IN RE: LEONARD M.

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Court of Appeal, Second District, Division 4, California.

IN RE: LEONARD M., A Person Coming Under the Juvenile Court Law. Kenneth F. FARE, As Chief Probation Officer, etc., Plaintiff and Respondent, v. LEONARD M., Defendant and Appellant.

Cr. 30946.

Decided: December 18, 1979

Eliot B. Feldman, Beverly Hills, Quin Denvir, State Public Defender of California, Russell I. Lynn and Laurance S. Smith, Deputy State Public Defenders, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz and Gary R. Hahn, Deputy Attys. Gen., for plaintiff and respondent.

A minor appeals from an order finding him to be a person within the meaning of section 602 of the Welfare and Institutions Code and directing a suitable placement for him. We affirm the order.

The minor, 16 years of age, was charged: (paragraph I) with committing a lewd act on a six year old girl; and (paragraph II) with orally copulating the same girl. After a hearing, he was found guilty under paragraph I; paragraph II was dismissed.

On this appeal, the minor contends: (1) that the evidence does not support the finding; and (2) that he was denied the effective assistance of counsel. We reject both contentions.

I

The little girl testified that the minor, a neighbor boy, invited her into his house, asked her to lie down on the floor, pulled down her panties and his underpants and pants, lay down on top of her, and put his “nooney” into hers.1

The girl testified that, immediately after the events above described, she went home and immediately complained to her mother. She was not examined by a physician until several hours later. That examination disclosed no bleeding; no indication of semen, and an unruptured hymen; it disclosed a slight redness of the vagina.2 The medical evidence was that it was medically impossible for there to have been penetration without rupture of the hymen. Psychiatric testimony on behalf of the minor was to the effect that the alleged conduct was inconsistent with his character.

On this present appeal, defense counsel argues the case as though the charge had been rape. However, the charge and the finding were only of the commission of a lewd act, not rape. On a first appeal, we affirmed the finding on the ground that the little girl's testimony, believed by the trial court, was sufficient to sustain it. (In re Leonard M. (1978) 85 Cal.App.3d 887, 149 Cal.Rptr. 791.) The case has now been returned to us by the United States Supreme Court with directions to reconsider the issue under the standard laid down in Jackson v. Virginia (1979) 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. We proceed to make such a review of the evidence.

The standard thus imposed on us requires us to consider not only the case for the petitioner but the entire record, including the defense testimony, and to affirm only if we can find that a reasonable finder of fact could, on the whole evidence, rationally have found guilt beyond a reasonable doubt. We here make such a finding.

It is true that the child testified that the minor had put his nooney “in” hers, and on cross-examination she answered affirmatively to questions about how it felt “inside” her nooney, while the medical testimony showed that no penetration of more than a quarter of an inch could have occurred without rupture of the hymen. On this record the trial court could reasonably have inferred that the child was describing how it felt when a penis was pushed into the area between her legs and against or across the outer portion of her vagina. It was reasonable for the trial court to believe that the child had no conception that the cross-examiner's questions might have referred to a penetration beyond the hymen. So interpreted, the child's testimony is not in conflict with the medical testimony, and is sufficient to support the finding of the trial court.

II

The minor's other contention is that he was denied effective assistance of counsel in that his retained trial attorney had not sought a psychiatric examination of the little girl. As we did on the first appeal, we reject that contention.

Counsel rest their argument on People v. Lang (1974) 11 Cal.3d 134, 113 Cal.Rptr. 9, 520 P.2d 393. In that case, which did involve several factual similarities, our Supreme Court said, in footnote 3 on page 140, footnote 3 on page 13 of 113 Cal.Rptr., footnote 3 on page 397 of 520 P.2d:

“Such an examination would seem a minimum protection for a defendant charged with molesting a child, and only the rarest of cases would excuse counsel from obtaining one. As the trial judge indicated in this case, shortly before finding defendant guilty, ‘I don't know how bright these girls [the twins] are. I don't know what their capacity for fantasy is.’ The result of a psychiatric examination of the twins might easily have tipped the balance in this close case in favor of defendant, whose strongest defense was that the twins lied about him.” That statement was quoted with approval by the Chief Justice in her dissent in People v. Thomas (1978) 20 Cal.3d 457, at page 472, 143 Cal.Rptr. 215, 573 P.2d 433.

Based on that language, and on a claim of weakness of the case against defendant, the minor here contends that the failure of his trial counsel to seek a psychiatric examination of the girl evidenced incompetency that deprived him of a fair trial.

