People v. Pokovich, S127176.

• Decision Date: 31 August 2006
• Docket Number: No. S127176.,S127176.
• Citation: 141 P.3d 267,48 Cal.Rptr.3d 158,39 Cal.4th 1240
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Charles G. POKOVICH, Defendant and Appellant.

48 Cal.Rptr.3d 158

39 Cal.4th 1240

141 P.3d 267

The PEOPLE, Plaintiff and Respondent, v. Charles G. POKOVICH, Defendant and Appellant.

No. S127176.

Supreme Court of California.

August 31, 2006.

Hayes H. Gable III, Sacramento, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Carlos A. Martinez, Janet E. Neeley, Ruth M. Saavedra and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

May a testifying defendant be impeached at trial with statements made before trial to mental health professionals during a court-ordered examination to determine the defendant's mental competency to stand trial? We conclude that such impeachment violates the federal Constitution's privilege against self-incrimination.

I

On March 31, 2002, at approximately 3:00 p.m., bullets hit three moving vehicles on Iron Mountain Road near Keswick, Shasta County. Around the same time, bullets hit another car, occupied by Joyce Muse and her fiancé, Lawrence Taylor, going down the driveway at the home of Muse's parents, who lived across from defendant Charles G. Pokovich on Iron Mountain Road. Taylor saw defendant standing across the street with a rifle; defendant yelled at Taylor and Muse to get off his property.

After receiving telephone calls reporting the shootings, Shasta County Sheriff Deputies set up roadblocks in the area. Defendant came up to them and said he might be the person they were looking for because Joyce Muse appeared to believe that he had shot at her. He consented to a search of his mobile home. Found inside were a rifle and ammunition; in addition, five shell casings that matched defendant's rifle were retrieved from an area in front of the home. A bullet fragment recovered from one of the cars hit earlier matched the ammunition and the rifle recovered from defendant's home.

Defendant was charged with four counts of shooting at an occupied vehicle (Pen. Code, § 246)¹ and eight counts of assault with a firearm (§ 245, subd. (a)(2)). It was also alleged that he personally used a firearm. (§ 12022.5, subd. (a).)

On April 22, 2002, one day before the preliminary hearing was to be held, defense counsel expressed to the trial court his concern about defendant's mental competence to stand trial (§ 1368, subd. (b)), based on "certain of his conduct which would indicate hallucinations, that there's a certain lack of reality . . . ." The court suspended criminal proceedings and appointed two mental health professionals—Dr. Aravind K. Pai, a psychiatrist, and Dr. Kent R. Caruso, a licensed psychologist— to examine defendant. (§ 1369.) Both did so; their written reports to the trial court expressed their view that defendant was competent to stand trial. The defense waived the right to a jury trial on the issue (§ 1369) and submitted the matter to the court based on the reports of the mental health experts. The court ruled that defendant was competent to stand trial.

Defendant testified at trial. On direct examination by his attorney, he said that around 10:00 o'clock on the morning of the shootings he fired shots from his .22-caliber rifle to scare blue jays from the trees on his property. At 3:00 o'clock that afternoon, he went out on his porch because he heard a car come down the Muses' driveway. Defendant saw Joyce Muse get out of a car; she yelled that she was calling the police. Defendant described Muse as an intimidating person who on occasion was loud and obnoxious.

On cross-examination by the prosecutor, defendant denied drinking any alcohol the day of the shooting. During a recess, the trial court discussed a statement the prosecutor had made earlier at a bench conference. In that statement, the prosecutor announced an intention to impeach defendant with inconsistent statements defendant had made earlier to the two court-appointed mental health professionals during the competency evaluations. The court told the prosecutor to provide the court and defense counsel with citations of authority to support the claim that defendant could be impeached with the statements in question. The case was continued to the next morning. At that time, over defendant's objection, the trial court ruled that the prosecution could use the statements to impeach defendant.

When the prosecutor resumed the cross-examination, defendant admitted that, during the competency examination, he had told Dr. Pai that he drank two cans of beer the day of the shootings and that he got along with Joyce Muse and his other neighbors; defendant also testified he had not told Dr. Caruso that he was shooting at blue jays and rabbits on the day in question. Dr. Caruso, called as a rebuttal witness by the prosecution, then testified that during the competency evaluation defendant told him he was aware of multiple shots being fired at cars from the direction of his property at the time defendant claimed he was shooting at blue jays and rabbits.

