Supreme Court of California Justia
Docket No. S127176
People v. Pokovich



Filed 8/31/06




IN THE SUPREME COURT OF CALIFORNIA




THE PEOPLE,

Plaintiff and Respondent,

S127176

v.

) Ct.App.

3

C043253

CHARLES G. POKOVICH,

Shasta

County

Defendant and Appellant.

) Super.

Ct.

No.

02F2465



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.





1




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.


1

Unless otherwise indicated, all further statutory references are to the Penal

Code.

2



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.

3



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 [statements may be

used to impeach] with People v. Harris (1987) 192 Cal.App.3d 943, 949

[statements may not be used to impeach] and Baqleh v. Superior Court (2002) 100

Cal.App.4th 478, 499, fn. 5 [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 [conviction of legally incompetent

person violates due process]; People v. Perry (1939) 14 Cal.2d 387, 397-399

[§ 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

4



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.) 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 (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.)

Six years later, in Estelle v. Smith (1981) 451 U.S. 454 (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 (Miranda).

(Estelle, supra, 451 U.S. at pp. 468-469.) 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

5



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.)

The next year, this court in People v. Arcega (1982) 32 Cal.3d 504, 522,

adopted the immunity rule the Court of Appeal had articulated in Tarantino,

supra, 48 Cal.App.3d at page 470. Immunity is necessary, we said, to “ensure that

an accused is not convicted by use of his own statements made at a court-

compelled examination,” and to foster “honesty and lack of restraint on the

accused’s part at the examination and thus promote accuracy in the psychiatric

evaluation.” (People v. Arcega, supra, 32 Cal.3d at p. 522; People v. Weaver

(2001) 26 Cal.4th 876, 960.)

Those decisions establish that the Fifth Amendment’s privilege against self-

incrimination applies to competency examinations, and therefore a defendant’s

statements made during such an examination may not be used by the prosecution

to prove its case-in-chief as to either guilt or penalty. But those decisions do not

directly answer the question presented here: May statements a defendant has

made during a court-initiated mental competency examination later be used to

impeach the defendant if he or she testifies at trial?

A number of decisions have held that notwithstanding the existence of a

constitutional or other legal impediment barring the prosecution from introducing

certain evidence to establish a defendant’s guilt, the evidence may be used to

impeach a testifying defendant. (See, e.g., Harris v. New York (1971) 401 U.S.

222, 225 [statements obtained in violation of Miranda]; Walder v. United States

(1954) 347 U.S. 62, 65 [evidence obtained in violation of the Fourth Amendment];

People v. May (1988) 44 Cal.3d 309, 315 (May) [statements obtained in violation

of Miranda]; People v. Coleman (1975) 13 Cal.3d 867, 889 [probationer’s

6



testimony at probation revocation hearing]; People v. Crow (1994) 28 Cal.App.4th

440, 452 [statements made during plea negotiations].)

Defendant here distinguishes those cases, asserting that, unlike his case, the

defendant’s statements in each of those cases were not “legislatively compelled.”

Statements that are legislatively compelled, defendant argues, implicate the Fifth

Amendment’s privilege against self-incrimination. In support, defendant cites the

United States Supreme Court’s decision in New Jersey v. Portash (1979) 440 U.S.

450 (Portash), and this court’s decisions in May, supra, 44 Cal.3d 309 and People

v. Macias (1997) 16 Cal.4th 739 (Macias). We summarize those cases below.

In

Portash, the defendant, who was a public employee, testified before a

New Jersey grand jury. A New Jersey statute provided that the testimony of a

public employee before a grand jury “ ‘shall not be used against such public

employee in a subsequent criminal proceeding . . . .’ ” (Portash, supra, 440 U.S.

at p. 452, fn. 1.) At the defendant’s later trial for extortion, the trial court ruled

that the prosecution could use the defendant’s grand jury testimony to impeach

him if he testified at trial. The defendant chose not to testify.

The United States Supreme Court in Portash said that “[t]estimony given in

response to a grant of legislative immunity is the essence of coerced testimony.”

(Portash, supra, 440 U.S. at p. 459.) Observing that the “witness is told to talk or

face the government’s coercive sanctions, notably, a conviction for contempt,” the

court held that the defendant’s statements before the grand jury were compulsory

and therefore inadmissible for impeachment. (Ibid.) The court found a “crucial

distinction” between statements made in that situation and statements obtained in

violation of Miranda warnings, explaining that statements taken in violation of

Miranda are not coerced or involuntary and that judicial decisions allowing their

use to impeach a defendant’s testimony at trial (Oregon v. Hass (1975) 420 U.S.

714; Harris v. New York, supra, 401 U.S. 222) were based on balancing the

7



competing interests of deterring unlawful police conduct and the need to prevent

perjury in testimony. (Portash, supra, 440 U.S. at pp. 458-459.)

With respect to this court’s decision in May, supra, 44 Cal.3d at page 311,

we there concluded that the California electorate’s passage of Proposition 8,

through its “Truth-in-Evidence” provision (Cal. Const., art. I, § 28, subd. (d)),

abrogated our prior decision in People v. Disbrow (1976) 16 Cal.3d 101, which

had held that a defendant’s statements obtained in violation of Miranda v. Arizona,

supra, 384 U.S. 436, were inadmissible for impeachment. Citing the United States

Supreme Court’s contrary holding in Harris v. New York, supra, 401 U.S. 222

(voluntary statements obtained in violation of Miranda are admissible to impeach

a testifying defendant), we held in May that, in light of Proposition 8, the high

court’s decision in Harris v. New York must be followed in California. (May,

supra, 44 Cal.3d at pp. 311, 318.) Thereafter, citing Portash, supra, 440 U.S. 450,

this court in May observed that “[l]egislatively compelled testimony [cannot] be

used against the testifier for any purpose under the federal Constitution” (May,

supra, 44 Cal.3d at p. 317).

As to our decision in Macias, supra, 16 Cal.4th 739, there a majority of this

court concluded that a minor defendant’s statements to a probation officer in an

interview in preparation for a hearing to determine whether the minor should be

tried as an adult were not compelled and therefore could be used for impeachment,

as there was no violation of the juvenile’s privilege against self-incrimination. (Id.

at p. 756 (plur. opn. of Chin, J.); id. at p. 757 (conc. opn. of Baxter, J.); see also

People v. Humiston (1993) 20 Cal.App.4th 460, 472-476.) The plurality pointed

out that no statute required the minor to speak to the probation officer, that the

minor had alternative methods of providing mitigating evidence to the probation

officer, that the minor’s statements were generally made with counsel present, and

that a probation officer is less likely to overreach in a fitness interview than a

8



police officer in a custodial setting. (Macias, supra, 16 Cal.4th at pp. 752, 756.)

Turning to the high court’s decision in Portash, supra, 440 U.S. 450, the Macias

plurality observed: “Portash forbids the use in any criminal trial of involuntary

statements that a defendant gave following a use immunity grant. But we do not

believe Portash prohibits the limited use of statements made to a probation officer

in preparation for a juvenile fitness hearing to impeach the same minor

defendant’s voluntary inconsistent trial statements.” (Macias, supra, 16 Cal.4th at

p. 754.) The Macias plurality went on to note that the high court itself “has

recognized that Portash was a unique and limited case” involving coerced

testimony, because there the witness was ordered to testify or face contempt

sanctions. (Id. at pp. 754-755.) The Macias plurality then cited the high court’s

decision in South Dakota v. Neville (1983) 459 U.S. 553, 563-564, for the

proposition that a defendant’s decision whether to take a blood-alcohol test was

not legislatively compelled unless the defendant “could show that the

consequences of his decision either to submit or to refuse the request were so

severe as to remove effectively his free will to choose.” (Macias, supra, 16

Cal.4th at p. 755.) The Macias plurality also cited the high court’s decision in

Minnesota v. Murphy (1984) 465 U.S. 420, 431-435, which stated that a

probationary defendant’s obligation to answer questions from his probation officer

truthfully did not convert the answers into compelled statements. (Macias, supra,

16 Cal.4th at p. 755.)

Defendant here is right that compelled statements may not be used by the

prosecution for any purpose. (Portash, supra, 440 U.S. at p. 459.) But defendant

is wrong insofar as he assumes that whenever a procedure is legislatively required,

any statements made in that context are compelled and therefore any use of them

by the prosecution would violate the Fifth Amendment’s privilege against self-

incrimination.