We reject that contention. Lang did not hold that every failure to seek a psychiatric examination of an alleged victim in child abuse cases is, as a matter of law, an incompetent representation. Its holding went no further than to require appellate counsel to raise that matter on appeal—a duty ably performed by the appellate counsel in this case. However, as the Supreme Court pointed out in People v. Jenkins (1975) 13 Cal.3d 749, at pages 754-755, 119 Cal.Rptr. 705, at page 708, 532 P.2d 857, at page 860, quoting from People v. Garrison (1966) 246 Cal.App.2d 343, 350-351, 54 Cal.Rptr. 731:

“… However, in the absence of affirmatively showing that counsel acquiesced through ignorance of the facts or the law, defendants are not entitled to relief. ‘The failure of counsel to object at the trial does not ordinarily indicate either incompetence of counsel or unfairness to the client. The system of objections is a useful tool in the hands of a trained professional for the exclusion of matter which should not be received into evidence. But the indiscriminate use of objections, solely because they are available, aids neither the client nor the cause of justice. The choice of when to object and when to allow the evidence to come in as offered is inherently a matter of trial tactics. Ordinarily the tactical decisions of trial counsel will not be reviewed with the hindsight of an appellate court. [Citations] The decisions which counsel must make in the courtroom will necessarily depend in part upon what he then knows about the case, including what his own client has told him. There may be considerations not shown by the record which could never be communicated to the reviewing court as a basis for its decision. Thus, the appellate court's inability to understand why counsel did as he did cannot be a basis for inferring that he was wrong.”’

Since a psychiatric examination of a witness is open to use by both sides (People v. Blakesley (1972) 26 Cal.App.3d 723, 729, 102 Cal.Rptr. 885), it is a two-edged sword. Nothing in the record before us indicates that trial counsel was ignorant of his right to seek a psychiatric examination; nothing in that record tells us what investigation he may have made of the ability of the girl to testify honestly and accurately. Since nothing in the record shows that the failure here complained of was not a reasoned tactical decision,3 we cannot, on that record, hold that the trial counsel did not receive “the kind of legal assistance to be expected of a reasonably competent attorney acting as a conscientious, diligent advocate.” (People v. Pope (1979) 23 Cal.3d 412, 427, 152 Cal.Rptr. 732, 741, 590 P.2d 859, 868.)

The order is affirmed.

I dissent.

Today's decision of the majority constitutes a grave and gross miscarriage of justice. For the second time in the history of this case, the majority affirms a finding by the trial court that Leonard, a 16-year-old minor, committed a lewd act upon Perele, a 5-year-old girl, based upon evidence that can only be described as substantially insubstantial, since it is totally conjectural, speculative and merely raises a weak suspicion of Leonard's culpability. In reaching this result, the majority places its stamp of approval upon the trial court's action of clothing the minor with the catastrophic lifetime stigma of having committed a serious sexual offense. Although I despise and detest the sexual crime of child molestation, and have no sympathy for a perpetrator thereof, I am unwilling to uphold the minor's conviction of such offense based upon the flimsy kind of evidence presented in the base at bench.

The history of this litigation is of more than slight significance. When this case originally came before us in 1978, the majority reached the same conclusion that it reaches today. (See In re Leonard M. (1978) 85 Cal.App.3d 887, 149 Cal.Rptr. 791.) In the 1978 opinion, the majority rejected the minor's contentions that (1) the evidence was insufficient to support the finding that he had committed a violation of section 288 of the Penal Code, and (2) that he had been denied his constitutional right to effective assistance of counsel at his trial. The California Supreme Court denied a hearing, but the Supreme Court of the United States granted the minor's petition for a writ of certiorari. The nation's highest court vacated the 1978 judgment of this court and remanded the case to us for further consideration in light of Jackson v. Virginia (1979) 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. In reaching its 1978 decision, the majority erroneously found no validity to the minor's two contentions. In reaching the same result today, after a remand of the case from the United States Supreme Court, the majority pays only lip service to Jackson v. Virginia and again erroneously finds no validity to the minor's two contentions.

I found merit in both contentions of the minor when this case was before us in 1978 and I wrote a dissenting opinion. Today I find the minor's contentions to be even more meritorious because of Jackson v. Virginia. I thus find it necessary to again dissent from the views expressed by the majority today.

I

Insufficiency of the Evidence

In this case before us, the victim, Perele, a 5-year-old neighbor girl, testified that the minor, Leonard, a 16-year-old boy, had actual sexual intercourse with her—not simply the commission of a lewd act. I concede that the victim did not use the words “sexual intercourse.” But she did use language which reasonably can only be interpreted as “sexual intercourse.”

The mother of Perele testified that she had taught her children, both male and female, to use the term “nooney” as meaning both the female vagina and the male penis. Perele testified that Leonard's “nooney” was like her brother's, rather than like hers and, when asked “[w]hat did he do with his nooney?” she answered, “[h]e put it in mine.” (Emphasis added.) She was asked “[c]ould you feel anything in your nooney when he started to put something into it?” She answered “[y]eah.” In response to the question “[w]hat did you feel,” she replied “I felt—I felt that it hurted.” She then testified that he kept doing it even though she had said it was hurting.

On cross-examination, Perele was asked: “You said Leonard put his nooney inside your nooney; is that right?” She replied “[y]eah.” She was then asked: “Did you feel it going inside your nooney?” She replied “[y]eah.”

Next she was asked: “How far in your nooney did you feel it go?” Her answer was “[a] lot far.” She was asked to show “how far” by use of her hands or fingers. Perele so indicated and the trial court agreed with counsel that the witness had indicated 10 or 11 inches.

