Centeno v. Superior Court
| Decision Date | 25 March 2004 |
| Docket Number | No. B170615,B170615 |
| Citation | 117 Cal.App.4th 30,11 Cal.Rptr.3d 533 |
| Court | California Court of Appeals |
| Parties | Walter CENTENO, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; The People of the State of California, Real Party in Interest. |
Michael P. Judge, Public Defender, Albert J. Menaster, Daniel Kuperberg, Jenny Brown and Terri Towrey, Deputy Public Defenders, for Petitioner.
No appearance on behalf of Respondent.
Steve Cooley, District Attorney, Brent Riggs and Jessica Goulden, Deputy District Attorneys, for Real Party in Interest.
Petitioner and defendant Walter Centeno has been charged with special circumstance murder and the prosecution is seeking the death penalty. Defendant claims he is mentally retarded. In Atkins v. Virginia (2002) 536 U.S. 304, 319-321, 122 S.Ct. 2242, 153 L.Ed.2d 335, the United States Supreme Court held that execution of a mentally retarded person constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution. The United States Supreme Court left to the states the proper procedures for effectuating its holding. Prior to the adoption of any procedures in California to implement the holding of Atkins, defendant applied for a pretrial mental retardation hearing before respondent trial court. The trial court ordered a hearing on the mental retardation issue, but declined to resolve questions concerning the timing or the nature of that hearing. The trial court also ordered defendant to submit to a mental retardation examination by a prosecution mental health expert, but declined to provide unqualified judicial immunity to defendant for statements made by him in the course of the examination. The trial court obtained a list of the tests the prosecution expert wished to perform during the examination, but declined to rule on the appropriateness of some of the tests challenged by the defense. On October 16, 2003, defendant filed a petition for a writ of mandate challenging the trial court's order. Effective January 1, 2004, the Legislature adopted Penal Code section 1376, which defines "mentally retarded" and sets forth procedures for determining whether a defendant is mentally retarded for purposes of eligibility for the death penalty. Many of the issues raised by the petition have been resolved by the new legislation. We conclude: defendant is entitled to a pretrial hearing before the court on the issue of mental retardation; a prosecution expert may conduct a pretrial examination of defendant for mental retardation; defendant is not entitled to unqualified judicial immunity, but possesses a statutory immunity at the guilt phase of the trial; and the scope of the testing by the prosecution expert is limited to tests reasonably related to a determination of defendant's mental retardation. We grant the petition for writ of mandate.
Before trial, defendant raised a claim that he is mentally retarded so as to foreclose execution of a death sentence under the holding of Atkins v. Virginia, supra, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335. Specifically, a defense expert opined that defendant is mentally retarded, and the expert's opinion was communicated to the prosecution and the trial court as raising an Atkins issue. The prosecution disputed whether defendant is mentally retarded. The prosecution asked the trial court to allow its expert to examine defendant's mental condition. The prosecution agreed that if its expert concludes defendant is mentally retarded, it will abandon efforts to seek the death penalty. However, if the issue remains disputed and a hearing becomes necessary to determine whether petitioner is mentally retarded for Atkins purposes, the prosecution suggested the matter should be heard by the jury between the guilt and penalty phases of the trial.
Defendant initially objected to examination by the prosecution expert, arguing it would violate pretrial discovery statutes governing criminal proceedings. He later agreed to withdraw his objection if any hearing to determine whether he is mentally retarded for Atkins purposes was held by the court before trial. Defendant, through his counsel, expressly waived his right to a jury trial on this issue. The trial court did not decide the question of the timing of an Atkins hearing, but ordered that defendant first submit to examination by the prosecution expert as the entire issue might be moot should that expert agree defendant is mentally retarded.
Despite the trial court's failure to set a time for any Atkins hearing, defendant's counsel acquiesced in the order that testing take place, asking only that the scope of permissible testing be considered. The trial court indicated the prosecution expert would be prohibited from probing the events of the charged crimes. At a later hearing, the trial court required the prosecution to produce a list for defendant's review of "proposed possible" tests its expert wished to conduct.
Once the prosecution's list of possible tests was produced, defendant filed objections to 6 of the 14 proposed tests. Defendant provided the declarations of 11 defense experts, including the expert who had found defendant to be mentally retarded, opining that the 6 challenged tests were either widely discredited, inappropriate, or constituted personality testing designed to uncover psychopathy and other mental personality disorders unrelated to the determination of mental retardation. For example, according to defense experts, one test proposed by the prosecution was designed to assess psychopathic antisocial personality disorders rather than any impairment in mental functioning or adaptive behavior that they considered to be the appropriate measure of mental retardation. In response, the prosecution pointed out that its expert is a native Spanish speaker, as is defendant, and is skilled at conducting mental retardation evaluations, having conducted them for the regional center in Los Angeles for 15 years, headed an emergency outreach center, and maintained a forensic practice. However, the prosecution did not present any declaration or other evidence from its expert defending the propriety of the challenged tests. Rather, it simply offered to have its expert testify in camera at the trial court's request, fearing additional statements in front of defendant concerning the nature of the planned testing would impair that testing. But, the trial court declined to request such testimony.
The trial court ultimately ruled that the prosecution examination could go forward. It indicated the prosecution is entitled to conduct the testing its expert believes is appropriate now that defendant has placed his mental retardation in issue. The trial court determined that the question of whether the proposed tests are appropriate for measuring mental retardation goes to the weight to be given those tests by the trier of fact determining the issue of defendant's mental retardation. The trial court noted the list of proposed tests is not set in stone, but merely reflects what might be used in the expert's judgment when assessing defendant's mental state.
The trial court further determined that admissibility of any particular information obtained in the examination could be decided at trial should the prosecution proffer evidence to which defendant objected. Accordingly, the trial court refused to issue unqualified immunity for defendant's statements during the examination. At the same time, the trial court ordered the prosecution not to inquire into the facts of the case in testing defendant, but to test him on only general matters. It also had the prosecution inform defendant of the identity of the expert, the anticipated duration of the examination, and the time and location of the examination, and required that defendant's attorneys be allowed to wait nearby while the examination was conducted in case defendant wished to confer with them, inviting the parties to return for additional guidance if there were any difficulties in carrying out the testing.
This petition followed. It was summarily denied by this court on October 23 2003. However, the California Supreme Court later granted a petition for review of that denial and transferred the matter back to this court with directions to issue an order to show cause why the relief prayed for in the petition should not be granted. We issued an order to show cause.
The term "mentally retarded" means "the condition of significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before the age of 18." (Pen.Code, § 1376, subd. (a).) In death penalty cases, a defendant may seek a mental retardation hearing by an application supported by the declaration of a qualified expert that the defendant is mentally retarded, made a reasonable time prior to trial. Upon the receipt of the application, the trial court is to order a mental retardation hearing. The defendant may request a pretrial mental retardation hearing before the court. Such a request is deemed to be a waiver of the right to a jury trial on the issue. The pretrial hearing is then conducted prior to the selection of the jury. If the defendant does not request a pretrial court hearing, the issue is set for a hearing before a jury following the guilt phase of the trial. The jury that hears the mental retardation issue is the same jury that hears the guilt phase. (Pen.Code, § 1376, subd. (b)(1).)2
The trial court may appoint experts and permit examination of the defendant by experts for the purpose of producing evidence at the hearing to determine whether the defendant is mentally retarded. (Pen.Code, § 1376, subd. (b)(2).) Statements made by the defendant during a court-ordered examination are inadmissible in the guilt phase of the trial. (Ibid.)3
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