Fare v. Leonard M.

85 Cal. App. 3d 887, 149 Cal. Rptr. 791, 1978 Cal. App. LEXIS 2028

• Court: California Court of Appeal
• Decided: October 27, 1978
• Docket: Crim. 30946
• Status: Published

Opinions

Opinion

KINGSLEY, J.

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 order is based on a finding that the minor, a 16-year-old boy, had committed a lewd act on a 5-year-old neighbor girl. On this appeal he contends: (1) that the evidence does not support the finding; and (2) that he was denied the effective assistance of counsel because his trial attorney did not seek a psychiatric examination of the child. We reject both contentions.

I

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.

II

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 to 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 People v. Lang (1974) 11 Cal.3d 134 [113 Cal.Rptr. 9, 520 P.2d 393], dealing with a case involving several factual similarities, the Supreme Court said, in footnote 3 on page 140: “[Citation.] 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, T don’t know how bright these girls [the twins] are. I don’t know what their capacity for fantasy is.’ The results 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 the weakness of the case against defendant, resting as it does on the testimony of the young girl, 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, 532 P.2d 857], 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, we cannot hold that trial counsel was incompetent to the degree that he had reduced the hearing to a “farce or a sham,” or withdrew a viable defense.

The order appealed from is affirmed.

Files, P. J., concurred.