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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth Miryln REEDER, Defendant and Appellant.

Cr. 8499.

Decided: May 03, 1976

Evelle J. Younger, Atty. Gen., by John W. Spittler, Deputy Atty. Gen., Sacramento, for plaintiff and respondent. Stuart W. Knight, Anaheim, for defendant and appellant.

Defendant appeals from a judgment entered after a jury convicted him of oral sex perversion (Pen.Code, § 288a) and forcible rape (Pen.Code, § 261, subd. 3).

On the evening of May 29, 1975, Cheryl S. was hitchhiking from Spokane, Washington, and accepted defendant's offer of a ride from Grass Valley, California, to her home in Foresthill, California. Shortly thereafter defendant told Miss S. he had to go to the bathroom and stopped the car at the side of the road. Defendant left the car and returned a short while later. He then told Miss S. he was going to make love to her. When she pulled out a pocketknife and attempted to flee, defendant told her he gad a gun and ordered her to throw down the knife. She complied, and defendant forced her into the back seat of the car where he raped her and forced her to commit oral copulation upon him. After the attack, defendant gave her a ride part way to her home. Miss S. reported the incident to police that same night and was examined by a physician shortly thereafter.

Defendant testified at trial and admitted giving Miss S. a ride but denied sexually attacking her. Aside from polygraph evidence, which will be discussed below, other evidence introduced to corroborate the victim's testimony was inconclusive. There were seminal stains on the real seat of defendant's car, but defendant had owned the car only three weeks and the stains would be detectable for longer than that. Evidence established that there were seminal stains on the victim's pants, but the medical examination performed upon her shortly after the attack revealed no sperm in the vaginal cavity. The trial was thus reduced to a contest of credibility between the victim and the defendant.

The conviction must be reversed. Notwithstanding the omission of appointed counsel on appeal to raise the issues, we are constrained to deal with errors appearing of record which are prejudicial and require reversal. (People v. Rhoden (1972) 6 Cal.3d 519, 523, 99 Cal.Rptr. 751, 492 P.2d 1143.)

The record reveals that before any polygraph test was administered, defendant's trial attorney stipulated with the district attorney that both the defendant and the alleged victim were to be examined by polygraph examiners and the ‘results' admitted into evidence at trial. The ‘results' to be admitted included all questions propounded and answers given, all reactions thereto, and ‘everything relating to said examination’ including the opinions of the examiners as to whether either person was being deceptive. The stipulation also provided that the examiner may testify as an expert in the field without further foundation. Subsequently, defendant and the victim submitted to a polygraph test administered by two different examiners from the California Department of Justice. At trial, defendant's examiner testified at length as to his opinion that defendant was not being truthful during the examination when he denied the acts constituting the charged offenses. The victim's examiner testified that in his opinion she truthfully answered the questions about the charged offenses.

Defense counsel who, in advance of the examination, stipulates that a defendant fendant will submit to a polygraph examination and the results will be admissible at trial demonstrates incompetence. (See People v. Ibarra (1963) 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 386 P.2d 487.) Counsel is necessarily ignorant of what the results of the test will be. Such ignorance creates a risk that the results will emasculate a crucial defense. That risk is so substantial that a stipulation of this kind is beyond the realm of acceptable risk which can be justified as a trial tactic. (See People v. Stanworth (1974) 11 Cal.3d 588, 612, 114 Cal.Rptr. 250, 522 P.2d 1058.) Where, as here, the dispositive issue for the jury to resolve is the relative credibility of the victim and the defendant, such incompetence results in the withdrawal of a crucial defense and is prejudicial.

Moreover, the error was compounded because the jurors were not instructed in terms of CALJIC 2.80 to the effect that they may reject the testimony of experts if they find it to be unreasonable. The polygraph examiners were expert witnesses and thus the instruction should have been given sua sponte (Pen.Code, § 1127b; People v. Bowens (1964) 229 Cal.App.2d 590, 599, 40 Cal.Rptr. 435, (overruled on other grounds in People v. Mayberry (1975) 15 Cal.3d 143, 158, 125 Cal.Rptr. 745, 542 P.2d 1337); People v. Ruiz (1970) 11 Cal.App.3d 852, 859–865, 90 Cal.Rptr. 110). Where, as here, the experts' testimony is in an area of expertise so unreliable as to be inadmissible in the absence of stipulation (People v. Adams (1975) 53 Cal.App.3d 109, 125 Cal.Rptr. 518) and furthermore disparages the only defense asserted by the defendant, i.e., his superior credibility relative to that of the victim, the error is prejudicial. (People v. Ruiz, supra, 11 Cal.App.3d 852 at p. 865, 90 Cal.Rptr. 110; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

The contentions raised by appellate counsel are without merit and will be considered but briefly. The trial court did in fact give CALJIC 17.10 on lesser included offenses. The judgment and sentence did not violate Penal Code section 654 since sentence on the oral sex perversion count was suspended, and the acts committed were in any event separate and distinct. (People v. Armstrong (1968) 268 Cal.App.2d 324, 326, 74 Cal.Rptr. 37.) Furthermore, defendant has no standing to attack the constitutionality of Penal Code section 288a as it applies to consenting adults. (People v. Parker (1973) 33 Cal.App.3d 842, 849–850, 109 Cal.Rptr. 354.)

