Ct.App. 1/5 A126236 San Mateo County Super. Ct. No. SC065313 Judge: Mark R. Forcum
The opinion of the court was delivered by: Baxter, J.
A criminal defendant who tenders his or her mental state as a guilt or penalty issue waives the Fifth Amendment privilege against self-incrimination, and the Sixth Amendment right to counsel, " 'to the extent necessary to permit a proper examination of that condition.' " (People v. Carpenter (1997) 15 Cal.4th 312, 412 (Carpenter); see Buchanan v. Kentucky (1987) 483 U.S. 402, 422-423 (Buchanan).) In order to afford the prosecution a fair opportunity to rebut mental-state evidence proffered by the defense, a recent amendment to California's criminal-case reciprocal discovery statute (Pen. Code, § 1054.3)*fn1 specifically provides that when the defendant "places in issue his or her mental state at any phase of the criminal action," the prosecution may seek and obtain a court order "that the defendant . . . submit to examination by a prosecution-retained mental health expert." (Id., subd. (b)(1) (§ 1054.3(b)(1).) Here we must decide what general limits, if any, may properly be imposed on prosecutorial access to court-ordered examinations and their results, both before and after the defendant actually introduces mental-state evidence in the criminal trial, in order to vindicate or protect the defendant's Fifth and Sixth Amendment rights.
Petitioner Reynaldo A. Maldonado faces charges of first degree murder with a special circumstance. (§§ 187, subd. (a), 190.2, subd. (a).) In compliance with his statutory pretrial discovery obligations, he notified the prosecution of his intent to introduce evidence, through designated expert witnesses, that he suffers from neurocognitive deficits as a result of childhood brain trauma or congenital brain dysfunction. In response, the prosecution obtained an order for his examination by a psychiatrist, a psychologist, and a neurologist chosen by the prosecution.
Invoking his federal constitutional rights to counsel (U.S. Const., 6th Amend.) and against self-incrimination (id., 5th Amend.), petitioner sought various protective orders as conditions of his submission to court-ordered pretrial mental examinations. Urging that a Fifth Amendment waiver would occur only if and when he presented mental-state evidence at trial, petitioner sought to bar the prosecutors from observing the examinations directly, from discussing them with the examiners, and from otherwise learning anything about them, unless and until he actually introduced such evidence. Even then, he proposed, prosecutors should not have contact with the examiners, or learn anything about the examination results, until the court first inspected the examination materials in camera to determine what information the prosecution was entitled to receive as potential rebuttal evidence.
The trial court agreed that prosecutors should not be present in the examination room itself, but the court otherwise denied these requests. It reasoned that the prosecution is entitled to the examination results under the reciprocal discovery statute, and that petitioner's Fifth Amendment privilege is protected despite such disclosure because the prosecution cannot make direct or derivative use of the examinations or their results at his criminal trial, except as necessary to rebut any mental-state evidence he introduces in his own behalf.
Petitioner sought a writ of mandate, and the Court of Appeal granted partial relief. The majority acknowledged that the Fifth Amendment bars not mere disclosure, but actual use, direct or derivative, of a declarant's compelled utterances to convict or criminally punish that person. The majority also agreed with the People that the prosecution need not wait to receive and evaluate the examination results until petitioner actually presents mental-state evidence at trial. However, the majority expressed concern that if information about the examinations is prematurely disclosed, the prosecution may use it for purposes prohibited by the Constitution. The majority therefore concluded that the constitutional bar itself is not an adequate protection of petitioner's Fifth Amendment privilege against self-incrimination, and that further "prophylactic" measures are required.
Accordingly, the majority directed the trial court to modify its prior orders to provide that (1) prosecutors be precluded from monitoring the examinations as they occur in "real time," (2) pretrial access by the prosecution to the examiners and the examination materials be prohibited until, within times specified by the trial court, petitioner files, under seal if he desires, motions asserting privilege objections to full or partial disclosure of any statements he made during the examinations, whereupon (3) the court will inspect the examination materials in camera, resolve issues of privilege, redact the materials accordingly, and disclose only the remainder to the prosecution, subject to any conditions necessary to preserve further valid assertions of privilege, and to preclude improper derivative use.
