People v. Pierce

• Decision Date: 18 September 1970
• Docket Number: Cr. 5530
• Citation: 89 Cal.Rptr. 751,11 Cal.App.3d 313
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnny PIERCE, Sr., Defendant and Appellant.

Page 751

89 Cal.Rptr. 751

11 Cal.App.3d 313

The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnny PIERCE, Sr., Defendant and Appellant.

Cr. 5530.

Court of Appeal, Third District, California.

Sept. 18, 1970.

Hearing Denied Nov. 10, 1970.

Thomas C. Lynch, Atty. Gen., by Arnold O. Overoye and Michael Franchetti, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

Daniel B. Lorenz, Sacramento, for defendant-appellant.

REGAN, Associate Justice.

After a trial by jury, defendant was found guilty of a violation of section 288 of the Penal Code ¹ (lewd and lascivious conduct). He appeals from the judgment of conviction.

L, defendant's 13-year-old stepdaughter, testified that on the night of November 6, 1966, defendant forced her into sexual relations both with him and L's brother T, age 10. Both children testified that on that night defendant had sexual relations with L and forced her into acts of oral copulation with him and T. The children complied with defendant's demands because of fear for their own safety and the safety of other members of the family. L testified that she had engaged in sexual acts with defendant since she was about ten years old. T had been so engaged in this behavior, at defendant's demands for about a year.

L stated that she had complained of defendant's conduct to her mother and other family members; however, nothing was done to stop defendant's activity. L testified that she had not engaged in sexual intercourse with persons other than her brother and defendant. She denied having made up stories about sexual acts with other persons.

N, L's 20-year-old sister, and no longer living at home, testified that defendant had indulged in sexual relations, including oral activity, with her for several years. When N told defendant he would have to stop, defendant replied, 'Well, there was always a younger sister, that he wouldn't miss me much.' The acts occurred during the years 1962 through 1964, and the conduct testified to by N was very similar to the conduct testified to by L.

Other family members testified that defendant not only had the opportunity to molest L, but also that she had complained to them.

A report by a Dr. Din, after a physical examination, indicated that L had a marital introitus (vagina), consistent with that of a person who had had intercourse on multiple occasions.

The defense is best summarized by this court's statement in People v. Pierce (1969) 269 Cal.App.2d 193, 197--198, 75 Cal.Rptr. 257, 259--260: ²

'The trial theory of the defense was twofold: (1) Defendant was bedridden because of a spinal operation approximately five weeks earlier, had a heavily taped back, had to use a bedpan and was physically incapable of being the active partner in sexual intercourse. (2) Although defendant had in his room the hospital bed which he occupied and the double bed ordinarily occupied by his wife, he was alone in his room on the night of the offense, the double bed was empty and both L and T slept in their own room with some of Art Pierce's children. (Brother of defendant.) An orthopedic surgeon confirmed the back operation and expressed the opinion that sexual intercourse would have caused back pain and muscle spasm. Defendant denied sexual activities with L, T, and their elder sister and testified that the two children had not occupied the bed in his room on the night in question.

'According to their testimony, Art and his wife remained up all night. One of them would enter defendant's bedroom from time to time during the night to see if he needed anything and each time found him alone. There were two bedrooms in the house, one occupied ordinarily by defendant and Ruda (defendant's wife), the other occupied by the children. There was a connecting bathroom between the two bedrooms.' ³

On rebuttal, the following testimony was given by the investigating police officers: When called to the house on another matter, the police found defendant out of bed and moving around the house. Defendant became irate that the officers were confiscating his weapons.

By way of impeachment Lt. Stark of the Sacramento Police Department testified that on November 11, 1966, he interviewed Artis and Carrie Pierce. They had told him that on the night of November 6, 1966, defendant had been in a rage over the removal of his guns. They told him that defendant had thrown a knife at his mother, and had threatened the entire family. They told him that defendant was moving around the house on that night.

Lt. Stark also testified that he talked with A (the daughter of Artis and Carrie) who had told him that on the night of November 6, 1966, she was in defendant's room where he had exposed himself and tried to induce her into sexual acts. She also told Lt. Stark of the knife incident.

