(San Mateo County Super. Ct. No. SC065313A). Mark R. Forcum, Judge.
The opinion of the court was delivered by: Bruiniers, J.
CERTIFIED FOR PUBLICATION
Petitioner Reynaldo A. Maldonado is awaiting trial in the Superior Court of SanáMateo County on an information charging him with special circumstance murder while lying in wait. (Pen. Code, §§á187, subd.á(a), 190.2, subd.á(a)(15).)*fn1 He has notified the prosecution of his intent to introduce evidence, through designated expert witnesses, of neurocognitive deficits he purportedly suffers as a result of childhood brain trauma or congenital brain dysfunction. The prosecution thereafter successfully moved for an order, pursuant to Evidence Code section 730, compelling Maldonado to submit to examinations by court-appointed experts, including a psychiatrist, a psychologist, and a neurologist.
Maldonado's efforts to overturn that order through writ of mandate and/or prohibition were rejected in both this court and in the California Supreme Court. (Maldonado v. Superior Court (Sept.á4, 2009, A125920) [nonpub. order]; Maldonado v. Superior Court (Sept.á23, 2009, S176084) [nonpub. order].) Maldonado also concurrently filed motions in the trial court seeking certain protective orders relating to the court-ordered examinations. On September 9, 2009, the court granted the requested protective orders in part, but otherwise denied them. Among the requested protective measures sought and denied were orders that would have barred the disclosure of the results of any of the examinations to the prosecution unless and until Maldonado actually presented his own mental health evidence at trial, and then only after an in camera hearing at which the trial court would determine which materials should be disclosed. He further objected to prosecution participation in selection of the appointed experts. Maldonado again seeks a writ of mandate/prohibition challenging denial of seven of his requested protective orders.
We issued an alternative writ of mandate directing the superior court to set aside and vacate its order denying five of the requested protective measures, or to show cause why a peremptory writ of mandate should not issue. The trial court declined to modify its order. We then stayed proceedings, ordered briefing, and scheduled the matter for argument.
Having received and considered the People's Return to Order to Show Cause and Maldonado's Reply to the Return, and the argument of counsel, we will issue a peremptory writ permitting the examinations to proceed, but directing the trial court to delay disclosure of those portions of the examination reports containing statements by Maldonado until he has an opportunity to challenge disclosure of materials potentially still subject to privilege, despite the fact that he has placed his mental state in issue. We hold that Maldonado must be given an opportunity to assert a claim of privilege, at least initially in camera, with redaction of any material as to which a privilege claim is sustained, before disclosure to the prosecution. We reject Maldonado's contention that disclosure of the examination results and supporting data must be deferred until defense evidence on his mental state is adduced at trial. The prosecution is entitled to access to the full reports before trial so that it has a reasonable opportunity to prepare its rebuttal case and subject Maldonado's evidence to meaningful adversarial testing at trial. We find no error in the trial court's consideration of prosecution recommendations in the court's appointment of experts to examine petitioner.
Petitioner Reynaldo A. Maldonado is charged with the murder of Quetzalcoatl Alba. (§á187, subd.á(a).) The special circumstance that the murder was committed while petitioner was lying in wait is alleged.*fn2 (§á190.2, subd.á(a)(15)) Defense counsel retained the services of three mental health professionals as part of an investigation into the mental state issues in the case: Jeff Kline, Ph.D., a psychologist; Peter Cassini, M.D., a neurologist; and Robert Perez, Ph.D., a neuropsychologist. As part of its reciprocal discovery obligations, the defense provided the prosecution with mental health evidence resulting from this investigation, including statements made by Maldonado to the examiners.
The prosecution then asked the trial court to appoint experts pursuant to Evidence Code sectioná730 to conduct physical, psychological and psychiatric examinations of Maldonado. Over Maldonado's objection, the court granted the motion. Maldonado petitioned this court for relief from the order by extraordinary writ. We denied the petition and the Supreme Court denied review. (Maldonado v. Superior Court, supra, A125920; Maldonado v. Superior Court, supra, S176084.)