9



Statements a defendant makes during a competency examination under the

statutory procedure the Legislature established in sections 1368 and 1369 are in

some respects similar to but in other respects different from those at issue in the

high court’s decision in Portash, supra, 440 U.S. 450, and in this court’s decision

in Macias, supra, 16 Cal.4th 739, as we explain below.

The statutory procedure at issue here is similar to that involved in Portash,

supra, 440 U.S. 450, in that both require the defendant to submit to an

examination, here a mental competency examination and in Portash a grand jury

examination. But unlike the New Jersey statute in Portash, which compelled the

witness to testify before the grand jury (Portash, supra, 440 U.S. at p. 452, fn. 1),

the statements a defendant makes in a mental competency examination are not

compelled. Although under our statutory scheme a defendant must submit to a

court-initiated competency evaluation, there is no compulsion to make any

statements. The parties have not cited, nor has our research disclosed, the

existence of any legal sanction against a defendant who refuses to speak to, or

cooperate with, the court-appointed mental health experts. (See People v. Harris,

supra, 192 Cal.App.3d at pp. 946-947 [competency trial held after the defendant’s

refusal to be interviewed by mental health professionals]; Tarantino, supra, 48

Cal.App.3d at pp. 468, 471 [contempt order for refusing to be examined without

2

counsel present permanently stayed].) Thus, under our statutory scheme any

statement a defendant makes during the mental competency evaluation is not

compelled, legislatively or otherwise.


2

The threat of any sanction such as contempt against a defendant for

refusing to answer questions of the mental health experts during a competency
examination would render the statements made at that examination compelled. In
that event, under Portash, supra, 440 U.S. at page 459, the statements could not be
used for any purpose at trial.

10



With respect to this court’s decision in Macias, supra, 16 Cal.4th 739,

which concerned statements of a minor to a probation officer in preparation for a

hearing to determine the minor’s fitness to stand trial as an adult, there, as here, no

legal sanction attached to a refusal to make any statements during the procedure at

issue. But, unlike the interview with the probation officer in Macias, a defendant

in a court-initiated mental competency evaluation must submit to such an

examination. (Centeno v. Superior Court, supra, 117 Cal.App.4th at p. 43.)

Our conclusion that a defendant’s statements made at a mental competency

evaluation are not legislatively or otherwise compelled and therefore not per se

inadmissible for any purposes under the high court’s decision in Portash, supra,
440 U.S. 450, does not end the inquiry of whether they may be used to impeach a

defendant’s testimony at trial. As mentioned earlier, a defendant’s statements at a

mental competency examination cannot be used later by the prosecution to prove

its case-in-chief as to either guilt or penalty. (Estelle, supra, 451 U.S. at pp. 468-

469; People v. Weaver, supra, 26 Cal.4th at pp. 959-960.) Where the United

States Supreme Court has permitted impeachment of a testifying defendant with

statements inadmissible to prove guilt, the court has used a test that balances the

policy supporting the exclusion of such statements to prove guilt against the policy

not to countenance perjury. (Portash, supra, 440 U.S. at p. 458 [incremental

deterrence of police illegality weighed against policy against perjury]; see James

v. Illinois (1990) 493 U.S. 307, 316-317 [potential chill of truth-seeking process

by allowing impeachment found to outweigh loss of probative testimony]; United

States v. Havens (1980) 446 U.S. 620, 627 [competing interests of exclusionary

rule in discouraging police misconduct and impairment of factfinding goal of trial

assessed]; Harris v. New York, supra, 401 U.S. at p. 225 [introduction of reliable

evidence to impeach found to further truth-seeking function of trial, while

11



likelihood of encouraging police misconduct considered only speculative

possibility].)

Here, we must balance the policy interest in deterring and exposing perjury

against the policy interest in preserving and enhancing the reliability of mental

competency evaluations.

The policy against countenancing perjury is strong. (Portash, supra, 440

U.S. at p. 458.) Allowing false testimony to go unchallenged impairs the integrity

of the factfinding objective of a trial (United States v. Havens, supra, 446 U.S. at

p. 627), because such testimony hinders or blocks the disclosure of the truth to the

trier of fact (see James v. Illinois, supra, 493 U.S. at p. 321).

Just as strong, however, is the policy against trying persons who are

mentally incompetent. In the words of the United States Supreme Court:

“ ‘Competence to stand trial is rudimentary, for upon it depends the main part of

those rights deemed essential to a fair trial, including the right to effective

assistance of counsel, the rights to summon, to confront, and to cross-examine

witnesses, and the right to testify on one’s own behalf or to remain silent without

penalty for doing so.’ ” (Cooper v. Oklahoma (1996) 517 U.S. 348, 354.)

The policy that a mentally incompetent person not be subjected to a trial

has its roots in our constitutional, statutory, and common law. It is thus a policy of

ancient and venerable origin, founded on the view that to subject the mentally

incompetent to trial or to punishment is inhumane and cruel. (Cooper v.

Oklahoma, supra, 517 U.S. at p. 356; People v. Perry, supra, 14 Cal.2d at pp. 397-

399.)3 The “sole purpose of [competency proceedings] ‘is the humanitarian desire


3

Blackstone’s Commentaries demonstrate the historical underpinnings of the

policy against subjecting a mentally incompetent person to trial. “ ‘Indeed, in the
bloody reign of Henry the Eighth, a statute was made, which enacted that if a


(footnote continued on next page)

12



to assure that one who is mentally unable to defend himself not be tried upon a

criminal charge.’ ” (People v. Harris, supra, 192 Cal.App.3d at pp. 949-950.)

A mental competency evaluation seeks to ascertain the defendant’s ability

“to understand the nature of the criminal proceedings or to assist counsel in the

conduct of a defense in a rational manner.” (§ 1367, subd. (a).) It therefore is

ordered only when there is a legitimate concern that the defendant may be

substantially mentally impaired.

Unlike those instances where otherwise inadmissible statements are

allowed to impeach a testifying defendant (e.g., Macias, supra, 16 Cal.4th at

pp. 755-756 [juvenile’s statements during probation officer’s interview in

preparation for hearing to determine whether the juvenile should be tried as an

adult]; People v. Coleman, supra, 13 Cal.3d at p. 889 [probationer’s statements at

probation revocation hearing]; People v. Drews (1989) 208 Cal.App.3d 1317,

1325-1326 [defendant’s testimony at pretrial hearing on motion to suppress

evidence]), during a mental competency examination a defendant does not have

the benefit of the presence of counsel. Indeed, unlike situations where the

presence of counsel may contribute to the purpose of the proceeding, such as the

inquiry into a juvenile’s behavioral patterns and social history to determine

whether the juvenile should be tried as an adult (Macias, supra, 16 Cal.4th at

pp. 747, 756), the presence of counsel during a competency examination by



(footnote continued from previous page)

person being compos mentis (of sane mind) should commit high treason, and after
fall into madness, he might be tried in his absence, and should suffer death, as if
he were of perfect memory. But this savage and inhuman law was repealed by the
statute 1 and 2 P. and M., c. 10.’ ” (People v. Perry, supra, 14 Cal.2d at p. 398,
quoting 4 Blackstone’s Commentaries 25.)

13



mental health professionals may undermine the usefulness of the examination,

making it more difficult for the expert examining the defendant to determine

whether the defendant is competent. (See Estelle, supra, 451 U.S. at p. 470, fn. 14

[“ ‘an attorney present during the psychiatric interview could contribute little and

might seriously disrupt the examination’ ”]; Tarantino, supra, 48 Cal.App.3d at

p. 468 [psychiatrists refused to conduct competency examination with defense

attorney present].)

Also, determining a defendant’s mental competency requires an assessment

of the defendant’s ability to understand the nature of the proceedings and to assist

counsel in conducting a defense. (§ 1367, subd. (a).) To make this assessment,

the mental health expert will want to evaluate the defendant’s ability to discuss the

facts of the case, even though the defendant’s guilt of the offense charged is not

relevant to the inquiry. (See People v. Harris, supra, 192 Cal.App.3d at pp. 949-

950; Tarantino, supra, 48 Cal.App.3d at p. 469.) If a defendant’s statements

during the examination could later be used to impeach the defendant during the

criminal trial, the defendant would have a strong incentive not to be forthcoming

during the examination, thus undermining the reliability of the competency

determination.

A rule allowing a defendant to be impeached at trial with statements made

during a competency examination would pose a dilemma for defendant’s trial

attorney. A competency examination occurs after the right to counsel has

attached, at a critical stage of the proceeding at which counsel’s participation is

constitutionally mandated; the examination cannot be conducted without “the

assistance of [defendant’s] attorneys in making the significant decision of whether

to submit to the examination and to what end the psychiatrist’s findings could be

employed.” (Estelle, supra, 451 U.S. at pp. 470-471.) Counsel would need to

explain the risk of impeachment to the possibly mentally impaired defendant and,

14



if that risk was sufficiently grave, might be ethically bound to advise the defendant

not to communicate with the court-appointed mental health professionals at all

during the examination.

