People v. Scott

• Decision Date: 16 May 1978
• Docket Number: Cr. 19905
• Citation: 21 Cal.3d 284,578 P.2d 123,145 Cal.Rptr. 876
• Court: California Supreme Court
• Parties: , 578 P.2d 123 The PEOPLE, Plaintiff and Respondent, v. Lane W. SCOTT, Defendant and Appellant.

Page 876

145 Cal.Rptr. 876

21 Cal.3d 284, 578 P.2d 123

The PEOPLE, Plaintiff and Respondent, v. Lane W. SCOTT, Defendant and Appellant.

Cr. 19905.

Supreme Court of California,In Bank.

May 16, 1978.

Bruce Robert Kay, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clerk Moore, Asst. Atty. Gen., Robert F. Katz, Shunji Asari and Theodora P. Berger, Deputy Attys. Gen., for plaintiff and respondent.

RICHARDSON, Justice.

Defendant appeals from a judgment of conviction after jury trial on an information charging four counts of child molestation (Pen.Code, § 288) and four counts of incest (id., § 285). We will sustain his principal contention that the results of a medical test ordered by the court should have been suppressed, and will reverse the judgment. For the guidance of court and counsel on retrial, we will also dispose of certain other claims of error.

In June or July of 1974, the complaining witness, then 13 years old, came to live with her parents, defendant and his wife. For various reasons, the three had never before been together as a family, and his daughter could not recall having seen defendant previously. An affectionate relationship developed between father and daughter, which, according to her testimony, soon involved improper and criminal behavior. In August 1974 she engaged in a "French kissing" episode with defendant, and thereafter according to her, defendant had intercourse with her on four occasions between September 1974 and January 1975.

She did not immediately report the foregoing incidents to anyone, but revealed them in May 1975 when her grandmother, with whom she was then living, had her examined medically to learn the cause of a vaginal discharge. Dr. Fletcher, a pediatrician, diagnosed a nonspecific vaginal infection. A subsequent examination by Dr. Woodling in early June of 1975 revealed the presence of trichomoniasis, an infection primarily transmitted through intercourse. When questioned by the physician, the minor admitted that she had had sexual relations with her father, but with no one else.

In September 1975, just prior to trial, the People moved to have defendant medically tested for trichomoniasis. The motion was supported by two declarations, one from the deputy district attorney prosecuting the case, and one from Dr. Woodling. In summary, these documents described the results of the daughter's examination, the usual method of transmission of trichomoniasis, and her statements that defendant was the only person with whom she had had intercourse. Dr. Woodling asserted in his declaration that trichomoniasis organisms are often present in the male genital tract and remain unless treated. The routine test for trichomoniasis, as he described it, consisted of a manual massage of the prostate gland administered through the rectum and causing a discharge of a sample of semen. Dr. Woodling said the fifteen-minute examination was not painful and "would have approximately a seventy percent probability of showing whether or not a male had trichomoniasis."

On the basis of this information, and over defendant's objection, the court ordered the requested examination which was then conducted. While the results of the test were "negative" for trichomoniasis specifically, they did reveal a chronic prostate inflammation, of which trichomoniasis was one of three probable causes. These results were introduced by the People at trial without further objection by defendant.

On appeal defendant asserts that the court-ordered test violated his constitutional rights against self-incrimination, and to be free from unreasonable searches and seizures (U.S.Const., Amends. IV, V, XIV, § 1; Cal.Const., art. I, §§ 13, 15) and his right to privacy (Cal.Const., art. I, § 1). There is merit in defendant's argument that the test constituted an unreasonable search and seizure, and that admission of its results was prejudicial.

Preliminarily, we dispose of the People's contention that defendant waived his objections, first, by failing to raise them with sufficient specificity before the trial court, and second, by declining to renew them after the test results were known. We cannot accept the contention.

At the hearing on the motion to compel the examination, defense counsel stated: "The basic opposition is, your Honor, it's not relevant . . . ." After an extended discussion of that issue counsel said he also understood that the examination was "rather demeaning . . . quite demeaning . . . ." Counsel then urged that the procedure was more intrusive than a blood test, but made no specific constitutional reference and cited no authorities. The People urge that counsel's efforts were insufficient to raise any constitutional questions.