Immediately after the trial court granted the prosecution's motion to appoint experts, Maldonado filed a motion asking the court to implement protective measures he asserted were required to preserve his Fifth and Sixth Amendment rights with respect to the examinations. The first category of requests involves Maldonado's efforts to restrict the prosecution's access to the examinations and to the expert reports. As relevant here, he asked the court to allow defense counsel and a defense expert to observe the examinations and to obtain reports, notes and recordings of the examinations within 24áhours of their creation, but to restrict the prosecution's access to that same information. The specific requests in issue were:
"5)áTo prohibit any district attorney, attorney general, U.S. attorney, or special prosecutor, or any of their respective staff, or any of their law enforcement agents, including but not limited to Daly City Police, San Mateo County Sheriff's Office, from being present during the conduct of any of the examinations of defendant by any of the Evidence Code sectioná730 Court-appointed experts;
"6)áTo prohibit access by any officials referred to under item 5 to any of the reports, notes and/or recordings of the examinations and investigations by any of the experts appointed by the Court pursuant to Evidence Code sectioná730 until after the close of the defense case at the jury trial of the above-mentioned case, upon which the Court will inspect, in camera, any such reports, notes, and/or recordings of the examinations and investigations resulting from the Court's appointment to determine whether the prosecution should have copies of such reports, notes and/or recordings;
"7)áTo decide the question of admissibility of any of the evidence adduced as a result of the work of the experts appointed by the Court pursuant to Evidence Code sectioná730 only after the steps in itemá6 have been completed and only upon a hearing at which both parties have the right to be heard;
"8)áTo prohibit any officials referred to under itemá5 from any contact with any experts appointed by the Court under Evidence Code sectioná730 until after the Court's inácamera decision referred to in itemá6 and only if the Court grants the prosecution permission to do so; [¶]á.á.á.á[¶]
"10)áTo require the experts appointed pursuant to Evidence Code sectioná730 to maintain confidentiality regarding their examinations and investigations of defendant with the exceptions [of providing information to the defendant as allowed by other protective measures] as well as the exception that said experts will provide the Court with copies of their notes, reports and recordings, immediately following the conclusion of their work." (Italics omitted.)
In a supplemental motion, Maldonado challenged the prosecution's participation in selecting the experts. As relevant here, he asked the court to:
"24)áExclude any experts contacted by the People from consideration and appointment pursuant to Evidence Code sectioná730;
"25)áProhibit [the] People from contacting any further experts for the purpose of possible appointment pursuant to Evidence Code sectioná730; the Court to direct the Probation Department to select the appropriate experts without any input whatsoever from either party."
The prosecution argued that both the defense and prosecution should be permitted to observe the examinations, but from a separate room with simultaneous video monitoring rather than from the examination room itself. The prosecution also argued that both the defense and prosecution should have access to the experts and to reports, notes and recordings of the examinations promptly after their creation, and that the admissibility of evidence resulting from the examinations should be determined before jury selection. With respect to request numbers 24 and 25, the prosecution argued it was appropriate for it to assist the court in identifying Spanish-speaking doctors available to take such an appointment.
Following a hearing on Septemberá8, 2009, the trial court granted certain of Maldonado's requests in part, and denied the remainder, including request numbers 5, 6, 7, 8, 10, 24 and 25. The court ruled that both the defense and prosecution could observe the examinations from a separate room by simultaneous video monitoring as proposed by the prosecution. The court denied the request to preclude prosecution access to reports, notes and recordings of the examinations until after close of the defense case and in camera review, as well as the request to delay determination of the admissibility of the evidence until after those events and a court hearing on the matter. The court also denied the request to prevent any prosecution contact with experts who might be candidates for appointment by the court. The court then appointed as experts three individuals whose names and resumes had been provided to the court by the prosecution: Jose R. Maldonado, M.D., a psychiatrist; Shelly Perry, Ph.D., a neuropsychologist; and Jaime Lopez, M.D., a neurologist.