The event described by Perele happened around 11:30 a. m. Perele, however, was not taken to the hospital until about 8:30 p. m. that evening. She was examined by Dr. Chavez. Dr. Chavez testified that his examination revealed there was some redness and swelling of the labia of the vagina but “[t]here was no evidence of bleeding, no evidence of laceration or hematoma, and the hymen was intact.” Dr. Chavez also testified that it was medically impossible for the minor to have had sexual intercourse with the victim as described by her in her testimony. Dr. Chavez indicated that the irritation to the vagina was localized as he had described it. His testimony was that “[t]here was no evidence of a trauma in the inguinal area, the buttocks or the thighs. It was specifically localized.”

With respect to the cause of the irritation to Perele's vagina, Dr. Chavez concluded that one of the possibilities was “sexual contact.” He then defined “sexual contact” as denoting “that the genitalia of the patient [Perele] was in one form or another manipulated by some instrument; penis, hand, an artificial object.” In describing the objects, he indicated he had in mind “blunt trauma from any object” and also “self-stimulation.” Dr. Chavez also testified that the only possibility of a penis being inserted in Perele's vagina without rupturing the hymen would be that of a penetration of no more than 1/4 of an inch.

It is to be noted that at no time did Dr. Chavez testify to any medical “probability” as distinguished from a “possibility” that the irritation to Perele's vagina resulted from either a male penis, some blunt object, or self-stimulation. Nor did he testify that any one of the three possibilities was more probable than another.

In addition, Perele testified that she had rubbed her “nooney” with her fingers on the day that she came home from Leonard's home and that at other times when she rubbed her “nooney,” it would get red.

Although this alleged incident was reported by Perele to her mother in the area of 11:30 a. m., the mother took Perele and her other children to a park that same day around 2 p. m. and did not return home until between 5 and 6 p. m. It is to be noted that Perele played at the park where there was located a slide, swings, and a monkey bar—all blunt objects that could cause trauma to a vagina.

The defendant called a number of witnesses in his defense, including a psychiatrist who conducted an examination of Leonard. The defense was in the nature of an alibi with disinterested testimony that Perele was not in the company of Leonard on the day in question.

The majority opinion expresses the view that defense counsel has argued this case as though the charge had been rape, when in fact the charge and finding were only that of the commission of a lewd act, not rape. But I do not construe defense counsel's argument in this manner. Although the charge was that of the commission of a lewd act, the alleged victim's testimony was unmistakably directed to the fact that she had been raped—not molested in any other fashion. The believability of her testimony that Leonard committed the act of sexual intercourse with her is the crucial issue involved in this case.

I agree with the majority that the question before us now, as it was in 1978, is whether the evidence was sufficient to sustain a finding that Leonard committed a lewd act upon Perele in violation of Penal Code section 288. On the first appeal (In re Leonard M. (1978) 85 Cal.App.3d 887, 149 Cal.Rptr. 791), the majority found that the evidence was sufficient. On remand of the case to us from the United States Supreme Court with directions “for further consideration in light of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),” the majority reaches the very same conclusion it reached in the first appeal. Does this mean that the standard of appellate review for testing sufficiency of the evidence to sustain a criminal conviction set forth in Jackson v. Virginia is the same as that heretofore applied by the majority on the first appeal?

What is the standard for review mandated by Jackson v. Virginia when a contention is made on appeal that the evidence is insufficient to sustain a conviction? At one point in Jackson v. Virginia, the court observed: “After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ Woodby v. INS, 385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362. Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 33 L.Ed.2d 152. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.” (Jackson v. Virginia, supra, 443 U.S. 307, _, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573.) (Emphasis in original; fn. omitted.)

At another point in the opinion, the Jackson v. Virginia court makes the observation that a defendant is entitled to have his conviction set aside “if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” (Id. 2781 at p. _, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560, 576-577; fn. omitted.)

I interpret Jackson v. Virginia as mandating that, upon a contention being made that the evidence is insufficient to sustain a conviction, the appellate court must review all of the evidence in the case, including the defense evidence as well as the prosecution evidence, to determine whether a rational trier of fact could find that each element of the offense charged has been established beyond a reasonable doubt. To put it another way, Jackson v. Virginia tells us that if, upon all the evidence introduced at the trial, no rational trier could have found the existence of each element of the offense beyond a reasonable doubt, there is insufficiency of the evidence to sustain a conviction.

Since the decision of Jackson v. Virginia, there has been considerable decisional law discussion in California cases seeking to determine whether Jackson mandates a different standard of review from that previously followed by the California courts. In In re Frederick G. (1979) 96 Cal.App.3d 353, 365, 157 Cal.Rptr. 769, 777, the conclusion is reached that “the California substantial evidence test has not been changed by Jackson and that it comports with due process of law.” In In re Charles G. (1979) 95 Cal.App.3d 62, 156 Cal.Rptr. 832, the court, although applying what it deemed the California substantial evidence test, concluded that there was substantial evidence to support a juvenile court's finding, but stating that the same conclusion would be reached following the Jackson v. Virginia standard, in that the court “would not conclude in the instant case that no rational trier of fact could have found true the allegation of the supplemental petition beyond a reasonable doubt.” (Id. at p. 67; fn. 3, 156 Cal.Rptr. at p. 835; fn. 3.)

