Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC769782
Bamattre-Manoukian, Acting P.J.
Defendant was charged by first amended information with committing lewd acts on a child under 14 (Pen. Code, § 288, subd. (a); count 1), and misdemeanor annoying or molesting a child (§ 647.6, subd. (a)(1); count 2). The alleged victim of the charges was L., a then 13-year-old child with developmental disabilities. Defendant was seen at the Milpitas Counseling Center for a comprehensive psychodiagnostic assessment at his counsel’s request four times between November 16, 2007, and January 2, 2008. Although defendant was diagnosed with an anxiety disorder, no major psychopathological condition was diagnosed. On July 28, 2008, defendant filed a motion to compel L. to undergo a psychiatric examination to determine her competency to testify. The prosecutor filed opposition to the motion. On August 8, 2008, the court denied the motion without prejudice.
All further unspecified statutory references are to the Penal Code.
Trial began on December 2, 2008, with the court hearing motions in limine. The court denied defendant’s renewed motion to compel L. to undergo a psychiatric examination. On December 3, 2008, the court held an Evidence Code section 402 hearing regarding the proffered defense testimony of Dr. Randy Rand, a licensed forensic psychologist. The court ruled that Dr. Rand would be permitted to testify on the issue of suggestibility generally and with respect to the videotaped police interview of L. However, Dr. Rand would not be permitted to testify as to L.’s competency. On December 4, 2008, the court held a competency hearing for L. The court found that, although L. has some cognitive deficits, she is capable of understanding the duty to tell the truth, she is capable of expressing herself so as to be understood, and she seems to have personal knowledge about the matters she is talking about. Therefore, the court found L. competent to testify. On December 5, 2008, the court held an Evidence Code section 402 hearing on the prosecutor’s motion to exclude evidence of DNA tests done on L.’s bra. The court found that the probative value of the evidence outweighed the possibility of confusing the jury or an undue consumption of time.
Trial Evidence
The Prosecution’s Case
L. who was 15 years old at the time of the trial, testified that defendant drove the bus that she took when she went to middle school. Defendant picked her up first, then picked up a boy in a wheelchair, and then picked up L.’s friend. L. put on her own seatbelt, defendant never put it on her. On many days, defendant looked at her and shouted that he was thirsty and that he wanted milk. While only the boy in the wheelchair and L. were on the bus, defendant stopped the bus by some trees and a house. He walked over to where L. was sitting with her seatbelt on, knelt on the floor, and touched her chest with his hands. He then lifted up her shirt and touched her bra and skin with his hands and mouth. The boy in the wheelchair saw it happen. L. was mad. She hated it and she told defendant to stop. She did not tell her younger sister what had happened, but she did tell her parents, who got mad. She also told a police officer.
The DVD of Detective Carlos Melo’s interview of L. on April 5, 2007, was played for the jury. The “preagreed transcript[]” of the interview indicates that L. told the detective that defendant was “bothering” her after he picked her up in the morning. She said that he pulled up her shirt and touched her with his hands and his mouth “inside” her bra, and that he did this many times. Each time, the boy in the wheelchair would also be in the bus and they would be stopped by trees near a house. “I say stop it, he – he don’t listen to me.” The only people she told about it were her parents.
L.’s father Jose M. testified that approximately six years before the trial L. had a problem with involuntary shaking of her hands and body, but that she does not still have that problem. Between August 2006 and April 2007, he did not receive any calls from L.’s school or bus service reporting shaking problems. He is with L. when she gets on the bus in the morning. She goes inside and the driver closes the door, but the bus does not leave until L. puts on her seatbelt.
In order to protect their privacy, L.’s family members will be referred to by their first names.
On March 26, 2007, Jose’s wife Rosa informed him when he came home from work that she had overheard L. telling L.’s younger sister that the bus driver was touching her. He asked L. if the bus driver was touching her and she said yes. He asked her where the bus driver was touching her and she pointed to her chest. He asked her where it occurred and she said “ ‘In the bus’ ” “ ‘by the tree.’ ” He asked her if there was somebody else on the bus and she said that there was a boy. He asked her when it had happened and she pointed to February and March 2007 on a calendar. She said that it happened more than one time. She asked Jose to talk to the bus driver so the driver would stop “bugging” her.
