BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1516|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: AB 1516
Author: Lieu (D)
Amended: 7/16/09 in Senate
Vote: 27
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 7/7/09
AYES: Leno, Benoit, Cedillo, Hancock, Huff, Steinberg,
Wright
ASSEMBLY FLOOR : 76-1, 5/26/09 - See last page for vote
SUBJECT : Criminal procedure: discovery
SOURCE : Los Angeles District Attorneys Office
DIGEST : This bill authorizes 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/her mental state in issue.
ANALYSIS : Existing law requires the prosecuting attorney
to disclose to the defendant or his/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:
1. The names and addresses of persons the prosecutor
intends to call as witnesses at trial.
CONTINUED
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2. Statements of all defendants.
3. All relevant real evidence seized or obtained as a part
of the investigation of the offenses charged.
4. The existence of a felony conviction of any material
witness whose credibility is likely to be critical to
the outcome of the trial.
5. Any exculpatory evidence.
6. 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).)
Existing law mandates the defendant and his/her attorney
must disclose to the prosecuting attorney:
1. The names and addresses of persons, other than the
defendant, he/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.
2. Any real evidence which the defendant intends to offer
in evidence at the trial. (Penal Code Section 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 Section
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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/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 may 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. Before ordering that the defendant submit to
the examination, the trial court must 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
"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/her mental
state at issue in a criminal case or juvenile proceeding
pursuant to Section 602 of the Welfare and Institutions
Code. Other than authorizing the court to order testing by
prosecution-retained mental health experts in response to
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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.
Background
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 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.)
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 7/15/09)
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Los Angeles District Attorney's Office (source)
Crime Victims Untied
California District Attorneys Association
OPPOSITION : (Verified 7/15/09)
California Attorneys for Criminal Justice
California Public Defenders Association
ARGUMENTS IN SUPPORT : According to the author's office:
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
mandatory psychiatric examination is a form of pretrial
discovery that 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 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
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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.
ARGUMENTS IN OPPOSITION : Despite the recent amendments,
California Attorneys for Criminal Justice (CACJ) and the
California Public Defenders Association 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
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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.
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Bill Berryhill,
Tom Berryhill, Blakeslee, Block, Blumenfield, Brownley,
Buchanan, Caballero, Charles Calderon, Carter, Chesbro,
Conway, Cook, Coto, Davis, De La Torre, De Leon, DeVore,
Emmerson, Eng, Evans, Feuer, Fletcher, Fong, Fuentes,
Fuller, Furutani, Gaines, Galgiani, Garrick, Gilmore,
Hagman, Hall, Harkey, Hayashi, Hernandez, Hill, Huber,
Huffman, Jeffries, Jones, Knight, Krekorian, Lieu, Logue,
Bonnie Lowenthal, Ma, Mendoza, Miller, Monning, Nava,
Nestande, Niello, Nielsen, John A. Perez, V. Manuel
Perez, Portantino, Price, Ruskin, Salas, Saldana, Silva,
Smyth, Solorio, Audra Strickland, Swanson, Torlakson,
Torres, Torrico, Tran, Villines, Yamada
NOES: Skinner
NO VOTE RECORDED: Beall, Duvall, Bass
RJG:do 7/16/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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