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


Cr. 4911.

Decided: April 13, 1953

Bertram H. Ross, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., for respondent.

This is an appeal from an order denying a motion for a new trial.

Defendant was found guilty by a jury of violating section 288 of the Penal Code. The victim was a nine year old girl. It is unnecessary to relate the obnoxious details.

Appellant's brief recites, ‘We cannot complain that there was an insufficiency of the evidence to support the verdicts of the jury, but we are of the opinion that the testimony was so close in this case and the issue was in such sharp conflict that any errors in law occurring at the trial would justify a reversal.’

It is appellant's contention, as pointed out in the brief on appeal that,

‘For a reversal of this case we rely upon two errors committed by the Trial Court; the first one relates to the offer of proof of appellant whereby appellant offered to produce Dr. James Solomon, a duly licensed physician and surgeon under the laws of the State of California, specializing in psychiatry * * *. Appellant offered to prove that if produced Dr. Solomon would testify that at the request of the attorney for appellant he examined appellant on two occasions; one without the use of drugs, and on the second occasion with the aid of a drug known as sodium pentathol; that as a result of these examinations he reached the conclusion and opinion that appellant was not a sexual deviate and he was not capable of having the necessary intent to be lustful either for himself or to satisfy the lust of a child of 9 1/2 years of age, sexually.’ (Italics added.)

‘This offer of proof was rejected by the court.’

Appellant cites People v. Camp, 26 Cal.App. 385, 147 P. 95, 96. In the Camp case defendant was charged with a similar offense on a 14 year old boy. With reference to the argument advanced by appellant therein the Court commented as follows:

‘The other objection of appellant relates to a question addressed to an expert as to what effect such acts charged against defendant would have in ‘arousing the feelings or gratifying the lust or passions or sexual desires of the man in the case.’ This seems to be a matter of expert testimony. A peculiar knowledge of the human system is requisite to answer the question intelligently. It would be a reflection upon the average and normal man to hold that such expert assistance is not needed. The normal man, it may be assumed, has no such knowledge nor experience as would qualify him to determine, without the aid of an expert, the neurotic or orgastic effect of such indecent acts. On the contrary, if it should be conceded that the objection to the question addressed to the physician should have been sustained, it would follow that the error was without prejudice, for the reason that we must assume no other inference than the one embraced in said opinion can possibly be indulged. Whether a matter of expert or of common knowledge, in other words, we must hold, there can be no dissent from the conclusion that such acts would have such effect upon the lustful desires of one bestial enough to be guilty of such conduct.' (Italics added.)

Actually the Camp case is not decisive. The court does not hold that as a matter of law such ‘expert’ testimony is proper. The court's comment is only that it ‘seems' to be.

Appellant also cites People v. Sellers, 103 Cal.App.2d 830, 230 P.2d 398, 399. The Sellers case is not held to appellant. Incidentally the court commented as follows:

‘Defendant assigns as error the refusal of the court to permit a physician specializing in neurology and psychiatry to express an opinion as to whether, after having made a complete psychiatric examination, defendant was to any extent a homosexual. Defendant's argument is to the effect that by reason of the admissibility of evidence against a defendant of other sex crimes for the purpose of showing his tendency in that regard, he should be permitted to offer expert testimony that he is not a homosexual. He concedes that there are no authorities sustaining his position.

‘The law does not make a distinction as to the type of person who may commit the act charged. It is a punishable offense whether the person is normal or abnormal.’

The ruling of the trial judge was proper. Whether a defendant, in such circumstances, is a ‘sexual deviate’ or is ‘capable of having the necessary intent’ is not a subject for opinion evidence, either by a so-called expert or a layman. To hold otherwise would open the gates to a flood of worthless evidence that would result in a definite menace to law enforcement. It is the duty of the courts as well as law enforcement officials to enforce the laws. And this duty is especially important with relation to such offenses. Children, in particular, require protection.

With relation to a consideration of the issue herein considered it should be emphasized that ‘courts take judicial notice of * * * The laws of nature’. Section 1875, C.C.P. In this connection it must be conceded that human nature is as much a law of nature as the law of gravitation. And inasmuch as all human conduct is the product of human nature it is to be expected that such offenses will occur in the future as they have in the past since the dawn of history. It is common knowledge that this sexual abnormality, in whatever form or manner it may be manifested, is the product and result of physical tendencies and not mental. Such tendencies and afflictions are evidenced by what the individual does and not by the answers to questions by a co-called psychiatrist. And it is common knowledge that there is no cure for sex tendencies, whater normal or abnormal. Those afflicted may be unfortunate, but they are fully conscious of such affliction and well aware that the manifestation thereof in most cases is a felony. To transfer the determination of the guilt or innocence of those charged with such offenses to the psychiatrists would be a definite menace to law enforcement and the protection of society.

Appellant also cites People v. Wells, 33 Cal.2d 330, 202 P.2d 53. The Wells case does not support appellant's contention. In the Wells case the offense was alleged to have been committed with ‘malice aforesthought’. No plea of insanity was interposed. Evidence somewhat similar to the evidence offered in the within action was offered in the Wells case. It was excluded and the ruling was upheld. The Wells case includes a comprehensive review of the subject of intent as it relates to the issue herein.

Section 7 of the Penal Code, subd. 16, provides that ‘Words and phrases must be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, must be construed according to such peculiar and appropriate meaning’.

The word intent is not a ‘technical’ word, nor has it ‘acquired a peculiar and appropriate meaning’. It is a common word which simply means design or purpose.

The Penal Code further provides that, ‘In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence’. Section 20, P.C. In other words, there must be a joint operation of act and purpose. And section 21 of the Penal Code provides. ‘The intent or intention is manifested by the circumstances connected with the offense, and the sound mind and discretion of the accused.’ Thus the purpose and design is manifested as the law provides and not otherwise. There is nothing in the Penal Code that even suggests that the legislature contemplated a scientific, technical or particular mental limitation in the use of the word intent. Statutory construction and interpretation respects the rule as provided in section 7 of the Penal Code quoted above. For example burglary, which is defined as the entry of any house, room, etc., with intent to commit grand or petit theft, simply means entering for the purpose of committing such theft. And section 288 of the Penal Code which provides that any person who shall wilfully and lewdly, etc., commit the acts referred to therein with intent of arousing, etc., the lust and passions etc., simply means committing such acts for the purpose of arousing the lust or passions of the person upon whom such acts are committed. Such interpretation is in accordance with ‘the approved usage of the language’.

As to appellant's contention that the district attorney was guilty of misconduct, the record fails to support appellant's contention in this regard.

For the foregoing reasons, the order appealed from is affirmed.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.