The next morning L. did not go to school. Jose asked L. to show him where the touchings had occurred. She directed him to the house where they pick up the boy, and then directed him on. When they got to a house on a corner with tall trees surrounding it, she told him to stop. She said, “ ‘He stop right there.’ ” Jose asked L. where her friend lives, and she pointed it out. It was about three houses down from where they had stopped. Jose talked with the parents of L.’s friend, and they confirmed that the bus stops at the corner before it comes to pick up their daughter. Jose drove to L.’s school and reported to the principal and a police officer what L. had told him. They recommended that he go home and call 311. Before he called 311, he told L. that he was going to call the police and have an officer come to the home, so she should tell the truth. L. responded, “ ‘Okay.’ ” Jose had never known L. to lie. Officers came to the home and one took Rosa’s statement while Jose acted as a translator and while another officer took L.’s statement. Later, Jose showed Detective Melo the house and trees where L. said the bus stopped.
After Jose made the police report, he requested that L. have a female bus driver. When the female bus driver arrived the next day, she showed Jose a buckle guard and asked him if L. needed it. He did not know what it was, and asked if the police had requested it. The driver said no, that it would only keep L. from getting out of her seat. He said that L. never uses it and does not need it, and the driver said “ ‘That’s okay.’ ”
Rosa testified that on the evening of March 26, 2007, she overheard L. and L.’s then seven-year-old sister talking. Then L.’s sister told Rosa that the bus driver was “bothering” L. Rosa asked L. what was going on. L. said that the bus driver was raising her shirt and bra and sucking her breast because he was thirsty and wanted milk. L. said that she told him to stop but he did not understand. She said that there was a boy in a wheelchair with them and they always stopped in a certain place with very thin trees before they pick up the third child. Rosa informed her husband. The next day, when the officers came, they took the bra L. wore the day before.
Tarini Shrestha, L.’s middle school special education teacher, testified that L. was very shy. L. followed instructions and did her work, but it took some time for her to express herself. Shrestha could not think of any instances where L. lied to her or made up stories. L. did not overstate what she did and it was not easy to change her mind. In the fall of 2005, when a boy with autism first joined their class, he kissed L. and L. did not like it. Each time he did it, she told Shrestha about it and others confirmed what L. said. L. is protective about her space and Shrestha told L. to keep her distance from the boy and to tell him to stop. Shrestha also talked to the boy. It took time, but the boy stopped doing it.
In January 2006, L. tested at the first-to-second grade level in word recognition, at the second grade level in spelling, and at the first-to-second grade level in math. In January 2007, L. tested at the second-to-third grade level in reading words and reading comprehension, and second-to-third grade level in math. In January 2008, L. tested at the second-to-third grade level in reading, spelling and math. Shrestha saw L. tense up when she was afraid, but she never saw L. involuntarily shaking or jerking.
Carl Lewis, a senior criminal investigator for the district attorney’s office, testified regarding child sexual abuse accommodation syndrome (CSSAS). CSAAS “is not diagnostic.” It “is intended to remind us of the fact... that there is no one particular behavior on the part of a victim or no one particular set of circumstances that we need to look for in order to determine the validity of a report.” It describes a pattern of secrecy, helplessness, entrapment and accommodation, and delayed, conflicted, and unconvincing disclosure.
Marc McGeever, the father of the boy in the wheelchair who rode the bus with L., testified that he could not recall whether or not L. was secured in her seat with a special harness when he helped his son board the bus each morning. He never saw L. shake or tremble. McGeever testified that his son has cerebral palsy, he is unable to use his arms or his legs, and he is unable to speak.
Julio Cabrera, who lived at the house on the corner where L. reported that defendant stopped the bus each time he touched her, testified that two or three times each week between February and April 2007, he saw a bus parked around 7:30 a.m. in front of his house.
