Verdin v. Superior Court

• Decision Date: 02 June 2008
• Docket Number: No. S143040.,S143040.
• Citation: 183 P.3d 1250,43 Cal.4th 1096,77 Cal.Rptr.3d 287
• Court: California Supreme Court
• Parties: Jose de Jesus VERDIN, Petitioner, v. The SUPERIOR COURT of Riverside County, Respondent; The People, Real Party in Interest.

183 P.3d 1250

77 Cal.Rptr.3d 287

43 Cal.4th 1096

Jose de Jesus VERDIN, Petitioner, v. The SUPERIOR COURT of Riverside County, Respondent The People, Real Party in Interest.

No. S143040.

Supreme Court of California.

June 2, 2008.

Gary Windom, Public Defender, and Richard V. Myers, Deputy Public Defender, for Petitioner.

Michael P. Judge, Public Defender (Los Angeles), Albert J. Menaster and Terri Towery, Deputy Public Defenders, as Amici Curiae on behalf of Petitioner.

John T. Philipsborn, San Francisco, for California Attorneys for Criminal Justice as Amicus Curiae on behalf of Petitioner.

No appearance for Respondent.

Grover Trask, District Attorney, Elise J. Farrell and Elaina Gambera Bentley, Deputy District Attorneys, for Real Party in Interest.

Thomas J. Orloff, District Attorney (Alameda) and Jeff H. Rubin, Deputy District Attorney, for the California District Attorneys Association as Amicus Curiae on behalf of Real Party in Interest.

WERDEGAR, J.

Petitioner, who stands charged with attempted premeditated murder as well as various other felony offenses, has announced his intention to rely on a "diminished actuality" defense. (See People v. Steele (2002) 27 Cal.4th 1230, 1253, 120 Cal.Rptr.2d 432, 47 P.3d 225.) That is, he intends to argue that as a result of his voluntary intoxication or mental condition, he did not actually entertain the requisite mental state for the charged crimes. In support of this defense, he intends to rely on the expert testimony of Dr. Francisco Gomez, a psychiatrist who examined him and has formed opinions regarding his mental state at the time of the crimes. The prosecution naturally seeks pretrial discovery of Dr. Gomez's interview notes and final report. It also seeks something more.

We decide in this case whether a trial court may order petitioner, a criminal defendant, to grant access for purposes of a mental examination, not to a court-appointed mental health expert, but to an expert retained by the prosecution. We conclude the Court of Appeal erred in concluding the court was authorized to issue such an order. We therefore reverse the appellate court's denial of a writ of mandate.

FACTS

On May 7, 2004, the District Attorney for Riverside County filed an information charging petitioner Jose de Jesus Verdin with the premeditated and deliberate attempt to murder his wife. (Pen.Code, §§ 664, 187.)¹ The information also alleged petitioner discharged a firearm in the commission of that offense, an enhancement allegation that, if sustained, will add an additional and consecutive term of 20 years to his sentence. (§ 12022.53, subd. (c).) Counts two through five of the information charge petitioner with assault with a firearm, willful discharge of a firearm in a grossly negligent manner, corporal injury on a spouse or former spouse, and felony child endangerment. (§§ 245, subd. (a)(2), 246.3, 273.5, subd. (a), 273a.)

Evidence presented at the preliminary hearing indicated police were called to petitioner's Beaumont, California, house on January 12, 2004, about 1:40 a.m. Officers Velazquez and Loera found petitioner, naked, sitting on his front porch. When they entered his house, it was in disarray. Petitioner volunteered that he had killed his daughter. Investigating, Officer Loera first noticed fresh blood in the bedroom and then discovered petitioner's wife in the house; she appeared to have been beaten up. She explained to police that petitioner had thrown her around the house. When she fled the home, she heard gunshots behind her and assumed petitioner was shooting at her, although she never turned around to see. In the house, police found a revolver containing six expended shells.

On further investigation, police discovered petitioner's two-year-old daughter, alive, at a neighbor's home. She bore evidence of having been beaten about the head and had a bruise around her neck as if she had been strangled. Back at the police station, petitioner waived his Miranda² rights and admitted he had pressed his knee into the back of his daughter's neck, pushing her face against the bed. He had then picked her up by the neck, pulled her hair, choked her, and struck her in the face with a closed fist. When asked why he had attacked his young daughter, he said "she wouldn't shut up" and that he knew what he did was "evil." He further explained he had assaulted his wife because he was "mad." He also admitted he tried to shoot his wife. Following the preliminary hearing, petitioner was held to answer on all charges.

