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, 08/31/2006 | S127176 |
Parties
| 1 | Pokovich, Charles Grover (Defendant and Appellant) Represented by Hayes H. Gable Attorney at Law 428 "J" Street, Suite 354 Sacramento, CA |
| 2 | Pokovich, Charles Grover (Defendant and Appellant) Represented by Central California Appellate Program 2407 "J" Street, Suite 301 2407 "J" Street, Suite 301 Sacramento, CA |
| 3 | The 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 2006 | Opinion: Affirmed |
| Dockets | |
| Aug 16 2004 | Petition for review filed Appellant ( Pokovich) by counsel. |
| Aug 18 2004 | Received Court of Appeal record |
| Sep 8 2004 | Record requested balance of record requested to ship overnight. |
| Sep 10 2004 | Received additional record two doghouses |
| Oct 13 2004 | Petition for review granted (criminal case) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ. |
| Dec 20 2004 | Counsel 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 2005 | Opening brief on the merits filed in Sacramento by counsel for appellant {Charles G. Pokovich}. |
| Feb 9 2005 | Request for extension of time filed Respondent requesting to March 20, 2005 to file answer brief on the merits. (recv'd in Sacto) |
| Feb 16 2005 | Extension of time granted to and including March 21, 2005 for respondent to file answer brief on the merits. |
| Mar 15 2005 | Request for extension of time filed AG requesting to April 20, 2005 to file answer brief on the merits. (recv'd in Sacramento) |
| Mar 21 2005 | Extension of time granted to and including April 20, 2005 for Attorney General to file the answer brief on the merits. |
| Apr 13 2005 | Answer brief on the merits filed In Sacramento by counsel for respondent {The People}. |
| Apr 29 2005 | Request 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 2005 | Extension of time granted To May 23, 2005 to file appellant's Reply Brief on the Merits. |
| May 20 2005 | Reply brief filed (case fully briefed) Appellant (Pokovich) by counsel. |
| May 2 2006 | Case ordered on calendar June 2, 2006, at 9:00 a.m., in San Francisco |
| May 8 2006 | Application filed to: Reschedule oral argument filed by Hayes H. Gable, counsel for appellant Pokovich |
| May 8 2006 | Request Denied The request for rescheduling of oral argument, filed by counsel for appellant Charles G. Pokovich on May 8, 2006, is denied. |
| May 17 2006 | Notice of substitution of counsel Deputy Attorney General Robert K. Gezi assuming the duties of respondent's counsel (replacing Ruth M. Saavedra). |
| Jun 2 2006 | Cause argued and submitted |
| Aug 31 2006 | Opinion 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 2006 | Compensation awarded counsel attorney Gable |
| Oct 3 2006 | Remittitur issued (criminal case) |
| Oct 11 2006 | Received: Receipt for Remittitur, Court of Appeal, Third Appellate District |
| Briefs | |
| Jan 19 2005 | Opening brief on the merits filed |
| Apr 13 2005 | Answer brief on the merits filed |
| May 20 2005 | Reply brief filed (case fully briefed) |
