Stanford Law School - Robert Crown Law Library

Filed 6/2/08

IN THE SUPREME COURT OF CALIFORNIA

JOSE DE JESUS VERDIN,
Petitioner,
S143040
v.
Ct.App. 4/2 E038165
THE SUPERIOR COURT OF
RIVERSIDE COUNTY,
Riverside
County
Respondent;
Super. Ct. No. BAF003065
THE PEOPLE,
Real Party in Interest.

Petitioner, who stands charged with attempted premeditated murder as well
as various other felony offenses, has announced his intention to rely on a
“diminished actuality” defense. (See People v. Steele (2002) 27 Cal.4th 1230,
1253.) That is, he intends to argue that as a result of his voluntary intoxication or
mental condition, he did not actually entertain the requisite mental state for the
charged crimes. In support of this defense, he intends to rely on the expert
testimony of Dr. Francisco Gomez, a psychiatrist who examined him and has
formed opinions regarding his mental state at the time of the crimes. The
prosecution naturally seeks pretrial discovery of Dr. Gomez’s interview notes and
final report. It also seeks something more.
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We decide in this case whether a trial court may order petitioner, a criminal
defendant, to grant access for purposes of a mental examination, not to a court-
appointed mental health expert, but to an expert retained by the prosecution. We
conclude the Court of Appeal erred in concluding the court was authorized to issue
such an order. We therefore reverse the appellate court’s denial of a writ of
mandate.
FACTS
On May 7, 2004, the District Attorney for Riverside County filed an
information charging petitioner Jose de Jesus Verdin with the premeditated and
deliberate attempt to murder his wife. (Pen. Code, §§ 664, 187.)1 The
information also alleged petitioner discharged a firearm in the commission of that
offense, an enhancement allegation that, if sustained, will add an additional and
consecutive term of 20 years to his sentence. (§ 12022.53, subd. (c).) Counts two
through five of the information charge petitioner with assault with a firearm,
willful discharge of a firearm in a grossly negligent manner, corporal injury on a
spouse or former spouse, and felony child endangerment. (§§ 245, subd. (a)(2),
246.3, 273.5, subd. (a), 273a.)
Evidence presented at the preliminary hearing indicated police were called
to petitioner’s Beaumont, California, house on January 12, 2004, about 1:40 a.m.
Officers Velazquez and Loera found petitioner, naked, sitting on his front porch.
When they entered his house, it was in disarray. Petitioner volunteered that he had
killed his daughter. Investigating, Officer Loera first noticed fresh blood in the
bedroom and then discovered petitioner’s wife in the house; she appeared to have
been beaten up. She explained to police that petitioner had thrown her around the

1
All further unlabeled statutory references are to the Penal Code.
2

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house. When she fled the home, she heard gunshots behind her and assumed
petitioner was shooting at her, although she never turned around to see. In the
house, police found a revolver containing six expended shells.
On further investigation, police discovered petitioner’s two-year-old
daughter, alive, at a neighbor’s home. She bore evidence of having been beaten
about the head and had a bruise around her neck as if she had been strangled.
Back at the police station, petitioner waived his Miranda2 rights and admitted he
had pressed his knee into the back of his daughter’s neck, pushing her face against
the bed. He had then picked her up by the neck, pulled her hair, choked her, and
struck her in the face with a closed fist. When asked why he had attacked his
young daughter, he said “she wouldn’t shut up” and that he knew what he did was
“evil.” He further explained he had assaulted his wife because he was “mad.” He
also admitted he tried to shoot his wife. Following the preliminary hearing,
petitioner was held to answer on all charges.
Thereafter, petitioner noticed his intention to defend against the charges by
relying on a diminished actuality defense and, in support, produced a report setting
forth Dr. Francisco Gomez’s psychological evaluation of him. The prosecution
thereafter sought informal discovery (see § 1054.5, subd. (b)) by sending defense
counsel a letter requesting Dr. Gomez’s records, notes, and test results, as well as
“access to your client for purposes of mental examination.” The prosecution
asserted that because petitioner had placed his mental state in issue, it was entitled
by our decision in People v. Carpenter (1997) 15 Cal.4th 312 to have the court
order him to submit to a mental examination by a prosecution expert. When this
informal request failed, the prosecution moved formally to compel discovery,

