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Court of Appeal, First District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Nerio AQUINO, Defendant and Appellant.

Cr. 22460.

Decided: April 30, 1982

Daniel Costello, San Jose, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Ann K. Jensen, Linda Ludlow, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Appellant Richard Aquino was convicted by a jury of kidnaping (Pen.Code, § 207);  rape while acting in concert (Pen.Code, §§ 261, subds. (2), (3), 264.1);  false imprisonment (Pen.Code, § 236);  oral copulation and oral copulation while acting in concert (Pen.Code, § 288a, subds. (c), (d)).   In addition, the court found that appellant had been convicted of a prior offense within the meaning of Penal Code section 667.5, subdivision (b).

Appellant's principal contention is that the use of hypnosis on a prosecution witness constituted prejudicial error.   Because we have concluded that his conviction must be reversed in light of the Supreme Court's recent decision in People v. Shirley (1982) 31 Cal.3d 18, 641 P.2d 775, 181 Cal.Rptr. 243 we do not reach his other contentions of Beagle and sentencing error.


At about 1 a. m., two Santa Cruz sheriff's department officers spotted a car weaving from the shoulder to the traffic lane of Highway 1.   The car stopped in a turnout.   As the officers slowly drove past and shined a light into the car, they saw two males in the front seat.   When the officers U-turned and pulled in behind the car, the two men had disappeared.   Appellant then raised up from the back seat;  almost immediately, a woman raised her head.   The officers could see that both were undressed from the waist down.

In a loud, frantic voice, the woman said, “Get me out of the car.”   The door was locked, and the deputy sheriff urged her to open it from the inside.   She did so;  sobbing and upset, she emerged from the car.   After appellant put on his pants and got out of the car, the woman struck and tried to kick him.   The officers separated the two, and handcuffed appellant.   The woman, Christine Martine, told officers that her name was Christine Henley;  she told one officer that she had been raped.   She was taken to a hospital, where she reported that she had been raped and forced to perform oral copulation.

At trial, Christine testified that she gave a false name because the situation was embarrassing and humiliating.   She explained that late that night, she was standing near a 7-Eleven store, trying to decide how to get to a friend's house.   She noticed a car parked in front of the store, with four men in it.   They offered a ride, which she accepted.   They dropped one of the men off, and she got into the back seat with appellant.   When she realized the car was not going toward her destination, she objected.   Appellant grabbed her around the neck;  he forced her to orally copulate him, and raped her.   He hit her, and told her that his friends would be next.

Although appellant did not testify, a statement which he made to investigating officers was admitted into evidence, in which he claimed that the woman consented to the sexual activity.


With respect to the issue of hypnosis, the record contains only the following enigmatic exchange, which occurred outside the presence of the jury during Christine's testimony:

“MS. BORISS [the prosecutor]:  Yes.   Christine, I was instructed by the judge earlier to tell you not to mention anything about the fact that you were hypnotized in this case, and the reason we took a recess is because I forgot to tell you that, so I'm, telling you now not to mention it, okay?


 “THE COURT:  The results of hypnosis are not admissible in court and the problem, if it is mentioned, it might create questions in the jurors' minds that might lead them to jump to conclusions that would not be helpful for them that would perhaps favor the defendant or disfavor him.   Therefore, it's best that it just not be mentioned.”

After briefing was complete in this case, the Supreme Court in People v. Shirley, supra, 31 Cal.3d 18, 641 P.2d 775, 181 Cal.Rptr. 243 squarely held that the testimony of a witness who has undergone hypnosis for the purpose of restoring his or her memory of the events in issue is inadmissible as to all matters relating to those events, from the time of the hypnotic session forward.  (Id., at pp. 66–67, 641 P.2d 775, 181 Cal.Rptr. 243.)   The court based its holding on its conclusion that at the present time, the use of hypnosis to restore the memory of a potential witness is not generally accepted as reliable by the relevant scientific community.   (Id., at p. 66, 641 P.2d 775, 181 Cal.Rptr. 243.)   The court's holding is retroactive to all cases not yet final as of the date Shirley was decided.  (Id., at p. 67, fn. 53, 641 P.2d 775, 181 Cal.Rptr. 243.)