Long before Jackson v. Virginia, it had become established law in California that “[i]t is the function of [an appellate] court in reviewing a criminal conviction on appeal to determine whether the record contains any substantial evidence tending to support the finding of the trier of fact, and in considering this question we [the appellate court] must view this evidence in the light most favorable to the finding. [Citation.] The test is not whether guilt is established beyond a reasonable doubt. [Citations.” (In re Roderick P. (1972) 7 Cal.3d 801, 808, 103 Cal.Rptr. 425, 429, 500 P.2d 1, 5.) (Emphasis added.) The In re Roderick P. court stated that this same principle of appellate review was applicable to juvenile court proceedings. (In re Roderick P., supra, 7 Cal.3d 801, 809, 103 Cal.Rptr. 425, 500 P.2d 1.)

The serious question to be answered under California's “substantial evidence” test is what is meant by “any substantial evidence.” The California Supreme Court has defined “any substantial evidence” to mean “evidence that reasonably inspires confidence” and “is ‘of solid value.”’ (People v. Bassett (1968) 69 Cal.2d 122, 139, 70 Cal.Rptr. 193, 443 P.2d 777; In re Roderick P., supra, 7 Cal.3d 801, 809, 103 Cal.Rptr. 425, 500 P.2d 1.) We need to consider, however, how this definition of substantial evidence fits into the mandate of Jackson v. Virginia. I do not agree with In re Frederick G. and In re Charles G. in their analyses that Jackson v. Virginia has not mandated a different standard for the appellate courts of California when the issue is raised that the evidence is insufficient to sustain a defendant's conviction.

The pronouncements of the California Supreme Court that the substantial evidence test is satisfied if there is evidence in the record that “reasonably inspires confidence” and is of “solid value” to support a defendant's conviction have been given lip service only, because of decisional law interpretations of what these phrases mean. Thus, the decisional law has sanctioned the view that a child complaining witness' testimony which is suspect and permeated with indicia of untrustworthiness and unreliability constitutes substantial evidence that “reasonably inspires confidence” and is of “solid value” simply and solely because a trial judge chose to believe such testimony. The majority in the case before us on the first appeal applied this test when it stated: “The young girl testified quite positively that the minor had invited her into his home, where he was alone, and there committed an act of intercourse with her. That testimony, accepted by the trial court, was sufficient to sustain the finding.”

I cannot agree, therefore, that Jackson v. Virginia has not changed prior California law in view of the fact that, under such prior California law, untrustworthy and unreliable testimony has been considered sufficient to sustain a conviction. I would consider the failure of the California Supreme Court to grant a hearing after the majority's decision in the instant case in 1978 as some substantiation of my view that the prior California substantial-evidence test did not require a reversal of a defendant's conviction that was based on inadequate and insufficient evidence as long as the trier of fact chose to believe such evidence.

What is significant about Jackson v. Virginia, contrasted with California's substantial evidence test, is that it focuses the appellate inquiry on a defendant's constitutional due process right not to be convicted on inadequate evidence that “cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt.” (Jackson v. Virginia, supra, 443 U.S. at p. _, 99 S.Ct. at p. 2790, 61 L.Ed.2d at p. 574.) The California “any substantial evidence” rule has not focused on the inquiry in terms of whether the trier of fact has violated this constitutional due process right.

That the prior California rule of appellate review cannot be considered as the substantial equivalent of the due process standard set forth in Jackson v. Virginia is demonstrated by the fact that some of the decisional law in California has distinguished between a standard of review for first degree murder verdicts and all other criminal cases. In People v. Fonville (1973) 35 Cal.App.3d 693, 703-704, 111 Cal.Rptr. 53, the court remarked: “‘In conventional appellate review the function ‘begins and ends' with the discovery of substantial evidence supporting the verdict. [Citation.] The task is relatively passive, relatively one-sided, fulfilled when the prosecution evidence turns out to be ‘reasonable in nature, credible, and of solid value․’ [Citation.] In the review of first degree murder verdicts (especially when featured by possibilities of diminished capacity) the substantial evidence formulation persists, but the appellate role is more intense, more active. Appellate duty is not satisfied, in the latter case, when substantial evidence emerges on one side. Rather, the judges must look to the evidence on both sides and not limit their scrutiny to that supporting the verdict.”' (Emphasis added.)