2
Miranda v. Arizona (1966) 384 U.S. 436.
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expressly seeking “[a]ccess to the defendant for purposes of [a] mental
examination.” In its written motion, the prosecution expressly relied on Carpenter
and also argued petitioner had waived any objection to such an examination by
placing his mental state in issue.
Petitioner did not oppose the request for Dr. Gomez’s written materials but
opposed the motion to have him submit to a psychiatric examination administered
by a prosecution expert. The trial court granted the prosecution’s request, finding
the prosecution’s position “well-taken.” After issuing an alternative writ of
mandate, the Court of Appeal filed an opinion denying relief. We granted review
and stayed the psychiatric examination ordered by the trial court pending our
decision.
DISCUSSION
Petitioner makes two primary arguments. First, he contends the trial
court’s order that the prosecution be granted access to him for purposes of a
mental examination by a prosecution retained expert is not authorized by state law.
Second, he contends that even if such an order is authorized by state law, it would
violate his rights under both the California and United States Constitutions.
Although the use of evidence from an undesired psychiatric examination to
convict a criminal defendant may have constitutional implications (see Estelle v.
Smith (1981) 451 U.S. 454), because we do not reach constitutional issues unless
necessary to do so (People v. Brown (2003) 31 Cal.4th 518, 534) we turn first to
examine petitioner’s state law arguments.
The trial court’s order granting the prosecution access to petitioner for
purposes of a mental examination by a prosecution expert affords the prosecution
the opportunity to obtain evidence directly from the accused. As such, petitioner
claims, the order grants the prosecution a form of pretrial discovery no different
than had the court ordered him to sit for a deposition in a civil case. Accordingly,
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petitioner argues, as a form of discovery, the availability of the examination is
governed strictly by statute.
The California laws governing discovery in criminal cases underwent a
major change on June 5, 1990, when the electorate approved Proposition 115, the
Crime Victims Justice Reform Act. (See Tapia v. Superior Court (1991) 53
Cal.3d 282, 286.) As we explained in Izazaga v. Superior Court (1991) 54 Cal.3d
356, 364, “Proposition 115 added both constitutional and statutory language
authorizing reciprocal discovery in criminal cases.” The new constitutional
provision, article I, section 30, subdivision (c) of the California Constitution,
declares that “[i]n order to provide for fair and speedy trials, discovery in criminal
cases shall be reciprocal in nature, as prescribed by the Legislature or by the
People through the initiative process.”
The same proposition also added chapter 10 to part 2, title 6 of the Penal
Code, commencing with section 1054 (hereafter the criminal discovery statutes),
establishing the procedures for, and limitations on, discovery in criminal cases.
Section 1054 sets forth the purposes of this new chapter, including that “no
discovery shall occur in criminal cases except as provided by this chapter, other
express statutory provisions, or as mandated by the Constitution of the United
States.” (Id., subd. (e).) We have emphasized this statutory exclusivity, noting
that “all court-ordered discovery is governed exclusively by — and is barred
except as provided by — the discovery chapter newly enacted by Proposition
115.” (In re Littlefield (1993) 5 Cal.4th 122, 129.) This is especially true of
prosecutorial discovery, which “often raises complex and serious constitutional
questions. It is for this reason that . . . the initial consideration of laws governing
such are more appropriately to be initially decided by the Legislature.” (Hubbard
v. Superior Court (1997) 66 Cal.App.4th 1163, 1167.)
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Our first task, then, is to determine whether the trial court’s order is a form
of discovery authorized by the criminal discovery statutes. To resolve that
question, we must resolve the threshold question: Is such an examination
“discovery”?
1. Is a Mandatory Psychiatric Examination “Discovery”?
The People, real party in interest in this case, first argue a court-ordered
psychiatric examination falls outside of, and is thus not governed by, the criminal
discovery statutes because those statutes create a mechanism for requiring the
disclosure of evidence already in existence and in the possession of an opposing
party. Citing the language of sections 1054.1 and 1054.3, the People contend the
criminal discovery statutes “presume[] that the evidence to be disclosed already
exists. A mere order compelling a defendant to submit to an examination does not
constitute ‘discovery,’ because nothing has as yet been produced that should be
disclosed under the discovery statutes.”
We agree that the sections cited refer to information already reduced to
physical form or otherwise known to the prosecution. For example, under section
1054.1, the prosecutor must disclose the “names and addresses” of witnesses
(subd. (a)); “[s]tatements of all defendants” (subd. (b)); “[a]ll relevant real
evidence seized or obtained” (subd. (c)); felony convictions of material witnesses
(subd. (d)); “[a]ny exculpatory evidence” (subd. (e)); and “[r]elevant written or
recorded statements of witnesses” including “the results of physical or mental
examinations, scientific tests, [and] experiments” (subd. (f)). Defendants have a
similar, though not identical, statutory obligation to disclose evidence to the
