People v. Mills

• Decision Date: 15 December 1978
• Docket Number: Cr. 17355
• Citation: People v. Mills, 151 Cal.Rptr. 71, 87 Cal.App.3d 302 (Cal. App. 1978)
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Kenneth Ray MILLS, Defendant and Respondent.

Page 71

151 Cal.Rptr. 71

87 Cal.App.3d 302

PEOPLE of the State of California, Plaintiff and Appellant, v. Kenneth Ray MILLS, Defendant and Respondent.

Cr. 17355.

Court of Appeal, First District, Division 1, California.

Dec. 15, 1978.

Hearing Denied Feb. 8, 1979.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Derald E. Granberg, Eugene W. Kaster, Deputy Attys. Gen., San Francisco, for plaintiff-appellant.

Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Jaime Alcabes, Patricia Salas Pineda, Deputy State Public Defenders, San Francisco, for defendant-respondent.

ELKINGTON, Associate Justice.

Defendant Mills was charged in the superior court with the rape of a teenage high school girl, one Tina, by force and violence and by threats of great and immediate bodily harm, in violation of Penal Code section 261, subdivisions 2 and 3.

Tina was ordered by the superior court to submit to a psychiatric examination in respect of her complaint against Mills. Upon her failure to do so the court, after a jury had been impaneled and sworn to try the cause, dismissed the charge.

The People have filed a notice of appeal "from the order of the court . . . dismissing the above-entitled action." Mills makes no contention relating to the appealability of the order.

The first issues submitted to us concern the rights of an alleged victim of a sexual crime and the obligations of a prosecutor, in relation to a court order that the alleged victim submit to an examination by a psychiatrist.

Evidence before the superior court disclosed the following.

Tina had been the victim of an unreported rape about a year before. It went unreported because "she was so intoxicated that she couldn't remember any of the facts . . . ." And about that time she had had an abortion and had been seeing a psychiatrist.

We continue with the evidence as stated by the brief of Mills. On the evening of the charged rape Tina went to the beach with Mills. They "had known each other for 'over a couple of months' and had gone out together on several occasions . . . . On each of these occasions, (Mills) had been a gentleman . . . . (P) After the couple had arrived at the beach, (Mills) climbed into the back seat because it was 'more comfortable' . . . . He suggested that (Tina) join him . . . . Although she was 'a little worried about it' she joined him without much hesitation . . . . The couple listened to music, smoked marijuana and consumed 'angel dust PCP.' . . . (Tina) said that the marijuana and angel dust made her nervous . . . . After approximately a half hour (Mills) unsuccessfully attempted to kiss her. After the third attempt, he undid the zipper of (Tina's) sweater, grabbed her by the shoulders and pushed her down onto the seat . . . . (Tina) began screaming and (Mills) pulled her back upright and told her 'to shut up' . . . . (P) (Mills) then lectured (Tina) about sex, and told her that she had the attitude of a child . . . . (Mills) then grabbed her left arm and twisted it into the small of her back . . . . He told her not to move or else he would break her arm . . . . (Mills) released (Tina's) arm and began to remove her clothing . . . . He pushed (Tina) down on the seat and began to remove his clothing . . . . He then succeeded in having sexual intercourse with her . . . . (P) Afterward (Mills) attempted to help (Tina) put on her clothes but she insisted on dressing herself . . . . At her request (Mills) drove her to a friend's house where she called the police . . . ."

A police officer had testified that upon Mills' arrest and an appropriate Miranda admonition and waiver, he had confessed to the offense against Tina: "(T)hat he had gone out with the victim on the night that she said it was, on the 13th of March; that they had driven to a beach in Pacific Grove; that they had a quantity of marijuana and phencyclidine, a drug, angel dust, and after that, that he had attempted to kiss (Tina) several times and she refused him, and that he grabbed her arm and twisted it to her back; that he told her that he made some threats to her, for example, that he was going to break her arm, and let's see, he said something to the effect that he would hurt her or bash her head, but I can't exactly be sure what exactly what words he used. (P) Then he said that he forced her onto the seat; that he undressed her and he undressed himself; that he kissed on her breasts and on her vagina; that he put his finger in her vagina; that he was fully erect; that he had intercourse with her; and that afterwards he took her to the friend's home in Seaside where he left her off."