An objection is sufficient if it fairly apprises the trial court of the issue it is being called upon to decide. (Code Civ.Proc., §§ 646, 647; Cooper v. Mart Associates (1964) 225 Cal.App.2d 108, 118, 37 Cal.Rptr. 145; Grossblatt v. Wright (1951) 108 Cal.App.2d 475, 481, 239 P.2d 19.) In a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented. (People v. Bolinski (1968) 260 Cal.App.2d 705, 722-723, 67 Cal.Rptr. 347; see People v. Briggs (1962) 58 Cal.2d 385, 409-410, 24 Cal.Rptr. 417, 374 P.2d 257.) The transcript of the hearing on the motion to compel the examination reveals that the trial court fully understood and considered the nature of the constitutional challenges which defendant now raises. Under the particular circumstances, we therefore hold defendant's objections on this ground were not waived by any lack of specificity.

The People further argue that defendant should have renewed his objections by means of a motion to suppress evidence under Penal Code section 1538.5 after the test results were made available. Under that section, the only prerequisite to post-conviction review of defendant's objections to evidence illegally seized is that a motion to suppress be made "at some stage of the proceedings prior to conviction . . . ." (Id., subd. (m).) Moreover, where defendant's objections have been fully considered and overruled, we have said that they need not be repetitiously renewed. (See People v. Briggs, supra, 58 Cal.2d 385, 410, 24 Cal.Rptr. 417, 374 P.2d 257.) Here, the record reflects that the admissibility of the results, whatever the outcome of the test, was in issue and fully explored at the hearing on the original motion. Thus, we conclude that the requirements of section 1538.5 were met.

We are unable to find a waiver in defendant's spirited attempts to persuade the jury in closing argument that the test results tended to establish his innocence. The People suggest that defendant's conduct at trial went beyond mere "defensive acts" (People v. Sam (1969) 71 Cal.2d 194, 207, 77 Cal.Rptr. 804, 454 P.2d 700; Jameson v. Tully (1918) 178 Cal. 380, 384), and that defendant decided not to oppose admission of the test results once he learned that they were "negative" for trichomoniasis. We decline, however, so to speculate when the People, equally aware of the possible interpretations of the results, chose to introduce them as part of their case in chief. Concluding, as we do, that defendant has not waived his challenge to admission of the test evidence, we turn to the merits of his constitutional claims.

Preliminarily, we reject defendant's contention that the test violated his rights against self-incrimination under the Fifth Amendment because the privilege against self-incrimination is limited to the involuntary giving of testimonial or communicative evidence. It does not extend, as here, to "real or physical" evidence extracted under compulsion. (Gilbert v. California (1967) 388 U.S. 263, 266, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Schmerber v. California (1966) 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908.)

Defendant's principal argument is that the test violated his constitutional rights to be protected from unreasonable searches. It is well settled that unjustified intrusions beneath the body's surface may violate a suspect's "due process" rights guaranteed by the Fifth and Fourteenth Amendments (Rochin v. California (1952) 342 U.S. 165, 172-174, 72 S.Ct. 205, 96 L.Ed. 183), and may also contravene the Fourth Amendment's proscription against "unreasonable" searches. (Schmerber v. California, supra, 384 U.S. at pp. 769-771, 86 S.Ct. 1826.) A warrantless invasion of the body must be incident to a valid arrest (People v. Superior Court (Hawkins) (1972) 6 Cal.3d 757, 762-763, 100 Cal.Rptr. 281, 493 P.2d 1145) and may occur only under a limited range of exigent circumstances. These circumstances include the need to prevent loss or destruction of evidence, or the existence of a medical emergency. (People v. Bracamonte (1975) 15 Cal.3d 394, 401-403, 124 Cal.Rptr. 528, 540 P.2d 624; see People v. Jones (1971) 20 Cal.App.3d 201, 210, 97 Cal.Rptr. 492.)

Moreover, because of the Fourth Amendment's particular solicitude for "personal dignity and privacy," warrantless searches of the body's interior cannot be justified on the "mere chance" that desired evidence will be obtained, but must be founded on a "clear indication" that such evidence will be found. (Schmerber, supra, 384 U.S. at pp. 769-770, 86 S.Ct. 1826.) In Bracamonte, we held that the "clear indication" test applicable to bodily intrusions required "more than probable cause" to believe that the search would produce relevant results. (15 Cal.3d at p. 403, 124 Cal.Rptr. 528, 540 P.2d 624.)

Finally, the degree of the intrusion, reliability and humaneness, and the conditions under which it is performed have been considered in deciding whether a warrantless intrusion was "reasonable." Thus, blood tests for alcohol, performed under medical conditions, have been consistently upheld as routine,...