prosecution. (§ 1054.3, subds. (a) & (b).) Accordingly, the People have
requested, and petitioner does not oppose, discovery of all written or recorded
information in Dr. Gomez’s possession.
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We disagree, however, that the descriptions in sections 1054.1 and 1054.3
of materials subject to discovery can fairly be read to exclude other types of
materials from the reach of the criminal discovery statutes. First, sections 1054.1
and 1054.3 do not express such a limitation. Second, a psychiatric examination of
a party has long been considered a form of pretrial discovery. For example, in
Ballard v. Superior Court (1966) 64 Cal.2d 159, a case in which a defendant was
charged with sexual assault, we considered whether the defendant was entitled to
three forms of pretrial discovery from the prosecution: (1) statements of all
witnesses who testified before the grand jury; (2) records of a polygraph
examination performed on the prosecuting witness (id. at pp. 165-171); and (3) a
pretrial psychiatric examination of that witness (id. at pp. 171-177). Ballard held
the trial court had discretion to order the complaining witness — as a form of
pretrial discovery — to submit to a pretrial psychiatric examination “for the
purpose of determining whether her mental or emotional condition affected her
veracity.” (Id. at p. 171.) Although the doctrinal underpinnings of Ballard’s
holding have since been discredited (see People v. Anderson (2001) 25 Cal.4th
543, 575; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1310-1312) and the
holding itself superseded by statute (§ 1112), it remains clear that, at least as early
as 1966, we considered that a mental examination could be a form of pretrial
discovery.
Third, the Legislature recognizes such examinations are a form of
discovery. Code of Civil Procedure section 2032.020, subdivision (a), part of the
Civil Discovery Act of 2004, provides that “[a]ny party may obtain discovery . . .
by means of a physical or mental examination of . . . a party to the action.” (Italics
added.) As the People fail to proffer a persuasive explanation why a mental
examination constitutes a form of discovery in civil cases but not in criminal
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cases, we conclude a court-ordered mental examination of a defendant is discovery
within the meaning of the criminal discovery statutes.
Centeno v. Superior Court (2004) 117 Cal.App.4th 30 (Centeno), on which
the People rely, does not compel a different result. In Centeno, the defendant,
charged with capital murder, sought a pretrial determination of his possible mental
retardation, which would have made him ineligible for the death penalty. (Atkins
v. Virginia (2002) 536 U.S. 304.) The trial court ordered the defendant to submit
to a mental retardation examination by a prosecution expert, and he appealed.
While his appeal was pending, the Legislature enacted statutory procedures to
allow for the determination of retardation in capital cases. (§ 1376.) In rejecting
the defendant’s claim that forcing him to submit to an examination by a
prosecution expert would violate the criminal discovery statutes, the Centeno court
explained that “[e]xamination of a defendant by a prosecution expert is unrelated
to disclosure of information by defense counsel and thus is not logically
encompassed by the criminal discovery statutes.” (Centeno, at p. 41.)
Because section 1376, subdivision (b)(2) authorized the trial court in
Centeno to appoint an expert to examine the defendant, the discovery order in that
case was authorized by an “express statutory provision[],” as required by section
1054, subdivision (e). Accordingly, the Court of Appeal’s conclusion that the
examination did not constitute discovery under the criminal discovery statutes was
unnecessary. Moreover, the court’s dictum is not persuasive on its own terms.
First, the court does not discuss Ballard v. Superior Court, supra, 64 Cal.2d 159,
or the fact mental examinations are considered a type of discovery in civil cases
(Code Civ. Proc., § 2032.020). Further, by concluding that a mental examination
was not a form of discovery within the criminal discovery statutes, the court
necessarily assumed that Penal Code section 1054.3 described the universe of
information a prosecutor can discover from a criminal defendant. But although
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section 1054.3 lists only evidence that is tangible, has been reduced to physical
form, or is information otherwise known to the prosecution, the section does not
state that it is an exclusive list, nor does it purport to be. In fact, materials not
listed in section 1054.3 are discoverable by the prosecution if required by some
other statute or mandated by the United States Constitution. For example,
although an expert examination for mental retardation is not mentioned in section
1054.3, such an examination is authorized by section 1376. Because the criminal
discovery statutes allow for prosecutorial discovery of materials from a criminal
defendant that do not fall within section 1054.3, the premise of the Centeno
court’s analysis on this point was incorrect.
Having concluded a mental examination is a form of discovery subject to
the criminal discovery statutes, we turn next to whether such an examination is
authorized by those statutes.
2. Do the Criminal Discovery Statutes Authorize a Trial Court to
Order a Psychiatric Examination?3
The People argue that because petitioner placed his mental state in issue by
announcing his intention to rely on a diminished actuality defense, a long-
established rule in California authorizes the trial court to order the prosecution be
granted access to him for purposes of a mental examination by an expert retained

