We first note that there is no question but that the court has jurisdiction to order the blood tests. ( People v. Bynon (1956) 146 Cal.App.2d 7 [ 303 P.2d 75]; Evid. Code, § 896.) The issue here involves the Fourth Amendment.
Defendant had no right to refuse the court ordered blood test on the ground it would violate his right against self-incrimination ( Schmerber v. California (1966) 384 U.S. 757, 760-765 [16 L.Ed.2d 908, 914-916, 86 S.Ct. 1826]) or his right to privacy. ( Shults v. Superior Court (1980) 113 Cal.App.3d 696, 699-700 [ 170 Cal.Rptr. 297]; see also People v. Bynon (1956) 146 Cal.App.2d 7 [ 303 P.2d 75].) Code of Civil Procedure section 2034, subdivision (b)(2)(A), provides in relevant part that upon a refusal of a party to obey an order for discovery, the court may order that ". . . the . . . blood condition of the person sought to be examined, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order."
Given the acceptance of the HLA test and other tests in the scientific community and their admissibility at trial to prove paternity, provided a proper foundation is laid, the question arises as to what blood tests a trial court must order at the request of a party or on its own motion pursuant to section 892 Insofar as the traditional extended blood factor tests and the HLA test are concerned, the trial court has little discretion to refuse to order these tests, providing a timely request is made by a party. ( Huntingdon v. Crowley (1966) 64 Cal.2d 647, 652 [ 51 Cal.Rptr. 254, 414 P.2d 382]; County of Fresno v. Superior Court, supra, 92 Cal.App.3d 133, 137; Shults v. Superior Court (1980) 113 Cal.App.3d 696, 699 [ 170 Cal.Rptr. 297]; People v. Bynon (1956) 146 Cal.App.2d 7, 14 [ 303 P.2d 75].) With respect to other tests yet to be developed or fully accepted in the scientific community, we interpret the provisions of section 892 to be mandatory in requiring the trial court to order the mother, child, and alleged father to submit to any blood tests requested by a party upon a timely motion, and discretionary only when the trial court orders blood tests on its own initiative.
However, when the courts have been faced with the problems of intrusion into the body or privacy of witnesses or victims to crime, there seems to have developed an attitude resting uncomfortably somewhere between studied indifference and benign neglect. For example, in People v. Bynon (1956) 146 Cal.App.2d 7 [ 303 P.2d 75], the court ordered a child victim in a Penal Code section 288 case to submit to a blood test without a word as to the child's rights, simply assuming that as a part of criminal discovery, the child should submit to the removal of her blood on the basis that the results might be beneficial to the defense. The court merely said that it was the obligation of all citizens to support their government.
And there can be no doubt that in this case, where tests could have been run which might have excluded petitioner as the guilty party, fundamental fairness was not accorded the petitioner in refusing to appoint an expert. See People v. Bynon, 146 Cal.App.2d 7, 303 P.2d 75 (1956). Furthermore, since the state could have tested petitioner's blood as well as the fluid extracted from the victim's vagina, see, e.g., Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Newhouse v. Misterly, 415 F.2d 514 (9th Cir. 1969), cert. denied, 397 U.S. 966, 90 S.Ct. 1001, 25 L.Ed.2d 258 (1970), and thus itself excluded petitioner as the rapist, its refusal to run the tests is tantamount to a suppression of evidence such as there was in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and a deprivation of due process.
This case is clearly distinguishable from those cases, relied upon by the defendant, such as State v. Rivers, supra, where the complainant testified that the sexual assault was the only act of intercourse in which she had engaged. See also People v. Bynon, 146 Cal.App.2d 7, 303 P.2d 75 (1956); People v. Washburn, 75 Misc.2d 1088, 349 N.Y.S.2d 978 (1973); State v. Lawson, 267 S.E.2d 438 (W.Va. 1980). Evidence of acts of sexual conduct which tend to show that the defendant did not commit the sexual assault may be admissible.
And there can be no doubt that in this case, where tests could have been run which might have excluded petitioner as the guilty party, fundamental fairness was not accorded the petitioner in refusing to appoint an expert. See People v. Bynon, 146 Cal.App.2d 7, 303 P.2d 75 (1956). Furthermore, since the state could have tested petitioner's blood as well as the fluid extracted from the victim's vagina, see, e.g., Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Newhouse v. Misterly, 415 F.2d 514 (9th Cir. 1969), cert. denied, 397 U.S. 966, 90 S.Ct. 1001, 25 L.Ed.2d 258 (1970), and thus itself excluded petitioner as the rapist, its refusal to run the tests is tantamount to a suppression of evidence such as there was in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and a deprivation of due process.
In People v. Tashman, 233 N.Y.S.2d 744 (1962), the New York court stated that although the paternity of a child born to a complaining witness below the age of consent was not at issue, where the complaining witness testified that she had never engaged in sexual intercourse except with the defendant, the evidence would be competent and relevant because it could exclude the defendant as a possible father of the child. Similarly, in People v. Bynon, 146 Cal.App.2d 7, 303 P.2d 75 (1956), the California court held that in a statutory rape case a blood test of the infant born as a result of an alleged rape by the defendant was material and relevant to determine the potential impossibility of the defendant being the parent. For more recent support see, People v. Washburn, 75 Misc.2d 1088, 349 N.Y.S.2d 978 (1973); Bowen v. Eyman, 324 F. Supp. 339 (U.S.D.C. Ariz. 1970); and, Annot., 46 A.L.R.2d 1000 (1956).
And there can be no doubt that in this case, where tests could have been run which might have excluded petitioner as the guilty party, fundamental fairness was not accorded the petitioner in refusing to appoint an expert. See People v. Bynon, 146 Cal.App.2d 7, 303 P.2d 75 (1956)." Bowen v. Eyman, D.C., 324 F. Supp. 339, 340 (1970).
The present case is not in that category. Compare People v. Bynon, 1956, 146 Cal.App.2d 7, 303 P.2d 75; State v. Snyder, 1952, 157 Ohio St. 15, 104 N.E.2d 169. In the cases just cited the guilt or innocence of the defendants necessarily hinged upon the issue of paternity and it was correctly held that the defendants were entitled to blood grouping tests.