Ventura County Ct.App. 2/6 B222025 Super. Ct. No. 2008014330 Judge: Kevin G. DeNoce
The opinion of the court was delivered by: Werdegar, J.
When the defendant in a criminal action has placed his or her mental state at issue through the proposed testimony of a mental health expert, Penal Code section 1054.3, subdivision (b)(1)*fn1 authorizes the trial court to order the defendant to submit to examination by an expert retained by the prosecution. In this case, we decide whether that statutory authority extends to a defendant who has pleaded not guilty by reason of insanity (NGI) and proposes to call a mental health expert on the issue of sanity. (See § 1027.)
We conclude section 1054.3, subdivision (b)(1) (hereafter section 1054.3(b)(1)) does apply in these circumstances. By its terms, the statute authorizes an order compelling examination by a prosecution-retained expert "whenever . . . at any phase of the criminal action" the defense has proposed its own expert testimony on mental state, "[u]nless otherwise specifically addressed by an existing provision of law." (Italics added.) Section 1027, which governs the adjudication of an NGI plea, specifically addresses the defendant's examination by court-appointed experts, but not by prosecution-retained experts, the subject of section 1054.3(b)(1). The exception in section 1054.3(b)(1) therefore does not pertain, and the statute as a whole applies.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Calvin Leonard Sharp is charged with several felonies, including murder with special circumstances, though the People have stated they are not seeking the death penalty. (§§ 187, 190.2, subd. (a)(17).) Petitioner initially pleaded not guilty to the offenses, as well as NGI, but later withdrew the not guilty plea, leaving only the issue of sanity for trial, and waived his right to a jury trial on that issue. The defense disclosed to the prosecution reports of four mental health experts who opined on petitioner's sanity at the time of the offenses. In addition, the court appointed two mental health experts under section 1027; their reports, as well as those of the defense experts, were introduced by stipulation at the court trial on sanity.
The People moved under section 1054.3(b)(1) to have petitioner examined by a prosecution-retained expert, and the trial court granted the motion. Petitioner sought a writ of mandate or prohibition from the Court of Appeal to prevent the compelled examination but, after issuing an order to show cause, the Court of Appeal denied the petition, holding section 1054.3(b)(1) applied to sanity proceedings.
We granted petitioner's petition for review and stayed both the order compelling an examination and the sanity trial pending further order of this court.
Under the California law of reciprocal discovery in criminal cases, the defense must disclose before trial the witnesses it intends to call, including expert witnesses, as well as reports of experts, including the results of mental health examinations. (§ 1054.3, subd. (a)(1).) In Verdin v. Superior Court (2008) 43 Cal.4th 1096 (Verdin), this court held that the defense's disclosure of a potential mental state defense did not justify an order compelling the defendant to submit to examination by a prosecution expert. We reasoned that mandatory criminal discovery is limited to that provided by statutory or federal constitutional authority (§ 1054, subd. (e)), and no such authority provided for a compelled mental health examination of a defendant. (Verdin, at pp. 1106-1116.) We explained that, while the court had no authority to create a rule allowing a compelled examination as discovery, "[t]he Legislature remains free, of course, to establish such a rule within constitutional limits." (Id. at p. 1116, fn. 9.)
The Legislature responded to Verdin by amending section 1054.3 to add a new subdivision (b), expressly authorizing orders for compelled examination. (Stats. 2009, ch. 297, § 1.) Subdivision (b)(1) of the amended statute provides that "[u]nless otherwise specifically addressed by an existing provision of law, whenever a defendant in a criminal action . . . places in issue his or her mental state at any phase of the criminal action . . . through the proposed testimony of any mental health expert, upon timely request by the prosecution, the court may order that the defendant . . . submit to examination by a prosecution-retained mental health expert."*fn2
The trial court's appointment of mental health experts to testify as to a defendant's sanity, after a plea of NGI, is governed by section 1027. Under that provision, when a defendant pleads NGI, the court selects and appoints two or, at the court's option, three psychiatrists or psychologists to examine the defendant and testify, if called, at a sanity trial. (§ 1027, subd. (a).) Section 1027 expressly does not preclude "any party to any criminal action from producing any other expert evidence with respect to the mental status of the defendant . . . ." (Id., subd. (d).)
Section 1054.3(b)(1) does not expressly include or exclude a sanity trial as an occasion for which a compelled examination may be ordered. It applies, however, "whenever" the defendant places his or her mental state at issue "at any phase of the criminal action." The trial on a plea of NGI is frequently referred to as a "phase" of the criminal action. (See, e.g., People v. Smith (2007) 40 Cal.4th 483, 494-495; People v. Jablonski (2006) 37 Cal.4th 774, 786; People v. Wright (2005) 35 Cal.4th 964, 971; People v. Coddington (2000) 23 Cal.4th 529, 601.) The broadly inclusive language of section 1054.3(b)(1)--"whenever . . . at any phase of the criminal action"--thus impliedly encompasses trial of the defendant's sanity after an NGI plea.
Expressly excepted from the reach of section 1054.3(b)(1) are circumstances in which the subject of that statute, the defendant's compelled examination by a prosecution-retained expert, is "otherwise specifically addressed by an existing provision of law." We conclude the trial of an NGI plea is not such a circumstance.
Section 1027 addresses only the selection and appointment of mental health experts by the trial court. Indeed, subdivision (d) of section 1027 disclaims for the section any effect on the parties' presentation of evidence produced by their own retained experts. In contrast, the subject of section 1054.3(b)(1) is the examination of the defendant by an expert selected and retained by the prosecution. Although the list of tests to be administered by the prosecution expert is subject to judicial review (§ 1054.3, subd. (b)(1)(B)), the court is given no role in selecting the expert, whose ...