We advert to one more point for guidance on retrial. Although on objection was made by the defense attorney at trial, the jury was instructed and permitted to return a verdict on the theory that the charge of oral sex perversion had been committed with force and violence. The evidence supported the instruction and the verdict, but the information did not charge the use of force and violence as required by the statute as it read at the time of the offense. (Pen.Code, § 288a.)

The judgment is reversed.


I concur in the reversal of defendant's conviction for failure to instruct the jury on the use of expert testimony. However, I dissent from that portion of the opinion which holds, in effect, that an advance stipulation to a polygraph test is incompetence as a matter of law.

In my view, incompetence is a factual question to be determined upon the circumstances of each case. I People v. Ibarra (1963) 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487, the Court did not hold that failure to challenge a search and seizure was incompetence as a matter of law; the Court stressed that from counsel's statement to the Court it was clear that counsel was unaware of the rule of law and did not adequately prepare the case. (60 Cal.2d pp. 465–466, 34 Cal.Rptr. 863, 386 P.2d 487.) In People v. Stanworth (1974) 11 Cal.3d 588, 612, 114 Cal.Rptr. 250, 522 P.2d 1058, the Supreme Court pointed out that a decision not to assert the defense of diminished capacity may be explained by one of three reasons: (1) Ignorance of the fact that diminished capacity existed; (2) ignorance of the law that the evidence may be admitted; or (3) trial tactics. The Court then recited the factual inquiry taken by counsel in that case, upon which the Court concluded there had been no incompetence. This approach should be taken in all incompetence cases, for the circumstances which may arise in defense of a case are unforseeable and make resolution of this question unsuitable for advance determination. This is no less true of the ground of incompetence found here.

‘A multitude of factors must be considered in determining whether a client should be allowed, or encouraged, to submit to a lie detector test, and to stipulate as to the admissibility of the result. Among such factors are the temperament, emotional and psychological condition, and, of course, guilt.’ (Annot. Admissibility Of Lie Detector Test Taken Upon Stipulation That Result Will Be Admissible In Evidence, 53 A.L.R.3d 1005, 1009.) A defendant may persuade his counsel of his truthfulness, and have no other defense except to testify. Moreover, such a stipulation is an indirect method of accomplishing what cannot be done directly, i.e., introducing evidence that defendant was willing to submit to the test as a ‘badge of innocence.’ (See People v. Thornton (1974) 11 Cal.3d 738, 763–764, 114 Cal.Rptr. 467, 523 P.2d 267; People v. Adams (1975) 53 Cal.App.3d 109, 113, 125 Cal.Rptr. 518.) A defendant and counsel may believe that this willingness might create a reasonable doubt of guilt even if the test results are adverse, especially if the unreliability of the test is argued to the jury. It is also conceivable that counsel may have a defendant take a preliminary test, unknown to the prosecution (the results turn out favorable), and then make the stipulation.1 These possibilities illustrate the wisdom of case-by-case determination and the reason for my reluctance to withdraw options from defense counsel in all cases.

Furthermore, stipulations such as that entered into in this case have long been held admissible. (People v. Houser (1948) 85 Cal.App.2d 686, 694–695, 193 P.2d 937; People v. Davis (1969) 270 Cal.App.2d 841, 844, 76 Cal.Rptr. 242; Robinson v. Wilson (1974) 44 Cal.App.3d 92, 103, 118 Cal.Rptr. 569; People v. Adams, supra, 53 Cal.App.3d 109 at p. 119, 125 Cal.Rptr. 518.) To hold that they demonstrate reversible incompetence as a matter of law effectively alters this long-standing rule.

I now reach the issue of whether the stipulation entered into demonstrates incompetence under the circumstances of this particular case.

Although polygraph tests are not admissible without stipulation of the parties, in California, unlike many other states, they are admissible pursuant to stipulation. (53 A.L.R.3d 1005, supra.) Even in a criminal case, a defense counsel may stipulate to a polygraph test and the admission into evidence of its results. (See cases cited supra.)

In order to find incompetence of counsel ‘There must be some showing of an unawareness of a rule of law basic to the case that reasonable preparation would have revealed [citation] or some showing that lack of careful inquiry resulted in the withdrawing of a crucial defense from the case.’ (People v. Gaulden (1974) 36 Cal.App.3d 942, 952, 111 Cal.Rptr. 803, 808.) In this case there is no rule of law of which counsel was unaware; on the contrary, the cases have sanctioned the making of these stipulations by admitting the results into evidence, unlike other jurisdictions in which they are not admissible even under stipulation. As to lack of inquiry, there is nothing in the record before us which demonstrates trial counsel's lack of diligence or knowledge of the law to indicate that the decision was not one of trial tactics. (Cf. People v. Ibarra, supra; People v. Stanworth, supra.) I find no incompetence on this record.


1.  The unreliability of the test is the basis for its inadmissibility in absence of stipulation; it is possible for a favorable result on one test and an unfavorable result on the next. Therefore this scenario is not inconceivable.



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Docket No: Cr. 8499.

Decided: May 03, 1976

Court: Court of Appeal, Third District, California.

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