BILL ANALYSIS
AB 1516
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Date of Hearing: May 12, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 1516 (Lieu) - As Amended: April 20, 2009
SUMMARY : Requires the court to order, upon timely request of
the prosecution, a defendant or juvenile to submit to an
examination by a prosecution-retained mental health expert
whenever the defendant or respondent, as specified, places his
or her mental state in issue at any phase of the criminal action
or juvenile proceeding through proposed testimony of any mental
health expert. Specifically, this bill :
1)States the prosecution shall bear the cost of any such mental
health expert's fees for examination and testimony at a
criminal trial or juvenile court proceeding.
2)Provides that the purpose of this provision is to respond to
Verdin vs. Superior Court, 43 Cal. 4th 1096, which held that
only the Legislature may authorize a court to order the
appointment of a prosecution mental health expert when a
defendant has placed his or her mental state at issue in a
criminal case or juvenile proceeding, as specified.
EXISTING LAW :
1)Requires the prosecuting attorney to disclose to the defendant
or his or her attorney all of the following materials and
information, if it is in the possession of the prosecuting
attorney or if the prosecuting attorney knows it to be in the
possession of the investigating agencies:
a) The names and addresses of persons the prosecutor
intends to call as witnesses at trial.
b) Statements of all defendants.
c) All relevant real evidence seized or obtained as a part
of the investigation of the offenses charged.
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d) The existence of a felony conviction of any material
witness whose credibility is likely to be critical to the
outcome of the trial.
e) Any exculpatory evidence.
f) Relevant written or recorded statements of witnesses or
reports of the statements of witnesses whom the prosecutor
intends to call at the trial, including any reports or
statements of experts made in conjunction with the case,
including the results of physical or mental examinations,
scientific tests, experiments, or comparisons which the
prosecutor intends to offer in evidence at the trial.
[Penal Code Section 1054.1(a) to (f).]
2)Mandates the defendant and his or her attorney must disclose
to the prosecuting attorney:
a) The names and addresses of persons, other than the
defendant, he or she intends to call as witnesses at trial,
together with any relevant written or recorded statements
of those persons, or reports of the statements of those
persons, including any reports or statements of experts
made in connection with the case, and including the results
of physical or mental examinations, scientific tests,
experiments, or comparisons which the defendant intends to
offer in evidence at the trial.
b) Any real evidence which the defendant intends to offer
in evidence at the trial. [Penal Code Section 1054.3(a) to
(c).]
3)States nothing in the codes related to discovery shall be
construed as limiting any law enforcement or prosecuting
agency from obtaining non-testimonial evidence to the extent
permitted by law on the effective date of this provision.
(Penal Code Section 1054.4.)
FISCAL EFFECT : None
COMMENTS :
1)Author's Statement : According to the author, "A recent
California Supreme Court Case (Verdin v. Superior Court) held
that the prosecution is no longer entitled to a court order
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requiring a defendant to submit to a mental health examination
by a prosecution expert after the defendant has claimed a
mental defense.
"The California Supreme Court in Verdin reasoned that a
mandatory psychiatric examination is a form of pretrial
discovery that is not mentioned or authorized in Penal Code
1054.5 et. seq. The court held that California case law
specifically allowing such orders for mental health
examinations has been superseded by California Penal Code
1054 et. seq. as enacted by Proposition 115. The court
concluded its opinion in Verdin by stating in footnote 9, 'The
Legislature remains free, of course, to establish such a rule
within constitutional limits.' [The court is saying Prop 115
limited discovery and we, the court, can't do anything about
it, but you, the legislature, can.]
"It is critical in criminal cases in which defendants claim a
mental defense that they be subject to a mental health
examination by a prosecution expert to independently evaluate
the merits of their claim. The right of the prosecution to do
so has been recognized for at least 35 years. (People v.
Danis (1973) Cal.App.3d. 782; People v. Carpenter (1997) 15
Cal.4th 312; People v. McPeters (1992) 2 Cal.4th 1148.) Even
before Danis, such prosecution examinations before trial were
routine custom and practice in criminal cases. As a result of
Verdin, the prosecution cannot request a pretrial mental
examination by a prosecution expert over a defense objection,
even after the defendant has placed his mental state in issue
by asserting a psychiatric defense or retaining mental health
experts on his behalf. This means the prosecution has no
means to independently investigate the appropriateness of the
mental defense.
"It is imperative when defendants claim a mental defense that
they are subject to a mental health examination by a
prosecution expert. This right of the prosecution to examine
the defendant above their consent has been recognized in case
law for over 35 years. However, recently the California
Supreme Court overturned the prosecution's entitlement to a
court order because Proposition 115 failed to include such a
discovery right. AB 1516 restores this right by ensuring that
the merits of the defendant's claim be independently verified
and guarantees that prosecutor can properly ensure justice for
victims."