On November 19th, Lt. Stark had spoken with Ruda Pierce. She had told him that L had complained to her about defendant's conduct toward her, and that she threatened to call the police and report defendant. She said that defendant talked her out of such a course of conduct.

Officer Cracraft, Sacramento Police Department, testified that she was present at the conversation between Lt. Stark and A, and that A made the statements testified to by Lt. Stark.

Defendant contends the trial judge abused his discretion and committed reversible error in refusing to admit psychiatric evidence regarding he complaining witness.

During the time preceding the trial, L was in the custody of her mother, Ruda. Without seeking a court order, defendant's counsel arranged for a psychiatric examination of L. L was taken to the psychiatrist by her mother, who later became the first witness for the defense. L had not been consulted about the examination; she was not informed of its existence or purpose until she was brought in. The examination had apparently been forced on L and she did nto want to cooperate during the examination. She preferred not to discuss the particular conduct involved, nor to demonstrate such with any doll or mannequin. Prior to the examination, the psychiatrist had obtained L's 'personal history' from a letter written by defendant's counsel. The letter indicated that L may have made up the story, had a bad reputation for truth and honesty, and may have had illicit relations with other boys. The witness stated that his opinion was based both upon his observation of L and upon the history he had obtained from the letter. The district attorney was not informed of the examination until after its completion, whereupon he was sent a copy of the psychiatrist's report. After extensive direct and Voir dire examination, the court refused to admit psychiatric evidence based on this examination.

Defendant emphasizes the impressive credentials of the examining psychiatrist, and argues that he could adequately fulfill the test set forth in People v. Russel (1968) 69 Cal.2d 187, 196, 70 Cal.Rptr. 210, 217, 443 P.2d 794, 801, i.e., 'to inform the jury of the effect of a certain medical condition upon the ability of the witness to tell the truth' rather than to himself decide. The defendant also contends that there was no valid reason why the court rejected the psychiatrist's testimony, and that the conduct of the trial judge indicated a marked bias. ⁴

The people contend that the failure by defendant to request that the trial court order a psychiatric examination of L necessitates the rejection of this appeal from the trial court's ruling. Secondly, they argue the court did not abuse its discretion since the evidence offered did not tend to show her credibility, the evidence could not be effectively communicated to the jury, and, the examination was not reliable.

The trial court has the authority to order a psychiatric examination of a witness in cases involving sex violations. In Ballard v. Superior Court (1966) 64 Cal.2d 159, 171--177, 49 Cal.Rptr. 302, 410 P.2d 838, the court held that the admissibility of psychiatric evidence as to the mental and emotional condition of a complaining witness for the purposes of impeaching her credibility is a matter to be determined by the trial court through the exercise of sound legal discretion.

In Ballard, supra, the court states (at pp. 175--176, 49 Cal.Rptr. at pp. 312--313, 410 P.2d at pp. 848--849):

'We do not mean to suggest that psychiatric testimony of the mental and emotional condition of the prosecutrix must necessarily be admitted in every case. We recognize that psychiatric evaluation is not absolute but only relatively illuminating; its utility in the ascertainment of the prosecutrix' condition must depend upon its posture in the whole picture presented to the trial court. That court can properly determine in its discretion whether psychiatric testimony as to the mental and emotional condition of the complaining witness should be admitted. * * * ' and further, 'We submit however, that a general rule requiring a psychiatric examination of complaining witnesses in every sex case or, as an alternative, in any such case that rests upon the uncorroborated testimony of the complaining witness would, in many instances, not be necessary or appropriate. Moreover, victims of sex crimes might be deterred by such an absolute requirement from disclosing such offenses.

'Rather than formulate a fixed rule in this matter we believe that discretion should repose in the trial judge to order a psychiatric examination of the complaining witness in a case involving a sex violation if the defendant presents a compelling reason for such an examination. The Supreme Court of South Dakota recently stated, 'In an article entitled Psychiatric Opinions as to Credibility of Witnesses: A Suggested Approach, in Vol. 48, Cal.L.Rev. 648, at page 663, this conclusion is reached: 'Most of the courts which have dealt with this problem have recognized the authority of the trial judge to order a psychiatric examination of a witness on the question of credibility. The principle...