People v. Russel

Citation69 Cal.2d 187,70 Cal.Rptr. 210,443 P.2d 794
Decision Date14 August 1968
Docket NumberCr. 11965
CourtUnited States State Supreme Court (California)
Parties, 443 P.2d 794 The PEOPLE, Plaintiff and Respondent, v. Thomas John RUSSEL, Defendant and Appellant.
Thomas John Russel in pro. per., and Frank G. Prantil, San Diego, under appointment by the Court of Appeal, for defendant and appellant

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Gerald H. Genard, Deputy Atty. Gen., for plaintiff and respondent.

SULLIVAN, Justice.

Defendant was charged by indictment with one count of committing lewd and lascivious acts upon the body of a child under the age of 14 years (Pen.Code, § 288; count 1) and two counts of incest (Pen.Code, § 285; counts 2 and 3); he was also charged with three prior felony convictions. He pleaded not guilty and admitted the prior felony convictions. On May 24, 1966, a jury was unable to reach a verdict, and the court declared a mistrial and discharged the jury. On August 23, 1966, after retrial, a jury found defendant guilty of two counts of incest as charged in counts 2 and 3 of the indictment. 1 After it had been determined by appropriate proceedings that defendant was not a mentally disordered sex offender (Welf. & Inst. Code, § 6300 et seq.), defendant was sentenced to the state prison for the term prescribed by law. 2 Defendant appeals from the judgment. 3

The principal issue confronting us is whether or not the trial court committed reversible error in refusing to admit psychiatric evidence relating to the mental and emotional condition of the complaining witness. We have concluded that it did.

Roxanne Russel, the complaining witness and the natural daughter of defendant, 4 was 13 years of age at the time of the act of incest charged in count 2 (April 1965) and was 14 years of age at the time of the act of incest charged in count 3 (February 14, 1966). She testified on direct examination at the second trial that on an undesignated date in April 1965 defendant, who had recently returned to the family home after an absence of two and one-half years, called her into his bedroom and there performed an act of sexual intercourse with her; that during the ten months following this date defendant On cross-examination, the defense established Roxanne had testified at the First trial that her father had engaged in sexual intercourse with her 'approximately four times' but no more than ten times. On redirect examination she testified that she had lied in the earlier trial because she was 'embarrassed in admitting how many times it actually occurred. * * *' Roxanne also testified on cross-examination that immediately after the last act of sexual intercourse on February 14, 1966, she in her father's presence threatened to reveal his conduct; and that she had brought the charges in order to hurt her father. Roxanne further testified that she had never dated boys her own age and that she did not entertain any boys at her home at any time after April 1965. 5 There was medical testimony that Roxanne had 'a well-developed marital vagina,' which indicated that she had engaged in acts of sexual intercourse.

performed such acts with her about once a week; that such acts always occurred in the absence of defendant's wife (Roxanne's stepmother); that in all defendant had sexual intercourse with her on some fifty separate occasions; that the last of such acts occurred on February 14, 1966; and that on the day following this act she ran away from home, and on the next day, after her stepmother had located her at the house of a friend, she told her stepmother and the police of defendant's conduct.

It was the theory of the defense, as developed through the testimony of defendant and his wife, that Roxanne's accusations were false and were a reaction on her part to defendant's strict regulation of her social and personal conduct and his stern disciplinary practices.

On August 12, 1966, five days before the commencement of the retrial, a hearing was had before the Honorable Robert W. Conyers, who had presided at the first trial, upon defendant's motion for an order requiring Roxanne to undergo a psychiatric examination for the purpose of determining whether her mental or emotional condition affected her veracity. Judge Conyers granted the motion subject to five conditions: (1) that the juvenile court, of which Roxanne was apparently a ward at the time, approve the order; (2) that the trial date not be delayed because of the examination; (3) that the district attorney be advised as to the time of the examination; (4) that the district attorney might be present 'during any history taking'; and (5) that a report of the examination be made available to the district attorney. On August 16, 1966, the examination was conducted at juvenile hall by Dr. David R. Rubin.