Thereafter, petitioner noticed his intention to defend against the charges by relying on a diminished actuality defense and, in support, produced a report setting forth Dr. Francisco Gomez's psychological evaluation of him. The prosecution thereafter sought informal discovery (see § 1054.5, subd. (b)) by sending defense counsel a letter requesting Dr. Gomez's records, notes, and test results, as well as "access to your client for purposes of mental examination." The prosecution asserted that because petitioner had placed his mental state in issue, it was entitled by our decision in People v. Carpenter (1997) 15 Cal.4th 312, 63 Cal.Rptr.2d 1, 935 P.2d 708 to have the court order him to submit to a mental examination by a prosecution expert. When this informal request failed, the prosecution moved formally to compel discovery, expressly seeking "[a]ccess to the defendant for purposes of [a] mental examination." In its written motion, the prosecution expressly relied on Carpenter and also argued petitioner had waived any objection to such an examination by placing his mental state in issue.

Petitioner did not oppose the request for Dr. Gomez's written materials but opposed the motion to have him submit to a psychiatric examination administered by a prosecution expert. The trial court granted the prosecution's request, finding the prosecution's position "well-taken." After issuing an alternative writ of mandate, the Court of Appeal filed an opinion denying relief. We granted review and stayed the psychiatric examination ordered by the trial court pending our decision.

DISCUSSION

Petitioner makes two primary arguments. First, he contends the trial court's order that the prosecution be granted access to him for purposes of a mental examination by a prosecution retained expert is not authorized by state law. Second, he contends that even if such an order is authorized by state law, it would violate his rights under both the California and United States Constitutions. Although the use of evidence from an undesired psychiatric examination to convict a criminal defendant may have constitutional implications (see Estelle v. Smith (1981) 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359), because we do not reach constitutional issues unless necessary to do so (People v. Brown (2003) 31 Cal.4th 518, 534, 3 Cal.Rptr.3d 145, 73 P.3d 1137) we turn first to examine petitioner's state law arguments.

The trial court's order granting the prosecution access to petitioner for purposes of a mental examination by a prosecution expert affords the prosecution the opportunity to obtain evidence directly from the accused. As such, petitioner claims, the order grants the prosecution a form of pretrial discovery no different than had the court ordered him to sit for a deposition in a civil case. Accordingly, petitioner argues, as a form of discovery, the availability of the examination is governed strictly by statute.

The California laws governing discovery in criminal cases underwent a major change on June 5, 1990, when the electorate approved Proposition 115, the Crime Victims Justice Reform Act. (See Tapia v. Superior Court (1991) 53 Cal.3d 282, 286, 279 Cal.Rptr. 592, 807 P.2d 434.) As we explained in Izazaga v. Superior Court (1991) 54 Cal.3d 356, 364, 285 Cal.Rptr. 231, 815 P.2d 304, "Proposition 115 added both constitutional and statutory language authorizing reciprocal discovery in criminal cases." The new constitutional provision, article I, section 30, subdivision (c) of the California Constitution, declares that "[i]n order to provide for fair and speedy trials, discovery in criminal cases shall be reciprocal in nature, as prescribed by the Legislature or by the People through the initiative process."

The same proposition also added chapter 10 to part 2, title 6 of the Penal Code, commencing with section 1054 (hereafter the criminal discovery statutes), establishing the procedures for, and limitations on, discovery in criminal cases. Section 1054 sets forth the purposes of this new chapter, including that "no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States." (Id., subd. (e).) We have emphasized this statutory exclusivity, noting that "all court-ordered discovery is governed exclusively by — and is barred except as provided by — the discovery chapter newly enacted by Proposition 115." (In re Littlefield (1993) 5 Cal.4th 122, 129, 19 Cal.Rptr.2d 248, 851 P.2d 42.) This is especially true of prosecutorial discovery, which "often raises complex and serious constitutional questions. It is for this reason that . . . the initial consideration of laws governing such are more appropriately to be initially decided by the Legislature." (Hubbard v. Superior Court (1997) 66 Cal. App.4th 1163, 1167, 78 Cal.Rptr.2d 819.)

Our first task, then, is to determine whether the trial court's order is a form of discovery authorized by the criminal discovery statutes. To resolve that question, we must resolve the threshold question: Is such an examination "discovery"?

1. Is a Mandatory Psychiatric Examination "Discovery"?

The People, real party in interest in this case, first argue a court-ordered psychiatric examination falls outside of, and is thus not governed by, the criminal discovery statutes because those statutes create a mechanism for requiring the disclosure of...