The record then establishes the happening of these events and circumstances in respect of, and following, the superior court's here questioned order.

When Tina was advised of the superior court's order that she submit to a psychiatric examination she "felt that it was like an insult." She said she didn't want to, and "if I didn't have to, I wouldn't go." "(H)er parents did not see why she should have to see a psychiatrist, and they were opposed to her seeing a psychiatrist as ordered by the court." "Her mother (was) upset with the court's order." Nevertheless, Tina was willing to visit the psychiatrist, If she had to. The prosecutor assigned to the case was advised of the wishes of Tina and her parents. He read to Tina an excerpt from the case of Ballard v. Superior Court, 64 Cal.2d 159, 177, 49 Cal.Rptr. 302, 313, 410 P.2d 838, 849: "The complaining witness should not, and realistically cannot, be forced to submit to a psychiatric examination or to cooperate with a psychiatrist." (Emphasis added.) The prosecutor then told her that she "couldn't be forced to see a psychiatrist," but "he just kept telling me that it was my decision and that he didn't want to influence my decision." She wasn't told "not to go see a doctor." Indeed, "(h)e just gave me the doctor's name and number and said that if I wanted to, I could call her and make an appointment." Upon learning of the feelings of Tina and her parents about the ordered examination, the prosecutor had said "something like, it was wrong, or something, to be made to see a psychiatrist." Tina finally told the prosecutor: "I wasn't going to see the doctor, I had already made up my mind."

As a result of the foregoing, the court ordered Tina to "show why (the proceedings appear to have been later abandoned, or forgotten) she should not be held in contempt of this court."

As to the prosecutor, the court found that "the district attorney's office did nothing to enforce this order although they were the parties having more control over the witness involved," in "that she was influenced by (that office's) conduct which caused her to change her mind and caused her not to submit herself to a psychiatric examination." Such conduct, the court said, should be "severely" sanctioned "to prohibit this from occurring sometime in the future, . . ." The court then ruled "that the district attorney's office . . . has suppressed evidence" which, "if not contemptuous, is very serious conduct . . . ."

The jury, as noted, were impaneled and sworn. Thereafter, the court entertained Mills' motion for "sanctions." Following a hearing on the motion the court found that Tina's decision was "influenced by the conduct of the district attorney's office," which had "willfully and persistently act(ed) in such a way as to frustrate that court order," by advising Tina that "she has a choice as to whether she wants to comply or not," "thereby breaching their responsibilities under the due process clause." Then stating, "I can't allow interference with a lawful order of the court by the prosecution," so the sanction will be that Tina "will not be allowed to testify in this matter," even though "my order is probably going to result in a dismissal." Then concluding that the prosecution, without Tina's testimony, could not establish a "corpus of the crime," the superior court "upon its own motion, orders the matter dismissed pursuant to provisions of section 1385 of the Penal Code, . . ."

We turn our attention to the above mentioned holding of Ballard v. Superior Court, 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838, which appears to be the controlling authority on the instant issues. There the high court said (p. 177, 49 Cal.Rptr. p. 313, 410 P.2d p. 849):

"The complaining witness (in a sex offense case) should not, and realistically cannot, be forced to submit to a psychiatric examination or to cooperate with a psychiatrist. In the event that the witness thus refuses to cooperate, however, a comment on that refusal should be permitted."

This holding expresses a policy of our law that the victim of a sex crime should not Unnecessarily be subjected to further harassment or distress in criminal proceedings against her alleged violator. The policy springs primarily from consideration of one's dignity and of humanity. It also reflects widespread acknowledgment that such crimes often go unreported, usually because of the outraged victim's fear of further embarrassment, shame, or mortification.

While Ballard v. Superior Court holds that the complaining witness of a sex offense case "should not . . . be forced to submit to a psychiatric examination," it also holds "that the trial judge should be authorized to order the prosecutrix to submit to a psychiatric examination if the circumstances indicate a necessity for an examination." (64 Cal.2d pp. 176-177, 49 Cal.Rptr. p. 313, 410 P.2d p. 849.) Reconciling these holdings, we perceive the high court's meaning to be that a trial court's power is limited to the ordering of a psychiatric examination of an alleged sex offense victim, under pain of Appropriate sanctions such as comment to the jury on her refusal to cooperate, or perhaps even the disallowance of her testimony. But the permissible...