APPEAL from a judgment of the Superior Court of San Joaquin County, Terrence R. Van Oss, Judge. Affirmed. (Super. Ct. Nos. SF090601A, SF096230A).
The opinion of the court was delivered by: Sims, Acting P. J.
CERTIFIED FOR PUBLICATION
As we shall explain in a moment, defendant Gary Wayne Stuckey was convicted of a variety of drug offenses.
In hopes of being reinstated on probation and avoiding prison, defendant asked the trial court to appoint a psychotherapist and a drug treatment counselor to help him present addiction treatment options at the sentencing hearing. The trial court denied defendant's motions, stating that it did not need expert testimony to help make the sentencing choice in this case. At the conclusion of a sentencing hearing in which defense counsel and defendant himself vigorously argued that this case compelled reinstatement of probation, the trial court imposed the seven year and eight month prison sentence to which defendant had agreed in an earlier plea bargain.
On appeal, defendant contends that Evidence Code section 730 requires the appointment of experts at public expense whenever an indigent criminal defendant shows experts to be reasonably necessary. Even in the absence of statutory authorization, defendant claims that appointment of experts for indigent criminal defendants is required by the equal protection, due process, and right to effective assistance of counsel guarantees in the federal Constitution. Defendant further argues that such appointment of experts is also required by sections 7 and 15 in article I of the California Constitution. We disagree with all of this.
As we shall explain, Evidence Code section 730 does not authorize the appointment of experts after trial in connection with sentencing proceedings. Nor do the federal or state Constitutions entitle an indigent criminal defendant to improve his chances of a favorable sentencing choice by having experts echo the arguments of defense counsel. Although appointment of experts may be required when a defendant shows that they are necessary to formulate an affirmative defense to criminal charges or to rebut an expert witness retained by the prosecution to render an expert opinion at sentencing, a defendant may not require the trial court to appoint experts at public expense merely to supplement the arguments of counsel at sentencing. Accordingly, we shall affirm.
We dispense with reciting the circumstances of defendant's underlying offenses because he does not assert any error occurring prior to his post-conviction motions for appointment of defense experts. Defendant's statutory and constitutional arguments focus solely on the trial court's refusal to appoint experts for the sentencing hearing. We therefore turn to the pertinent procedural history of the case.
Defendant's Convictions and Violations of Probation
On February 2004, in case No. SF090601A, defendant entered a negotiated plea of guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378), transportation of methamphetamine (Health & Saf. Code, § 11379), resisting an officer (Pen. Code, § 148), and admitted a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (a)). Defendant entered his plea and admission in exchange for a court-indicated judgment of a state prison sentence of seven years and eight months, with execution of sentence suspended, and a grant of probation with a year in county jail followed by a residential drug treatment program. In March 2004, the court imposed the agreed-upon prison term, suspended execution of sentence, and granted probation.
When defendant was found to be ineligible for the residential drug treatment program due to a prior conviction for lewd and lascivious act on a child age 14-15 (Pen. Code, § 288, subd. (c)), the trial court modified the condition to allow him to enter a Salvation Army program instead.
In June 2005, in case No. SF096230A, defendant entered a guilty plea to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), occurring on May 23, 2005, and the trial court ordered Proposition 36 probation.
In March 2006, a petition for violation of probation in case No. SF096230A alleged that defendant was terminated from the drug treatment program for a positive drug test and unexcused absences. The court revoked probation and issued a bench warrant for defendant's arrest.
In April 2006, a petition for violation of probation in case No. SF090601A alleged that defendant's whereabouts were unknown. The trial court revoked probation and issued a bench warrant for his arrest.
In June 2007, defendant, then in custody, denied the probation violation allegations in both petitions.
According to an affidavit filed by the prosecution, defendant was charged in case No. SF099565A with possession of methamphetamine, occurring on March 10, 2006, and he was held to answer. In case Nos. SF090601A and SF096230A, the court found that defendant was in violation of probation.
Defense Request for Appointment of Experts
Prior to sentencing, privately-retained defense counsel filed ex-parte motions in case No. SF090601A for the appointment of two experts: a psychotherapist and a drug treatment evaluator. Defense counsel explained that he needed a drug treatment evaluator "to assist the defense in determining and procuring viable, post-incarceration structured rehabilitation options that can be considered in the disposition of this matter." Defense counsel further stated that he could not effectively represent defendant without an expert in "addiction, abuse, and recovery" who could recommend effective treatment providers and facilities and who could determine the likelihood of defendant's favorable response to such treatment. Defense counsel believed that the court had several sentencing options, including residential treatment as a condition of probation.
Defense counsel also requested the appointment of a psychotherapist to determine whether defendant should be reinstated on probation and whether he would respond in a favorable manner to mental health treatment as a condition of probation. Counsel stated that defendant committed the offenses due to a mental condition not amounting to a defense, elaborating in his statement in mitigation that the mental condition he believed defendant suffered from was addiction.
Denial of Motions for Appointment of Experts
At sentencing, the court stated that it had reviewed defendant's ex-parte motions, the probation officer's report, and defendant's statement of probation eligibility and mitigation. Defense counsel requested a continuance to allow for appointment of and examination by the psychotherapist and by the drug treatment evaluator. The prosecutor countered that defendant had agreed in entering his plea in 2004 that if he violated probation by committing a new crime, the previously imposed sentence of seven years and eight months would be executed, noting that the court granted probation in 2004 over the prosecutor's objection. The prosecutor requested immediate sentencing, suggesting that defendant could pursue treatment in prison.
The trial court denied defendant's motions. The trial court said: "I don't think that it's necessary at this stage of the game to appoint another substance evaluator. The [d]efendant was given an opportunity of probation once before over the objection of the People, the probation officer and everything else. And so I don't think it's necessary to hold another -- have somebody else examine him and give us another opinion at this point. [¶] This is simply a garden variety and another one of many, many unfortunate cases that we see here all the time of people that use drugs. And the law hasn't been able to figure out any better way to handle it other than the laws that exist."
The court imposed the previously agreed upon sentence of seven years and eight months in prison in case No. SF090601A. In case No. SF096230A, the court reinstated defendant on probation, converting the Proposition 36 probation to informal probation. The court granted the prosecutor's motion to dismiss case Nos. SF099565A (possession of ...