Richard Grundstrom, a bus service manager, testified that defendant worked for his service until March 27, 2007. Grundstrom looked for documentation of any complaints by L.’s parents against defendant, and he found none. Grundstrom looked for documentation of any emergency involving L., such as a seizure or fainting spell, and he found none. Grundstrom looked for documentation of L. getting out of her seat and walking around, and he found none. Parental approval is needed before a buckle guard or harness is used on a student. Although the notations “seizure” and “Pro buckle device” are included with L.’s name on the bus route sheets defendant used, Grundstrom did not know if that information was provided by her parents or by the school district. Grundstrom could not find a consent form signed by L.’s parents for the use of a buckle guard. The route sheets indicate the schedule for picking up and delivering the students and a bus driver may need to stop a few houses away before picking up a child so that the bus does not arrive at a child’s house too early.
Detective Carlos Melo testified that L.’s father called the police on March 27, 2007, at 10:17 a.m. When the detective interviewed L., he asked her open-ended questions. However, she did not always understand his questions. Therefore, he used more direct questions in order to get a response.
The Defense Case
Officer David Moser testified that he received a call to go to L.’s residence on the morning of March 27, 2007. There he first spoke briefly to L.’s parents and then he spoke to L. L. said that her school bus driver had touched her twice with his right hand under her shirt and she pointed to her breasts. She said that he said that he was thirsty, and that she told him to stop. However, she changed her story a couple of times about where she was sitting on the bus at the time and about whether the bus was moving or not when it happened. And, she was very vague about when it happened. He asked for the bra she was wearing on the date of the incident, and he booked the bra he was given into evidence.
Kerry Schuyler, L’s middle school speech therapist, testified that she tested L. in December 2006, to assess how well L. understood what was said to her and how well she could say what she wanted to say. L. had considerable difficulty understanding what was being said to her and expressing herself compared with other children her age. L. was extremely shy and needed to be prompted to speak or answer questions, although her hearing and vision were within normal limits.
Diny Jansen, a school psychologist, testified that she tested L. in January 2006 and determined that L. scored extremely low for perceptional reasoning, working memory, and processing speed on standardized tests.
Dr. Mary Jane Pionk, L.’s pediatrician, testified as an expert in the recognition and treatment of tic disorders. L. has a history of twitching and jerking her head, neck and shoulders beginning when she was six years old. Her parents reported that the symptoms occur when L. is anxious or stressed but they do not occur when she is involved with something that she likes to do or when she is asleep. Also, L. has never lost consciousness and her symptoms stop when she is touched or held. Therefore L.’s movements are not due to a seizure disorder but rather a tic disorder. The disorder “waxed and waned,” but it never affected L.’s comprehension.
Officer John Terry testified that he went with Officer Moser to L.’s house on March 27, 2007. He took Rosa’s statement as interpreted by Jose. Rosa said that she overheard L. tell L.’s younger sister that the bus driver had touched her. Rosa then talked to L., and what L. said had occurred was sexual.
Lupe Rodriguez, a bus driver and defendant’s coworker, testified that when she arrives at a home early she stays back and relaxes, then pulls forward and honks to have the children come out. Rodriquez drove L.’s route before defendant did. She also covered defendant’s route from time to time, including the day after defendant was pulled from the route. When L. fell asleep on the bus, Rodriguez called her name to wake her up. If she did not respond quickly, Rodriguez stopped the bus and shook L. Rodriguez began using the buckle guard on L. when L. started standing up on the bus. Rodriguez had to stop the bus and ask L. to sit down. She then buckled L. in using the buckle guard, informed dispatch, and drove on. Because there is not very much room on the bus, putting the buckle guard on requires physical contact with the crotch or groin area. The use of the buckle guard on L. was mandated by the school district, and when defendant took over the route she told him about having to use it on L. L. never did anything that made Rodriguez think that L. did not want to use the buckle guard, Rodriguez never had to use any other device to restrain L., and L. has never made allegations or complaints against Rodriguez. When Rodriguez covered for defendant after he was dismissed, L.’s father told her not to use the buckle guard so she did not. She reported it to the district and the mandate to use the buckle guard on L. was removed.