3
We speak here only of the trial court’s authority to grant the People’s
retained expert access to the defendant for purposes of a mental examination, not
actual physical compulsion. Of course, a person cannot be physically compelled
to submit to a psychiatric examination, but if a trial court has the legal authority to
order a defendant to comply, then a defendant’s failure to do so can lead to legal
consequences. (See, e.g., People v. Sumahit (2005) 128 Cal.App.4th 347
[inmate’s failure to cooperate with prosecution experts resulted in his forfeiture of
the right to challenge the sufficiency of the People’s showing of his present
dangerousness in a sexually violent predator proceeding].)
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by the prosecution. In support, the People cite a number of cases which they
contend support this rule. (People v. McPeters (1992) 2 Cal.4th 1148 (McPeters);
People v. Carpenter, supra, 15 Cal.4th 312 (Carpenter); People v. Danis (1973)
31 Cal.App.3d 782 (Danis).) Following the passage of Proposition 115 in 1990
and the enactment of the criminal discovery statutes, however, any discovery rules
announced in the cited cases require more rigorous justification. As explained,
ante, section 1054, subdivision (e) provides that “no discovery shall occur in
criminal cases except as provided by this chapter, other express statutory
provisions, or as mandated by the Constitution of the United States.” “[A]ll court-
ordered discovery is governed exclusively by — and is barred except as provided
by — the discovery chapter newly enacted by Proposition 115.” (In re Littlefield,
supra, 5 Cal.4th at p. 129.)
We conclude that Danis, McPeters, and Carpenter have not survived the
passage of Proposition 115. Danis, supra, 31 Cal.App.3d 782, opined that
prosecutorial discovery from a criminal defendant, in the form of a court-ordered
mental examination, was permissible even absent an “authorizing statute,” because
the trial court possessed inherent power to order such discovery. This reasoning is
insupportable following the 1990 enactment of section 1054, subdivision (e),
which insists that rules permitting prosecutorial discovery be authorized by the
criminal discovery statutes or some other statute, or mandated by the United States
Constitution. Although Danis’s result may have been supportable when decided
more than 30 years ago — a point we need not reach here — no part of its
reasoning can have survived the enactment of section 1054, subdivision (e).
Similarly, the rule announced in McPeters, supra, 2 Cal.4th 1148, and
followed in Carpenter, supra, 15 Cal.4th 312, did not survive Proposition 115.
Neither decision explained the basis — statutory or otherwise — of their assertion
that a criminal defendant who places his mental state in issue thereby creates in the
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prosecution the right to discovery in the form of a mental examination by a
prosecution expert. Because neither McPeters nor Carpenter rests on a statutory
or constitutional basis, both are inconsistent with section 1054, subdivision (e).4
The People contend the abrogation of the “sound principle that a defendant
who places his mental state in issue must submit to a prosecution examination”
would thwart an express purpose of Proposition 115, namely to make
“comprehensive reforms . . . in order to restore balance and fairness to our
criminal justice system.” (Ballot Pamp., Primary Elec. (June 5, 1990) text of Prop.
115, § 1, subd. (a), p. 33, italics added (hereafter Ballot Pamphlet).) The People
cite the preamble to Proposition 115, which provides in part: “[W]e the people
further find that it is necessary to reform the law as developed in numerous
California Supreme Court decisions as set forth in the statutes of this state. These
decisions and statutes have unnecessarily expanded the rights of accused criminals
far beyond that which is required by the United States Constitution, thereby
unnecessarily adding to the costs of criminal cases, and diverting the judicial
process from its function as a quest for truth.” (Ballot Pamp., supra, text of Prop.

