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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Roger Dale PADILLA, Defendant and Appellant.

Cr. 11947.

Decided: February 02, 1983

John G. Warner, Corte Madera, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Garrett Beaumont and Linda A. Cabatic, Deputy Attys. Gen., for plaintiff and respondent.

In this, the published portion of our opinion, we review the refusal of the trial court to order a pretrial psychiatric examination of the victim of a sexual assault and uphold the constitutionality of Penal Code section 1112 mandating that refusal.

A jury found defendant Roger Dale Padilla guilty of one count of assault with a deadly weapon or by means likely to produce great bodily injury (Pen.Code, § 245, subd. (a)), one count of rape (Pen.Code, § 261, subd. 2), and one count of forcible oral copulation (Pen.Code, § 288a, subd. (c)).  He admitted two prior prison terms.  (Pen.Code, § 667.5, subds. (a) and (b).)   Defendant appeals from a judgment sentencing him to state prison for the term of 10 years.   We shall affirm.


On the evening of August 18, 1981, 41-year-old Esther C., known as “Crickett,” went into downtown Yreka to look for her former husband.   She took a taxi into town and spent the evening hanging out in two or three bars.   Witnesses testified her behavior was less than exemplary.   In the Log Cabin she flirted with the men, exposed her breasts and legs, asked a former boyfriend to have sex with her, and was observed to be quite intoxicated.   This appeared to be her normal manner of barroom behavior.

At some time in the evening Crickett met Gerrie Jones, a former codefendant in this case.   The bartender at the Log Cabin testified that Crickett danced with Jones in a seductive or suggestive manner, exposed her breasts to him and stood in the corner kissing him.   Eventually Jones bought two six-packs of beer and he and Crickett left the bar together.   Defendant, who had been in the bar during this time, remained for an hour or so and then left.   Sometime between midnight and 2 a.m. Sergeant Cloyd observed Crickett sitting in the parking lot of the Crocker Bank and saw a male kneeling or squatting nearby.   He stopped and Crickett told him everything was alright.   The man with her told the officer he was taking her home.   At that time Sergeant Cloyd also observed defendant in the area.

Neither defendant nor Jones testified and so the remainder of the incident is derived solely from the testimony of the victim.   She testified she was grabbed by defendant and forced into a camper pickup truck.   Defendant pushed her head down and Jones drove the truck out of town.   Eventually the truck stopped and defendant forced her into the camper.   He removed her clothing and attempted to have intercourse with her.   Defendant could not achieve an erection and finally said:  “I know one way you can get it [up],” whereupon he forced Crickett to orally copulate him.   He then committed an act of rape.   During this period defendant struck Crickett several times.

Defendant and Jones then drove Crickett back into Yreka and let her go.   She reported the incident to the police and that morning defendant and Jones were arrested.   Their truck was searched and certain items of the victim's personal property were discovered there.   Crickett was taken to the hospital where tests were performed which established the presence of seminal fluid and sperm in her vagina.   She was also observed to have sustained bruising consistent with her version of the night's events.



Defendant contends the trial court erred in refusing to order a pretrial psychiatric examination of Crickett.   The motion he refers to is the so-called Ballard motion.  (Ballard v. Superior Court (1966) 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838.)   In Ballard, the Supreme Court held that a trial court has discretion to order the prosecutrix in a sex offense case to submit to a psychiatric examination if the circumstances indicate a necessity for it.  (Id., at pp. 176–177, 49 Cal.Rptr. 302, 410 P.2d 838.)   A necessity could be shown where there is little or no corroboration supporting the charge and the defense raises the issue of the effect of the witness' mental or emotional condition upon her veracity.  (Id., at p. 177, 49 Cal.Rptr. 302, 410 P.2d 838.)   The court recognized that a witness cannot be compelled to submit to such an examination, but held that if the witness refuses then comment should be permitted upon the refusal.  (Ibid.)

