BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 1516 (Lieu) 6
As Amended June 29, 2009
Hearing date: July 7, 2009
Penal Code
MK:mc
CRIMINAL PROCEDURE: DISCOVERY
HISTORY
Source: Los Angeles District Attorney's Office
Prior Legislation: None
Support: Crime Victims United; California District Attorneys
Association
Opposition:California Attorneys for Criminal Justice; California
Public Defenders Association
Assembly Floor Vote: Ayes 76 - Noes 1
KEY ISSUE
SHOULD THE COURT BE REQUIRED TO ORDER A DEFENDANT IN A CRIMINAL
ACTION TO SUBMIT TO EXAMINATION BY A PROSECUTION-RETAINED MENTAL
HEALTH EXPERT WHENEVER A DEFENDANT PLACES HIS OR HER MENTAL STATE IN
ISSUE?
PURPOSE
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The purpose of this bill is to require the court to order a
defendant in a criminal action to submit to examination by a
prosecution-retained mental health expert whenever a defendant
places his or her mental state in issue.
Existing law 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:
The names and addresses of persons the prosecutor
intends to call as witnesses at trial.
Statements of all defendants.
All relevant real evidence seized or obtained as a part
of the investigation of the offenses charged.
The existence of a felony conviction of any material
witness whose credibility is likely to be critical to the
outcome of the trial.
Any exculpatory evidence.
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 1054.1(a) to (f).)
Existing law mandates the defendant and his or her attorney must
disclose to the prosecuting attorney:
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,
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experiments, or comparisons which the defendant intends to
offer in evidence at the trial.
Any real evidence which the defendant intends to offer
in evidence at the trial. (Penal Code 1054.3(a) to (c).)
Existing law 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 1054.4.)
This bill provides that unless otherwise specifically addressed
by an existing provision of law, whenever a defendant in a
criminal action or a minor in a juvenile proceeding brought
pursuant to a petition alleging the juvenile to be within
Section 602 of the Welfare and Institutions Code places in issue
his or her mental state at any phase of the criminal action or
juvenile proceeding through the proposed testimony of any mental
health expert, upon timely request by the prosecution, the court
shall order that the defendant or juvenile submit to examination
by a prosecution-retained mental health expert.
This bill provides that 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.
This bill provides that the prosecuting attorney shall submit a
list of tests proposed to be administered by the prosecution
expert to the defendant in a criminal action or a minor in a
juvenile proceeding. At the request of the defendant in a
criminal action or a minor in a juvenile proceeding, a hearing
shall be held to consider any objections raised to the proposed
tests before any test is administered. The trial court shall
make a threshold determination that the proposed tests bear some
reasonable relation to the mental state placed in issue by the
defendant in a criminal action or a minor in a juvenile
proceeding. For the purposes of this subdivision, the term
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"tests" shall include any and all assessment techniques such as
a clinical interview or a mental status examination.
This bill provides that the purpose of this subdivision is to
respond to Verdin v. Superior Court (2008) 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 pursuant to Section 602 of
the Welfare and Institutions Code. Other than requiring the
court to order testing by prosecution-retained mental health
experts in response to Verdin v. Superior Court, supra, it is
not the intent of the Legislature to disturb, in any way, the
remaining body of case law governing the procedural or
substantive law that controls the administration of these tests
or the admission of the results of these tests into evidence.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
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. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
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 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
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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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.
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
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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 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 v. Verdin
Verdin involved a defendant charged with the attempted murder of
his wife who claimed diminished actuality at trial. The People
claimed that because the 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
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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
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which its protection is invoked, but upon the nature of the
statement or admission and the exposure 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.
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5. Prosecution Access to Defendant for Mental Health Exam
This bill is in response to the Verdin decision and provides
that whenever a defendant or juvenile places his or her mental
state at issue, the court shall order that the defendant or
juvenile submit to examination by a prosecution-retained
witness. The Los Angles District Attorney's Office, the sponsor
of this bill, argues:
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 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.
The recent amendments to the bill were an attempt to deal with
opposition concern that caselaw that existed before Verdin and
put parameters and limitations on when a mental exam by a
prosecutor, such as the mental examiner could not ask about the
facts of the case, were not incorporated by this bill. The June
29th amendment explicitly states that it is not the intent to
disturb "the remaining body of case law governing procedural or
substantive law that controls the administration of these tests
or the admission of the results of these tests into evidence."
SHOULD THE COURT BE REQUIRED TO ORDER A DEFENDANT IN A CRIMINAL
ACTION TO SUBMIT TO EXAMINATION BY A PROSECUTION-RETAINED MENTAL
HEALTH EXPERT WHENEVER A DEFENDANT PLACES HIS OR HER MENTAL
STATE IN ISSUE?
6. Opposition
Despite the recent amendments, California Attorneys for Criminal
Justice (CACJ) and the California Public Defenders Association
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remain opposed to this bill. Specifically, CACJ states:
In footnote 9 of the Verdin decision the court opines
that the Legislature is free to amend PC 1054.3 if it so
wishes to allow the procedure sought in Verdin by the
prosecution. However, simply amending PC 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 problem 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,
that it was violation of 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 to the procedure your bill seeks to
codify. The opinion went on to say that this was a
"complicated question" and a "complex issue." (Verdin at
p. 116) This reinforces our point that simply amending
PC 1054.3 will not accomplish what AB 1516 sets out to
do.
DO CONSTITUTIONAL QUESTIONS STILL EXIST WITH ALLOWING THESE
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EXAMS?
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