The Court of Appeal dissenter contended at length that use and derivative use immunity, enforced as necessary during the trial itself, are sufficient safeguards of petitioner's constitutional rights. In the dissenter's view, the elaborate prophylactic procedures adopted by the majority are unnecessary, impractical, and unfair to the prosecution, and would produce needless delay in the trial proceedings.
We agree, for the most part, with the conclusions reached by the Court of Appeal dissent. By forcing the trial court to resolve defense claims of privilege prior to trial, without prosecutorial access to the evidence in dispute, the Court of Appeal majority has imposed procedures that are neither required nor justified by the Fifth and Sixth Amendments, and are manifestly unfair to the prosecution. We will therefore reverse the Court of Appeal's judgment with directions to deny the petition for mandamus.
FACTS AND PROCEDURAL BACKGROUND
In January 2008, the San Mateo County District Attorney charged petitioner with first degree murder and alleged a lying-in-wait special circumstance. (§§ 187, subd. (a), 190.2, subd. (a)(15).)*fn2 Petitioner retained three mental health professionals to evaluate him for purposes of a possible mental-state defense. Thereafter, in compliance with its obligations under the criminal-case reciprocal discovery statute (§ 1054.3, subd. (a)(1)), the defense furnished the prosecution with an outline of the mental-state evidence it intended to tender at trial. This included evidence that, as the result of a childhood fall, petitioner was rendered unconscious and now suffers chronic headaches. Also provided were the examination reports of Jeffrey Kline, Ph.D., a psychologist, Peter Cassini, M.D., a psychiatrist, and Robert Perez, Ph.D., a neuropsychologist, indicating that petitioner has a mildly retarded IQ and suffers moderate to severe neurocognitive defects suggestive of acquired brain injury or congenital brain dysfunction.*fn3
In response, the prosecution moved, pursuant to Evidence Code section 730, for an order compelling petitioner to submit to mental examinations by court-appointed experts, including a psychologist, a psychiatrist, and a neurologist. On August 18, 2009, the trial court granted the motion.*fn4 On August 28, 2009, petitioner sought a writ of mandamus/prohibition to bar the examinations. On September 4, 2009, the Court of Appeal summarily denied the petition. Petitioner sought review, and we stayed further proceedings pending our consideration of the petition for review. We denied review on September 23, 2009.*fn5
Meanwhile, on August 18 and August 24, 2009, petitioner moved in the trial court for various protective measures related to the court-ordered examinations. These included requests that all prosecution or law enforcement representatives be prohibited from attending the examinations, and that the prosecution be denied all access to reports, notes, and recordings of the examinations, and barred from all contact with the examiners themselves, until the close of the defense case, and thereafter until the court (1) inspected the examination materials in camera to determine whether the prosecution should have access to them, and (2) decided issues of admissibility at a hearing at which both parties would have the right to be heard.*fn6
Petitioner premised these requests primarily on his Fifth Amendment privilege against self-incrimination. He urged that he would waive this privilege only if, when, and to the extent he actually presented mental-state evidence in his own behalf at the trial. Until then, he insisted, the prosecution was not entitled to learn of the fruits of the compelled examinations, or of any statements he made to the examiners.
The People agreed that only petitioner and the experts should be directly present in the examination room. They also acknowledged that, if petitioner ultimately chose not to introduce mental-state evidence at trial, evidence from the court-ordered examinations would not be admissible. Nonetheless, the People urged they were entitled to monitor the examinations in "real time," and to know the examination results in advance of trial, in order to anticipate and develop their response in the event petitioner pursued his mental-state defense. In open court, the prosecutor also made the representation -- unchallenged by defense counsel -- that in this particular case, the prosecution already had petitioner's several police statements, the results of petitioner's examinations by the defense experts, and the statements petitioner had made to these experts.*fn7 Accordingly, the prosecutor argued, the People would gain no unfair tactical advantage by advance access to the results of the court-ordered examinations.