Effective January 1, 1981, the Legislature acted to abrogate the decision in Ballard.  Penal Code section 1112 was enacted to provide:  “The trial court shall not order any prosecuting witness, complaining witness, or any other witness, or victim in any sexual assault prosecution to submit to a psychiatric or psychological examination for the purpose of assessing his or her credibility.”  (Stats.1980, ch. 16, § 1, p. 63.)

 Defendant attempts to distinguish a Ballard motion from the prohibition of Penal Code section 1112.   He argues the purpose of a Ballard motion is to evaluate the witness' capacity, while section 1112 prohibits a court from ordering an examination to assess credibility.   We find the distinction urged by defendant too tenuous to accept.   Credibility is determined by the consideration of a number of factors, including capacity.   (Evid.Code, § 780, subd. (c).)  Thus while capacity is only one of the factors used to assess credibility, it is nevertheless considered in order to determine the witness' credibility and the legislative intent expressed in Penal Code section 1112 makes it clear that a psychiatric or psychological examination cannot be ordered for that purpose.   In the circumstances of this case the sole purpose for evaluating capacity was for purposes of assessing credibility.1  Accordingly Penal Code section 1112 precluded such an order.

 Defendant contends Penal Code section 1112 is an unconstitutional infringement of the separation of powers clause (Cal. Const., art. III, § 3), because it invades the inherent power of the courts over discovery matters.   We reject this contention.  “The exercise of a judicial power over criminal discovery which inheres in courts when the Legislature is silent must be tempered and restrained when the Legislature has spoken.”  (People v. Municipal Court (Runyan) (1978) 20 Cal.3d 523, 528, 143 Cal.Rptr. 609, 574 P.2d 425.)   Inherent judicial powers should not be exercised in such a manner as to nullify existing legislation or frustrate legitimate legislative policy.  (Ibid.  See also Ferguson v. Keays (1971) 4 Cal.3d 649, 654, 94 Cal.Rptr. 398, 484 P.2d 70.)   The Legislature has forbidden a trial court to order pretrial psychiatric or psychological examinations in sex offense cases.   In the absence of some other constitutional limitation we cannot disregard that legislative prohibition.

 Defendant further contends Penal Code section 1112 denies him due process of law.   Due process does not compel pretrial discovery in favor of defendants.  (People v. Municipal Court (Runyan), supra, 20 Cal.3d at p. 530, 143 Cal.Rptr. 609, 574 P.2d 425;  Jones v. Superior Court (1962) 58 Cal.2d 56, 59–60, 22 Cal.Rptr. 879, 372 P.2d 919.)   Defendant argues, however, that substantive due process is violated by Penal Code section 1112 because it is arbitrary and does not have a substantial relationship to the object it seeks to obtain.

In Ballard the Supreme Court recognized the limitations inherent in psychiatric examinations:  “A psychiatrist's testimony on the credibility of a witness may involve many dangers:  the psychiatrist's testimony may not be relevant;  the techniques used and theories advanced may not be generally accepted;  the psychiatrist may not be in any better position to evaluate credibility than the juror;  difficulties may arise in communication between the psychiatrist and jury;  too much reliance may be placed upon the testimony of the psychiatrist;  partisan psychiatrists may cloud rather than clarify issues;  the testimony may be distracting, time consuming and costly.”   (Id., 64 Cal.2d at p. 175, fn. 10, 49 Cal.Rptr. 302, 410 P.2d 838.)   These concerns continue today.  (See People v. Murtishaw (1981) 29 Cal.3d 733, 770–772, 175 Cal.Rptr. 738, 631 P.2d 446;  People v. Burnick (1975) 14 Cal.3d 306, 323–324, 121 Cal.Rptr. 488, 535 P.2d 352.)   In view of the problematic and limited value of psychiatric examinations the Legislature could reasonably conclude that the victim of an outrageous crime should not be subjected to further embarrassment or harassment by being ordered to submit to psychiatric evaluation.   Indeed, in Ballard the Supreme Court recognized that “The complaining witness should not, and realistically cannot, be forced to submit to a psychiatric examination or to cooperate with a psychiatrist.”   (64 Cal.2d at p. 177, 49 Cal.Rptr. 302, 410 P.2d 838.)   The legislative decision to preclude compelled psychiatric or psychological examinations cannot be held to be arbitrary.2