And in People v. Bassett (1968) 69 Cal.2d 122, 70 Cal.Rptr. 193, 443 P.2d 777, our high court seemed to draw a distinction between the scope of appellate review in cases in which the crime charged is divided into degrees and cases in which the offense charged is not divided into degrees. Thus we find the Bassett court stating that, “‘[s]ince the amendment of Penal Code section 1181 in 1927,1 this court is empowered to modify the judgment and fix a lesser degree of the crime in those instances where on an appraisal of all the evidence there is found to be lacking any substantial evidence of the elements required to constitute the degree of the crime as fixed by the jury. [[[[Citations.]’ [¶] As the emphasized language indicates, our task in this regard is twofold. First, we must resolve the issue in the light of the whole record—i. e., the entire picture of the defendant put before the jury—and may not limit our appraisal to isolated bits of evidence selected by the respondent.” (Id. at pp. 137-138, 70 Cal.Rptr. at p. 203, 443 P.2d at p. 787.) (Emphasis in original; fn. omitted.)

If we are to accept Bassett as stating the rule of appellate review prior to Jackson v. Virginia, we must conclude that to test the sufficiency of the evidence to sustain a finding that all elements of an offense have been established beyond a reasonable doubt, the test to be applied of “an appraisal of all of the evidence” applies only to crimes divided into degrees. In the case before us the offense of lewd conduct with a minor is not an offense divided into degrees. Under the Bassett formula, and also under the Fonville formula, the appellate court would be exercising “conventional appellate review” without the necessity of a search of the entire record. I submit that the Bassett and Fonville rules for conventional appellate review for crimes not divided into degrees and for crimes other than first degree murder are in violation of the due process of law standard of appellate review established by Jackson v. Virginia.

Has Bassett and Fonville been modified by subsequent cases? There is language in subsequent cases which, at first glance, might seem to indicate a modification. Thus in People v. Reyes (1974) 12 Cal.3d 486, 116 Cal.Rptr. 217, 526 P.2d 225, we find the following language which would appear to epitomize the California rule prior to Jackson v. Virginia: “There is merit to Venegas' [a defendant] contention that the evidence adduced at trial is insufficient to support the judgment rendered against him. In reviewing a criminal conviction, an ‘appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.’ (People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 419, 475 P.2d 649, 651; see also People v. Kunkin (1973) 9 Cal.3d 245, 250, 107 Cal.Rptr. 184, 507 P.2d 1392, [57 A.L.R.3d 1199]; People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321; People v. Bassett (1968) 69 Cal.2d 122, 139, 70 Cal.Rptr. 193, 443 P.2d 777; People v. Hall (1964) 62 Cal.2d 104, 109-110, 41 Cal.Rptr. 284, 396 P.2d 700.) The substantial evidence rule is our yardstick for determining whether a verdict meets this minimal standard of reasonableness: ‘The test on appeal becomes whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.’ (People v. Mosher (1969) 1 Cal.3d 379, 395, 82 Cal.Rptr. 379, 389, 461 P.2d 659, 669; see also People v. Kunkin (1973) supra; People v. Reilly (1970) supra; People v. Redmond (1969) supra.) To be considered substantial, evidence must be of the type which ‘reasonably inspires confidence and is “of solid value.””’ (Reyes, supra, 12 Cal.3d 486, 496-497, 116 Cal.Rptr. 217, 223, 526 P.2d 225, 231.)

Significancy must be attached to the fact that Reyes cites Bassett as one of the authorities for the substantial evidence test. And since Reyes was a murder case, we can assume that the substantial evidence test discussed was that applicable to murder cases and cases involving crimes divided into degrees so that the record evidence reviewed would be the entire evidence—not simply the evidence introduced by the prosecution. Only the prosecution's evidence constitutes the record evidence reviewed under the conventional appellate review test sanctioned expressly by Fonville and impliedly by Bassett.

The conventional appellate review test sanctioned by Fonville and Bassett simply cannot be squared with the requirements of Jackson v. Virginia. There can no longer be a test for determining sufficiency of the evidence that does not require, in the case of all crimes, an appellate review of all the evidence—both that presented by the prosecution and that presented by the defendant—in order to determine a defendant's claim that he has been convicted upon inadequate or insufficient evidence—evidence upon which no rational trier of fact could have found proof of guilt beyond a reasonable doubt. As Jackson v. Virginia points out, “[t]he question whether a defendant has been convicted upon inadequate evidence is central to the basic question of guilt or innocence.” (Jackson v. Virginia, supra, 443 U.S. 307, _, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560, 576.) (Emphasis added.)

The majority in today's opinion recognizes that Jackson v. Virginia requires an appellate court to review and examine all of the record evidence in order to determine whether a rational trier of fact could find every element of the charged offense established beyond a reasonable doubt. But the crucial point at issue is what must be looked for in that examination and review. The majority in the case before us seems to say that, after an examination of all of the evidence has been made, the appellate court is still entitled to conclude that the prosecution's evidence—even though it be conjectural, speculative, untrustworthy and unreliable and, hence, inadequate—can still constitute substantial evidence to permit the appellate court to conclude that a reasonable trier of fact could find all of the elements of the offense against a defendant established beyond a reasonable doubt.

In my view, Jackson v. Virginia requires that, in examining all of the evidence in a criminal case, the appellate court must weigh and contrast any weak, unsatisfactory, untrustworthy and unreliable evidence introduced in support of the prosecution's case with any strong, reliable and trustworthy evidence presented by the defense. In such a case an analysis of all such evidence leads inexorably to a holding that, under Jackson v. Virginia, a defendant has set forth a valid constitutional due process claim that the evidence in support of his conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt. That is exactly the situation presented in the case before us.

