PEOPLE v. THOMAS (1985)

We hold that Proposition 8 on the 1982 ballot has no effect on Penal Code section 1112 ¹ which prohibits any psychiatric examination of a witness in a sexual assault case for the purpose of assessing credibility.   We also conclude that four section 667 enhancements were properly imposed because the defendant voluntarily and knowingly admitted to prior burglaries of residences.

Defendant James Edward Thomas was convicted by a jury of the rape of Mary C. (§ 261, subd. (2).)  Prior to trial, he admitted having suffered four prior burglary convictions.  (§§ 667, 1192.7.)   He was sentenced to an upper base term of eight years for the rape and a consecutive term of five years each for the prior burglary convictions, for a total term of 28 years.   He appeals contending that (1) a retrial be ordered to permit a psychiatric examination of the victim and (2) the enhancements for the prior burglary convictions be stricken.   We disagree and affirm the judgment.

On the night of October 22, 1983, Mary C. was awakened when she noticed defendant standing over her bed.   Mary C., who has polio affecting the right side of her body, lived in a board and care facility in San Jose.   Defendant placed his hand over Mary's mouth and threatened to kill her if she yelled.   According to the victim, defendant raised her nightgown, kissed her breasts, then removed her panties and laid on top of her.   The victim testified that she then felt defendant's penis partially enter her.   The victim's roommate turned on the house lights and saw defendant laying on top of the victim.   The defendant jumped up;  ran out of the room, but was captured within several blocks by residents and visitors of the dormitory.

The victim was taken to the Valley Medical Center emergency room where she was examined by Dr. John Uhl.   Dr. Uhl conducted a pelvic examination and found no physical trauma or bruising.   The doctor testified that a negative finding of physical trauma was consistent with the victim's statement that there was only slight penetration.   Except for the victim's testimony, there was no physical evidence that a rape had occurred.

Defendant did not testify.   It was his defense that although he may be guilty of burglary, he did not engage in sexual intercourse, however slight, to sustain the rape conviction;  the victim simply imagined a rape had occurred.   In support of this position, defendant relied on the testimony of Dr. Uhl.   Dr. Uhl testified that the victim told him she was taking medication, “Halpol,” as prescribed by a physician.   The witness described Halpol as a major tranquilizer used for the management of psychotic disorders.   The victim also stated she took Cogentin, a drug used to control the side effects of the other medicine.

I.

Defendant urges that retrial be ordered and the victim should be made to undergo a psychiatric examination.  (See Ballard v. Superior Court (1966) 64 Cal.2d 159, 171–177, 49 Cal.Rptr. 302, 410 P.2d 838.)   He also argues that section 1112, which proscribes such an examination to test the witness' credibility, has been effectively overruled by the “Truth-in-Evidence” provision of article I, section 28, subdivision (d) of the California Constitution, enacted by the voters as Proposition 8 on June 8, 1982.

 Initially, we note that defense counsel failed either to make a Ballard motion in the trial court or to argue that Proposition 8 overruled section 1112.   Defendant cannot now complain for the first time on appeal.  (See generally, People v. Crowson (1983) 33 Cal.3d 623, 628, 190 Cal.Rptr. 165, 660 P.2d 389;  People v. Tolhurst (1982) 139 Cal.App.3d 1, 7, 188 Cal.Rptr. 474.)   The Ballard rule, which permitted a trial court in its discretion to order a psychiatric examination of the complaining witness to determine credibility, was nullified in 1980.  (See People v. Fleming (1983) 140 Cal.App.3d 540, 543–544, 189 Cal.Rptr. 619.)

 The “Truth-in-Evidence” section has no application to the testimony of a complaining witness.   It was enacted to conform our sometimes broader state laws against unreasonable searches and seizures to the federal standards.  (See In re Lance W. (1985) 37 Cal.3d 873, 879, 210 Cal.Rptr. 631, 694 P.2d 744, also Prop. 8, Crim. Justice-Initiative Stats. & Const. Amend. (voter pamp. June 6, 1982) Analysis by the Legislative Analyst, p. 32.)   Its stated purpose was to eliminate independent state grounds for the exclusion of illegally seized evidence, leaving the federal Constitution, as interpreted by the United States Supreme Court, as the controlling authority.  Section 1112 has no bearing on the admissibility or exclusion of evidence and is not affected by article 1, section 28, subdivision (d) of the California Constitution.

Any doubt as to the application of Proposition 8 on section 1112 was laid to rest by the Legislature in 1984 in its emergency amendment.  (Stats.1984, ch. 1101, § 1, p. 411, eff. Sept. 13, 1984.)   It provides:  “Notwithstanding the provisions of subdivision (d) of Section 28 of Article 1 of the California Constitution, 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.”

Defendant was not foreclosed from determining what effect, if any, the medication had on the victim's ability to perceive events.   He could have cross-examined the victim about the physical or psychological effect the drugs had on her.   Also, he had the opportunity to call his own expert witness as to the side effects of these drugs.   He failed to do this.   At trial, the victim testified clearly and coherently.   She never equivocated on her version of the attack and was not impeached.   Although she admitted on cross-examination that she was upset by the attack and defendant's threat on her life, this is a common reaction to such an event and nothing in her demeanor or her testimony suggests that she was disoriented and not thinking clearly.   To the contrary, Dr. Uhl testified that the victim's mental state was alert, oriented and coherent.   The doctor found no evidence of psychosis, thought disorder or delusional thinking.