Defendant next contends that Penal Code section 1112 denies him equal protection of the laws.   He asserts that this section precludes a trial court from ordering an examination only in a sex offense case, and thus denies a defendant in such a case a right which may be exercised in other types of prosecutions.   We disagree that a Ballard motion is generally available in cases other than sex offense prosecutions.   The use of psychiatric testimony to impeach a witness in all but sex offense cases has been generally disapproved.  (In re Darrell T. (1979) 90 Cal.App.3d 325, 335, 153 Cal.Rptr. 261.   See also People v. Haskett (1982) 30 Cal.3d 841, 859, fn. 8, 180 Cal.Rptr. 640, 640 P.2d 776.   But see People v. Manson (1976) 61 Cal.App.3d 102, 137, 132 Cal.Rptr. 265.)

 In any event, a statute is not invalid because it does not cover the whole of a permissible field;  the Legislature may recognize degrees of evil and act to correct the more important ones.  (Werner v. Southern Cal. etc. Newspapers (1950) 35 Cal.2d 121, 132, 216 P.2d 825.)   Sex offenses cannot be equated with other types of offenses.  (See People v. Karsai (1982) 131 Cal.App.3d 224, 244, 182 Cal.Rptr. 406.)   In view of the grave potential of emotional harm to the victim inherent in sex offenses and the dirth of authority permitting compelled psychiatric or psychological examination in other types of cases, the Legislature could rationally conclude that its attention was required in sex offense cases but unnecessary elsewhere.

We conclude Penal Code section 1112 is not constitutionally infirm and by its terms precluded the trial court from ordering a pretrial psychiatric or psychological examination of the victim in this case.3

The remaining issues presented in this appeal do not warrant publication under California Rules of Court, rule 976.   Accordingly, they are discussed in a simultaneously filed unpublished opinion.  (Cal.Rules of Court, rule 976.1.)

The judgment is affirmed.


1.   A witness may be disqualified from testifying if he or she lacks the capacity of expression so as to be understood, or lacks the capacity to understand the duty of a witness to tell the truth.  (Evid.Code, § 701.)   No contention is made that defendant sought a psychiatric examination of Crickett in order to disqualify her as a witness under either of these bases, and he did not object at trial to her being sworn as a witness.

2.   We note that the enactment of Penal Code section 1112 does not preclude a defendant from attacking the credibility of the prosecuting witness on any of the traditional and authorized grounds listed in Evidence Code section 780.   It simply precludes a trial court from ordering a witness to submit to a psychiatric or psychological examination.   An individual, including a victim or a witness to a sex offense, has certain privacy rights which have been zealously guarded by the courts.  (See City of Carmel-By-The-Sea v. Young (1970) 2 Cal.3d 259, 266–267, 85 Cal.Rptr. 1, 466 P.2d 225.)   The Legislature intended in enacting Penal Code section 1112 to protect the rights of victims and witnesses, and it cannot be said that section 1112 bears no substantial relationship to that purpose.We further note that although the court did not order an examination of the victim, defendant nevertheless managed to impeach her with evidence of her mental state.   It was shown that the victim has a history of alcohol and prescription drug abuse and leads an “odd” life.   Moreover, even on the face of a cold record her own testimony is convincing evidence that she suffers from emotional problems.   On this record it is inconceivable that the jury was not fully aware of the victim's limitations and thus the failure to order an examination cannot be held to have prejudiced defendant.

3.   We also note that the Court of Appeals for the Second District recently held that subdivision (d) of section 28 of article 1 of the California Constitution (the “Right to Truth-in-Evidence” subdivision of “The Victim's Bill of Rights” enacted by Proposition 8 on the June 8, 1982, ballot), did not repeal Penal Code section 1112 by implication.   (People v. Superior Court (Aldo Cessa E.) (1982) 138 Cal.App.3d 536, 188 Cal.Rptr. 44.)

SPARKS, Associate Justice.

PUGLIA, P.J., and REGAN, J., concur.