The instant case demonstrates how easy it is for an appellate court to simply pay lip service to the principle mandated by Jackson v. Virginia. The majority opinion, written in 1978, stated that the trial judge was entitled to believe Perele's testimony that Leonard had “committed an act of intercourse with her,” even though the majority described the case against Leonard as being weak and used the following language in so describing this weakness: “However, the evidence was otherwise weak. The girl was not examined by a physician until some hours after she had complained to her mother. The examination disclosed no bleeding, an unruptured hymen, and no indication of semen, but did show a slight redness of the vagina—a fact possibly explainable by intervening events. The medical evidence was that it was medically impossible for penetration of the extent of which the girl testified to have occurred without rupture of the hymen. Psychiatric testimony on behalf of the minor was to the effect that the alleged conduct was inconsistent with his character. In short, the case against the minor rested entirely on the oral testimony of the young girl.”

In today's opinion, however, after a remand of the case from the United States Supreme Court, the same majority changes its analysis of the same record evidence and now states that the trial judge could reasonably have inferred from Perele's testimony that she was not describing an act of sexual intercourse at all, but “was describing how it felt when a penis was pushed into the area between her legs and against or across the outer portion of her vagina.” The majority in today's opinion also changes its former language from describing the evidence against Leonard as being “weak” to a description that there was “a claim of weakness of the case against defendant.”

The majority's holding in today's opinion is simply not supported by any rational analysis of the evidence. In reaching its result to affirm the trial judge's finding, after the remand of this case from the United States Supreme Court, the majority engages in sheer speculation by using the voir dire examination of Perele with respect to her competency to testify. The trial judge stated that, after observing numerous witnesses about the age of Perele, he concluded that “she appears to be more intelligent, competent, and articulate than the average five year old by a long shot.” But this opinion of the trial judge at the beginning of trial can provide no basis for a subsequent speculation that Perele was describing some act other than an act of actual sexual intercourse when she stated that Leonard had put his “nooney” into her “nooney.”

Furthermore, the testimony of Dr. Chavez set forth only a range of possibilities—not probabilities—that a penis, or a blunt object, or self-stimulation, could have caused the irritation to Perele's vagina. Evidence of possibility rather than probability, offered in support of a speculative contortion of a witness' testimony, constitutes no basis for a holding that a rational trier of fact could find from such evidence that elements of a offense have been proved beyond a reasonable doubt.

The evidence in the case at bench is just as deficient in supporting a finding of guilt as was the evidence in the Reyes case and falls within the analysis made by the Reyes court with respect to the evidence there presented. The Reyes court observed: “When viewed in a light most favorable to the prosecution, the evidence against Venegas [a defendant] at most gives rise to a bare suspicion of his complicity in the murder. As we stated in Redmond, ‘Evidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact.’ (71 Cal.2d at p. 755, 79 Cal.Rptr. [529] at p. 534, 457 P.2d [321] at p. 326.) ‘To justify a criminal conviction, the trier of fact must be reasonably persuaded to a near certainty. The trier must therefore have reasonably rejected all that undermines confidence.’ (People v. Hall (1964) supra, 62 Cal.2d 104, 112, 41 Cal.Rptr. 284, 289, 396 P.2d 700, 705.) The case against Venegas is so fraught with uncertainty as to preclude a confident determination of guilt beyond a reasonable doubt.” (Reyes, supra, 12 Cal.3d 486, 500, 116 Cal.Rptr. 217, 225, 526 P.2d 225, 233.)

I conclude that the case against Leonard in the instant action is fraught with the same degree of uncertainty as was found by the court in Reyes so as to “preclude a confident determination of guilt beyond a reasonable doubt.” (Id. at p. 500, 116 Cal.Rptr. at p. 225, 526 P.2d at p. 233.) A proper weighing of all the evidence in this case leads me to conclude that Leonard was found to have committed the offense charged upon clearly inadequate and insufficient evidence. He has been unconstitutionally convicted of committing a criminal offense since, upon such inadequate and insufficient evidence, no rational trier of fact could have found proof of guilt beyond a reasonable doubt within the principles mandated by Jackson v. Virginia.

II

The Constitutional Inadequacy of the Minor's Trial Counsel

The minor's contention that he was denied his constitutional right of effective assistance of trial counsel is predicated on the fact that his trial counsel failed to make a Ballard motion to have the trial court appoint a psychiatrist to conduct a psychiatric examination of Perele, the child complaining witness. (See Ballard v. Superior Court (1966) 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838.) The majority holds that there is nothing in the record before us to lead to a conclusion other than that the failure of defendant's trial counsel to seek a psychiatric examination of the child complaining witness was anything other than a “reasoned tactical decision.” I consider this view of the majority to be erroneous, untenable and a misapplication of the rules of law pertaining to what constitutes ineffective assistance of trial counsel to deprive a criminal defendant of his constitutional rights.