On August 17, 1966, the retrial began before the Honorable John A. Hewicker, and on the following day, prior to the commencement of testimony, defendant made an offer of proof based upon the findings of the examination. It appearing, however, that Dr. Rubin had not prepared a written report to be made available to the prosecutor in accordance with the conditions of the examination order, the court reserved its ruling on the offer of proof until such a report should be prepared. On the day next following, August 19, 1966, a Friday, Dr. Rubin appeared to testify in defendant's behalf, but he had not yet prepared his written report and it was then arranged that he should dictate his report to a secretary in the prosecutor's office so that the court could make its ruling on Monday.

The report was prepared accordingly and was apparently made available to the prosecutor over the weekend. On Monday, August 22, 1966, the report on Roxanne, together with a report which Dr. Rubin had prepared as to defendant's own mental condition, was presented to The report of Dr. Rubin concerning Roxanne is set forth in full in the footnote. 7 In Ballard v. Superior Court (1966) 64 Cal.2d 159, at pages 171--177, 49 Cal.Rptr. 302, 410 P.2d 838, we held that, in cases involving sex violations, (1) the admission of psychiatric evidence as to the mental and emotional condition of a complaining witness for the purpose of impeaching her credibility is a matter to be determined by the trial court through the exercise of sound legal discretion, and (2) the trial court may, also in the exercise of sound legal discretion, order that a complaining witness submit to a psychiatric examination for this purpose 'if the circumstances indicate a necessity' therefor (64 Cal.2d at p. 176, 49 Cal.Rptr. p. 313, 410 P.2d p. 849; see Annot. 18 A.L.R.3d 1433 et seq.). In the instant case, however, we are not concerned with the propriety of psychiatric Examination under the circumstances, for defendant's motion for such an examination was granted, subject to certain conditions, and the examination was in fact performed. Instead we here must decide whether an abuse of discretion occurred when the trial court, upon being presented with an offer of proof based upon the ordered examination and consisting in part of a written report of that examination, refused to admit psychiatric evidence contemplated by the offer of proof.

[443 P.2d 798] the court for its ruling on the offer of proof. The record, which is set forth in relevant part in the footnote, 6 does not clearly indicate whether the [69 Cal.2d 192] court read the report on Roxanne at this time, but in any event the court, after hearing argument on the part of the prosecutor, refused to admit any psychiatric evidence as to Roxanne's mental condition.

We have explicated the concept of judicial discretion on innumerable occasions and in a variety of factual contexts. Obviously the term is a broad and elastic one (see 27 C.J.S. p. 292) which we have equated with 'the sound judgment of the court, to be exercised according to the rules of law.' (Lent v. Tillson (1887) 72 Cal. 404, 422, 14 P. 71, 78.) We have also declared that the 'only limitation that the law had placed upon the exercise of discretionary judicial power is that it must not be abused'. (Clavey v. Lord (1891) 87 Cal. 413, 419, 25 P. 493, 495, observing at the same time that 'it may be difficult to define exactly what is meant by abuse of judicial discretion * * *' (idem). However we have said: "In a legal sense discretion is abused whenever in the exercise of its discretion the court exceeds the bounds of reason, all of the circumstances before it being considered." (State Farm, etc., Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 432, 304 P.2d 13, 15, quoting Berry v. Chaplin (1946) 74 Cal.App.2d 669, 672, 169 P.2d 453; see also Continental Baking Co. v. Katz (1968) 68 A.C. 527, 542, 67 Cal.Rptr. 761, 439 P.2d 889 and cases therein cited.)

The courts have never ascribed to judicial discretion a potential without restraint. In the early case of Bailey v. Taaffe (1866) 29 Cal. 423, at page 424, this court took pains to delineate limits of judicial discretion in the following terms: 'The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice.' Similar standards were expressed in Gossman v. Gossman (1942) The foregoing authorities, and particularly the passages quoted from Bailey and Gossman, make it quite clear, we think, that all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue. We shall here undertake to briefly outline some of the considerations relevant to discretionary determinations concerning the production and...

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