People v. Ruiz

• Decision Date: 15 August 1990
• Docket Number: No. A044379,A044379
• Citation: 272 Cal.Rptr. 368,222 Cal.App.3d 1241
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joaquin RUIZ, Jr., Defendant and Appellant.

Page 368

272 Cal.Rptr. 368

222 Cal.App.3d 1241

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joaquin RUIZ, Jr., Defendant and Appellant.

No. A044379.

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

Aug. 15, 1990.

As Modified on Denial of Rehearing

Sept. 14 and Oct. 12, 1990.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Martin S. Kaye, Supv. Deputy Atty. Gen., Mary A. Roth, Deputy Atty. Gen., San Francisco, Cal., for plaintiff and respondent.

Neoma Kenwood, Staff Atty., San Francisco, Cal., for defendant and appellant.

STEIN, Associate Justice.

Joaquin Ruiz, Jr., appeals his conviction of a single count of lewd conduct with a child. (Pen.Code, § 288, subd. (a).)

FACTS

The ten-year-old victim, Catherine W., was a neighbor and friend of Ruiz's granddaughter. Catherine, looking for her friend, found Ruiz babysitting for the family's two younger children. Ruiz invited her into the house to watch television with him and the children. Catherine testified that Ruiz spoke to her about sex, had her sit with him on a chair where he touched her sexually and put her hand on his penis.

Ruiz does not contend that there was insufficient evidence to support his conviction; rather he claims that he was denied a fair trial because the court refused to permit his expert witness to testify that Ruiz did not share certain characteristics commonly shared by pedophiles.

I.

The Exclusion of the Offered Testimony of the Defense's Expert Witness

The defense sought to introduce evidence that Ruiz did not share characteristics commonly associated with persons suffering from pedophilia. The defense made an offer of proof that Dr. Paul S. D. Berg, a psychologist with extensive experience in examining and treating pedophiles, would testify that there are two primary types of pedophiles, one who becomes "fixed ... stuck on urges that have to do with sexual pleasure with children," and a "regressive" type which, upon undergoing some unusual stress, decompensates and acts out sexually. Dr. Berg had examined Ruiz and had administered to him several standard psychological tests, including the Minnesota Multiphasic Personality Inventory (MMPI), the Millon Clinical Multiaxial Inventory (MCMI), a sentence completion test and the Bender Gestalt test. Dr. Berg stated that the tests administered were not designed to determine if the subject being tested was a pedophile or sexual deviant, but further stated that the results of the tests, plus his own examination, caused him to form the opinion that Ruiz did not "fit the typical pattern of those people who are known and diagnosed and treated as pedophiles." "I can describe what he's like psychologically, I can give you opinions about mental functioning, I can certainly tell you whether or not he fits in or outside of categories; but I regard the specific question as a legal determination and not a psychological one." Dr. Berg further stated that barring an admission by a subject that he was a pedophile, he would never be able to say whether or not a particular patient was a pedophile, "but I can tell you, again, based on my clinical experience, that they tend to produce certain kinds of profiles, and other folks do not." The court, citing People v. John W. (1986) 185 Cal.App.3d 801, 806-808, 229 Cal.Rptr. 783, held the proffered testimony inadmissible.

It is now settled that psychological opinions based upon personal examination and an analysis of accepted psychological tests, such as the MMPI and MCMI, may be admitted as character evidence tending to show that an individual was or was not likely to have committed a particular act, and that the admissibility of such evidence need not be tested under the Kelly- Frye standard. (People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240; Frye v. United States (D.C.Cir.1923) 293 F. 1013.) ¹ In People v. Stoll (1989) 49 Cal.3d 1136, 265 Cal.Rptr. 111, 783 P.2d 698, a defendant charged with sexually molesting children sought to introduce into evidence a psychiatrist's opinion that she had a "normal personality function," that she had not in the past engaged in sexual deviancy of any kind, and that it was "unlikely ... she would be involved in the events she's been charged with." (Id. at p. 1149, 265 Cal.Rptr. 111, 783 P.2d 698, italics in original.) Noting that the opinion had been formed on the basis of the psychiatrist's individual interpretation of the test and interview results, and that the tests at issue were long accepted and thus were not a new scientific technique, the court found the evidence admissible.

Further, in finding the opinion evidence at issue admissible, the court in Stoll distinguished People v. John W., supra, 185 Cal.App.3d 801, 229 Cal.Rptr. 783, relied upon by the trial court in the instant case, because one of the tests relied upon by the psychologist in that case was " 'an electronic physiological test known as a penile plethysmograph,' " a test which, unlike the MMPI and MCMI, involved a new scientific technique and therefore fell within the Kelly- Frye rules. (People v. Stoll, supra, 49 Cal.3d at pp. 1159-1160, fn. 21, 265 Cal.Rptr. 111, 783 P.2d 698.) The court also found inapplicable the holding of People v. Bledsoe (1984) 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291, insofar as that case prohibits the use of expert opinion that a victim suffered from "rape trauma syndrome" for the purpose of proving that a rape in fact occurred: "A careful reading of Bledsoe reveals that our primary concern was the logical irrelevance of the evidence: (1) the 'syndrome' was designed solely as a nonjudgmental means by which to 'identify, predict and treat' the victim's emotional problems; (2) since counselors rarely question the victim's factual account, the syndrome is an inappropriate means of deciding the intricate legal issue of consent (i.e., whether the defendant reasonably, and in good faith believed that the victim consented despite her good faith belief that she did not ); and (3) the syndrome is characterized by a 'broad range of emotional trauma' not limited to victims of rape; and (4) a counselor's assessment of the victim's feelings is not necessarily an accurate measure of whether a third party, namely the defendant, acted in a legally culpable manner. (36 Cal.3d at pp. 249-250, & fn. 12, 203 Cal.Rptr. 450, 681 P.2d 291.)" (People v. Stoll, supra, 49 Cal.3d at pp. 1160-1161, 265 Cal.Rptr. 111, 783 P.2d 698, italics in original.)

In the present case there was no evidence that the tests administered by Dr. Berg are used in the scientific community for any purpose other than to "identify, predict and treat" a patient's emotional problems. There was no evidence that Dr. Berg questioned Ruiz's factual statements, or that he questioned anything Ruiz related....