II.

 Defendant next argues that the enhancements to his sentence for his four prior burglary convictions be stricken.   Three of these burglaries occurred in Santa Clara County and the remaining burglary occurred in Contra Costa County.   Proposition 8 imposes longer prison terms for repeat offenders who were previously convicted of “serious felonies.”   Burglary of a residence is included among the list of serious felonies.  (§ 1192.7, subd. (c)(18).)   The record established that the defendant was convicted of the Contra Costa County burglary in 1965;  he was convicted in separate hearings of the Santa Clara County burglaries in 1965, 1969 and 1978.   These burglary charges were “brought and tried separately” in four proceedings within the meaning of section 667.   Even though defendant was convicted of six burglaries during these trials, he may suffer only four enhancements.

Relying on People v. Crowson, supra, 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389, defendant asserts that a section 667 enhancement cannot be imposed for the prior burglaries since it cannot be determined from the face of the judgment that these were residential burglaries.   In determining whether a prior federal offense could be used to enhance defendant's sentence in Crowson, the court ruled that the sentencing court may look only to the “least adjudicated elements ” of the prior conviction in determining whether he was convicted of a serious felony.  (Id., at pp. 633–634, 190 Cal.Rptr. 165, 660 P.2d 389.)   Moreover, neither the People nor the defendant can go behind the necessarily adjudicated elements to prove defendant committed a greater or lesser offense.  (Id., at p. 634, 190 Cal.Rptr. 165, 660 P.2d 389.)

The information alleged that defendant sustained five convictions of “a serious felony, to wit:  BURGLARY, on charges brought and tried ․ within the meaning of sections 667 and 1192.7 of the Penal Code.”   In open court, defendant admitted to four prior convictions after waiving his constitutional rights;  the People's motion to strike one prior was granted.   In taking defendant's admissions, the trial court explained:  “By admitting the prior convictions, you are positively incriminating yourself, especially since each one of these carries an enhancement of five years each should you be convicted of the basic charge․  [¶] The basic charge is the charge of rape.   That is the only new offense charged on the Information.   If you are convicted of that then the Court—and you admit the prior convictions—then the Court can impose an additional five years for each of the four prior convictions.   Do you understand that?”   Defendant replied, “Yes, I do.”

While Crowson prevents the People from going behind the information to prove the elements of the prior offenses, nothing in Crowson prohibits the defendant from admitting to burglary of a residence for purposes of the habitual criminal enhancement.   This was the holding in the recent decision of People v. Jackson (1985) 37 Cal.3d 826, 836, 210 Cal.Rptr. 623, 694 P.2d 736.   There, the defendant expressly admitted that his prior burglary conviction was burglary of a residence.  (Ibid.)  The question here remains whether defendant's admission constituted an admission to residential burglary.   The information charged defendant with “a serious felony, to wit:  BURGLARY, on charges brought and tried separately, within the meaning of sections 667 and 1192.7 of the Penal Code.”   The only burglary listed under section 1192.7 is “[ (c) ](18) burglary of a residence.”   Further, in the admission of his prior convictions, defendant acknowledged that he was aware that a five-year enhancement could be imposed for each of these prior convictions.   Such an admission is sufficient to establish the residential character of the burglary.   In People v. O'Bryan (1985) 37 Cal.3d 841, 210 Cal.Rptr. 450, 694 P.2d 135, which followed People v. Jackson, supra, 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, the court found that defendant's admission of a prior conviction for second degree burglary, with the knowledge that it included a five-year enhancement, is evidence of an admission of a prior residential burglary for enhancement purposes.  (Id., at p. 844, 210 Cal.Rptr. 623, 694 P.2d 736.)   Accordingly, we find the section 667 enhancements to be proper.

Lastly, in his reply brief, defendant contends that his 20-year enhancement violates section 1170.1, subdivision (g), limiting the total term of imprisonment to double the base term.   This argument was raised and rejected in People v. Jackson, supra, 37 Cal.3d at pp. 836–839, 210 Cal.Rptr. 623, 694 P.2d 736.)

The judgment is affirmed.

I comment separately because my initial reading of People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, caused me to conclude our Supreme Court intended to allow an admission by a defendant of the residential character of a pre-Proposition 8 burglary conviction to be admitted in evidence only when the admission was part of a plea bargain.   Further study of the opinion in Jackson leaves me with the same impression, however, the opinion does not clearly state that our Supreme Court intended such a limitation.   Because there is no definitive statement in Jackson precluding the admissibility of such a defendant's admission unless it is made as part of a plea bargain, and because Mr. Thomas admitted the residential character of the prior burglary convictions only after he unequivocably acknowledged on the record that he understood the enhancements his admission would incur if he was found guilty of the charged rape, I concur in the judgment of conviction.

FOOTNOTES

1.   All section references are to the Penal Code unless otherwise indicated.

LOW, Presiding Justice.

HANING, J., concurs.