4
The People also rely on People v. Coddington (2000) 23 Cal.4th 529, 611-
612, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th
1046, 1069. Like Carpenter and McPeters, Coddington applied the law before
Proposition 115 and did not explicitly rely on a statutory or a constitutional basis.
Instead, Coddington simply cited McPeters for the general proposition that a
prosecution expert must be given access to a defendant for purposes of a mental
examination when that defendant places his mental state in issue, and that
comment to the jury was permissible if the defendant refused access. To the
extent Coddington relied on McPeters, that part of Coddington did not survive
Proposition 115. We express no opinion on whether a statutory basis for a post-
Proposition 115 rule might exist in cases, like Coddington, that involve a plea of
not guilty by reason of insanity. (See § 1027 [regarding the appointment of
experts in insanity cases]; Coddington, at pp. 560-561 [prosecution called court-
appointed experts]; id. at p. 658 (dis. opn. of Mosk, J.) [recognizing same].)
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115, § 1, subd. (b), p. 33, italics added, also quoted in Williams v. Superior Court
(1996) 46 Cal.App.4th 320, 336.)
In order to effectuate the goals set forth in the preamble to Proposition 115,
however, the framers of that initiative did not authorize the judiciary generally to
create appropriate rules governing discovery in criminal cases. Although we must
interpret the statutes governing discovery in criminal cases, we are not at liberty to
create new rules, untethered to any statute or constitutional mandate. Instead, the
framers of Proposition 115, by including the exclusivity provision of section 1054,
subdivision (e), authorized the Legislature to create the applicable rules in the first
instance. Only when interpreting a statute or where a rule of discovery is
“mandated by the Constitution of the United States” (§ 1054, subd. (e)) does this
court have a role. (See discussion, post.) We thus conclude that nothing in the
preamble to Proposition 115 authorizes or justifies the judicial creation of a rule
that a criminal defendant who places his mental state in issue may be ordered by
the court to grant the prosecution access for purposes of a mental examination by a
prosecution expert.
Irrespective of whether Danis, McPeters, or Carpenter survived the 1990
enactment of Proposition 115, the People contend that “after the enactment of the
criminal discovery statutes, courts have upheld the right of the prosecution to
obtain an examination of a defendant who places his mental state in issue.” In
support, the People cite In re Hawthorne (2005) 35 Cal.4th 40 (Hawthorne),
Centeno, supra, 117 Cal.App.4th 30, and People v. Sumahit, supra, 128
Cal.App.4th 347 (Sumahit). None of these cases stands for the broad proposition
that a criminal defendant, by placing his mental state in issue, necessarily agrees in
all cases to give a prosecution expert access for purposes of a mental examination.
Hawthorne, supra, 35 Cal.4th 40, and Centeno, supra, 117 Cal.App.4th 30,
both involved criminal defendants facing the death penalty who claimed their
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mental retardation rendered execution an impermissible penalty under the Eighth
Amendment to the United States Constitution. (Atkins v. Virginia, supra, 536 U.S.
304.) In Centeno the issue arose pretrial. The defendant thus was subject to the
statutory procedure enacted by our Legislature in response to Atkins whereby
capital defendants can attempt to prove their retardation (§ 1376), including
requesting the appointment of experts (id., subd. (b)(2)).5 In Hawthorne, the
defendant had already been convicted. We held that, in postconviction cases,
courts should follow the procedures in section 1376 “as closely as logic and
practicality permit” so as “to avoid due process and equal protection implications.”
(Hawthorne, at p. 47.) In other words, the examinations in these cases were
permissible not simply because the defendants placed their mental states in issue
by claiming they were mentally retarded, but because the proceedings were
governed by statutory and constitutional considerations that are inapplicable to the
instant case.
Sumahit, supra, 128 Cal.App.4th 347, involved yet another statutory
scheme. In that case, an inmate subject to a sexually violent predator (SVP)
petition under Welfare and Institutions Code section 6600 was examined by a
defense expert but refused to submit to an examination by two experts who
testified for the People. (Sumahit, at p. 351.) Sumahit is distinguishable because
the SVP proceeding is civil in nature. (Hubbart v. Superior Court (1999) 19
Cal.4th 1138, 1175.) Moreover, like the mental retardation determinations at issue

