Maldonado v. the Superior Court of San Mateo County

• Decision Date: 11 August 2010
• Docket Number: No. A126236.,A126236.
• Court: California Court of Appeals Court of Appeals
• Parties: Reynaldo A. MALDONADO, Petitioner, v. The SUPERIOR COURT of San Mateo County, Respondent; The People, Real Party in Interest.

184 Cal.App.4th 739 110 Cal.Rptr.3d 31 Reynaldo A. MALDONADO, Petitioner, v. The SUPERIOR COURT of San Mateo County, Respondent; The People, Real Party in Interest. No. A126236. Court of Appeal, First District, Division 5, California. May 13, 2010. As Modified May 17, 2010. Review Granted Aug. 11, 2010.

Paul F. DeMeester, San Francisco, for Petitioner.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Stan Helfman, Supervising Deputy Attorney General, Brent W. Wilner, Deputy Attorney General, for Real Party in Interest.

BRUINIERS, J.

Petitioner Reynaldo A. Maldonado is awaiting trial in the Superior Court of San Mateo County on an information charging him with special circumstance murder while lying in wait. (Pen.Code, §§ 187, subd. (a), 190.2, subd. (a)(15).) ¹ He has notified the prosecution of his intent to introduce evidence, through designated expert witnesses, of neurocognitive deficits he purportedly suffers as a result of childhood brain trauma or congenital brain dysfunction. The prosecution thereafter successfully moved for an order, pursuant to Evidence Code section 730, compelling Maldonado to submit to examinations by court-appointed experts, including a psychiatrist, a psychologist, and a neurologist.

Maldonado's efforts to overturn that order through writ of mandate and/or prohibition were rejected in both this court and in the California Supreme Court. ( Maldonado v. Superior Court (Sept. 4, 2009, A125920) [nonpub. order]; Maldonado v. Superior Court (Sept. 23, 2009, S176084) [nonpub. order].) Maldonado also concurrently filed motions in the trial court seeking certain protective orders relating to the court-ordered examinations. On September 9, 2009, the court granted the requested protective orders in part, but otherwise denied them. Among the requested protective measures sought and denied were orders that would have barred the disclosure of the results of any of the examinations to the prosecution unless and until Maldonado actually presented his own mental health evidence at trial, and then only after an in camera hearing at which the trial court would determine which materials should be disclosed. He further objected to prosecution participation in selection of the appointed experts. Maldonado again seeks a writ of mandate/prohibition challenging denial of seven of his requested protective orders.

We issued an alternative writ of mandate directing the superior court to set aside and vacate its order denying five of the requested protective measures, or to show cause why a peremptory writ of mandate should not issue. The trial court declined to modify its order. We thenstayed proceedings, ordered briefing, and scheduled the matter for argument.

Having received and considered the People's Return to Order to Show Cause and Maldonado's Reply to the Return, and the argument of counsel, we will issue a peremptory writ permitting the examinations to proceed, but directing the trial court to delay disclosure of those portions of the examination reports containing statements by Maldonado until he has an opportunity to challenge disclosure of materials potentially still subject to privilege, despite the fact that he has placed his mental state in issue. We hold that Maldonado must be given an opportunity to assert a claim of privilege, at least initially in camera, with redaction of any material as to which a privilege claim is sustained, before disclosure to the prosecution. We reject Maldonado's contention that disclosure of the examination results and supporting data must be deferred until defense evidence on his mental state is adduced at trial. The prosecution is entitled to access to the full reports before trial so that it has a reasonable opportunity to prepare its rebuttal case and subject Maldonado's evidence to meaningful adversarial testing at trial. We find no error in the trial court's consideration of prosecution recommendations in the court's appointment of experts to examine petitioner.

I. Background

Petitioner Reynaldo A. Maldonado is charged with the murder of Quetzalcoatl Alba. (§ 187, subd. (a).) The special circumstance that the murder was committed while petitioner was lying in wait is alleged.² ( § 190.2, subd. (a)(15)) Defense counsel retained the services of three mental health professionals as part of an investigation into the mental state issues in the case: Jeff Kline, Ph.D., a psychologist; Peter Cassini, M.D., a neurologist; and Robert Perez, Ph.D., a neuropsychologist. As part of its reciprocal discovery obligations, the defense provided the prosecution with mental health evidence resulting from this investigation, including statements made by Maldonado to the examiners.

