BILL ANALYSIS
AB 1516
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CONCURRENCE IN SENATE AMENDMENTS
AB 1516 (Lieu)
As Amended July 16, 2009
2/3 vote
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|ASSEMBLY: |76-1 |(May 26, 2009) |SENATE: |36-0 |(August 31, |
| | | | | |2009) |
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Original Committee Reference: PUB. S.
SUMMARY : Authorizes 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.
The Senate amendments :
1)Authorize but do not require the court, as specified, to order
a defendant or juvenile to submit to an examination by a
prosecution-retained mental health expert where the defendant
or juvenile places his or her mental state at issue, as
specified.
2)Require the prosecuting attorney to submit a list of the tests
he or she proposes to have a prosecution-retained expert
conduct on the defendant or minor and would require the court,
upon the request of the defendant or minor, to hold a hearing
to consider any objections to the proposed tests.
3)Mandate the court to make a threshold determination that the
proposed tests bear some reasonable relation to the mental
state placed in issue by the defendant or minor before
ordering the defendant to submit to the examination.
4)State that 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
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results of these tests into evidence.
EXISTING LAW :
1)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.
2)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.
AS PASSED BY THE ASSEMBLY, this bill:
1)Stated 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)Provided that the purpose of this provision is to respond to
Verdin v. 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.
FISCAL EFFECT : None
COMMENTS : 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.
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"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 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 Prop 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 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."
Please see the policy committee for a full discussion of this
bill.
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Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744
FN: 0002016