People v. Ragen

• Decision Date: 22 May 1968
• Docket Number: Cr. 2867
• Citation: 262 Cal.App.2d 392,68 Cal.Rptr. 700
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank J. RAGEN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 700

68 Cal.Rptr. 700

262 Cal.App.2d 392

The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank J. RAGEN, Defendant and Appellant.

Cr. 2867.

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

May 22, 1968.

Rehearing Denied June 20, 1968.

Hearing Denied July 17, 1968.

Certiorari Denied Dec. 16, 1968.

[262 Cal.App.2d 396] Harelson, Enright, Levitt & Knutson, William B. Enright, San Diego, Kaplan, Livingston, Goodwin, Berkowitz & Selvin, Herman F. Selvin, Beverly Hills, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., Los Angeles, for respondent.

OPINION

GERALD BROWN, Presiding Justice.

Frank J. Ragen appeals from a judgment of conviction entered after a jury found him guilty of raping a female under the age of eighteen years (Pen.Code, § 261(1)), raping a female prevented from resisting by his having administered an intoxicating narcotic or anesthetic substance (Pen.Code, § 261(4)), and two counts of sex perversion (Pen.Code, § 288a).

As of May 26, 1966, Ragen, a general medical practitioner, was treating sixteen-year-old tonsillitis patient Diane. On that date, Diane appeared at Ragen's office at 5:40 p.m., as he had instructed her. No receptionist was there. No nurse was there. Although not required for treating tonsillitis, Ragen wanted to and recommended he perform a pelvic examination. Ragen injected Pentobarbital, a hypnotic drug, into Diane, and made her take two pills. She became weak and dizzy. Before long he had her take off her underclothing beneath her skirt. At his instruction she climbed onto an examination table, put her heels in stirrups extending out from the end of the table and pulled her buttocks all the way to the end of the table, leaving her extremely exposed. Ragen stood between her legs, jabbing his penis into her vagina. He then sat on a stool between Diane's legs and twice glided his tongue on her vagina. Later, Ragen told Diane he had to spray her throat. After taping her eyes with gauze patches, he stood by the side of the table and put his penis into her mouth, telling her to suck the lollipop.

Although dopey and weak when she got home, Diane telephone a girl friend. Crying hysterically she explained what Ragen had done. The girl friend's mother called the police. Diane was taken to a Chula Vista hospital for tests. The tests did not confirm her story. Knowing Diane's story and the medical evidence casting doubt on it, the police were not about to arrest Ragen, a respected doctor. They suggested Diane telephone Ragen, accuse him, ask him questions they would prepare and let them record the conversation. Diane called Ragen about noon, May 27, 1966. For eight minutes he denied everything, with an occasional incriminating slip. Finally, he suggested he would call her back about 4:00 p.m. She agreed. At 5:40 p.m. Ragen called Diane. They spoke for fifteen minutes. In substance, Ragen emotionally admitted his crime, putting his life in her hands, asserting he would kill himself unless somehow she could charitably forgive him and keep her mouth shut.

The events described above led to Ragen's conviction for statutory rape, narcotic rape and one count of sex perversion. The other count of sex perversion involved five and one-half months pregnant Ruth. In June 1964, suffering cramps and contractions, Ruth telephoned Ragen, her doctor. He suggested meeting at his office at 10:00 p.m. Not surprisingly, no nurse was there. Ragen had Ruth get onto the examination table and put her feet into stirrups. He gave her an injection, making her dizzy, groggy, light-headed and drowsy. She fell asleep. She woke up finding Ragen standing between her legs, his penis penetrating her vagina. Later, he tried to force his penis into her mouth.

Attacking the trial court's admission of the tape recording of his telephone conversations with Diane, Ragen makes three unmeritorious contentions:

1) Ragen contends tape recording his telephone conversations with Diane constituted an unreasonable search and seizure. Relying on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, and Berger v. State of New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, Ragen correctly argues tape recording a telephone conversation is a search within the Fourth Amendment to the United States Constitution. The Fourth Amendment protects against Unreasonable search and seizure. Neither Katz nor Berger dictates whether tape recording a telephone conversation is unreasonable where one party to the conversation consents to the recording. In Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 413--414, 17 L.Ed.2d 374, the United States Supreme Court said:

'Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. Indeed, the Court unanimously rejected that very contention less than four years ago in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462.'