On Septemberá29, 2009, Maldonado filed this petition for writ relief challenging the court's denial of his requests for protective measures numbers 5, 6, 7, 8, 10, 24 and 25 on Fifth and Sixth Amendment grounds. He sought a stay of trial court proceedings pending resolution of the writ petition.
We stayed the court-ordered examinations, but not the trial, and asked for informal opposition to the petition. After receiving that opposition and a reply by Maldonado, we issued an alternative writ of mandate. We explained: "It appears to this court that respondent superior court erred in its disposition of petitioner's request numbers 5, 6, 7, 8 and 10.á.á.á. [¶]áAbsent petitioner proffering evidence at trial pertinent to the Evidence Code sectioná730 examinations, the superior court's disposition of petitioner's request numbers 5, 6, 7, 8 and 10 appears to violate petitioner's Fifth Amendment rights. (See Estelle v. Smith (1981) 451 U.S. 454, 468 ['A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.']; Buchanan v. Kentucky (1987) 483 U.S. 402, 422–423 [elaborating on the foregoing statement from Estelle v. Smith, supra, as follows: 'This statement logically leads to another proposition: if a defendant requests such an evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested.']; In re Spencer (1965) 63 Cal.2d 400, 412–413 (Spencer); People v. Williams (1988) 197 Cal.App.3d 1320; and see Petn., pp.á22–27.) The Attorney General's reliance on United States v. Stockwell (2d Cir. 1984) 743 F.2d 123 to support the superior court's ruling does not appear persuasive." In an immediately following footnote, we wrote: "Although it appears the Fifth Amendment issues asserted by petitioner have merit, the Sixth Amendment issues raised by petitioner appear moot and/or unmeritorious. Additionally, petitioner's objections to the superior court's rulings on request numbersá24 and 25 (concerning the expert selection process) appear unmeritorious. Consequently, the alternative writ will not address those issues."
The alternative writ commanded the trial court to either (a)ávacate its Septemberá8, 2009 order with respect to request numbers 5, 6, 7, 8 and 10 and enter a new and different order after reconsideration in light of this court's order, or (b)áshow cause why a peremptory writ of mandate should not issue.
On Octoberá22, 2009, Maldonado's counsel informed us that the trial court had declined to vacate its order and opted to show cause why a peremptory writ should not issue. We were advised that, "Respondent court's choice was made in light of the People's request to follow that course of action and the recent arrest (Octoberá12, 2009) of the codefendant in this case, Mr. Erick Morales, who had been wanted since June of 2001, and whose capture will necessarily delay petitioner's trial (petitioner was arrested on Octoberá15, 2007)." On Octoberá29, we stayed the trial and all further proceedings concerning the court-ordered examinations pending further order of this court, and set a briefing schedule.*fn3 Our order specified that the "issues to be addressed in this proceeding are limited to the claims raised in the petition herein, regardless of whether those claims were found meritorious in the court's Octoberá14, 2009 order granting the alternative writ."*fn4
Maldonado seeks a writ requiring the trial court to grant protective orders delaying the disclosure of any of the results of the examinations unless and until he presents his own expert evidence at trial, requiring in camera review by the court prior to disclosure, and barring any prosecution involvement in the selection of the court-appointed experts.
We first consider whether these matters are appropriately considered on writ review.
A. Propriety of Writ Review
Writ relief by mandamus will lie "to compel exercise of jurisdiction or to correct an abuse of discretion, but it cannot control the exercise of discretion." (6áWitkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Writs, §á92, p.á624.) "The conditions limiting issuance of the writ of mandamus in criminal cases are similar to those in civil cases. (See generally 8á[Witkin,] Cal. Proc[edure] (4th [ed.]), Extraordinary Writs, §§á72 et seq., 115 et seq. [inadequacy of appeal or other remedy]á.á.á.á." (6áWitkin & Epstein, Cal. Criminal Law (3d ed. 2000) CriminaláWrits, §á97, p. 628, italics omitted.)