5
Section 1376, subdivision (b)(2) states in pertinent part: “Nothing in this
section shall prohibit the court from making orders reasonably necessary to ensure
the production of evidence sufficient to determine whether or not the defendant is
mentally retarded, including, but not limited to, the appointment of, and
examination of the defendant by, qualified experts.” (Italics added.)
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in Hawthorne, supra, 35 Cal.4th 40, and Centeno, supra, 117 Cal.App.4th 30, in
SVP cases the appointment of experts to examine an inmate named in a petition is
expressly authorized by statute. (See Welf. & Inst. Code, §§ 6601, subd. (d),
6603, subd. (c)(1).)
In sum, we conclude that (1) any rule that existed before 1990 suggesting or
holding a criminal defendant who places his mental state in issue may thereby be
required to grant the prosecution access for purposes of a mental examination by a
prosecution expert was superseded by the enactment of the criminal discovery
statutes in 1990, and (2) nothing in the criminal discovery statutes (§ 1054 et seq.)
authorizes a trial court to issue an order granting such access.
3. Is a Court-ordered Psychiatric Examination Authorized by Some
“Other Express Statutory Provision”?
The criminal discovery statutes permit discovery if authorized by some
other “express statutory provision[].” (§ 1054, subd. (e).) Although the People
argue the trial court’s order granting the prosecution access to petitioner for
purposes of a mental examination is authorized by both Evidence Code section
730 and Penal Code section 1054.4, we conclude neither statute authorizes the trial
court’s order in this case.
a. Evidence Code section 730
Evidence Code section 730 provides in pertinent part: “When it appears to
the court, at any time before or during the trial of an action, that expert evidence is
or may be required by the court or by any party to the action, the court on its own
motion or on motion of any party may appoint one or more experts to investigate,
to render a report as may be ordered by the court, and to testify as an expert at the
trial of the action relative to the fact or matter as to which the expert evidence is or
may be required. [¶] The court may fix the compensation for these services, if
any, rendered by any person appointed under this section, in addition to any
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service as a witness, at the amount as seems reasonable to the court.” (Italics
added.) The People argue the trial court’s order requiring petitioner to grant a
prosecution expert access for an examination is authorized by this statute.
At the threshold, petitioner contends the People forfeited reliance on
Evidence Code section 730 because their discovery motion in the trial court cited
only Carpenter, supra, 15 Cal.4th 312, and did not seek appointment of an expert
pursuant to Evidence Code section 730. Were this merely a situation in which the
trial court’s order was right for the wrong reason (see, e.g., People v. Zapien
(1993) 4 Cal.4th 929, 976), as the Court of Appeal below held, we would reject
petitioner’s forfeiture argument. But not only did the People fail to invoke
Evidence Code section 730, the trial court did not appoint an expert pursuant to
that section, but instead ordered petitioner to submit to an examination by an
expert retained by the prosecution. Accordingly, we agree that the People have
not preserved this issue for appeal.
b. Nontestimonial evidence under section 1054.4
The People next contend the trial court’s order granting access to petitioner
for purposes of a mental examination by a prosecution expert is authorized by
section 1054.4. That section provides: “Nothing in this chapter shall be construed
as limiting any law enforcement or prosecuting agency from obtaining
nontestimonial evidence to the extent permitted by law on the effective date of this
section.” (Italics added.) The People focus on the word “nontestimonial,”
claiming that section 1054.4 authorizes the trial court to order petitioner to allow a
prosecution expert access for purposes of a pretrial mental examination because
such an examination would not elicit testimonial evidence.
The issue of whether evidence is “testimonial” arises in a variety of
contexts. It is often raised in cases involving the validity of a criminal defendant’s
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invocation of the protection of the Fifth Amendment to the United States
Constitution. That amendment, of course, provides in pertinent part that “[n]o
person . . . shall be compelled in any criminal case to be a witness against
himself.” We have explained that this constitutional language “ ‘protects a person
only against being incriminated by his own compelled testimonial
communications.’ (Fisher v. United States (1976) 425 U.S. 391, 409, italics
added.) Under cases of the United States Supreme Court, there are four
requirements that together trigger this privilege: the information sought must be
(i) ‘incriminating’; (ii) ‘personal to the defendant’; (iii) obtained by ‘compulsion’;
and (iv) ‘testimonial or communicative in nature.’ ” (Izazaga v. Superior Court,
supra, 54 Cal.3d at p. 366, second italics added.)
The high court has explained the meaning of the term “testimonial” in this
context. “[I]n order to be testimonial, an accused’s communication must itself,
explicitly or implicitly, relate a factual assertion or disclose information. Only
then is a person compelled to be a ‘witness’ against himself. [¶] This
understanding is perhaps most clearly revealed in those cases in which the Court
has held that certain acts, though incriminating, are not within the privilege. Thus,
a suspect may be compelled to furnish a blood sample [citation]; to provide a
handwriting exemplar [citation] or a voice exemplar [citation]; to stand in a lineup
[citation]; and to wear particular clothing [citation]. These decisions are grounded
on the proposition that ‘the privilege protects an accused only from being
compelled to testify against himself, or otherwise provide the State with evidence
of a testimonial or communicative nature.’ [Citation.] The Court accordingly
held that the privilege was not implicated in each of those cases, because the
suspect was not required ‘to disclose any knowledge he might have,’ or ‘to speak
his guilt’ [citations]. It is the ‘extortion of information from the accused’
[citation]; the attempt to force him ‘to disclose the contents of his own mind’
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[citation], that implicates the Self-Incrimination Clause. [Citation.] ‘Unless some
attempt is made to secure a communication — written, oral or otherwise — upon
which reliance is to be placed as involving [the accused’s] consciousness of the
facts and the operations of his mind in expressing it, the demand made upon him is
not a testimonial one.’ ” (Doe v. United States (1988) 487 U.S. 201, 210-211, fn.
omitted, italics added.)
We apply the same definition in this state. “The privilege against self-
incrimination extends to compelled testimonial or communicative disclosures by
an accused, but not to ‘real’ or ‘physical’ evidence derived from him. (Schmerber
v. California (1966) 384 U.S. 757, 760-765; People v. Ellis (1966) 65 Cal.2d 529,
533-537 [voice identification testimony not protected by self-incrimination
privilege].) A defendant’s appearance, as manifested in a lineup, is one such type
of nontestimonial, physical evidence. Accordingly, it is not protected by the
privilege (United States v. Wade (1967) 388 U.S. 218, 221-223), and evidence of a
defendant’s refusal to participate in a lineup is admissible at his trial. (People v.
Huston (1989) 210 Cal.App.3d 192, 216-217; People v. Smith (1970) 13
Cal.App.3d 897, 910 [defendant’s refusal, during show-up at police station, to don
jacket and cap allegedly worn by robber not protected by self-incrimination
privilege]; see also Quintana v. Municipal Court (1987) 192 Cal.App.3d 361, 365-
366 [defendant’s refusal to submit to blood-alcohol test not protected by self-
incrimination privilege].)” (People v. Johnson (1992) 3 Cal.4th 1183, 1221-1222;
see also State v. Tiner (2006) 340 Or. 551, 561-562 [135 P.3d 305, 311-312]
[compelled display of defendant’s tattoos not testimonial]; Com. v. Monahan
(1988) 378 Pa.Super. 623, 632 [549 A.2d 231, 235] [gunshot residue test not
testimonial for 5th Amend. purposes].)
Whether or not the voters intended to wholly incorporate this jurisprudence
into section 1054.4 is unclear, and we express no opinion concerning whether the
17