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2)Proposition 115 and Statutory History of Discovery :
California discovery statutes underwent major changes when the
electorate approved Proposition 115. "On June 5, 1990, the
voters of California passed Proposition 115, the Crime Victims
Justice Reform Act. The initiative implemented a broad range
of statutory and constitutional changes relating to
California's criminal justice system. For the most part,
these changes limit the procedural rights of the accused and
increase the rights and discretion of the prosecution in an
effort to harmonize the system with federal law. By creating
a statutory and reciprocal discovery scheme in anticipation of
trial, Proposition 115 dramatically alters the discovery
process in criminal cases and may well have set a trend that
other states will follow. In particular, its changes to
court-ordered defense discovery undermine the reliability of
preliminary hearings and plea bargaining." [Berend, Less
Reliable Preliminary Hearings and Plea Bargaining in Criminal
Cases in California: Discovery Before and After Proposition
115, (1998) 48 Am. U. L. Rev 465, 466; People vs. Verdin
(hereinafter Verdin) (2008) 43 Cal.4th 1096, 1103.]
Proposition 115 explicitly states "no discovery shall occur in
criminal cases except as provided by this chapter, other
express provisions, or as mandated by the Constitution of the
United States." [Penal Code Section 1054(e).] Prior to the
passage and application of Proposition 115, the courts
routinely authorized access to a criminal defendant by the
People's mental health expert when the defendant places his or
her mental state at issue. [See People vs. McPeters (1992) 2
Cal.4th 1148; People vs. Carpenter (1997) 15 Cal.4th 312;
People vs. Danis (1973) 31 Cal.App.3rd 782.] "Prosecutorial
discovery from a criminal defendant in the form of a
court-ordered mental examination was permissible even absent
an 'authorizing statute', because the trial court possessed
inherent power to order such discovery." [Danis at 786;
Verdin at 1106.] However, despite this long-standing
precedent, the California Supreme Court ruled in Verdin in
2008 that the trial courts have no authority to order the
defendant to submit to an examination because it is not
explicitly authorized by Penal Code Section 1054.
3)People vs. Verdin : Verdin involved a defendant charged with
the attempted murder of his wife and claimed diminished
actuality at trial. The People claimed that because the
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defendant placed his mental state in issue, it was also
entitled examine the defendant. The trial court agreed but
the Court of Appeals denied the request. The California
Supreme Court stayed the People's request pending a formal
ruling.
The Court ruled, "Whether and when trial courts can order
persons to undergo an undesired psychiatric examination is a
complicated question. This case does not require us to plumb
the depths of this complex issue. Instead, we need merely to
interpret section 1054. As explained above, we find the trial
court's order granting the prosecution access to petitioner
for purposes of having a prosecution expert conduct a mental
examination is a form of discovery that is not authorized by
the criminal discovery statutes or any other statute, nor is
it mandated by the United States Constitution. Although we
have in the past found merit in a rule authorizing such
discovery when a defendant places his mental state in issue
(McPeters, supra, 2 Cal.4th 1148), following Proposition 115
and the enactment of the exclusivity guidelines in section
1054(e), we are no longer free to create such a rule of
criminal procedure, untethered to a statutory or
constitutional base. Our conclusion renders it unnecessary to
decide whether the trial court's order violates petitioner's
constitutional rights. The Legislature remains free, of
course, to establish such a rule within constitutional
limits." [Verdin at 1116.]
4)Constitutional Issues : The Fifth Amendment of the U.S.
Constitution provides that no person shall be compelled to
give evidence against him or herself. Defendants cannot be
forced to testify or submit to questioning of an incriminating
nature. Failure of the defendant to testify at trial may not
be presented to the jury as evidence of his or her guilt.
"The 5th Amendment commands that no person shall be compelled in
any criminal case to be a witness against himself. The
essence of this basic constitutional principle is the
requirement that the state proposing to convict and punish an
individual must produce the evidence against him by the
independent labor of its officers, not by the simple, cruel
expedient of forcing it from his own lips. The availability
of the privilege against self-incrimination does not turn upon
the type of proceeding in which its protection is invoked, but
upon the nature of the statement or admission and the exposure
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that it invites." [Culombe vs. Connecticut (1961) 367 U.S.
568, 581.]
However, under certain circumstances, the defendant's failure to
submit to a mental examination when he or she raises an issue
of mental health as a defense may be used against him or her.
[Buchanan vs. Kentucky (1987) 483 U.S. 402, 422; Estelle vs.
Smith (1981) 451 U.S. 454, 468.] "When a defendant asserts
the insanity defense and introduces supporting psychiatric
testimony, his silence may deprive the State of the only
effective means it has of controverting his proof on an issue
that he interjected into the case. Accordingly, several
Courts of Appeals have held that, under such circumstances, a
defendant can be required to submit to a sanity examination
conducted by the prosecution's psychiatrist. 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 . . . . " [Estelle at 468.] This bill
requires courts to make the defendant available to the People
when the defendant places his or her mental state in issue.