Craig Lee, a criminalist, testified that he tested L.’s bra for saliva and DNA. He found DNA from one unknown female only on the bra.
Dr. Rand testified as an expert on CSAAS and the forensic interviewing of children. He reviewed the video and transcript of L.’s police interview, the police reports in the case, and L.’s school records. In his opinion, L. has difficulty with recall and with reporting a narrative based on her recollection. Because of that, she is more susceptible to suggestion than other children her age are. During Detective Melo’s interview of L., he “pursued a single hypothesis or preconceived belief or assumption that L. was sexually abused.” His questions were suggestive rather than seeking clarification. When a question was repeated, L. changed her answer and appeared to be guessing rather than responding to the question. Her story was not coherent and there are other alternative explanations for her utterances and her pointing to her breast area and mouth. In addition, when L.’s mother first asked L. about what she thought she heard L. say to L.’s sister, L’s mother may have been anxious and the questions may have been highly suggestive, which is a cause of false reports.
Defendant did not testify in his own behalf.
Verdicts and Sentencing
On December 19, 2008, the jury found defendant guilty of lewd acts on a child under 14 (§ 288, subd. (a); count 1), and of misdemeanor annoying or molesting that child (§ 647.6, subd. (a)(1); count 2). The jury also found that the act or acts upon which the conviction in count 1 was based are different than the act or acts upon which the conviction on count 2 was based. The court referred the case to the probation department for a formal report and a psychological evaluation of defendant pursuant to section 1203.03. The probation department recommended that defendant be referred for an evaluation pursuant to section 288.1, and on January 30, 2009, the court made that referral. On March 13, 2009, after considering the probation officer’s report and attachments, the court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that he serve nine months in county jail, with credit for time served of 128 days. The court also ordered defendant to register as a sex offender pursuant to section 290.
This Appeal
Defendant filed a timely notice of appeal and retained counsel to represent him in this court. Retained counsel have filed a brief that fails to allege error by the trial court but which requests that this court independently review the entire record on appeal for arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel state that they have met with defendant and have advised him that he may file a supplemental brief with the court and may request the court to relieve counsel, but that counsel remains to brief any issue upon invitation of the court. Defendant has separately filed a request that this court independently review the record, but he has not filed a substitution of counsel. In his request for independent review, he raises issues of the coaching of L. by her family members, the lack of physical or scientific evidence to support the conviction, bias on the part of Detective Melo, the refusal of the detective to interview defendant once defendant asked for the presence of counsel, and ineffective assistance of his retained trial counsel.
“[W]here the defendant retains counsel on appeal, the Wende procedure is inapplicable.” (People v. Placencia (1992) 9 Cal.App.4th 422, 428.) “If, following review of the record, retained counsel believes no arguable issue can be presented, counsel must discuss that conclusion with the client and either obtain permission from the client to dismiss the appeal or move to withdraw from the case. Counsel also must advise the client to consider obtaining other counsel. By taking these steps, privately retained appellate counsel ensures that the rights of the paying client in securing counsel are protected.” (Id. at pp. 428-429.) If retained counsel nevertheless files a brief that does not assert arguable issues, “there is simply no need to interpose the appellate court into the process, placing it in the position of ‘second guessing’ counsel employed by the defendant.” (Id. at p. 428.)
We requested that the parties file supplemental briefs on the question of whether it is appropriate for retained counsel on appeal to file a brief pursuant to Wende. The Attorney General responded that “[i]t is inappropriate for retained counsel on appeal to file a ‘Wende’ brief” and, therefore, “[t]he appeal should be dismissed.” Defendant’s counsel responded that they have “discussed the matter... with our client Mr. Phan. Mr. Phan has decided to dismiss his appeal. Please dismiss this appeal effective immediately.”
The appeal is dismissed. The remittitur shall issue forthwith.
WE CONCUR: McADAMS, J., DUFFY, J.