The prosecution’s ability to conduct its own mental evaluation would also

be placed in jeopardy. A defendant may be compelled to submit to competency

examinations by prosecution experts (Baqleh v. Superior Court, supra, 100

Cal.App.4th at pp. 505-506), but only if the defendant’s statements during the

examination are inadmissible for any purpose at trial (id. at pp. 498-499 & fn. 5,

502). If a defendant’s statements during a competency examination could later be

used against him for impeachment at trial, the trial court could not impose any

sanctions on a defendant who refused to submit to an examination by prosecution

experts. As we have observed (see fn. 2, ante), the threat of sanctions for refusing

to speak would make the defendant’s statements compelled, and the defendant

then would have the right to refuse to participate by invoking the Fifth

Amendment privilege against self-incrimination. (Portash, supra, 440 U.S. at

p. 459 [“defendant’s compelled statements . . . may not be put to any testimonial

use whatever against him in a criminal trial”]; Estelle, supra, 451 U.S. at p. 469.)

Thus, allowing a defendant’s statements during a competency evaluation to

be used for impeachment at trial would seriously impair the mental health expert’s

ability to accurately assess the defendant’s mental competency, because the

defendant would likely be unwilling to freely discuss the facts of the crime and

might well refuse to speak at all. Impairment of the examination process in turn

would seriously compromise the trial court’s ability to fulfill its constitutional and

statutory obligation to determine whether a defendant is competent to stand trial.

Against this very substantial impairment of the state’s interest in accurately

determining whether criminal defendants are mentally competent to stand trial, we

must weigh the risk to the truth-seeking function if the prosecution is precluded

15



from impeaching the defendant at trial with inconsistent statements made during

competency evaluations. A mental competency evaluation is concerned with the

defendant’s ability to understand the proceeding and assist counsel, and not with the

defendant’s guilt of the offense charged. Therefore, a defendant’s statements to the

mental health professional are made for a purpose unrelated to the validity of the

criminal charge, and in any event those statements may be consistent with the

defendant’s later testimony at trial. Moreover, minor inconsistencies may be

attributed to the defendant’s mental impairments that prompted the competency

inquiry. In short, the frequency and utility of impeachment at trial with a

defendant’s inconsistent statements during a competency examination is speculative.

Having considered and weighed the competing interests, we conclude that

the impairment of the mental competency evaluation process if impeachment is

permitted outweighs the speculative risk to the truth-seeking function of the

criminal trial if impeachment is denied.4 Accordingly, we conclude that the Fifth

Amendment’s privilege against self-incrimination prohibits the prosecution from

using at trial, for the purpose of impeachment, statements a defendant has made

during a court-ordered mental competency examination.5


4

To the extent it is inconsistent with the views expressed herein, People v.

Stanfill, supra, 184 Cal.App.3d 577, is disapproved.

5

The concurring and dissenting opinion of Justice Werdegar asserts that the

immunity at issue arises from California statutory law, not federal law. From this
premise it argues that our decision here should not be founded upon the federal
Constitution’s Fifth Amendment privilege against self-incrimination. That view is
untenable.


The rule of immunity was first judicially declared in Tarantino, supra, 48

Cal.App.3d at page 469. As this court observed in People v. Arcega, supra, 32
Cal.3d at page 522, “the basis for the Tarantino decision was the constitutional
privilege against self-incrimination.” (See, e.g., People v. Jablonski (2006) 37
Cal.4th 774, 802-803 [judicially declared immunity and Fifth Amendment


(footnote continued on next page)

16



We have considered, but rejected as impractical, an alternate route to

essentially the same result. Instead of simply disallowing impeachment at trial

with a defendant’s statements during a competency examination, we could require

trial courts to advise the defendant, before the competency examination, of the

right to counsel and the right to remain silent. (See Estelle, supra, 451 U.S. at

p. 468.) If the defendant invoked those rights, the court could nevertheless order

the competency examination to proceed, but any statements the defendant made

during the examination could then be used only for the purpose of determining

competency. (Ibid.; see fn. 2, ante.) Acting on the advice of counsel, defendants

would, we confidently predict, routinely invoke their rights, and thus the end result

would be the same—the defendant’s statements during the competency

examination would be inadmissible for impeachment at trial. Because we see no

advantage in these additional procedural steps, we adopt the more direct approach.

Moreover, we are reluctant to place our trial courts in the awkward position of

advising defendants of their rights to counsel and to remain silent, and then, after



(footnote continued from previous page)

coextensive]; People v. Weaver, supra, 26 Cal.4th at p. 960 [“the rule of immunity
‘is necessary to ensure that an accused is not convicted by use of his own
statements made at a court-compelled examination’ ”].) The concurring and
dissenting opinion of Justice Werdegar thus errs in asserting that the judicially
declared immunity rule at issue here is based on statutory law.


That approach may also violate the “Truth-in-Evidence” provision of the

California Constitution. (Cal. Const., art. I, § 28, subd. (d); see Macias, supra, 16
Cal.4th 739; May, supra, 44 Cal.3d 309; Ramona R. v. Superior Court (1985) 37
Cal.3d 802.) Because defendant does not claim that there is a statutory rule of
immunity that prohibited the prosecution from using defendant’s statements to a
mental health professional during an examination to determine his competency to
stand trial for purposes of impeachment, we need not address this question.


17



the defendants invoke those rights, ordering the defendants to participate in the

evaluation and informing them they cannot remain silent.

Our resolution of the issue before us fully protects both a defendant’s Fifth

Amendment privilege against self-incrimination and a defendant’s Sixth

Amendment right to counsel because the use immunity recognized here adequately

safeguards those rights. (Baqleh v. Superior Court, supra, 100 Cal.App.4th at

pp. 502-503.) Accordingly, we need not resolve here the difficult question

whether counsel would have a right to be present at a court-ordered competency

examination if a defendant’s statements during such an examination could later be

used against him. Nor need we determine here whether statements obtained in

violation of the right to counsel may be used to impeach a testifying defendant.

(See United States v. Ortega (9th Cir. 2000) 203 F.3d 675 [statements may be

used to impeach]; United States v. Brown (2d Cir. 1983) 699 F.2d 585 [statements

may not be used to impeach]; People v. Brown (1996) 42 Cal.App.4th 461

[statements may be used to impeach]; People v. Harper (1991) 228 Cal.App.3d

843 [statements may not be used to impeach].)

The use of statements that defendant made during his mental competency

evaluation to impeach his testimony at trial violated defendant’s constitutional

right not to incriminate himself. Whether that error prejudiced defendant is

explored below.

III

Under

Chapman v. California (1967) 386 U.S. 18, 24, a violation of a

criminal defendant’s federal constitutional rights requires reversal of the judgment

unless the reviewing court determines “beyond a reasonable doubt that the error

complained of did not contribute to the verdict.” Applying this standard here, we

agree with the Court of Appeal that the violation of defendant’s Fifth Amendment

privilege not to incriminate himself did not prejudice defendant.

18



The evidence against defendant was overwhelming. The bullet fragment

taken from one of the victims’ cars matched not only the shell casings found at

defendant’s home, but also his rifle. Also, defendant was seen holding his rifle at

the time of the car shootings.

The extent of defendant’s impeachment at trial with statements he made at

his mental health evaluation was minimal. Whether, as defendant told Dr. Pai, he

drank one or two cans of beer on the day of the shootings was of little probative

value at trial. There was no allegation that alcohol consumption played any part in

the car shootings, and the jury was aware that there was no alcohol in the sample

of defendant’s blood drawn two hours after his arrest. The prosecution’s

impeachment of defendant with his statement to Dr. Pai, made at the mental

competency examination, that he usually got along with Joyce Muse was minimal.

It was undermined by defendant’s trial testimony on redirect examination that

Muse was intimidating when she was arguing with her parents or with a boyfriend

but that she was otherwise congenial.

Dr. Caruso’s testimony that defendant told him at the mental competency

evaluation that he knew the shots fired at the cars came from his property at a time

when defendant claimed he was shooting at blue jays, is largely cumulative of

testimony by one of the sheriff’s deputies. Deputy Sheriff Ronald Smith testified

that defendant admitted he was the man they were looking for, that Joyce Muse

thought defendant had been shooting at her, and that he had been shooting at blue

jays by his house.

