People v. Spigno

This is an appeal from a judgment wherein the appellant was convicted of violating the provisions of section 288 of the Penal Code.

In an information filed in Los Angeles County, it was charged that the defendant did, on or about July 17, 1956, commit a lewd act upon the body of Sandra L. Steiner, a child of the age of 9 years, with the intent of arousing, appealing to and gratifying the lusts, passions and sexual desires of the child and of the defendant. Following defendant’s plea of not guilty, the case was tried and a jury was unable to reach a verdict. The court declared a mistrial. The ease was tried a second time and on December 27, 1956, defendant was found guilty as charged.

Doctors were appointed under the provisions of section 5504 of the Welfare and Institutions Code to examine the defendant and to report their findings to the court. A probation officer’s report was filed. The court, on February 13, 1957, ordered the proceedings suspended and found, on the basis of the doctors’ report, the defendant to be a possible sexual psychopath and committed him to a state hospital for a period of not to exceed 90 days for observation and diagnosis, as provided for in the statutes. On May 6, 1957, the report of the superintendent of the hospital was filed. The report set forth:

“In my opinion said person is not a sexual psychopath and

he is not a menace to the health and safety of others as such. This man suffers from no personality disorder which predisposes him to sexual offenses. The incident with the child is isolated, out of character and not representative of pedophilic desire.”

On May 28,1957, the defendant was returned into court and sentenced to the state prison. The sentence was then suspended and probation granted for five years, the defendant to pay a fine of $500, abstain from alcoholic beverages, not associate with children, except his own, unless in the presence of adults, and maintain employment and obey all laws. The appeal is from the judgment.

A résumé of the facts is as follows; The child, aged 9% years, lived at an address in Los Angeles which was across an alley-way from the house in which the defendant lived. The child first saw the defendant during the summer of 1956, while walking along a sidewalk on her way to a girl friend’s home, which was in the same court as the defendant’s residence. The child testified that on that occasion she saw Spigno standing by his back door which was opened 8 to 18 inches, attired in a T-shirt only; that appellant said “Hi” and she answered “Hi.” The child also testified that about a week later she saw the appellant in the same position at the same door with the same opening, and that he was attired as before. She stated that about a week after seeing Spigno on the second occasion, while on her way to a boy friend’s house, at about 5 o’clock p. m., she saw Spigno again, and on this occasion he said, “Hi,” and asked her if she wanted to come into his house to see his parakeets. She said he was attired as she had seen him on the two previous occasions; that he was standing in the open door as before and that she saw his penis; that she then went into the house through the door, and on into the living room to see the parakeets. The child related that appellant then came into the living room with no clothes on; that she sat down on a couch and that he then pulled down a blind on the door or the window and sat down on the couch with her. She stated that he then took her hand and placed it upon his penis, whereupon she immediately went home and told her 12-year-old sister what had occurred, and a short time later told her mother. The mother then told the child’s father of the episode.

The defendant was arrested about 1 a. m. on July 18, 1956, and was told that he was being arrested for “child molesting, that there was a complaint signed against him by a little

The defendant was then taken to the police station where there was a conversation between the officers and the defendant. The officer testified as follows:

“. . . he said that this little girl had been out there playing with a kitten, and he had invited her into the house to see the parakeets. I asked him if he had pulled any blinds down and he said, yes. I asked him why, and he said to keep the sun out of her eyes, and I asked what he was wearing and he told me he was wearing a pair of pants,—I believe he said some of his army pants, and that he had a T-shirt on, and I asked him whether the pants were zipped up, and-all he said was that he kept the top button open and partly unzipped because they were too small, but he said that was all. He said, ‘You probably think I actually did this?’ and I told him it was hard for me to believe that a 9-year-old girl would make up a story that follows the normal pattern that we find in most of these cases, where they are told not be afraid, and how they are invited in on the pretense of looking at something, . . . [Defendant stated] ‘No, I don’t believe that a girl that age would know anything about sex.’ ”