Katz v. United States, supra, 389 U.S. 347, 88 S.Ct. 507, and Berger v. State of New York, supra, 388 U.S. 41, 87 S.Ct. 1873, to whatever extent they reflect displeasure with trespass and physical invasion theories applied in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, and even Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, do not diminish in the slightest the discussion of one party consent in Hoffa v. United States, supra, 385 U.S. 293, 302, 87 S.Ct. 408, 413--414, and Lopez v. United States, supra, 373 U.S. 427, 83 S.Ct. 1381. (Cf. UNITED STATES V. WHITE (7 CIR. 1968) (U.S. LAW WEEK APRIL 9, 1968, VOL. 36, #39)¹). Ragen, in other words, took the chance Diane might publicize their conversation. The tape recording, with assured accuracy, merely told what Diane could say on the witness stand.

2) Ragen contends his telephone statements to Diane were involuntary because Diane's questions and accusations deceived him and incited fear and panic in him. As Ragen argues, the Fourteenth Amendment to the United States Constitution forbids using a mentally coerced confession in a state criminal trial (Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948; Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760). Ragen cites as deception Diane's not telling him the police were recording the conversations. This deception he equates with mental coercion. Deception, however, does not render statements inadmissible if it is not of a type reasonably likely to procure an untrue statement (People v. Arguello, 65 Cal.2d 768, 775, 56 Cal.Rptr. 274, 423 P.2d 202; People v. Hays, 250 Cal.App.2d 96, 98, 58 Cal.Rptr. 241) and the police conduct is not such as (1) to overbear the will to resist, and (2) to bring about confessions not freely self-determined (Rogers v. Richmond, supra, 365 U.S. 534, 544, 81 S.Ct. 735, 741). We are convinced the deception practiced here, Diane's not telling Ragen about the police recording the planned questioning, was not reasonably likely to procure an untrue statement. Neither was the police conduct in having Diane call and ask the prepared questions used here, hiding the police involvement, such as to overbear Ragen's will to resist or to bring about confessions not freely self-determined. The situation, being caught and accused by his victim, not deception, caused Ragen to incriminate himself. In terms of self-determination, Ragen did not have to call Diane and could have hung up anytime, taking the consequences of his own sordid criminality. Indeed, he himself placed the second and overwhelmingly incriminating telephone call. Ragen's statements were voluntary.

3) Ragen contends his telephone statements to Diane were inadmissible because before taping them the police did not warn him of his constitutional rights as stated in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Conceding he was not in custody or under arrest when the police recorded the conversations, Ragen argues custody is not an indispensable requirement before a Miranda warning is required. In People v. Arnold, 66 Cal.2d 438, 448, 58 Cal.Rptr. 115, 426 P.2d 515, however, the California Supreme Court adopted the requirement and definition of custody found in Miranda v. State of Arizona, supra, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612:

"By Custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' (Italics added.)'

Ragen was not deprived of his freedom of action in any significant way. He could have hung up. He did not have to call Diane. His statements, therefore, were admissible, considering the totality of circumstances although he had not been warned of the Miranda rights. See People v. Ing, 65 Cal.2d 603, 612--613, 55 Cal.Rptr. 902, 422 P.2d 590.

Ragan contends the trial court improperly admitted evidence of his sexual misbehavior with patients other than Diane and Ruth. These vile events occurred as follows:

1) In March 1957, Ragen treated eight months pregnant Mrs. Darnley. A nurse helped Mrs. Darnley onto an examination table. Mrs. Darnley placed her legs in stirrips with her buttocks on the end of the table. In the absence of the nurse, Ragen examined Mrs. Darnley, rubbed his penis up and down in her vaginal area, and, then very forcefully inserted his penis into her vagina.

2) Also in March 1957, Ragen mis-treated 15-year-old, six months pregnant Mrs. Fisher as he had mis-treated Mrs. Darnley, except he never accomplished penetration.

3) Also in March 1957, Ragen mis-treated six to eight months pregnant Mrs. Jenkins as he had Mrs. Fisher.

4) In August 1959, Ragen mis-treated 16-year-old Mrs. Smith for an infection of the cervix. In the absence of a nurse, he had Mrs. Smith...