Baqleh v. Superior Court

• Decision Date: 23 July 2002
• Docket Number: No. A097680.,A097680.
• Citation: 122 Cal.Rptr.2d 673,100 Cal.App.4th 478
• Court: California Court of Appeals Court of Appeals
• Parties: Jehad BAQLEH, Petitioner, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent; The PEOPLE, Real Party in Interest.

122 Cal.Rptr.2d 673

100 Cal.App.4th 478

Jehad BAQLEH, Petitioner, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent The PEOPLE, Real Party in Interest.

No. A097680.

Court of Appeal, First District, Division 2.

July 23, 2002.

Review Denied October 16, 2002.^*

Kimiko Burton, Public Defender, City and County of San Francisco, Randall

Martin, Chief Attorney, Michael N. Burt, Deputy Public Defender, for Petitioner.

No appearance for Respondent.

Bill Lockyer, Attorney General, Robert Anderson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Jeffrey M. Laurence, Deputy Attorney General, for Real Party in Interest.

KLINE, P.J.

If during the pendency of a criminal action and prior to judgment counsel informs the court he or she believes the defendant is or may be mentally incompetent, the court shall suspend the criminal proceedings and order that the question of the defendant's mental competence be determined at a trial of that question by court or jury. (Pen.Code, § 1368.)¹ Thereafter, "[t]he court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant." (§ 1369, subd. (a).)

This case presents the questions whether a court that has ordered a hearing pursuant to section 1369 may not only appoint its own expert but also order the defendant to submit to examination by an expert retained by the prosecution and, if so, the nature of the examination that may be ordered and the consequences of a defendant's refusal to submit.

Facts and Proceedings Below

Petitioner is the defendant in a special circumstance murder case pending in respondent court for which the People are seeking the penalty of life in prison without the possibility of parole.

On September 25, 2001, when petitioner was brought before respondent court for arraignment on a superseding indictment, his counsel informed the court that, based on an oral report from a psychiatrist, he had a doubt as to whether petitioner was competent to be arraigned. Stating that counsel's representation "raises an issue in my mind whether or not [petitioner is] competent to be arraigned," the court suspended the proceedings and ordered that petitioner be evaluated by Jonathan E. French, Ph.D., a clinical psychologist. The questions put to Dr. French by the court were whether petitioner is "presently able to understand the nature and purpose of the proceedings taken against him, and can he prepare and conduct his own defense in a rational manner with or without counsel?"

Dr. French conducted two clinical interviews with petitioner, administered three psychological tests and reviewed numerous documents and reports relating to petitioner. Included in the written materials Dr. French reviewed were the reports of three experts retained by petitioner, which were provided by petitioner's counsel: the "Confidential Psychiatric Report" of Roderick W. Pettis, M.D., a "neuropsychological evaluation" by Dale G. Watson, Ph.D, a psychologist, and a "confidential report" prepared by Myla H. Young, Ph.D., also a psychologist.

At the conclusion of his nine-page report, Dr. Pettis opined that, "to a reasonable degree of medical certainty, Mr. Baqleh suffers from a developmental disability. That is, his intellectual functioning is in the mild mental retardation to borderline intellectual range and that defect renders Mr. Baqleh incapable at this time of fully understanding the charges against him and of providing rational assistance to defense counsel." Dr. Pettis also expressed a "concern" that "Mr. Baqleh may be psychotic or subject to psychotic decompensation," and that this may also diminish his ability to assist counsel. Dr. Watson felt it "probable" that petitioner "fits the criteria for mental retardation." He stated that "[n]europsychological measures revealed significant deficits in memory and executive functions," and that these deficits, "which are likely developmental in nature," have had "a profound impact on his ability to reason and problem solve independently." Dr. Young, whose "brief interview" with petitioner appears to have consisted primarily of administration of a Rorschach test, concluded that petitioner's responses indicate "psychotic thinking," a tendency to frequently "misunderstand" and sometimes "grossly distort situations," and an inability "to separate his fantasy from reality."