"[T]he prerogative writ is not the favored method of reviewing discovery orders. Ordinarily the aggrieved party must raise the issue on direct appeal from a final judgment. [Citations.] The premise upon which this general policy rests is that in the great majority of cases the delay due to interim review of discovery orders is likely to result in greater harm to the judicial process by reason of protracted delay than is the enforcement of a possibly improper discovery order. [Citation.]" (Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 5 (Sav-On Drugs).)
Extraordinary review of a discovery order will be granted, however, when a ruling "threatens immediate harm, such as loss of a privilege against disclosure, for which there is no other adequate remedy." (O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1439 [subpoena seeking information protected by California reporter's shield privilege (Cal. Const., art. I, § 2, subd. (b))].)
It is well established that writ review of a discovery order is appropriate if the order allegedly violates a privilege of the petitioning party. (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169–170 & fn.á11 [following Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185–186, fn.á4 (Oceanside)]; Roberts v. Superior Court (1973) 9 Cal.3d 330, 336 (Roberts); Sav-On Drugs, supra, 15áCal.3d at p.á5.) Courts routinely entertain writ petitions that raise claims of attorney-client or work product privilege (San Diego Professional Assn. v. Superior Court (1962) 58 Cal.2d 194, 198–199; Mitchell v. Superior Court (1984) 37 Cal.3d 591, 594–595; Garcia v. Superior Court (2007) 42áCal.4th 63, 68 (Garcia) [criminal case]; Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 740–741 (Costco); Venture Law Group v. Superior Court (2004) 118 Cal.App.4th 96 [writ relief granted where discovery order erroneously ordered attorney to violate attorney-client privilege in answering deposition questions]),*fn5 patient-physician and patient-psychotherapist privilege (Roberts, at pp.á333, 336),*fn6 marital privilege (Duggan v. Superior Court (1981) 127 Cal.App.3d 267, 269 & fn.á4), other statutory privileges (County of San Diego v. Superior Court (1986) 176 Cal.App.3d 1009, 1014–1015, 1018–1019 [privilege for the proceedings of government health care oversight committees]; Schnabel v. Superior Court (1993) 5 Cal.4th 704, 708, 720 & fn.á4 [implied privilege against disclosure of information provided on tax returns]; Sav-On Drugs, at pp.á6–7 [same]), the California constitutional right to privacy (Britt v. Superior Court (1978) 20 Cal.3d 844, 851–852),*fn7 and the state and federal constitutional right to freedom of association (Bodenheimer v. Superior Court (1980) 108 Cal.App.3d 885, 887–888).
Reviewing courts have also regularly entertained writ petitions challenging, as here, criminal discovery orders allegedly violating a defendant's Fifth Amendment privilege against self-incrimination and the related Sixth Amendment right to the assistance of counsel when being questioned by the prosecution. (See Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1100, 1102 (Verdin); Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 322*fn8; Centeno v. Superior Court (2004) 117 Cal.App.4th 30, 35–36,á40 (Centeno); Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 482, 485 [court of appeal first denied writ review, but was directed by Supreme Court to issue an alternative writ]; Woods v. Superior Court (1994) 25 Cal.App.4th 178, 181–182 (Woods) [same]; Rodriguez v. Superior Court (1993) 14 Cal.App.4th 1260, 1263; Posner v. Superior Court (1980) 107 Cal.App.3d 928, 930; McGuire v. Superior Court (1969) 274áCal.App.2d 583, 586, 590, disapproved on different grounds by Prudhomme, at p.á327, fn.á11; see also Sandeffer v. Superior Court (1993) 18áCal.App.4th 672, 675 [writ review of order requiring disclosure of defense expert reports, which was challenged as exceeding statutory authority]; Torres v. Municipal Court (1975) 50 Cal.App.3d 778, 781, 783–784 [writ review of order requiring disclosure of defense expert's examination, which was challenged as violating Sixth Amendment right to assistance of counsel].)