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meaning of the term “nontestimonial” as used in section 1054.4 is coextensive
with the term’s meaning for purposes of applying the Fifth Amendment
constitutional privilege.6 Nevertheless, these cases provide a useful framework for
interpreting the statute.
Applying the foregoing definitions here, the statements petitioner would
make in a court-ordered mental examination would unquestionably be testimonial.
Unlike the types of evidence courts previously have determined are nontestimonial
(such as blood or urine samples, or handwriting exemplars), the type of evidence
that would emerge from a psychiatric examination (drawn from petitioner’s own
statements) is not physical or observable evidence, but communicative information
that would have petitioner “reveal, directly or indirectly, his knowledge of facts
relating him to the offense” and would require him “to share his thoughts and
beliefs with the government.” (Doe v. United States, supra, 487 U.S. at p. 213;
see also Pennsylvania v. Muniz (1990) 496 U.S. 582 [drunk driver’s response to
question asking the date when he was six years old found to be testimonial].) To
determine whether petitioner, at the time of the crime, suffered from a mental
condition or was so intoxicated that he did not entertain the mental state required
for attempted murder, the People’s expert would necessarily need to question
petitioner about his feelings, perceptions, memory, and interpretation of the events
in question. Petitioner’s answers would necessarily be communicative, in that
they would communicate his memories and perceptions of the crime and his
feelings about it. His comments to the People’s expert would necessarily reveal
what the United States Supreme Court termed the “contents” and “operations” of