Dr. French, the court-appointed expert, disagreed with the conclusions of petitioner's three experts. On the basis of his own interviews and the psychological tests he administered to petitioner, Dr. French concluded "that Mr. Baqleh has an adequate (if occasionally limited) understanding of the nature and purpose of the proceedings now taken against him .... Were one to eliminate cultural factors from the equation, I question whether this would even be an issue. Furthermore, it seems to me that Mr. Baqleh has an adequate (if occasionally limited) capacity for cooperating with counsel in a rational manner. True, he is naive and a bit `slow'; but he is not mentally retarded or seriously brain damaged. I am even more persuaded that Mr. Baqleh does not suffer from a serious mental disorder, let alone `an active psychosis.' Although defense experts have suggested as much, one even recommending `transfer to a hospital setting' and treatment with anti-psychotic medication, it remains the case that Mr. Baqleh has no psychiatric history whatsoever and that Jail Psychiatric Services (which has observed the man regularly for the past 2½ years) has consistently ruled out anything remotely resembling psychosis or any other condition which would undermine this defendant's trial competence." According to Dr. French, "Mr. Baqleh is an emotionally inadequate immigrant of modest intellectual endowment who, for these very reasons, has not been entirely acculturated. He has his limitations, to be sure, and he may not have amounted to much thus far in life. Yet I do not believe that his limitations, such as they are, rise to the level of a mental `defect' or `disorder' as either described or implied in Section 1367 et seq. of the Penal Code."

On January 2, 2002, after Dr. French submitted his report to the court and the parties, the People filed a motion seeking an order compelling petitioner "to submit to a psychiatric and/or further psychological examination by experts retained by the District Attorney." Noting that petitioner had engaged three experts and anticipating they would be called to testify at the trial on the question of mental competence, the motion stated that "[i]n order to balance and counter this evidence, the People have retained the services of a forensic psychiatrist to testify in this matter ... in addition to Dr. French, who is a psychologist. The People anticipate that we will require such testimony because we believe the defense will make claims about Defendant's competence more properly addressed by a psychiatrist, or a psychiatrist acting in conjunction with a psychologist, than a psychologist acting alone." Asserting that its unidentified expert needed access to petitioner to conduct interviews and possibly to administer additional testing, the People asked the court to order petitioner to submit to interviews and testing by "experts of the People's choosing." The People also requested an order that the interviews be videotaped, "to preserve the best possible record in case there is a dispute over what happened in the interrogation room."

Petitioner simultaneously opposed the People's motion and filed his own motion to have petitioner examined instead by the director of the regional center for the developmentally disabled, pursuant to section 1369. (Subdivision (a) of section 1369 provides that "[i]f it is suspected the defendant is developmentally disabled, the court shall appoint the director of the regional center for the developmentally disabled established under Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code, or the designee of the director, to examine the defendant.")

At a hearing on the motion held on January 29, 2002, the court determined that petitioner had made out a prima facie case he was developmentally disabled and that the director of the regional center for the developmentally disabled should therefore be appointed to evaluate him and submit a report to the court. The People agreed, but maintained that referral to the director of the regional center did not eliminate the need for an order directing petitioner to submit to examination by its designated expert. The court observing that it clearly had authority to appoint another doctor to evaluate petitioner, felt that the question whether it could order a defendant to submit to examination by a prosecution expert, and whether it could require that such an examination be videotaped, were issues of "first impression." The court resolved the question by both appointing the regional director for the center for the developmentally disabled, as requested by petitioner, and ordering that petitioner submit to an evaluation by a psychiatrist retained by the prosecution and the videotaping of interviews conducted by that psychiatrist, as requested by the People. The court also stated that if petitioner refused to submit to examination by the prosecution's expert, "this evaluation could be used, in my opinion, against him at any further proceedings."

On February 5, 2002, petitioner filed a petition for writ of mandate/prohibition in this court. We summarily denied the petition, noting in our order "that the superior court is bound by the rule of immunity set forth in People v. Arcega (1982) 32 Cal.3d 504, 186 Cal.Rptr. 94, 651 P.2d 338 and People v. Weaver (2001) 26 Cal.4th 876, 111 Cal.Rptr.2d 2, 29 P.3d 103" (which hold that statements made by a defendant to a psychiatrist or psychologist appointed under § 1369 may not be used in trial...