Courts have similarly entertained writ petitions challenging civil discovery orders that implicate the discovery targets' Fifth Amendment privileges. (See People v. Superior Court (Kaufman) (1974) 12 Cal.3d 421, 424 [writ review of discovery order in civil action brought by the People]; Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 302–303 (Fuller) [writ review of civil discovery order that implicated deponents' Fifth Amendment privilege]; Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 878–881 [writ review of order denying motion to stay discovery in civil action pending disposition of related criminal case, which was challenged as violating Fifth Amendment]; Gonzales v. Superior Court (1980) 117 Cal.App.3d 57, 60–61 [writ review of civil discovery order challenged on ground it violated defendants' Fifth Amendment rights]; People v. Superior Court (Taylor) (1975) 53 Cal.App.3d 996, 998 [writ review of discovery order in civil action brought by the People].)
Review by writ has also been found appropriate to review the manner in which a trial court handles pretrial disclosure of materials alleged to be privileged under the Fifth Amendment. (See Centeno, supra, 117 Cal.App.4th at pp.á36, 41–46 [issuing writ directing trial court to rule on relevance of psychiatric tests before requiring defendant to submit to the tests (on the issue of mental retardation as bar to imposition of death penalty)]; Fuller, supra, 87 Cal.App.4th at pp.á302–303, 309–310 [denying without prejudice writ petition challenging trial court refusal to bar civil defendants from testifying about matters on which they invoked their Fifth Amendment privilege, and giving trial court guidance on how and when to rule on any privilege claim on remand]; Woods, supra, 25áCal.App.4th at pp.á181, 187–188 [entertaining writ petition that challenged order requiring pretrial disclosure of defense psychiatric examination on the ground disclosure should be delayed until after defendant presents his own psychiatric evidence at trial].)
The dissent cites Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1038 (Warford), also involving review of a civil discovery order that allegedly violated a deponent's Fifth Amendment rights, as an exception that proves the rule that writ review is generally inappropriate for claims of Fifth Amendment privilege unless no other opportunity for review is available, or unless the Oceanside standards apply. (Dis. opn., post, pp.á7–8, fn.á4, also citing Fuller, supra, 87 Cal.App.4th at pp.á308–310; Oceanside, supra, 58 Cal.2d at pp.á185–186, fn.á4.) We do not believe that Warford can be read so narrowly. In that case, the underlying civil action generating the discovery was filed in Hawaii, the deponents were nonparty California residents, and there was a direct appeal from a proceeding initiated by the deponents in a California court to challenge the Hawaii discovery order. (Warford, at p.á1038–1039.) It was in that context that the court observed that "[A] party normally may not appeal from a discovery order. [Citations.] .á.á. However, we think an exception to the general rule exists where, as here, no final review of the underlying action will take place in a California forum." (Id. at pp.á1040–1041.)
In arguing for a more limited scope of writ review here, the dissent seeks to distinguish the multitude of cases that have provided writ review of discovery orders in criminal and civil cases on the ground that Fifth Amendment privileges are infringed, even though the parties might have also raised those claims in a direct appeal from a final judgment.
Citing Chavez v. Martinez (2003) 538 U.S. 760, 767–773 (Chavez) and Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704, 727 (Spielbauer), the dissent also contends that writ review is unnecessary because "the mere disclosure of [Maldonado's] statements (as opposed to their use at trial) does not violate Maldonado's constitutional privilege against self-incrimination." (Dis. opn., post, pp.á7, 11–12.) The dissent further contends that, in the event the trial court subsequently determines any of Maldonado's statements in the examination exceed the scope of his waiver of the privilege, Maldonado's constitutional rights will be sufficiently protected by the prohibition against derivative use of such statements. (Dis. opn., post, p.á7.) Whether use immunity alone is a sufficient safeguard in the context of compelled disclosure of potentially incriminating information depends, among other things, on the balance between the defendant's right and competing concerns of the truth-ascertaining adversarial processes of trial in the particular circumstances. (See Centeno, supra, 117áCal.App.4th at pp.á36, 41–46 [issuing writ directing trial court to rule on relevance of psychiatric tests before requiring defendant to submit to the tests despite immunity against improper use of test results at trial].)