In view of the overwhelming evidence of guilt and the insignificant nature

of defendant’s mental competence examination statements later used by the

prosecution to impeach him, we conclude that, beyond a reasonable doubt, the

error in allowing such impeachment did not contribute to the verdict. (Chapman

v. California, supra, 386 U.S. at p. 24.)

19



DISPOSITION

The judgment of the Court of Appeal is affirmed.

KENNARD, J.

WE CONCUR:

GEORGE, C. J.
CHIN, J.
MORENO, J.




20












CONCURRING AND DISSENTING OPINION BY BAXTER, J.




I concur in the judgment of affirmance, and in the majority’s conclusion

that any error in allowing use of defendant’s statements to court-appointed

competency examiners to impeach his trial testimony was harmless by any

standard. But I must dissent from the majority’s determination that error occurred

when the prosecution was allowed to impeach defendant’s testimony in this

fashion.

The majority holds that, even though a defendant is not compelled by

California law to speak to court-appointed competency examiners, but does so, is

adjudged competent, later elects to testify in his own behalf at his criminal trial,

and takes that opportunity to tell the court something different than what he

previously told the examiners, it is a violation of the Fifth Amendment of the

United States Constitution to use his earlier statements to impeach his testimonial

credibility. Moreover, the majority insinuates, the Sixth Amendment may compel

a similar result to the extent the defendant’s counsel was not permitted to attend

the competency examination itself. I cannot agree.

At the outset, as Justice Werdegar observes, although California’s judicially

declared “blanket use immunity” for statements made in a court-ordered

competency examination is designed in part to protect the privilege against self-

incrimination, it is a creature of state, not federal, law. (Tarantino v. Superior

Court (1975) 48 Cal.App.3d 465, 469-470 (Tarantino); see People v. Arcega

1



(1982) 32 Cal.3d 504, 521-523 (Arcega); cf. Centeno v. Superior Court (2004)

117 Cal.App.4th 30, 43-44.) Tarantino characterized the immunity as one

“reasonably to be implied from the [statutory] provisions [for determining

competency]” (Tarantino, supra, at p. 469), and it has never been squarely

premised on the federal Constitution. It has survived the Truth-In-Evidence

provisions of Proposition 8 (see Arcega, supra, at pp. 521-523), presumably under

that measure’s express preservation of “existing statutory rule[s] of evidence

relating to privilege” (Cal. Const., art. I, § 28, subd. (d); see Evid. Code, § 940;

Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 807-808 (Ramona R.); see

also conc. & dis. opn. of Werdegar, J., post, at pp. [2-5], & fns. 3, 4).

Though I would not do so for reasons discussed below, I therefore assume,

as Justice Werdegar concludes, that we could now construe this “existing” state-

privilege-related immunity to include protection against use for impeachment.

(Cf. People v. Macias (1997) 16 Cal.4th 739, 751-753 (Macias).) In that event,

reversible prejudice would presumably be measured by the standard applicable to

errors of state law. (See People v. Cahill (1993) 5 Cal.4th 478, 487-510; People v.

Watson (1956) 46 Cal.2d 818, 835.) However, by rejecting this option, and

placing its ruling squarely on federal constitutional grounds, the majority locks in

the more stringent standard of reversibility set forth in Chapman v. California

(1967) 386 U.S. 18. The majority’s constitutional ruling is unnecessary and

incorrect.

Even where federal constitutional principles preclude substantive use of an

accused’s statements to prove his criminal guilt, the United States Supreme Court

has stressed that it has denied impeachment use of such statements in only one

instance—where the statements were truly involuntary. (Michigan v. Harvey

(1989) 494 U.S. 344, 351 (Harvey), citing, as examples, New Jersey v. Portash

(1979) 440 U.S. 450 (Portash) [grand jury testimony under statutory grant of use

2



immunity, but subject to threat of contempt for refusal to talk]; Mincey v. Arizona

(1978) 437 U.S. 385 [statements extracted over protests of seriously wounded

suspect in hospital intensive care unit].)

If no true coercion or compulsion is involved, both the high court and the

courts of this state have held that, even when an accused’s statements in a

particular context are inadmissible to prove he committed a crime, they are

available to impeach him if he voluntarily testifies at the trial on criminal charges

or allegations. (E.g., Harvey, supra, 494 U.S. 344, 348-354 [voluntary statements

elicited by police-initiated conversation with custodial defendant who had

previously invoked Sixth Amendment right to counsel]; Oregon v. Hass (1975)
420 U.S. 714, 720-724 [voluntary statements obtained in violation of Miranda v.

Arizona (1966) 384 U.S. 436]; Harris v. New York (1971) 401 U.S. 222, 224-226

(Harris) [same]; People v. Peevy (1998) 17 Cal.4th 1184, 1191-1208 [voluntary

statements elicited in deliberate violation of Miranda]; People v. Coleman (1975)

13 Cal.3d 867, 892 [inconsistent statements at probation revocation hearing];

People v. Crow (1994) 28 Cal.App.4th 440, 449-453 [prior inconsistent statements

during unsuccessful plea negotiations]; People v. Drews (1989) 208 Cal.App.3d

1317, 1324-1326 [prior inconsistent statements during pretrial suppression

hearing]; People v. Stanfill (1986) 184 Cal.App.3d 577, 581-582 (Stanfill) [prior

inconsistent statements to court-appointed competency examiners]; Sheila O. v.

Superior Court (1981) 125 Cal.App.3d 812, 816-817 [juvenile’s testimony at

fitness hearing]; cf. United States v. Havens (1980) 446 U.S. 620, 624-628

[physical evidence obtained in violation of Fourth Amendment]; but see Baqleh v.

Superior Court (2002) 100 Cal.App.4th 478, 499, fn. 5 (Baqleh) [statements to

competency examiners not available for impeachment]; People v. Harris (1987)

192 Cal.App.3d 943, 949-950 [same].)

3



Whether substantive use protection is granted to protect constitutional

rights, or to encourage the accused to speak the truth in a particular nontrial

setting, or both, modern California and high court cases have emphasized that

these considerations do not give the accused a license to commit perjury on the

witness stand. In this regard, the United States Supreme Court has noted that

“[e]very criminal defendant is privileged to testify in his own defense, or to refuse

to do so. But . . . [h]aving voluntarily taken the stand, [the accused is] under an

obligation to [testify] truthfully and accurately,” and by impeaching him with his

prior inconsistent statements, “the prosecution [does] no more than utilize the

traditional truth-testing devices of the adversary process.” (Harris, supra,
401 U.S. 222, 225, italics added.)

In Macias, supra, 16 Cal.4th 739, we considered a question similar to that

which confronts us here. Macias addressed California’s long-standing judicial use

immunity for a juvenile’s statements to a probation officer evaluating whether the

minor is fit for treatment within the juvenile system or instead must be tried as an

adult (see Ramona R., supra, 37 Cal.3d 802). The issue was whether this

immunity extended to use of such statements to impeach the minor’s testimony at

his subsequent adult criminal trial. A majority of this court concluded that the

answer is “no.”

Ramona R. had determined that although the minor was not statutorily

compelled to speak to the probation officer, use immunity was essential to protect

the juvenile’s California right not to incriminate herself. Otherwise, Ramona R.

reasoned, the minor would be forced to choose between cooperating fully with the

probation officer, thereby obtaining fair treatment at the fitness hearing, or

remaining silent, thus preserving her privilege against self-incrimination. As

Ramona R. observed, the juvenile’s lack of communication could be used against

her in the fitness determination—especially when, as in the murder case there at

4



issue, the burden of proving fitness for juvenile treatment was on her—and “the

certification of a juvenile offender to an adult court has been accurately

characterized as ‘the worst punishment the juvenile system is empowered to

inflict.’ [Citation.]” (Ramona R., supra, 37 Cal.3d 803, 810.) “Hence, we

concluded [in Ramona R.] that the consequences of deciding between silence and

incrimination are so severe that they warrant substantive use immunity for

statements the minor makes in preparation for a fitness hearing. [Citation.]”

(Macias, supra, 16 Cal.4th 739, 750.)