The majority recognizes that the seminal case of Ballard held that trial judges possessed a discretion to order a psychiatric examination of complaining witnesses in sexual offense cases in order to provide defendants with evidence to attack the credibility of such witnesses. Since the Ballard court talks about the discretionary power of the trial court to order a psychiatric examination of a complaining witness, the majority seems to assume that, had the minor's attorney sought a psychiatric examination of the five-year-old complaining witness, the trial judge could have exercised a valid discretion and denied the request. It is my view that, because of the crucial posture of the issue involved—the credibility of this five-year-old complaining witness contrasted with the credibility of the defense witnesses, it would have been a gross abuse of discretion for the trial court to have denied a motion made by defense counsel for such a psychiatric examination.

As pointed out by the Ballard court, “Professor Wigmore, in a widely quoted passage, stated, ‘No judge should ever let a sex-offense charge go to the jury unless the female complainant's social history and mental makeup have been examined and testified to by a qualified physician.’ (3 Wigmore, Evidence, supra, 460; italics omitted.) [¶] This concern is stimulated by the possibility that a believable complaining witness, who suffers from an emotional condition inducing her belief that she has been subjected to a sexual offense, may charge some male with that offense. Thus, the testimony of a sympathy-arousing child may lead to the conviction of an unattractive defendant, subjecting him to a lengthy prison term.” (Emphasis added.) (Id. at p. 172, 49 Cal.Rptr. at p. 310, 410 P.2d at p. 846.)

In People v. Lang (1974) 11 Cal.3d 134, 140, fn. 3, 113 Cal.Rptr. 9, 13, fn. 3, 520 P.2d 393, 397, fn. 3, the court expounded upon its views set forth in Ballard by stating: “Such an examination would seem a minimum protection for a defendant charged with molesting a child, and only the rarest of cases would excuse counsel from obtaining one.” (Emphasis added.) That a psychiatric examination of an alleged child victim who testifies to a molestation by a defendant is of acute importance and significance is emphasized in People v. Thomas (1978) 20 Cal.3d 457, 472, 143 Cal.Rptr. 215, 223, 573 P.2d 433, 441, in which it was stated: “While this court in Ballard specifically refrained from requiring such an examination in every type of sexual offense case, it later explained that a Ballard -type examination ‘… would seem a minimum protection for a defendant charged with molesting a child, and only the rarest of cases would excuse counsel from obtaining one.’ [Citation.]” (Concurring opinion.) (Emphasis in original.)

In People v. Pope (1979) 23 Cal.3d 412, 424, 152 Cal.Rptr. 732, 738, 590 P.2d 859, 865, the court set forth the rule that “a conviction may not be upheld if the state has furnished an indigent with representation of lower quality than that of a reasonably competent attorney acting as a diligent, conscientious advocate.” It is indubitably clear to me that, in the case before us, the failure of Leonard's trial counsel to make the Ballard motion cannot be construed as a “reasoned tactical decision” but as a failure to act in conformity with what a reasonably competent attorney would have done acting as a diligent, conscientious advocate.

In the case at bench the minor's defense, presented through a number of witnesses, was a complete denial of having committed the offense. This defense was substantially an alibi. In this situation the credibility of Perele, the five-year-old complaining witness, as contrasted with the credibility of the defense witnesses, became the crucial determination for the guilt or innocence of the minor. Under these circumstances, a failure by the minor's trial counsel to seek a psychiatric examination of the five-year-old complaining witness which might cast doubt on her credibility as a witness and thus support the credibility of the defense witnesses, constitutes a withdrawal of a crucial defense just as effectively as if no testimony at all had been introduced by defense counsel in an effort to prove the minor's denial defense.

We stated in People v. Rodriguez (1977) 73 Cal.App.3d 1023, 1031, 141 Cal.Rptr. 118, 123: “There is no logical distinction between the situation of counsel's inadequate preparation that results in the introduction of no testimony on a crucial defense and counsel's inadequate preparation that results in a failure to consider and introduce corroborating evidence needed to make a crucial defense, such as an alibi, substantial and effective.”

In In re Saunders (1970) 2 Cal.3d 1033, 88 Cal.Rptr. 633, 472 P.2d 921, defense counsel in a murder case undertook no serious efforts to obtain available medical records of defendant which reflected defendant's past diagnosis and treatment for head injuries and made no effort to have defendant examined by a psychiatrist. Defense counsel decided not to present the defense of diminished capacity. In holding that defense counsel's omissions constituted ineffective assistance of counsel, the court remarked: “We cannot say, of course, what such further inquiry might have revealed. Indeed, if counsel had sought to obtain other available records and had undertaken to have petitioner examined by a psychiatrist he might well have properly concluded on the basis of information so obtained to withhold any defense based upon petitioner's mental condition at the time of the offense. On the other hand, such investigation might have produced evidence upon the basis of which counsel would have wished to present a defense. By failing to make any effort at all to follow the lead afforded by information in his possession counsel precluded himself from making a rational decision on the question.” (In re Saunders, supra, 2 Cal.3d 1033, 1049, 88 Cal.Rptr. 633, 643-644, 472 P.2d 921, 931-932.)