The jury convicted defendant of all charges and found true the allegation that he personally used a firearm in committing the assaults. The trial court sentenced defendant to an aggregate term of 16 years and 4 months in prison. The Court of Appeal affirmed, holding that a testifying defendant may be impeached at trial with statements made to mental health professionals during a pretrial competency evaluation. Defendant petitioned this court for review, noting the long-standing conflict in decisions of the Courts of Appeal on this issue. (Compare People v. Stanfill (1986) 184 Cal.App.3d 577, 581, 229 Cal.Rptr. 215 [statements may be used to impeach] with People v. Harris (1987) 192 Cal.App.3d 943, 949, 237 Cal.Rptr. 747 [statements may not be used to impeach] and Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 499, fn. 5, 122 Cal.Rptr.2d 673 [citing Harris with approval].) We granted review.

II

Defendant contends the trial court violated his constitutional privilege against self-incrimination (U.S. Const., 5th Amend.) when it allowed the prosecution to impeach him at trial with statements he had made to the two court-appointed mental health professionals who were to determine his competency to stand trial. He argues that his statements were legislatively compelled and therefore could not be used either as substantive evidence of his guilt or for the purpose of impeaching him.

Our Legislature has declared that a "person cannot be tried or adjudged to punishment while that person is mentally incompetent." (§ 1367, subd. (a); see Pate v. Robinson (1966) 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 [conviction of legally incompetent person violates due process]; People v. Perry (1939) 14 Cal.2d 387, 397-399, 94 P.2d 559 [§ 1367 codifies common law rule].) If the trial court has a doubt about the mental competency of a defendant, whether arising from the court's own observation or that of counsel, it must suspend the criminal proceeding and appoint a licensed psychiatrist or a licensed psychologist and any other expert the court considers appropriate to examine the defendant to determine the nature of the defendant's mental disorder, if any. (§§ 1368, 1369.)

Thus, competency proceedings are initiated by the trial court, not the defendant. The defendant cannot refuse to undergo a psychiatric examination and cannot waive the right to a trial on the issue of competency. (Centeno v. Superior Court (2004) 117 Cal.App.4th 30, 43, 11 Cal.Rptr.3d 533.) Because our statutory scheme governing competency to stand trial does not give the defendant the right to refuse to submit to the competency examination, it implicates a defendant's federal constitutional privilege against self-incrimination. (U.S. Const., 5th Amend.)

Pertinent here is the Court of Appeal's decision in Tarantino v. Superior Court (1975) 48 Cal.App.3d 465, 122 Cal.Rptr. 61 (Tarantino). There, the court balanced the state's need for accurate competency evaluations against the need for safeguarding the accused's constitutional right against self-incrimination. Tarantino judicially declared a rule of immunity for statements made by a defendant to a mental health professional during a competency examination: "[N]either the statements of [the defendant] to the psychiatrists appointed under section 1369 nor the fruits of such statements may be used in trial of the issue of [the defendant's] guilt, under either the plea of not guilty or that of not guilty by reason of insanity." (Id. at p. 470, 122 Cal.Rptr. 61.)

Six years later, in Estelle v. Smith (1981) 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (Estelle), the United States Supreme Court held that a "criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding" unless the defendant had been informed of and waived his rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (Miranda). (Estelle, supra, 451 U.S. at pp. 468-469, 101 S.Ct. 1866.) If the defendant invokes his rights and refuses to answer questions of the mental health professional conducting the competency examination, "the validly ordered competency examination nevertheless could . . . proceed[ ] upon the condition that the results would be applied solely for that purpose," that is, solely for the purpose of the competency examination. (Id. at p. 469, 101 S.Ct. 1866.)

The next year, this court in People v. Arcega (1982) 32 Cal.3d 504, 522, 186 Cal. Rptr. 94, 651 P.2d 338, adopted the immunity rule the Court of Appeal had articulated in Tarantino, supra, 48 Cal.App.3d at page 470, 122 Cal.Rptr. 61. Immunity is necessary, we said, to "ensure that an accused is not convicted by use of his own statements made at a...