As the plurality opinion in Macias explained, “[t]he purpose of the

Ramona R. use immunity is to encourage the minor to give the probation officer

candid and unencumbered evidence to aid the officer’s—and ultimately the

court’s—determination of the best forum to consider the case. [Citation.] The

grant of immunity also avoids the risk that the prosecution might take unfair

advantage of an admission or silence by using it against the minor at a subsequent

trial. [Citation.] In other words, substantive use immunity allows juveniles to

exercise their right to present mitigating evidence to probation officers without

giving prosecutors in subsequent trials the unfair advantage of using their

statements as substantive evidence of guilt. [Citation.]” (Macias, supra,

16 Cal.4th 739, 752-753.)

However, the plurality opinion in Macias concluded, “we can easily

distinguish the prosecution’s use for impeachment purposes of a juvenile’s

statements made to a probation officer determining fitness from the use of those

statements as substantive evidence of guilt. . . . [N]othing in the state Constitution

or our judicial decisions protects juveniles from impeachment if their voluntary

trial testimony is inconsistent with the substantively immunized statements they

made to their probation officers before their fitness hearings.” (Macias, supra,

16 Cal.4th 739, 753, italics added.)

5



As part of its analysis, the plurality opinion in Macias traced the history of

California’s pre-Proposition 8 rule which, contrary to United States Supreme

Court decisions addressing the federal Constitution, had precluded even the

impeachment use of statements obtained in violation of Miranda. (See People v.

Disbrow (1976) 16 Cal.3d 101; cf. Harris, supra, 401 U.S. 222.) As the Macias

plurality opinion explained, we concluded after Proposition 8 that the Truth-in-

Evidence provisions of that initiative measure had abrogated the Disbrow ruling

and required California’s adherence to Harris. (People v. May (1988) 44 Cal.3d

309.) In this regard, the Macias plurality opinion stressed May’s observation that

“the ‘federal rule announced in Harris . . . , allowing impeachment by the

defendant’s prior statements taken in violation of Miranda, may have been based

on the premise that the privilege against self-incrimination cannot be invoked by

one who has voluntarily taken the witness stand to testify concerning the subject

matter of his prior statement. [Citations.]’ ” (Macias, supra, 16 Cal.4th 739, 752,

quoting May, supra, 44 Cal.3d 309, 319, italics added; see also Stanfill, supra,

184 Cal.App.3d 577, 581-582.)

Macias also expressly distinguished and limited Portash, supra, 440 U.S.

450, which had held that “legislatively compelled” testimony at a grand jury

proceeding, given pursuant to a statutory use immunity but under threat of

contempt for any refusal to testify, could not be used against the witness for any

criminal purpose, including impeachment. As Macias explained, “[w]e agree . . .

that Portash forbids the use in any criminal trial of involuntary statements that a

defendant gave following a use immunity grant. But we do not believe Portash

prohibits the limited use of statements [voluntarily] made to a probation officer in

preparation for a juvenile fitness hearing to impeach the same minor defendant’s

voluntary, inconsistent trial statements. [¶] The United States Supreme Court has

recognized that Portash was a unique and limited case, demonstrating the essence

6



of coerced testimony in the ‘classic Fifth Amendment’ sense because a witness

who had been given use immunity was later ordered to testify or face contempt

sanctions. [Citation.]” (Macias, supra, 16 Cal.4th 739, 754-755.)1

This case cannot be distinguished from Macias in any material way. In

each instance, California has recognized a use immunity for statements made by a

criminal accused in a particular proceeding—one not intended to obtain evidence

of criminal guilt—in order to encourage the accused to speak, and to do so

candidly and truthfully, for purposes of the proceeding at issue, without

compromising the privilege against self-incrimination. Yet California law does

not compel the accused to speak in either situation. Thus, protection of state and

federal self-incrimination principles does not require that the prohibition on

substantive use of the accused’s voluntary statements be extended to use for

impeachment. Here, as in Macias, when the accused later voluntarily takes the

stand and changes his story, the prosecution must be permitted to challenge his

credibility by bringing to light his inconsistent prior statements.

In its attempt to distinguish Macias, the majority purports to apply a

balance-of-interests test, concluding that the balance must be struck differently


1

As Macias observed, the high court had declined to apply Portash in two

later decisions, South Dakota v. Neville (1983) 459 U.S. 553, and Minnesota v.
Murphy
(1984) 465 U.S. 420. In Neville, the court held that the defendant’s
decision whether to submit to a blood-alcohol test was not “legislatively
compelled” in the Portash sense unless he could show that the consequences of his
decision either to submit or to refuse the request were so severe as to remove
effectively his free will to choose. (Neville, supra, at p. 562.) In Murphy, a
probationer was under a court order to meet with his probation officer and respond
truthfully to the officer’s questions. Nonetheless, the United States Supreme
Court held that statements he volunteered to the officer were not “compelled,” and
were thus admissible in his criminal trial, even though the officer did not advise
him of his privilege against self-incrimination and threatened to revoke probation
if he lied. (Murphy, supra, at p. 440.)

7



here than in Macias. The majority stresses the importance of the constitutional

right not to be tried while incompetent, the concomitant need for reliability in the

competency evaluation, and the resulting strength of the policy that the examinee

not be discouraged by self-incrimination concerns from responding to the

examiners’ questions. The majority observes in particular that, unlike the juvenile

fitness evaluation procedure at issue in Macias, which “provides . . . alternatives

. . . for producing any mitigating evidence that would rebut the fitness

presumption” (Macias, supra, 16 Cal.4th 739, 752), a reliable competency

evaluation requires a direct examination of the accused, in which candid and

truthful answers to examiners’ questions are crucial.2 Finally, the majority notes

that, in a juvenile fitness evaluation, the minor’s counsel may be present at any

interview of the minor by the probation officer, while counsel may be excluded

from a competency examination.

But nothing in these suggested distinctions demonstrates that we should

interpret the Fifth Amendment to preclude use for impeachment of the accused’s


2

Although Macias took passing note that the minor facing a fitness

evaluation has alternative means of presenting mitigating evidence, the fact
remains that the use immunity there at issue, like the one here, is heavily premised
on encouraging the subject to speak, and to do so candidly and truthfully. In
Ramona R., supra, 37 Cal.3d 802, which confirmed that the juvenile fitness use
immunity survived Proposition 8, this court explained the policy behind that
immunity by quoting heavily from In re Wayne H. (1979) 24 Cal.3d 595, which
similarly immunized a juvenile’s statements to a probation officer for purposes of
determining the proper disposition if guilt is established. As was noted, “ ‘[s]uch
[dispositional] decisions, courts have uniformly concluded, should be based on the
most complete knowledge of the defendant’s background that is possible. His
description and explanation of the circumstances of the alleged offense, and his
acknowledgment of guilt and demonstration of remorse, may significantly affect
decisions about punishment or transfer for adult proceedings.’ ” (Ramona R.,
supra, at p. 806, quoting Wayne H., supra, at pp. 599-600.)


8



voluntary statements to competency examiners. As noted above, time and again

the United States Supreme Court has indicated that this most stringent use

restriction is limited, for federal constitutional purposes, to statements that were

truly involuntary when made. In all other situations, the high court has counseled,

even if self-incrimination considerations prohibit the substantive criminal use of

an accused’s statements, the statements are available to impeach the accused’s

later testimony, because the voluntary decision to take the stand at trial includes

the obligation to testify truthfully, and the Fifth Amendment is not a license to

commit perjury.3

Contrary to the majority’s implication, nothing in Estelle v. Smith (1981)
451 U.S. 454 (Estelle) compels the majority’s result. If anything, Estelle supports

the conclusion that, for purposes of the federal Constitution, an accused’s

uncompelled statements to competency examiners are available for impeachment.

The core holding of Estelle—which did not directly involve the impeachment

issue—is 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”

on the issues of guilt or penalty. (Estelle, supra, at p. 468, italics added; see also

id. at pp. 462-463.) Thus “[i]f, upon being adequately warned [that he has the

right to remain silent, and that he may incriminate himself by speaking], [the

defendant] . . . indicate[s] that he [will] not answer [the examiner’s] questions, [a]

validly ordered competency examination nevertheless [may] proceed[ ] upon the

condition that the results [will] be applied solely for that purpose.” (Id. at p. 468)


3

I discuss below the Sixth Amendment implications of counsel’s exclusion

from a competency examination.

9



Much of Estelle’s analysis focused on the need to withhold incriminatory

use of statements made by the defendant during a compulsory court-ordered

competency examination where the defendant was not fully advised of his Fifth

Amendment rights and given an opportunity to invoke or waive them. In this

regard, Estelle drew a direct analogy to Miranda.