The trial court agreed there was no need for prosecution representatives to be in the examination room itself, since it appeared possible to monitor the examination in "real time" from a remote location. The court deferred a ruling on when issues of trial admissibility should be decided. But it otherwise declined to bar the prosecution from observing the examinations as they occurred, or from obtaining prompt access to the examiners and their examination notes and reports. The court agreed with the prosecution that "[i]f you're going to get the reports anyway, which you're entitled to under reciprocal discovery, then it doesn't make much sense to preclude you from attending the actual interview." The court also noted the prosecutor's representation that, under the specific facts of this case, the prosecution would not profit unfairly by obtaining advance access to the examinations and their results, including any statements made by petitioner to the examiners about the charged crimes.
Petitioner sought mandate. The Court of Appeal, First Appellate District, Division Five, issued an alternative writ directing the trial court to vacate its order denying items Nos. 5, 6, 7, 8, and 10 and to enter a new order granting those items, or to show cause why a peremptory writ to that effect should not issue. When the trial court declined to modify its order, the Court of Appeal stayed the trial proceedings and scheduled the matter for argument. Thereafter, the Court of Appeal ordered issuance of a peremptory writ of mandate directing the trial court to implement certain protective measures.
The Court of Appeal majority agreed with the People that the Fifth Amendment does not forbid disclosure, as such, of incriminating words a person was officially compelled to utter, but simply prohibits use of the compelled utterances against the declarant in a criminal case, either as direct evidence or as an aid to discovery of other incriminating evidence (derivative use). The majority also recognized that the reciprocal discovery statutes call for accelerated (i.e., pretrial) disclosure of anticipated witnesses and evidence, and observed that such accelerated discovery does not, in and of itself, offend the Constitution. Accordingly, the majority rejected petitioner's argument that disclosure to the prosecution of his examination results, including his statements to the examiners, must await the actual waiver of his Fifth Amendment privilege by his presentation of mental-state evidence at trial. The majority was persuaded that such belated disclosure would be unfair to the prosecution in its efforts to prepare a rebuttal case, and would lead to unnecessary midtrial delay.
Nonetheless, the Court of Appeal majority concluded, certain prophylactic measures are necessary to ensure that the prosecution does not make improper use of any statements by petitioner to the prosecution examiners that would potentially fall outside the scope of a limited Fifth Amendment waiver occasioned by his presentation of a mental-state defense. The majority ruled that, while nothing should preclude the prosecution from immediately learning their experts' ultimate opinions and diagnoses, any prosecutorial access to petitioner's statements to the prosecution examiners, or to materials containing such statements, should be subject to a "minor pretrial delay" (italics added) during which the court, after inspecting the statements in camera, should rule on privilege objections asserted by the defense in timely fashion, should redact the examination materials accordingly, and only then should release them to the prosecution.
Accordingly, the Court of Appeal's judgment specified that, insofar as the trial court's original order denied petitioner's requested items Nos. 5, 6, 7, 8, and 10, that order should be replaced with new provisions (1) barring the prosecuting attorneys and their agents from observing the examinations in real time; (2) precluding all persons present at the examinations, including the examiners, from disclosing any statements made by petitioner therein until expressly authorized by the court to do so; (3) allowing petitioner, "[w]ithin a specified amount of time after the conclusion of each examination (to be determined by the trial court)," to assert, by a sealed motion if he so desires, privilege objections to disclosure of statements he made during the examination; and (4) providing that the court, after inspecting the materials in camera, "shall determine if [petitioner's] statements to the examiners, in whole or in part, remain subject to Fifth Amendment privilege [and shall] redact any statements it finds to be privileged," following which the court may release the balance of the examination materials to the prosecution, subject to any conditions or limitations necessary to preserve a valid assertion of privilege or prevent improper derivative use.
