.

A. Trial Court Proceedings

After the jury returned its verdict and was released, defendant informed the court: "I've already done time and -- I'm going to file a conflict of interest."

The court responded to defendant's statement during the following colloquy:

"THE COURT: You can talk about any motions that you want to file and you can figure out what you'd like to do and you can file any motions that you think are appropriate.

"So you're not talking about me having a conflict of interest, you're talking about you have a dispute with your attorney at this time?

"THE DEFENDANT: Yes. Or -- or --

"THE COURT: Maybe you're talking about you want to have him relieved and have somebody else or something like that. That's called a Marsden motion.


"THE COURT: You can find out about that. He can talk to you about that. I'm sure you're going to want to talk a little bit with each other, but it's five minutes to 5:00. I'll have to have you sent right now. [¶] And then you can work that out with her, [Defense Counsel], when you talk to her."

At the next court hearing at which defendant was sentenced, she did not follow up by requesting substitution of counsel or asserting a "conflict of interest." The court also inquired whether there was "[a]nything else" she wanted to say, defendant answered, "No."

B. Request for New Counsel

Under the United States and California Constitutions, a criminal defendant has the right to the effective assistance of legal counsel. (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 144 [165 L.Ed.2d 409]; People v. Jones (2004) 33 Cal.4th 234, 244.) "Accordingly, a court must appoint substitute counsel if either the current appointed attorney is providing inadequate representation (Marsden, supra, 2 Cal.3d at p. 123) or the attorney-client relationship has become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Fierro (1991) 1 Cal.4th 173, 204; see People v. Crandell (1988) 46 Cal.3d 833, 854, criticized on another ground by People v. Crayton (2002) 28 Cal.4th 346, 364-365.)" (People v. Vera (2004) 122 Cal.App.4th 970, 978-979 (Vera).)

When a defendant "in some manner" requests a substitution of appointed counsel, "the trial court must afford the defendant an opportunity to express the specific reasons why he [or she] believes he [or she] is not being adequately represented by his [or her] current counsel." (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1400.) However, a trial court need not conduct a Marsden hearing in the absence of a request for new counsel or articulation of grounds compelling such relief from deficient representation. "Although no formal motion is necessary, there must be 'at least some clear indication by defendant that he [or she] wants a substitute attorney.' (People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.)" (People v. Mendoza (2000) 24 Cal.4th 130, 157.)

In this case, defendant gave no clear indication that she wished to substitute counsel. Although defendant did say the word "Marsden," she did so in repeating what the trial court had just told her. When asked whether she had a conflict with defense counsel, defendant answered, "Yes. Or -- or --" Her use of the disjunctive "or" cast doubt on the certainty of her initial response that she had a conflict with counsel. Defendant's brief exchange with the court did not clearly indicate that she wished to substitute counsel.

We reject defendant's contention that the trial court was required to conduct a Marsden hearing even as the court day drew to a close. Even though "a trial court is required by Marsden to inquire into all of a defendant's complaints about his [or her] appointed counsel, the inquiry need not occur at a single hearing. . . . When a trial court runs out of time to continue hearing a defendant's complaints, the court may deny substitution of counsel based on the stated complaints so long as the defendant is afforded a later opportunity to articulate his yet-unstated complaints." (Vera, supra, 122 Cal.App.4th at p. 981.)

Defendant abandoned any request for substitute counsel by failing to renew such request. If the defendant fails to avail him or herself of the opportunity for further hearing on the request for substitution of counsel, defendant may be deemed to have abandoned the issue. (Vera, supra, 122 Cal.App.4th at p. 981.)

Vera involved a post-plea Marsden motion in which the defendant raised a host of issues he believed warranted substitution of counsel. The trial court denied the Marsden motion without prejudice to the defendant because the court had to attend to a jury's imminent arrival in another case. (Vera, supra, 122 Cal.App.4th at p. 976.) The defendant, however, did not renew his Marsden motion. (See id. at pp. 976-977, 981.) On appeal, the defendant challenged his sentencing on grounds that he had not been afforded a full Marsden hearing. (Id. at p. 980-981.)

The Vera court rejected the contention because "the trial court offered defendant the opportunity for a further hearing. Defendant's failure to take advantage of this offer can only be interpreted as an abandonment of his unstated complaints. (Cf. People v. Lovings (2004) 118 Cal.App.4th 1305, 1312 [the defendant's conduct at change of plea hearing indicated that Marsden concerns were gone].)" (Vera, supra, 122 Cal.App.4th at pp. 981-982.) In this case, as in Vera, defendant abandoned any request for substitution of counsel by not accepting the trial court's express invitation to raise the issue at a later hearing.


Section 294 Fine

Defendant contends the $2,500 fine imposed by the trial court under section 294*fn5 must be stricken because it does not apply to convictions for violations of section 288, subdivision (a). We agree.

At sentencing, the trial court stated: "I am assessing an additional restitution fine pursuant to [] Section 294 in the sum of $2500. That is to the child abuse prevention center." Accordingly, the abstract of judgment stated "def[endant] to pay $2,500.00 to child abuse prevention center pur[suant] to PC 294 . . . ."

As defendant correctly points out, section 294 does not impose a fine for a conviction of section 288, subdivision (a) (lewd touching of a child under age 14). The Attorney General concedes "the trial court was not authorized to impose a restitution fine pursuant to section 294." We accept the concession because section 294 does not apply to defendant's convicted offense (§ 288, subd. (a)).

Although the Attorney General concedes the inapplicability of the section 294 fine, we are urged to "issue an amended abstract of judgment that imposes the $2,500 restitution fine pursuant to section 288, subdivision (e)." We decline to impose the discretionary fine specified in section 288, subdivision (e).*fn6 Nothing in the record indicates that the trial court failed to consider imposing a discretionary fine under section 288, subdivision (e). On appeal, we will not presume a failure to exercise discretion to impose a fine on a silent record. (People v. Martinez (1998) 65 Cal.App.4th 1511, 1517 [collecting authority].) Accordingly, we will strike the fine imposed under section 294.


The judgment is modified to strike the $2,500 fine imposed under Penal Code section 294. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment accordingly, and to forward a certified copy to the Department of Corrections and Rehabilitation.

We concur: RAYE , P. J. BLEASE , J.

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