The appellant testified in his own behalf and stated that he had seen the child three or four times in the neighborhood and that he did say “Hi” to her, the same as he did to anyone else around the place; that he never had stood at the partly opened back door, as the child had related, clothed only in a T-shirt. He related that on July 17th, he had gone fishing about 6 o’clock a. m., and had returned to his residence about 1 o’clock p. m. Mrs. Spohrer, a neighbor who was acting as a baby sitter for his children during his absence was there, and after he had conversed with her a bit, he permitted his children to go out into the yard to play. Mrs. Spohrer

The defendant produced witnesses who testified that his reputation for truth, honesty, integrity and morality was excellent; there was no effort upon the part of the prosecution to rebut such testimony. A witness who resided in the same court, and who knew the child, testified that the reputation of the child for truth, honesty and integrity was bad. The prosecution attempted to rebut the reputation testimony with reference to the child by a former teacher of the child, but on cross-examination the teacher admitted that “All little children tell lies at different times.” The child was repeatedly impeached by her own testimony as given at the first trial.

Milton Kenyon was called as a witness for the defendant. Immediately, the prosecutor sought a conference between both counsel and the judge at the bench. In the proceedings at the bench and out of hearing of the jury, the district attorney stated at first, “. . . counsel is trying to show a lie detector examination of this defendant.” The judge at once properly indicated that such would not be admissible, but told counsel for the defendant that he could make an offer of proof, whereupon counsel cited People v. Jones, 42 Cal.2d 219 [ 266 P.2d 38 ], and incorrectly told the court: “In that case the Court found, this was on appeal, that an error had been made by the failure to admit testimony of a lie detector expert who can testify to—perhaps I should have made my offer of proof first, but the lie detector expert could have proved that the accused was not a sexual deviate,

“Well, this is a little bit different from that. He offered the man as an expert psychologist, and as a result of his training he’s going to ask this man to state his opinion as to whether the defendant was so psychologically constituted so that he could or could not have done that.”

The district attorney then, without giving the basis for any objection, said, “I object to it,” and the court sustained the objection.

Appellant contends (1) that the testimony of the child was improbable, and (2) that it was prejudicial error to refuse to permit Kenyon, as a psychologist, to give his expert opinion as to whether the defendant had the necessary lustful intent to commit the acts complained of.

As to the first contention, it is true that the child’s story about the events in question changed from time to time, and she was impeached as to many details, but contradictions and inconsistencies in the testimony of a witness alone will not constitute inherent improbability. (People v. Huston, 21 Cal.2d 690 , 693 [ 134 P.2d 758 ]; People v. Trippell, 7 Cal.2d 612 [ 61 P.2d 929 ]; People v. Stangler, 18 Cal.2d 688 , 691-692 [ 117 P.2d 321 ]; People v. Becker, 140 Cal.App. 162 , 165 [ 35 P.2d 196 ]; People v. Kearney, 20 Cal.2d 435 [ 126 P.2d 612 ].)

It is the province of the jury to determine the credibility of the witnesses. (People v. Raich, 26 Cal.App. 286

As to the second contention, counsel for the defendant, in his offer of proof and while at the bench, repeatedly referred to Kenyon as a lie detector operator and made reference to the results of a lie detector examination which Kenyon had conducted with the defendant. The district attorney properly objected to any such testimony having to do with the lie detector, because under the rules in this state such evidence is inadmissible. (People v. Aragon, 154 Cal.App.2d 646 [ 316 P.2d 370 ]; People v. Porter, 136 Cal.App.2d 461 [ 288 P.2d 561 ]; People v. Wochnick, 98 Cal.App.2d 124 [ 219 P.2d 70 ]; People v. Carter, 48 Cal.2d 737 , 752 [ 312 P.2d 665 ]; Gideon v. Gideon, 153 Cal.App.2d 541 , 545-547 [ 314 P.2d 1011 ].) However, as the trial judge pointed out, Kenyon was also a psychologist, and the trial court, in barring his testimony as an expert witness in the field of psychology, faced a different situation.