The prosecution then asked the trial court to appoint experts pursuant to Evidence Code section 730 to conduct physical, psychological and psychiatric examinations of Maldonado. Over Maldonado's objection, the court granted the motion. Maldonado petitioned this court for relief from the order by extraordinary writ. We denied the petition and the Supreme Court denied review. ( Maldonado v. Superior Court, supra, A125920; Maldonado v. Superior Court, supra, S176084.)

Immediately after the trial court granted the prosecution's motion to appoint experts, Maldonado filed a motion asking the court to implement protective measures he asserted were required to preserve his Fifth and Sixth Amendment rights with respect to the examinations. The first category of requests involves Maldonado's efforts to restrict the prosecution's access to the examinations and to the expert reports. As relevant here, he asked the court to allow defense counsel and a defense expert to observe the examinations and to obtain reports, notes and recordings of the examinations within 24 hours of their creation, but to restrict the prosecution's access to that same information. The specific requests in issue were:

"5) To prohibit any district attorney, attorney general, U.S. attorney, or special prosecutor, or any of their respective staff, or any of their law enforcement agents, including but not limited to Daly City Police, San Mateo County Sheriff's Office,from being present during the conduct of any of the examinations of defendant by any of the Evidence Code section 730 Court-appointed experts;

"6) To prohibit access by any officials referred to under item 5 to any of the reports, notes and/or recordings of the examinations and investigations by any of the experts appointed by the Court pursuant to Evidence Code section 730 until after the close of the defense case at the jury trial of the above-mentioned case, upon which the Court will inspect, in camera, any such reports, notes, and/or recordings of the examinations and investigations resulting from the Court's appointment to determine whether the prosecution should have copies of such reports, notes and/or recordings;

"7) To decide the question of admissibility of any of the evidence adduced as a result of the work of the experts appointed by the Court pursuant to Evidence Code section 730 only after the steps in item 6 have been completed and only upon a hearing at which both parties have the right to be heard;

"8) To prohibit any officials referred to under item 5 from any contact with any experts appointed by the Court under Evidence Code section 730 until after the Court's in camera decision referred to in item 6 and only if the Court grants the prosecution permission to do so; [¶] ... [¶]

"10) To require the experts appointed pursuant to Evidence Code section 730 to maintain confidentiality regarding their examinations and investigations of defendant with the exceptions [of providing information to the defendant as allowed by other protective measures] as well as the exception that said experts will provide the Court with copies of their notes, reports and recordings, immediately following the conclusion of their work." (Italics omitted.)

In a supplemental motion, Maldonado challenged the prosecution's participation in selecting the experts. As relevant here, he asked the court to:

"24) Exclude any experts contacted by the People from consideration and appointment pursuant to Evidence Code section 730;

"25) Prohibit [the] People from contacting any further experts for the purpose of possible appointment pursuant to Evidence Code section 730; the Court to direct the Probation Department to select the appropriate experts without any input whatsoever from either party."

The prosecution argued that both the defense and prosecution should be permitted to observe the examinations, but from a separate room with simultaneous video monitoring rather than from the examination room itself. The prosecution also argued that both the defense and prosecution should have access to the experts and to reports, notes and recordings of the examinations promptly after their creation, and that the admissibility of evidence resulting from the examinations should be determined before jury selection. With respect to request numbers 24 and 25, the prosecution argued it was appropriate for it to assist the court in identifying Spanish-speaking doctors available to take such an appointment.

Following a hearing on September 8, 2009, the trial court granted certain of Maldonado's requests in part, and denied the remainder, including request numbers 5, 6, 7, 8, 10, 24 and 25. The court ruled that both the defense and prosecution could observe the examinations from a separate room by simultaneous video monitoring as proposed by the prosecution. The court denied the request to precludeprosecution access to reports, notes and recordings of the examinations until after close of the defense case and in camera review, as well as the request to delay determination of the admissibility of the evidence until after those events and a court hearing on the matter. The court also denied the request to prevent any pr...