As we discuss in detail post, even though the Fifth Amendment expressly addresses only compulsion "to be a witness against himself" at a criminal trial, the United States Supreme Court has repeatedly fashioned prophylactic rules designed to ensure that the constitutional guarantees are respected in the first instance. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); Kastigar v. United States (1972) 406 U.S. 441, 453 (Kastigar).) The constitutional protection is not limited to direct or derivative use of the statements at trial.
"The need for the availability of the prerogative writs in discovery cases where an order of the trial court granting discovery allegedly violates a privilege of the party against whom discovery is granted, is obvious. The person seeking to exercise the privilege must either succumb to the court's order and disclose the privileged information, or subject himself to a charge of contempt for his refusal to obey the court's order pending appeal. The first of these alternatives is hardly an adequate remedy and could lead to disruption of a confidential relationship. The second is clearly inadequate as it would involve the possibility of a jail sentence and additional delay in the principal litigation during review of the contempt order." (Roberts, supra, 9 Cal.3d at p.á336.)
The dissent argues the Roberts rationale does not support writ review here because "[a]t this point .á.á. Maldonado has not made any statement subject to any privilege, and the trial court has not decided whether any statement by Maldonado is or will be outside the scope of his waiver. [Citation.]" (Dis. opn., post, pp.á6–7.) The gravamen of Maldonado's writ petition, however, is that his constitutional privileges will be violated by the immediate disclosure of his statements during the examination pursuant to the trial court order (which allows the prosecution to monitor the examination in real time) before any waiver has occurred (i.e., by Maldonado's introduction of psychiatric evidence at trial) and before the court determines whether his statements during the examination are outside the scope of any waiver. Given the subject matter of the examination (Maldonado's mental state at the time of the crime) and the absence of counsel during the anticipated examination, there is a not insignificant possibility that statements may be elicited that both incriminate Maldonado and fall outside the scope of his waiver.
In sum, we follow the well-established practice of granting writ review of discovery orders that allegedly violate an established privilege.
B. Compelled Psychiatric Examinations*fn9 of Criminal Defendants
The prosecution cannot constitutionally use the results*fn10 of a court-ordered psychiatric examination of a defendant at trial unless the defendant has put his mental condition in issue at the trial and has a meaningful opportunity to consult with his counsel before deciding whether to submit to the examination. (Estelle v. Smith, supra, 451 U.S. at pp.á462–473 (Smith); Buchanan v. Kentucky, supra, 483 U.S. at pp.á421–425 (Buchanan); Spencer, supra, 63 Cal.2d at pp.á409–413 [right to assistance of counsel]; People v. Arcega (1982) 32 Cal.3d 504, 522–523 [right against self-incrimination].) Use of the results of such an examination violates the Fifth Amendment right against self-incrimination because the defendant's statements to the examiner were compelled, incriminating, testimonial, and personal to the defendant. (Smith, at pp.á464–469; see Izazaga, supra, 54 Cal.3d at p.á366; cf. Buchanan, at pp.á422–424 [no Fifth Amendment violation where defendant requested the psychiatric examination and tendered the issue of his mental condition at trial].) Use of such statements violates the Sixth Amendment right to counsel (at least where the examination occurs after the initiation of adversary proceedings) because the defendant is entitled to the assistance of informed counsel (i.e., informed of the scope and nature of the examination and the uses to which it might be put) in deciding whether to submit to the examination. (Smith, at pp.á470–471; cf. Buchanan, at pp.á424–425 [no Sixth Amendment violation where defense counsel requested examination, knowing the results could be used against the defendant if he put his mental condition in issue at trial].)