As Estelle indicated, the considerations leading to Miranda’s requirement

that a suspect undergoing interrogation in the inherently coercive atmosphere of

police custody receive such warnings “apply with no less force to the pretrial

psychiatric examination at issue here.” (Estelle, supra, 451 U.S. 454, 467.) The

accused in Estelle was in custody, the court’s opinion explained, and, even though

the psychiatrist was court-appointed and ostensibly neutral, when he testified

against Estelle at the latter’s penalty trial, “his role changed and became

essentially like that of an agent of the State recounting unwarned statements made

in a postarrest custodial setting. During the psychiatric evaluation, [the defendant]

assuredly was ‘faced with a phase of the adversary system’ and was ‘not in the

presence of [a] perso[n] acting solely in his interest.’ [Citation.] Yet he was given

no indication that the compulsory examination would be used to gather evidence

necessary to decide whether, if convicted, he should be sentenced to death. He

was not informed that, accordingly, he had a constitutional right not to answer the

questions put to him.” (Ibid.)

Though “ ‘[v]olunteered statements . . . are not barred by the Fifth

Amendment,’ ” the court concluded, “under Miranda . . . we must conclude that,

when faced while in custody with a court-ordered psychiatric inquiry, [the

defendant’s] statements to [the examiner] were not ‘given freely and voluntarily

without any compelling influences’ and, as such, could be used as the State did at

the penalty phase only if [the defendant] had been apprised of his rights and had

10



knowingly decided to waive them. [Citation.]” (Estelle, supra, 451 U.S. 454,

469.)

Thus, Estelle likened a custodial accused’s court-ordered competency

examination to a custodial police interrogation, in which, even if strict coercion is

not present, the situation has an inherently coercive atmosphere which must be

ameliorated by advisements of Fifth Amendment rights and an opportunity to

invoke them. Of course, statements obtained, without proper advisements, in the

coercive environment of custody may not be used as substantive proof of the

accused’s guilt, but they may be used for impeachment unless they were truly

involuntary.4

I realize that under California’s judicially declared use immunity, the

defendant need not be warned he has a Fifth Amendment right not to speak to

competency examiners. Indeed, California decisions have suggested that the

accused cannot invoke his Fifth Amendment privilege as a means of avoiding

compelled submission to a court-ordered competency examination, because the

use immunity itself affords all protection the Constitution would provide against

4

Estelle involved a competency examination conducted under Texas law. In

federal criminal trials, use of an accused’s statements in a court-ordered
competency examination is presently governed by rule 12.2(c)(4) of the Federal
Rules of Criminal Procedure (18 U.S.C.). This rule provides that “[a] statement
made by a defendant in the course of any [such] examination . . . may be
[introduced] against the defendant in any criminal proceeding” only as it bears on
a mental condition the defendant himself has placed in issue. My research
discloses only one case interpreting this language (formerly contained in 18 U.S.C.
§ 4244) on the narrow issue whether such statements may be used to impeach the
defendant’s inconsistent trial testimony. That decision, one which predated
Estelle, upheld such use, though noting that the psychiatrist’s challenged
testimony had merely rebutted the defendant’s testimonial claim that he did not
recall the circumstances of the offense. (United States v. Castenada (7th Cir.
1977) 555 F.2d 605, 609-610.)


11



the criminal use of his statements to the examiners. (See People v. Weaver (2001)

26 Cal.4th 876, 959, 961; Arcega, supra, 32 Cal.3d 504, 523, fn. 6; Tarantino,

supra, 48 Cal.App.3d 465, 470.)

But a use immunity arising under state law, even if adopted to protect the

right against self-incrimination, cannot expand the scope of the federal

Constitution—the basis on which the majority purports to decide this case. As the

majority itself makes clear, even if a defendant must face court-appointed

competency examiners, nothing in California law compels him to speak to them,

though, in consequence of the use immunity, he cannot invoke federal or state

constitutional privileges against self-incrimination as a basis for declining to do so.

If he chooses to speak under such circumstances, it appears the self-incrimination

provisions of the federal Constitution do not preclude impeachment use of his

voluntary statements.

The majority worries that if a defendant’s statements during a court-ordered

competency examination can be used to impeach his later, inconsistent trial

testimony, his counsel will warn him not to cooperate, and the purpose of the

examination will be thwarted. Of course, to the extent a similar consideration was

present in Macias, it did not dissuade us from concluding that the statements at

issue there could be used for impeachment.

In any event, as competent counsel should understand, it remains in the

defendant’s interest to cooperate fully in a court-ordered competency examination,

in order to minimize the chance of an erroneous determination on the issue of

competence to stand trial. In return for this cooperation, counsel may advise, the

defendant receives full substantive immunity from criminal use of his

statements—the prosecution cannot obtain an unfair advantage by employing the

statements as affirmative proof of his guilt.

12



If the defendant’s statements may be used for impeachment, he suffers that

consequence only if he voluntarily testifies in his own behalf at trial, and, in doing

so, makes statements at odds with what he told the competency examiners—an

indication that he has lied in one instance or the other. A rule forbidding

impeachment, on the other hand, gives the defendant an unfair advantage—he may

testify falsely, secure in the knowledge that the fact-finder will not learn of

contrary statements he has made in the past. In my view, it does not thwart the

legitimate purposes of a competency examination for counsel to advise his client

that, while his statements cannot be used to prove his guilt, they may come back to

haunt him if he testifies at trial and changes his story. In effect, such advice

promotes the proper purposes of both the competency examination and the trial—

to discover the truth.

Finally, the majority suggests that, under the Sixth Amendment, allowing

use of a competency examinee’s statements for impeachment might compromise

the current California practice which allows the defendant’s counsel to be

excluded from the examination itself. I am not persuaded. In the first place, as the

majority acknowledges, federal decisions are split about whether voluntary

statements obtained in direct violation of the Sixth Amendment may be used for

impeachment. More fundamentally, I seriously question whether the Sixth

Amendment right to counsel includes the unqualified right to the personal

presence of counsel at a proceeding, such as a competency examination, that is not

concerned with obtaining evidence of the defendant’s guilt.

Decades ago this court held that, where the defendant’s Sixth Amendment

right to counsel had attached, and the defendant was represented by counsel,

statements obtained at a psychiatric examination in counsel’s unwaived absence

could be admitted at the guilt trial only if counsel was notified of the examination

in advance, the defendant placed his mental condition in issue at trial, and the

13



statements were used solely to support the psychiatrist’s expert opinion. (In re

Spencer (1965) 63 Cal.2d 400, 409-412; see also In re Cowans (1970) 2 Cal.3d

733, 737-738; People v. Morse (1969) 70 Cal.2d 711, 738.) But none of our

decisions on this subject involved the use of such statements exclusively to

impeach the defendant’s own trial testimony.

Moreover, the high court’s more recent decision in Estelle strongly

suggested that, while the defendant has a Sixth Amendment right to his counsel’s

help and guidance in connection with a court-ordered psychiatric examination, he

is not entitled to counsel’s personal presence at the examination itself. In Estelle,

after Benjamin Ernest Smith was indicted for murder, and while he was confined

in jail, he was examined for trial competency by a court-appointed psychiatrist.

Smith’s appointed counsel were not present at the examination; indeed, it was not

clear counsel had received notice of the psychiatrist’s appointment, and counsel

were not advised until afterward that the examination had occurred. (Estelle,

supra, 451 U.S. 454, 457-459 & fn. 5, 471, fn. 15.) Later, at Smith’s sentencing

trial, the psychiatrist testified that Smith would commit violent criminal acts in the

future if given the opportunity to do so.

In its Sixth Amendment discussion, Estelle held that Smith’s right to

counsel had been violated insofar as “[d]efense counsel . . . were not notified in

advance that the psychiatric examination would encompass the issue of their

client’s future dangerousness, and [Smith] was denied the assistance of his

attorneys in making the significant decision of whether to submit to the

examination and to what ends the psychiatrist’s findings could be employed.”

(Estelle, supra, 451 U.S. 454, 470-471, fn. omitted, italics added.)

The court pointed out that “[b]ecause ‘[a] layman may not be aware of the

precise scope, the nuances, and the boundaries of his Fifth Amendment privilege,’

the assertion of that right ‘often depends upon legal advice from someone who is

14



trained and skilled in the subject matter.’ [Citation.]” Given the difficult choices

to be made in deciding whether to undergo an examination, and how to approach

it, said the court, “[i]t follows logically . . . that a defendant should not be forced to

resolve such an important issue without ‘the guiding hand of counsel.’ [Citation.]”

(Estelle, supra, 451 U.S. 454, 471.)

Though counsel were given no opportunity to attend the examination in

Estelle, the high court expressly declined to identify counsel’s absence as a

violation of Smith’s Sixth Amendment rights. Estelle merely indicated that

Smith’s right to the “assistance” of counsel (Estelle, supra, 451 U.S. 454, 471)

was infringed when he was denied an advance opportunity to consult with his

attorneys.