It is unclear what consequences a defendant who refuses will
face, but contempt of court or disclosure of non-cooperation
to the jury seems likely.
5)Argument in Support : According to the Los Angeles County
District Attorney's Office (the sponsor of this bill), "A
recent California Supreme Court case (Verdin vs. Superior
Court) held that the prosecution is no longer entitled to a
court order requiring a defendant to submit to a mental heath
examination by a prosecution expert after the defendant has
claimed a mental defense.
"In Verdin, the defendant raised a 'diminished actuality'
defense to an attempted murder charge, that is, he claimed
that as a result of a psychiatric condition, he did not
actually entertain the requisite mental state. The People
then formally sought a mental examination of the defendant by
a prosecution expert, pursuant to Penal Code Section 1054.5(b)
and People vs. Carpenter (1997) 15 Cal. 4th 312, arguing that
the defendant waived any objection to the examination when he
placed his mental state in issue. The trial court and the
Appellate Court ruled the examination was permissible. The
California Supreme Court in Verdin reasoned that a mandatory
psychiatric examination is a form of pretrial discovery that
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is not mentioned or authorized in Penal Code Section 1054.5
et. seq. The court held that California case law specifically
allowing such orders for mental health examinations have been
superseded by California Penal Code Section 1054 et. seq. as
enacted by Proposition 115. The court concluded its opinion
in Verdin by stating in footnote 9, 'The Legislature remains
free, of course, to establish such a rule within
constitutional limits.' [The court is saying Proposition 115
limited discovery and we, the court, cannot do anything about
it, but you, the legislature, can.]
"It is critical in criminal cases in which defendants claim a
mental defense that they be subject to a mental health
examination by a prosecution expert to independently evaluate
the merits of their claim. The right of the prosecution to do
so has been recognized for at least 35 years. (People vs.
Danis (1973) Cal.App.3rd 782; People vs. Carpenter (1997) 15
Cal.4th 312; People vs. McPeters (1992) 2 Cal 4th 1148). Even
before Danis, such prosecution examinations before trial were
routine custom and practice in criminal cases. As a result of
Verdin, the prosecution cannot request a pretrial mental
examination by a prosecution expert over a defense objection,
even after the defendant has placed his mental state in issue
by asserted a psychiatric defense or retaining mental health
experts on his behalf. This means the prosecution has no
means to independently investigate the appropriateness of the
mental defense.
"AB 1516 would authorize a court to order a defendant to submit
to a prosecution retained mental health expert in a criminal
case where the defendant places his/her mental state in issue
as a defense to the criminal charge."
6)Argument in Opposition : According to the California Attorneys
for Criminal Justice (CACJ), "The unanimous decision in Verdin
was based on narrow statutory grounds by holding that Penal
Code Section 1054.3 did not authorize the court to compel a
criminal defendant to undergo a mental examination by a
prosecution-retained mental health expert. The high court
found that since all discovery must be grounded in Penal Code
Section 1054, the absence of the procedure sought by the
prosecution in Verdin from the language in Penal Code Section
1054.3 barred the trial court from ordering what was sought by
the prosecution.
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"In footnote 9 of the Verdin decision, the court opines that the
Legislature is free to amend Penal Code Section 1054.3 if it
so wishes to allow the procedure sought in Verdin by the
prosecution. However, simply amending Penal Code Section
1054.3 as AB 1516 seeks to do will not achieve the result
sought by the prosecution in Verdin because of constitutional
bars to such a procedure. Indeed, the Supreme Court foresaw
this very program by stating that its decision was based on
statutory grounds alone and made it 'unnecessary to decide
whether the trial court's order violates petitioner's
constitutional rights.' (Verdin at p. 116.)
"AB 1516 would violate the defendant's privilege against
self-incrimination under the Fifth Amendment to the United
States Constitution. It would do so by compelling the
defendant to provide information to a prosecution witness (the
mental health expert) who would then become a witness against
the defendant in his criminal trial or juvenile delinquency
proceeding.
"CACJ would refer you to the United States Supreme Court
decision in Estelle v. Smith (1981) 451 U.S. 454, 101 S.Ct.
1866 which held, under very similar circumstances, t hat it
was violating the defendant's Fifth Amendment privilege for
the government to use as evidence against the defendant the
substance of his disclosures during pretrial psychiatric
examination. The Estelle case is discussed in Verdin. While
the Verdin court grounded its decision on statutory grounds,
it clearly acknowledges that there are significant due process
issues connected the procedure your bill seeks to codify. The
opinion went on to say that this was a 'complicated question'
and a 'complex issue.' (Verdin a p. 1116.) This reinforces
our point that simply amending Penal Code Section 1054.3 will
not accomplish what AB 1516 sets out to do."
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County District Attorney's Office (Sponsor)
California District Attorneys Association
Opposition
California Attorneys for Criminal Justice
AB 1516
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Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744