Counsel for defendant apparently desired to qualify Kenyon as a psychologist, as an expert witness in the field of sexual psychopathy, although he did not clearly so state. If we may assume that counsel did not rely upon the lie detector test results as such, we may also assume that his purpose in introducing the lie detector test matters was to get before the jury the expert opinion of the psychologist, which may or may not have been based in part upon a lie detector test.

Counsel for appellant has placed complete reliance on the case of People v. Jones, 42 Cal.2d 219 [ 266 P.2d 38 ]. In that case the defendant was convicted of two counts in an information charging him with violating the provisions of section 288 of the Penal Code. The principal point of appeal in the case concerned the rejection of certain evidence. At the time of the offense, the child involved, a niece of defendant,

The court in the Jones case held (at pp. 222-223) :

“ ‘All facts having rational probative value are admissible, unless some specific rule forbids. ’ (1 Wigmore on Evidence [3d ed. 1940], § 10, p. 293; and cf. Code Civ. Proc., § 1868.) The general test of relevancy of indirect evidence is whether it tends logically, naturally, and by reasonable inference to prove or disprove a material issue. (Code Civ. Proc., § 1832; (and cases cited).)”

Further, the court said in the Jones case (at pp. 223-224):

“In the determination of probabilities of guilt, evidence of character is relevant. (Citing cases and authority.) ‘The purpose of the evidence as to the character of the accused is to show his disposition, and to base thereon a probable presumption that he would not be likely to commit, and, therefore, did not commit, the crime with which he is charged. ’ (State v. Lee, 22 Minn. 407 , 409 [ 21 Am.Rep. 769 ]. . . .) Proof of the good character of the defendant may be considered as a fact tending to rebut the truth of testimony of an incriminatory character which is sufficient to establish the truth of the charge against him. (Citing cases and authority.)

Character is proved by evidence of the accused’s general reputation in the community for the traits which are in issue. (Citing eases.) Such evidence is sufficient to create a reasonable doubt of guilt. (Citing case.) ”

The court then went on to declare that by the provisions of the Welfare and Institutions Code (chap. IY, §§ 5500-5522) the Legislature had clearly stated a legislative determination, in effect, that a person who commits sex offenses is more likely to violate section 288 of the Penal Code than one who has no such propensity; that “to some extent there is a cause and effect relationship. Evidence that a person has no such disposition is analogous to that in regard to character, for it bears upon the probability of the innocence of the accused.

“From evidence which tends to prove that a person is not a sexual psychopath, an inference reasonably may be drawn that he did not commit the act denounced by section 288. (See Code Civ. Proc., § 1960.) ” (Pp. 224-225.)

The court then, unfortunately for the defendant in the present ease, concluded with the statement (at p. 225): “The competency of expert opinion in this field of evidence is established by the statutory procedure for the determination of sexual psychopathy (Welf. & Inst. Code, §§ 5504-5506.) ” (Emphasis added.)

Section 5504, Welfare and Institutions Code, sets forth as to the qualifications of the psychiatrists to be appointed, that each one shall be a holder of a valid and unrevoked physicians and surgeons certificate who has directed his professional practice primarily to the diagnosis and treatment of mental and nervous disorders for a period of not less than five years, and one of the three so appointed shall be from the medical staff of a state hospital or a county psychopathic hospital.

It can well be pointed out in the instant ease that the report of the psychiatrists at the Atascadero Hospital, after the conviction, confirmed what the defendant was apparently attempting to get before the court in the first instance, namely, that he was not a sexual psychopath, although as heretofore mentioned, he did not clearly so express himself.