It is my view that the record in the case at bench demonstrates unerringly and unquestionably that the failure of the minor's trial counsel to seek a court-ordered psychiatric examination of the five-year-old complaining witness was not the result of any unfortunate choice of trial strategy. This omission of the minor's trial counsel simply “‘cannot be explained on the basis of any knowledgeable choice of tactics.”’ (In re Julius B. (1977) 68 Cal.App.3d 395, 402, 137 Cal.Rptr. 341, 345.) (Emphasis in original.)

The record reveals that the minor's trial counsel sought to elicit evidence of the five-year-old complaining witness' tendency to falsify and her capacity and propensity for fantasy through cross-examination of the mother of the complaining witness. This shows that defense counsel was not completely unaware of the possibility of using the factor of a complaining witness' emotional and mental condition as a means of attacking her credibility as a witness, and, hence, that his omission to seek a psychiatric examination of the complaining witness cannot be considered a knowledgeable choice of trial tactics.

Finally, I allude to one other matter that amply demonstrates that defense counsel's omission to seek a court-ordered psychiatric examination of the five-year-old complaining witness cannot logically be attributed to a choice of trial tactics. I refer to the trial court's comment on defense counsel's performance in the case at bench. During the disposition hearing the juvenile court judge stated on the record: “[A]nd, furthermore, very candidly I got the distinct impression throughout the trial, Mr. [defense counsel], that you were not overly experienced in criminal and juvenile matters, …”

It seems to me that our high court's view in People v. Lang, supra, demonstrates, with inexorable logic and compulsion, that defense counsel in the case at bench should have sought a psychiatric examination of the five-year-old complaining witness if he was to give the minor the effective assistance of trial counsel which is constitutionally required. When the court in Lang made the statement that “[s]uch an examination [a psychiatric examination of the complaining witness] would seem a minimum protection for a defendant charged with molesting a child, and only the rarest of cases would excuse counsel from obtaining one” (Lang, supra, 11 Cal.3d 134, 140, fn. 3, 113 Cal.Rptr. 9, 13, fn. 3, 520 P.2d 393, 397, fn. 3) (emphasis added), I see no basis for a conclusion that, in the case before us, a psychiatric examination of the complaining witness was not needed as a minimum protection for the minor who was charged with child molestation. Nor do I see how the instant case can be classified as falling within the exception of being one of those rare cases which would excuse defense counsel from seeking to obtain such a psychiatric examination.

On the contrary, the record before us is such that the conclusion is inescapable that if ever there existed any case in which a psychiatric examination of the child complaining witness was required in order to provide a defendant or a minor in a juvenile court proceeding with a crucial defense, it is the case at bench. I would thus hold that the minor before us has been deprived of his constitutional right to effective assistance of trial counsel.

III

Disposition

Since, in my view, the evidence was insufficient to sustain the juvenile court's finding that the minor had committed a violation of Penal Code section 288, I would reverse the orders of the juvenile court with instructions to dismiss the petition. A second trial would be in violation of the minor's constitutional right against double jeopardy. This is the rule enunciated in Burks v. United States (1978) 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1; Greene v. Massey (1978) 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15; and People v. Pierce (1979) 24 Cal.3d 199, 209-210, 155 Cal.Rptr. 657, 595 P.2d 91.

I would thus reverse the orders from which the appeal has been taken, with instructions to the trial court to dismiss the petition.

Rehearing denied.

FOOTNOTES

1.  The girl's mother testified that, in the family, the word “nooney” referred to the vagina of a girl or the penis of a boy.The girl's cross-examination, opening with a leading question by defense counsel, was as follows:“Q You said Leonard put his nooney inside your nooney; is that right?“A Yeah.“Q And you said that hurt you?“A Yeah.“Q Did you feel it going inside your nooney?“A Yeah.“Q How far in your nooney did you feel it go?“A A lot far.“Q How far? Could you show me with your hands or your fingers?“(Witness indicating.)“MR. SMITH: Indicating about 10, 11 inches.“THE COURT: Yes.“BY MR. SMITH: Did you feel anything when Leonard put his nooney about that far into you?“A Yeah.“Q What did you feel?“A It hurted me.“Q Okay. Do you know what blood is?“A Yeah.“Q Did you see any blood?“A No.“Q Did you feel wet all over?“A No.”

2.  The evidence indicates the possibility that the redness was due to causes other than contact with the minor.

3.  It is significant that the trial court, after a voir dire examination of the girl by defense counsel, denied that counsel's request to hold her incompetent to testify. The court said: “… I find that she is quite competent to testify. This court has had the opportunity in the last several years to observe numerous witnesses about the age of this child, and I would say that she appears to be more intelligent, competent, and articulate than the average five year old by a long shot, so your motion is denied․”

1.  In pertinent part, Penal Code section 1181, subdivision 6, provides: “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶] 6 When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed.”

KINGSLEY, Associate Justice.

FILES, P. J., concurs. JEFFERSON, Associate Justice, dissenting.JEFFERSON, J., dissented.

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