Indeed, in a telling footnote, the Estelle court remarked: “[Smith] does not

assert, and the Court of Appeals did not find, any constitutional right to have

counsel actually present during the examination. In fact, the Court of Appeals

recognized that ‘an attorney present during the psychiatric interview could

contribute little and might seriously disrupt the examination.’ [Citations.]”

(Estelle, supra, 451 U.S. 454, 470, fn. 14.)

Given this strong signal from the high court, and notwithstanding our older

precedents, I am not willing to assume that the Sixth Amendment requires

counsel’s presence at a California competency examination before the examinee’s

statements may be used to impeach him when, after consulting with counsel, he

later voluntarily takes the stand and testifies in a manner inconsistent with his

statements to the examiners.

15



For all these reasons, I respectfully dissent from the majority’s conclusions

that the federal Constitution, or any other principle of law, barred impeachment

use of defendant’s voluntary statements to his court-appointed competency

examiners.















BAXTER, J.

I CONCUR:

CORRIGAN, J.

16












CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.

I concur in the judgment of affirmance. Like the majority and Justices

Baxter and Corrigan, I agree that any error here was harmless. In determining

whether there was error, both the majority and Justice Baxter’s concurrence and

dissent wrestle with a difficult constitutional problem: whether the Fifth

Amendment to the federal Constitution prohibits impeaching a defendant with

statements made, in the absence of counsel and without Miranda warnings

(Miranda v. Arizona (1966) 384 U.S. 436), during a competency examination.

Because this case can be resolved without squarely confronting that issue, I would

do so. (See Santa Clara County Local Transportation Authority v. Guardino

(1995) 11 Cal.4th 220, 230; People v. McKay (2002) 27 Cal.4th 601, 626-627

(conc. opn. of Werdegar, J.).) As will appear, the state immunity we have

previously recognized for statements made during competency examinations,

properly understood, applies to bar their use for impeachment.

I

The Court of Appeal first recognized a state use immunity applicable to

competency hearings in Tarantino v. Superior Court (1975) 48 Cal.App.3d 465

(Tarantino). There, the trial court expressed a doubt as to the defendant’s mental

competence and appointed two psychiatrists to examine him. (See Pen. Code,

1



§ 1368, subd. (a).)1 The defendant refused to proceed without counsel, the

psychiatrists refused to proceed in the presence of counsel, and the trial court

attempted to resolve the standoff by holding the defendant in contempt.

In reversing the contempt order, the Court of Appeal concluded any

statements made at a competency examination should receive use immunity:

“[W]e have no hesitancy in declaring that neither the statements of petitioner to

the psychiatrists appointed under section 1369 nor the fruits of such statements

may be used in trial of the issue of petitioner’s guilt, under either the plea of not

guilty or that of not guilty by reason of insanity.” (Tarantino, supra, 48

Cal.App.3d at p. 470.) The court found this immunity implicit in the code

provisions compelling defendants to submit to competency examinations: “The

purpose of such inquiry [into competency] is not to determine guilt or innocence.

It has no relation to the plea of not guilty by reason of insanity. Rather, the sole

purpose of these statutes is the humanitarian desire to assure that one who is

mentally unable to defend himself not be tried upon a criminal charge.[2] This

purpose is entirely unrelated to any element of guilt, and there is no indication of

any legislative intent that any result of this inquiry into a wholly collateral matter

be used in determining the issue of guilt. Moreover, the issue of present

competency, once the trial court’s doubt has been expressed, must be decided


1

All further unlabeled statutory references are to the Penal Code.

2

As the majority correctly notes, the humanitarian impulse reflected in

competency hearings is of constitutional dimension. (Maj. opn., ante, at p. 12; see
also Pate v. Robinson (1966) 383 U.S. 375, 378 [“[T]he conviction of an accused
person while he is legally incompetent violates due process”]; People v. Lawley
(2002) 27 Cal.4th 102, 131; People v. Castro (2000) 78 Cal.App.4th 1402, 1419
[“Due process requires that any doubt regarding the defendant’s competency be
properly evaluated by experts prior to proceeding with trial”].)

2



before any trial of the charged offense. Both humanitarian and practical

considerations call for a judicially declared immunity.” (Tarantino, at p. 469.)

Thus, the court interpreted section 1367 et seq. as reflecting an intent to compel a

defendant to submit to a competency examination, but only on the implicit

understanding that any statements he or she made would not be used for any

purpose at the subsequent guilt phase of trial.

We approved this state immunity in People v. Arcega (1982) 32 Cal.3d 504

(Arcega), there explaining that the immunity “protects both an accused’s privilege

against self-incrimination and the public policy of not trying persons who are

mentally incompetent.” (Id. at p. 522.) We described Tarantino as recognizing a

“blanket immunity” against use of competency examination statements, and

recognized that this immunity was broader than that yet recognized by the United

States Supreme Court under the federal Constitution. (Arcega, at p. 523, fn. 6; see

People v. Centeno (2004) 117 Cal.App.4th 30, 42 [“The California rule of judicial

immunity is broader than the federal rule for compliance with the Fifth and Sixth

Amendments”].) While under United States Supreme Court precedent the

voluntary statements of an adequately warned defendant could be used, we held

Tarantino dispensed with the need for warnings by reading the underlying statutes

as confining use to the question of competence. (Arcega, at p. 523, fn. 6; see

Estelle v. Smith (1981) 451 U.S. 454, 468-469; Tarantino, supra, 48 Cal.App.3d at

p. 469.)

Subsequently, we have unanimously reaffirmed the existence of this state

immunity (People v. Jablonski (2006) 37 Cal.4th 774, 802-803; People v. Weaver

(2001) 26 Cal.4th 876, 959-963), and neither the majority nor Justice Baxter’s

concurrence and dissent questions its ongoing validity. (See maj. opn., ante, at pp.

5-6; conc. & dis. opn. of Baxter, J., ante, at pp. 1-2.) As Justice Baxter correctly

notes (conc. & dis. opn. of Baxter, J., ante, at p. 2), Arcega’s approval of this

3



immunity in the months following passage of Proposition 8 (as well as our

subsequent reaffirmance of the rule in Weaver, at page 960, and Jablonski, at page

802) indicates the immunity was not invalidated by Proposition 8’s “Truth-in-

Evidence” provisions, which left unaffected “existing statutory rule[s] of evidence

relating to privilege.” (Cal. Const., art. I, § 28, subd. (d).)3

While acknowledging the state immunity’s validity, the majority treats it as

little more than an echo of the Fifth Amendment to the federal Constitution. It is

not. The state immunity predates the United States Supreme Court’s recognition

of Fifth Amendment limits on the use of competency examination statements.

(See Estelle v. Smith, supra, 451 U.S. at pp. 468-469; Tarantino, supra, 48

Cal.App.3d at pp. 469-470.) Moreover, while the interpretation of our state

statutes as giving rise to immunity certainly was motivated in part by self-

incrimination considerations, it was equally motivated by an understanding of the

legislative policy considerations underlying the specific Penal Code provisions

themselves. (See People v. Weaver, supra, 26 Cal.4th at p. 960, quoting Arcega,

supra, 32 Cal.3d at p. 522 [“ ‘[T]he rule protects both an accused’s privilege

against self-incrimination and the public policy of not trying persons who are

mentally incompetent’ ” (italics added)].) We have never before treated the state


3

Contrary to the majority’s suggestion that the immunity lacks any such

statutory foundation (maj. opn., ante, at pp. 16-17, fn. 5), it has its roots in the
Penal Code’s statutory description of the scope and purpose of competency
examinations (see §§ 1367-1370), as well as the statutory privilege against self-
incrimination (Evid. Code, § 940). The immunity arises from Tarantino’s
interpretation of these statutes in a manner that avoids constitutional problems.
(See Tarantino, supra, 48 Cal.App.3d at p. 469 [“As to the right against self-
incrimination, we find no violation in compelling a defendant to submit to
examination by court-appointed psychiatrists under section 1367 et seq., at least
under a judicially declared immunity reasonably to be implied from the code
provisions
” (italics added)].)

4



immunity as limited by the Fifth Amendment. We have rejected the assertion that

it is less protective than the Fifth Amendment (see People v. Jablonski, supra, 37

Cal.4th at p. 802 [rejecting claim that the state immunity “inadequately protect[ed]

a defendant’s Fifth Amendment interest against self-incrimination” and allowed

use of statements prohibited by the Fifth Amendment]) and have acknowledged

that it may in some respects operate differently or more broadly (see Arcega, at

p. 523, fn. 6).4 We thus can decide this case without reaching difficult and

uncertain federal constitutional questions. We should do so.