 Error in admitting the testimony of a previously hypnotized witness is not reversible per se;  its effect must be judged according to the test adopted in People v. Watson (1956) 46 Cal.2d 818, 836, 641 P.2d 775, 181 Cal.Rptr. 243.   The reviewing court must determine “whether it is reasonably probable that a result more favorable to the defendant would have occurred if the testimony of the previously hypnotized witness as to all matters relating to the events of the crime had not been admitted.”  (Id., at pp. 69–70, 641 P.2d 775, 181 Cal.Rptr. 243, emphasis added.)   When it proclaimed that standard of review, the Supreme Court expressly rejected the suggestion that inadmissible evidence be limited to the portions of the testimony that the hypnotized witness himself or herself asserts were directly affected by the hypnotic process.   The court also rejected the proposal that the reviewing court determine which of the witness' recollections were potentially the product of hypnosis by comparing pre- and post-hypnosis statements and testimony.

We recognize that appellant apparently failed to object below to the admissibility of any or all of Christine's testimony on the ground that it was tainted by her hypnosis.

 The general rule is that questions relating to the admissibility of evidence will not be reviewed upon appeal absent a specific and timely objection at trial on the ground sought to be urged on appeal.   Nevertheless, the law does not require an idle act.   A reviewing court may excuse a failure to object where an objection would have been without support in the law as it stood at the time of trial, but where a substantial change in the law occurs after trial.  (People v. Beagle (1972) 6 Cal.3d 441, 454, 99 Cal.Rptr. 313, 492 P.2d 1;  People v. Odom (1969) 71 Cal.2d 709, 717, 456 P.2d 1, 78 Cal.Rptr. 873;  People v. De Santiago (1969) 71 Cal.2d 18, 22–23, 453 P.2d 353, 76 Cal.Rptr. 809;  People v. Natividad (1966) 240 Cal.App.2d 244, 246, 49 Cal.Rptr. 437.)

 As of the date of trial in this case, early November of 1980, it was settled in this state that statements made under hypnosis could not be introduced to prove the truth of the matter stated.  (See People v. Blair (1979) 25 Cal.3d 640, 665–666, 602 P.2d 738, 159 Cal.Rptr. 818.)   Whether a witness could be allowed to testify after he had undergone hypnosis to restore his or her memory had not yet been squarely decided in a published case in this state, although one appellate court had at least indirectly suggested that vigorous cross-examination was the appropriate way to deal with the testimony of a witness who had been hypnotized during a police investigation.  (People v. Colligan (1979) 91 Cal.App.3d 846, 850, 154 Cal.Rptr. 389.)   Moreover, as late as mid-1979, the prevailing rule in other jurisdictions was that the fact of hypnosis went to the weight, not the admissibility of post-hypnotic testimony.  (Shirley, supra, 31 Cal.3d at p. 54, fn. 33, 641 P.2d 775, 181 Cal.Rptr. 243.)   Even today, apparently only five states in addition to California have concluded that the testimony of a witness who has been hypnotized to restore his or her memory is presently inadmissible.  (Id., at p. 54, 641 P.2d 775, 181 Cal.Rptr. 243.)   We conclude that an objection to the admissibility of any or all of Christine's testimony on the ground that she had been previously hypnotized would have been without support in the law of this state as it stood at the time of trial.   Therefore appellant is not precluded from raising for the first time on appeal an objection based on that ground.  (See People v. De Santiago, supra, 71 Cal.2d at p. 28, 453 P.2d 353, 76 Cal.Rptr. 809.)

We also recognize that precisely when or why Christine was hypnotized cannot be determined from this record.   However, we reject respondent's suggestion that Christine may have been hypnotized concerning matters other than the facts of the case;  the record, sparse as it is, does make clear that she was hypnotized for purposes related to this case.   Respondent also complains that we cannot determine from this record how the hypnosis affected Christine's remembrance of the events at issue.   In light of the broad exclusionary rule proclaimed in Shirley, however, we would not be free to make that assessment even if the record were more complete.

 We must determine if it is reasonably probable that a result more favorable to appellant would have occurred if Christine's post-hypnosis testimony as to all matters relating to the events of the crime had not been admitted.  (Shirley, supra, 31 Cal.3d at pp. 69–70, 641 P.2d 775, 181 Cal.Rptr. 243.)   In this regard, we note that while at trial Christine's identification of appellant as the rapist was unequivocal, she also acknowledged that at the preliminary hearing she did not identify him either as her assailant or even as one of the passengers in the car.   Instead, she identified one of the passengers as the rapist.   If, as seems likely, Christine was hypnotized after that hearing but prior to trial, the most significant admissible evidence remaining was the officers' accounts of the incident, countered by appellant's statement to police that Christine was a willing participant.   We view Christine's testimony as of critical importance in this case.   We can only conclude that whether she was hypnotized before or after the preliminary hearing, the admission of her post-hypnosis testimony was prejudicial.

Judgment is reversed.

 SCOTT, Associate Justice.

WHITE, P. J., and BARRY–DEAL, J., concur.

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