The dissenting justice first urged that extraordinary writ relief is premature and inappropriate. Petitioner has not yet uttered any incriminating statement, the dissent observed, and he could seek a protective order against direct or derivative use of any such statement once the prosecutor actually learned of it. In any event, the dissent asserted, if petitioner is convicted in a trial where the court has erred prejudicially by allowing the prosecution's direct or derivative evidentiary use of statements protected by the privilege, he will have an adequate remedy by appeal.
On the merits, the dissent contended vigorously that the majority's prophylactic procedures are unnecessary to protect petitioner's Fifth Amendment rights. The dissent reasoned that these rights are adequately safeguarded by the immunity against use, either direct or derivative, of petitioner's statements against him, except as necessary to rebut any mental-state defense he actually presents at trial. Moreover, the dissent asserted, despite the majority's contrary assurances, the procedures it has dictated will produce significant trial delay and create "daunting" problems for a trial court forced to rule on petitioner's privilege objections without knowing what mental-state evidence he will ultimately present.
Both petitioner and the People sought review. Petitioner urged that the Court of Appeal had erred by allowing the prosecution even limited access to the court-ordered examinations before he actually waives his Fifth Amendment privilege by presenting mental-state evidence at trial. The People argued that the Court of Appeal's prophylactic restrictions on such pretrial access are unwarranted, and that pretrial mandamus relief is inappropriate in any event.
We granted the People's petition and denied petitioner's. We now conclude that the Court of Appeal's judgment must be reversed with directions to deny the petition for mandamus.
1. Propriety of extraordinary relief.
The People first urge that pretrial writ proceedings to review the trial court's examination order are not justified. The People argue, as did the Court of Appeal dissent, that interim review of discovery orders is generally disfavored, that such review is unnecessary to protect petitioner's Fifth Amendment privilege against improper use of his examination statements at his criminal trial, and that if the trial court were to allow such improper use, petitioner would have an adequate remedy by appeal. Citing the majority opinion in the Court of Appeal, petitioner responds that courts frequently employ extraordinary writ proceedings to review discovery requests to ensure that the discovery itself does not infringe Fifth Amendment rights.
We need not debate these points. Mandamus is appropriate to address discovery issues that present novel issues of first impression and general importance. (E.g., Williamson v. Superior Court (1978) 21 Cal.3d 829, 833; Daly v. Superior Court (1977) 19 Cal.3d 132, 140; Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185-186, fn. 4.) Recently, in Verdin, supra, 43 Cal.4th 1096, we assumed without discussion that pretrial mandamus review was a proper means to address whether a court order for the mental examination of a criminal defendant by prosecution-retained experts, similar to the order at issue here, was authorized by the limited and exclusive reciprocal criminal discovery provisions of section 1054.3, as then in force. We answered "no" to that question, thereby making it unnecessary to address the federal and state constitutional issues the petitioner in that case had also raised.
In response to Verdin, the Legislature amended section 1054.3 to provide express authority for such court-ordered examinations where the defendant "places in issue his or her mental state at any phase of [a] criminal action." (Id., subd. (b)(1), (2).) The instant examination order preceded the effective date of these amendments. However, the parties do not dispute that current section 1054.3 provides sufficient statutory support for an order requiring petitioner, having signaled his intent to present mental-state evidence in his defense, to submit to a mental examination by prosecution-retained experts.
This case thus presents an early opportunity to determine whether, and if so, what, protective measures in the conduct of the examination, and in the disclosure of its results, are necessary to protect a defendant's rights under the Fifth and Sixth Amendments to the United States Constitution. The importance of resolving such issues sooner rather than later is manifest. We have no doubt that the Court of Appeal made proper ...