In California, we have not adopted the Model Code of Evidence (rules 306, 401-409), nor the Uniform Rules of Evidence (rules 46-57), each of which provides for opinion evidence as to the character of the accused in a criminal action, and as a consequence, this court is bound by the rules of many years standing (see Wigmore on Evidence, 3d ed., §§ 1920-1921). In the present case it is obvious, if the rule

We are not unmindful of the sometimes expressed view that the psychologist is as capable as the medical man to express* dependable opinions in the particular field here involved. As said in People v. Hawthorne (1940), 293 Mich. 15 [ 291 N.W. 205 , at page 209] : “There is no magic in particular titles or degrees, and in our age of intense scientific specialization we might deny ourselves the use of the best knowledge available by a rule that would immutably fix the educational qualifications to a particular degree.” We are also fully cognizant of the regrettable truth that in many instances innocent people are convicted because of the false accusations made by young girls, and because the rules of evidence permit no adequate probing of the witness’ veracity. (3 Wigmore on Evidence, 3d ed., § 924a; see also Psychiatric Aid in Evaluating the Credibility of a Prosecuting Witness Charging Rape, 26 Ind. L. Jl. 98.) In fact an American Bar Association Committee on the Improvement of the Law of Evidence (1937-38 Report), once set forth as a prelude to a recommended change, that: “Modern psychiatry has already made its bow and been introduced properly to the criminal courts, by way of examining the mental condition of the accused. But there is also a necessity for invoking its aid for a certain type of witness in a certain class of criminal charges.

“Today it is unanimously held ... by experienced psychiatrists that the complainant woman in a sex offense should always be examined by competent experts to ascertain whether she suffers from some mental or moral delusion or tendency, frequently found especially in young girls, causing distortion of the imagination in sex cases.

The Legislature has adopted, since the conviction in this ease, a Psychology Certification Act, chapter 2320, 1957 Statutes (Bus. & Prof. Code, §§ 2900-2980), wherein the practice of psychology is now recognized for certain purposes. It is interesting to note that this act provides, in effect, that confidential relations and communications between a registered psychologist and his client are placed upon the same plane as those provided in the law between attorney and client, which is effective in all cases, whereas there is no patient-physician privilege in criminal cases in California. (City of San Francisco v. Superior Court, 37 Cal.2d 227 [ 231 P.2d 26 , 25 A.L.R.2d 1418 ]; Code Civ. Proc., § 1881, subd. 4.)

There are many scholars who are convinced that a good psychologist can reveal the intangible framework of a personality as effectively as medical men, by use of blood counts and X-rays, can reveal certain conditions of the physical being of man. (39 Marquette L. Rev. 239-240.) We all recognize that the services of psychologists are playing an increasingly important part in our everyday lives in widely varied fields, such as in advertising, factories, the armed services, prisons, hospitals and schools.

While it is true that a psychologist’s opinion cannot be accurate to a provable degree, it perhaps should be remembered “that the court is not the judge of the quality of the evidence, nor does the witness perform the function of a juror—he can only contribute something to the jury’s information and if he can, he should be permitted to do so.” (Bratt v. Western Air Lines (1946), 155 F.2d 850 , 854.)

There has always existed a considerable lag between advances and discoveries in scientific fields and their acceptance as evidence in a court proceeding. Most middle aged lawyers can remember when evidence of the waves or currents given off by the cerebral tissue would have been inadmissible in any proceeding, and would have been considered fantastic. Today,

In this state, courts have determined as to whether psychologists’ expert testimony shall be accepted in certain cases. This court, through Presiding Justice White, in People v. Villegas, 29 Cal.App.2d 658 [ 85 P.2d 480 ], affirmed a trial court’s rejection of a psychologist’s testimony, which would have shown, according to the witness, that the defendant was without sufficient force to “resist the impulse of this other boy to take him out on these robberies.” A psychologist was permitted to testify in People v. McNichol, 100 Cal.App.2d 554 [ 224 P.2d 21 ], without objection apparently, in a check forgery case, that one who had consumed a specified amount of whiskey and beer would not have the conscious intent to do what he was charged with doing. However, in the McNichol case the jury convicted the defendant and the judgment was affirmed.

In the case of Michelson v. United States, 335 U.S. 469 , 486 [ 69 S.Ct. 213 , 93 L.Ed. 168 ], cited in the Jones case, supra, it was appropriately said, with reference to the matter of proof of character in criminal cases, “much of this law is archaic, paradoxical and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counterprivilege to the other. But somehow it has proved a workable even if clumsy system when moderated by discretionary controls in the hands of a wise and strong trial court. To pull one misshapen stone out of the