When a defendant presents psychiatric evidence on his mental condition at trial, however, he has no Fifth Amendment privilege against prosecution rebuttal psychiatric evidence on that issue, even if based on defendant's own self-incriminating statements. (Buchanan, supra, 483 U.S. at pp.á422–423.) Were the rule otherwise, the defendant's silence might "á'deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case'á" (id. at p.á422, quoting Smith, supra, 451 U.S. at p.á465), and defendants "could, with impunity, present mental defenses .á.á.á, secure in the assurance they could not be rebutted by expert testimony based on an actual psychiatric examination. Obviously, this would permit and, indeed, encourage spurious mental illness defenses" (People v. McPeters (1992) 2 Cal.4th 1148, 1190 (McPeters) [citing Buchanan, supra, 483 U.S. 402], overruled on other grounds in Verdin, supra, 43áCal.4th at p.á1116). Similarly, a defendant's Sixth Amendment rights are protected if he has the opportunity to consult with counsel before submitting to a psychiatric examination and counsel knows at that time that the results of the examination might be used against the defendant if he raises his mental condition as an issue at trial. (Buchanan, supra, 483 U.S. at pp.á424–425; Spencer, supra, 63 Cal.2d at p.á412.)
The California Supreme Court has further held that defense counsel may be excluded from a compelled psychiatric examination without violating the SixtháAmendment right to counsel if safeguards are observed: "Before submitting to an examination by court-appointed psychiatrists a defendant must be represented by counsel or intelligently and knowingly have waived that right. Defendant's counsel must be informed as to the appointment of such psychiatrists. [Citation.] If, after submitting to an examination, a defendant does not specifically place his mental condition into issue at the guilt trial, then the court-appointed psychiatrist should not be permitted to testify at the guilt trial. If defendant does specifically place his mental condition into issue at the guilt trial, then the court-appointed psychiatrist should be permitted to testify at the guilt trial, but the court should instruct the jurors that the psychiatrist's testimony as to defendant's incriminating statements should not be regarded as proof of the truth of the facts disclosed by such statements and that such evidence may be considered only for the limited purpose of showing the information upon which the psychiatrist based his opinion." (Spencer, supra, 63 Cal.2d at p.á412, fn. omitted.)
Prior to the effective date of Propositioná115,*fn11 which introduced reciprocal criminal discovery in this state, California courts held that a defendant who tenders his mental condition at trial can lawfully be compelled under state and federal law to submit to a psychiatric examination by a prosecution expert for purposes of obtaining rebuttal evidence. (McPeters, supra, 2 Cal.4th at p.á1190, citing Buchanan, supra, 483áU.S. 402; see also People v. Danis (1973) 31 Cal.App.3d 782, 786 [psychiatrist appointed by court on prosecutor's motion].) After the passage of Propositioná115, however, the Supreme Court ruled that criminal discovery was limited by statute and no statute then on the books authorized a compelled psychiatric examination of a defendant by a prosecution expert. (Verdin, supra, 43 Cal.4th at pp.á1106–1114.)*fn12 In response to Verdin, the Legislature recently amended the criminal discovery statutes to provide: "Unless otherwise specifically addressed by an existing provision of law, whenever a defendant in a criminal action .á.á. places in issue his or her mental state at any phase of the criminal action .á.á. through the proposed testimony of any mental health expert, upon timely request by the prosecution, the court may order that the defendant .á.á. submit to examination by a prosecution-retained mental health expert." (§á1054.3, subd.á(b)(1).)*fn13 That amendment took effect on Januaryá1, 2010.
The trial court's authority to order Maldonado to submit to a psychiatric examination is not contested in this writ proceeding. We assume here the validity of that order. It is clear, and Maldonado does not dispute, that the prosecution may use the results of the examinations in rebuttal to his trial evidence of his mental condition. The questions we consider are: (1)áwhen, and under what circumstances, are the examination results, to be disclosed to the prosecution, and ...