II

The question remains whether the state immunity applies to use of

Pokovich’s statements to impeach him during guilt proceedings. I conclude that it

does.

State law expressly forbids trial of one who is mentally incompetent

(§ 1367, subd. (a)) and in specified circumstances mandates that the defendant

undergo a mental competency examination (§§ 1368, 1369). As the Court of

Appeal observed in Tarantino, supra, 48 Cal.App.3d at pages 469-470, the statutes

requiring a competency examination implicitly contemplate use of the defendant’s

statements obtained during the examination only in the competency proceeding

itself, not in the separate, subsequent guilt proceeding. The competency

proceeding is wholly distinct from the criminal trial. The initiation of a

competency proceeding requires suspension of criminal proceedings (§§ 1368,

subd. (c), 1370, subd. (a)(1)), and the competency proceeding is subject to its own


4

To the extent the immunity rests on a broader state conception of the

privilege against self-incrimination (see Cal. Const., art. I, § 15; Evid. Code,
§ 940) than would be strictly compelled by the Fifth Amendment to the federal
Constitution, a point on which I express no view, such a broader interpretation is
permissible. (See Raven v. Deukmejian (1990) 52 Cal.3d 336, 353-355.)

5



special rules and procedures (§ 1369, subds. (b)-(f); People v. Lawley, supra, 27

Cal.4th at p. 131 [“Although it arises in the context of a criminal trial, a

competency hearing is a special proceeding, governed generally by the rules

applicable to civil proceedings”]). The psychiatrists and psychologists appointed

by the court to examine a defendant are tasked with making a series of

determinations wholly unrelated to guilt or innocence: (1) whether the defendant

has a mental disorder, (2) whether the defendant is able to understand proceedings

and assist counsel in presentation of a defense, and (3) whether the defendant is

susceptible to treatment with antipsychotic medication and able to make decisions

about consenting to medication. (§ 1369, subd. (a).) As Tarantino originally

recognized, “there is no indication of any legislative intent that any result of this

inquiry into a wholly collateral matter be used in determining the issue of guilt.”

(Tarantino, at p. 469, italics added.)

These statutory provisions are intended to vindicate the Legislature’s

compelling interest in avoiding trial of those who, due to mental illness or

developmental disability, cannot defend themselves. Vindication of that interest

through accurate psychiatric evaluations requires full cooperation on the part of

defendants compelled to submit to competency examinations, as the facts of

Tarantino amply demonstrate. Clearly, however, full cooperation, although

essential, cannot be anticipated from defendants counseled not to speak for fear

statements made while in a questionable mental state will subsequently be used to

impeach their later testimony should they exercise their right to testify at trial.

We have approved Tarantino’s recognition of “blanket immunity” (Arcega,

supra, 32 Cal.3d at p. 523, fn. 6); a blanket immunity connotes an absolute bar on

any use of statements from the competency examination in the separate guilt

proceeding. Using such statements, even in rebuttal, to prove a defendant’s guilt

would contravene the Legislature’s intent that a mentally incompetent defendant

6



not be tried and that information about the accused’s mental state be gathered

solely to determine whether he is able to defend himself. Because satisfaction of

the Legislature’s compelling interest in trying only the competent depends on the

defendant’s cooperation, it follows that vindication of that interest requires the

defendant be granted full immunity. (Accord, People v. Harris (1987) 192

Cal.App.3d 943, 950 [competency examination statements may not be used for

impeachment during guilt proceedings].)

I note as well that, to the extent the statutory structure might be read to

permit compelled competency examinations, followed by use of any statements

obtained therein in guilt proceedings, such an interpretation would raise serious

constitutional questions. Whether one concludes such an interpretation would

countenance a Fifth Amendment violation (as does the majority) or not (as does

Justice Baxter’s concurrence and dissent), we generally will prefer interpretations

that avoid grave constitutional doubts. (People v. Brown (1993) 6 Cal.4th 322,

335.)

Thus, consistent with Tarantino and Arcega, I conclude the statutes

authorizing competency examinations and proceedings preclude any use of

statements obtained therein in guilt phase proceedings, and the impeachment use

of Pokovich’s competency examination statements in his subsequent guilt trial

violated this state immunity. Accordingly, I express no opinion as to whether the

Fifth Amendment to the federal Constitution also precludes the use of such

statements in this case.

Because on this record any error nevertheless was harmless, I concur in the

judgment.

WERDEGAR, J.

7



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Pokovich
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 120 Cal.App.4th 436
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S127176
Date Filed: August 31, 2006
__________________________________________________________________________________

Court:
Superior
County: Shasta
Judge: William Gallagher

__________________________________________________________________________________

Attorneys for Appellant:

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




__________________________________________________________________________________

Attorneys for Respondent:

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.












Counsel who argued in Supreme Court (not intended for publication with opinion):

Hayes H. Gable III
428 J Street, Suite 354
Sacramento, CA 95814
(916) 446-3331

Robert Gezi
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-5248


Opinion Information
Date:Docket Number:
Thu, 08/31/2006S127176

Parties
1Pokovich, Charles Grover (Defendant and Appellant)
Represented by Hayes H. Gable
Attorney at Law
428 "J" Street, Suite 354
Sacramento, CA

2Pokovich, Charles Grover (Defendant and Appellant)
Represented by Central California Appellate Program
2407 "J" Street, Suite 301
2407 "J" Street, Suite 301
Sacramento, CA

3The People (Plaintiff and Respondent)
Represented by Robert K. Gezi
Office of the Attorney General
1300 "I" Street, Suite 125
P.O. Box 944255
Sacramento, CA


Disposition
Aug 31 2006Opinion: Affirmed

Dockets
Aug 16 2004Petition for review filed
  Appellant ( Pokovich) by counsel.
Aug 18 2004Received Court of Appeal record
 
Sep 8 2004Record requested
  balance of record requested to ship overnight.
Sep 10 2004Received additional record
  two doghouses
Oct 13 2004Petition for review granted (criminal case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Dec 20 2004Counsel appointment order filed
  Hayes Gable is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Jan 19 2005Opening brief on the merits filed
  in Sacramento by counsel for appellant {Charles G. Pokovich}.
Feb 9 2005Request for extension of time filed
  Respondent requesting to March 20, 2005 to file answer brief on the merits. (recv'd in Sacto)
Feb 16 2005Extension of time granted
  to and including March 21, 2005 for respondent to file answer brief on the merits.
Mar 15 2005Request for extension of time filed
  AG requesting to April 20, 2005 to file answer brief on the merits. (recv'd in Sacramento)
Mar 21 2005Extension of time granted
  to and including April 20, 2005 for Attorney General to file the answer brief on the merits.
Apr 13 2005Answer brief on the merits filed
  In Sacramento by counsel for respondent {The People}.
Apr 29 2005Request for extension of time filed
  filed in Sacramento by counsel for appellant requesting a 20-day extension to and including May 23, 2005 to file appellant's reply to answer brief on the merits.
May 4 2005Extension of time granted
  To May 23, 2005 to file appellant's Reply Brief on the Merits.
May 20 2005Reply brief filed (case fully briefed)
  Appellant (Pokovich) by counsel.
May 2 2006Case ordered on calendar
  June 2, 2006, at 9:00 a.m., in San Francisco
May 8 2006Application filed to:
  Reschedule oral argument filed by Hayes H. Gable, counsel for appellant Pokovich
May 8 2006Request Denied
  The request for rescheduling of oral argument, filed by counsel for appellant Charles G. Pokovich on May 8, 2006, is denied.
May 17 2006Notice of substitution of counsel
  Deputy Attorney General Robert K. Gezi assuming the duties of respondent's counsel (replacing Ruth M. Saavedra).
Jun 2 2006Cause argued and submitted
 
Aug 31 2006Opinion filed: Judgment affirmed in full
  Majority Opinion by Kennard, J., joined by George, CJ., and Chin, J. C & D Opinion by Baxter, J., Corrigan, J., and Werdegar, J.
Sep 20 2006Compensation awarded counsel
  attorney Gable
Oct 3 2006Remittitur issued (criminal case)
 
Oct 11 2006Received:
  Receipt for Remittitur, Court of Appeal, Third Appellate District

Briefs
Jan 19 2005Opening brief on the merits filed
 
Apr 13 2005Answer brief on the merits filed
 
May 20 2005Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website