6
Because we are interpreting a statute in this case, our reference to
constitutional principles should not be considered definitive or binding in a case
where application of the constitutional privilege itself is directly at issue.
18

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his mind. (Doe v. United States, at p. 211.) Petitioner’s answers to the questions
would thus be testimonial in nature within the meaning of section 1054.4.
Evidence produced through such questioning is distinguishable from mere
noncommunicative evidence obtained by requiring the defendant to, e.g., stand in
a lineup or provide a blood sample or a voice exemplar. For example, there is no
showing the People’s expert here intends merely to observe petitioner’s demeanor,
gestures, posture, facial expressions, or voice quality. That type of evidence
would not be testimonial for, like a blood sample, its acquisition would not require
petitioner to communicate, but only that a witness observe him visually or aurally.
A psychiatric examination, by contrast, requires a defendant to communicate, to
provide his opinions and ideas, to describe his perceptions, to reveal the contents
of his mind; in short, to serve as a witness against himself.
Our conclusion is consistent with the high court’s decision in Estelle v.
Smith, supra, 451 U.S. 454. In that case, the trial court ordered defendant Ernest
Smith, who faced the death penalty for his crimes, to undergo a pretrial psychiatric
examination by Dr. Grigson to determine whether he was competent to stand trial.
After Smith was convicted, Dr. Grigson testified at the penalty phase of trial
informing the jury that based on his pretrial examination, he concluded Smith was
a sociopath, that no treatment existed for him, that he had no remorse for his
crime, and that he would commit similar crimes in the future if given the chance.
(Id. at pp. 459-460.) On appeal, Smith contended Dr. Grigson’s testimony
violated his right against compelled self-incrimination. In response, the State of
Texas argued no Fifth Amendment violation occurred because Smith’s
“communications to Dr. Grigson were nontestimonial in nature.” (Id. at p. 463.)
In support, Texas analogized to cases involving voice and handwriting exemplars,
lineups, and blood samples. (Ibid.)
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The United States Supreme Court rejected Texas’s argument. “Dr.
Grigson’s diagnosis, as detailed in his testimony, was not based simply on his
observation of [defendant Smith]. Rather, Dr. Grigson drew his conclusions
largely from [Smith’s] account of the crime during their interview, and he placed
particular emphasis on what he considered to be [Smith’s] lack of remorse.
[Citation.] Dr. Grigson’s prognosis as to future dangerousness rested on
statements [Smith] made . . . in reciting the details of the crime. The Fifth
Amendment privilege, therefore, is directly involved here because the State used
as evidence against [Smith] the substance of his disclosures during the pretrial
psychiatric examination.” (Estelle v. Smith, supra, 451 U.S. at pp. 464-465, fns.
omitted.) In other words, the high court found the Fifth Amendment’s protections
applied because Smith’s disclosures in the compelled pretrial psychiatric
examination were testimonial in nature.
The People fail to explain why Estelle v. Smith is not dispositive here and
fail also to cite any apposite authority suggesting that petitioner’s statements,
uttered in a mental examination, could nevertheless be nontestimonial. Contrary
to the People’s argument, Centeno, supra, 117 Cal.App.4th 30, does not support
the notion that statements obtained in the court-ordered mental examination sought
by the People would be nontestimonial in character.7 Centeno, as discussed, held
section 1376 requires a criminal defendant who raised the issue to submit to an
examination by prosecution experts to determine whether he was mentally
retarded and, because that section applied, the criminal discovery statutes did not.

7
The People do not, for example, assert their expert would merely observe
petitioner’s demeanor or gestures, or conduct a psychological test that would not
involve any verbal exchanges. We thus express no opinion on whether an order
for such an examination would come within section 1054.4.
20

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(Centeno, at p. 41.) In a footnoted passage, the Centeno court added this dictum:
“We also note that the criminal discovery statutes are not applicable to the
prosecution’s obtaining nontestimonial evidence. (Pen. Code, § 1054.4.)
Nontestimonial evidence includes blood samples, urine samples, saliva samples,
fingerprints, handwriting exemplars, voice exemplars, writings, and physical
lineups. [Citations.] For purposes of the criminal discovery statutes,
nontestimonial evidence may also include psychological testing of mental
retardation where otherwise permissible, even though it is considered testimonial
for purposes of the privilege against self-incrimination. (See People v. Danis,
supra, 31 Cal.App.3d at p. 785.) Here, the expert was precluded from questioning
defendant concerning the facts of the case. (Cf. Estelle v. Smith[, supra,] 451 U.S.
454.)” (Centeno, at p. 41, fn. 5, italics added.)
Danis, which Centeno cited in support of its statement that evidence
obtained from a psychological examination for mental retardation, although
considered testimonial for Fifth Amendment purposes, is nontestimonial for
section 1054.4 purposes, does not so hold. Danis in fact holds that psychiatric
testimony is testimonial. As the Danis court explained: “We do not agree with
the trial court’s rationale that psychiatric testimony is analogous to handwriting
exemplars, chemical tests or the defendant’s trying on of clothing which have been
classified by the courts as real or physical evidence [citations]. While some state
courts have so classified psychiatric tests [citations], California has considered
them as communicative or testimonial in character.” (Danis, supra, 31
Cal.App.3d at p. 785, italics added.) We conclude the Centeno court’s comment
regarding the nontestimonial nature of a psychiatric examination was unnecessary
dicta and incorrect in any event.
Although perhaps not every interaction between a psychiatrist and a
defendant would necessarily involve testimonial evidence, the People sought
21

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access to petitioner for purposes of a mental examination, with no indication their
expert would merely observe petitioner’s demeanor or gestures, or otherwise
attempt to gather some type of arguably nontestimonial evidence. (See fn. 7,
ante.) We thus assume the People’s expert intended to assess petitioner’s mental
state by conducting the standard type of examination, to wit, by interviewing
petitioner. Because the statements obtained in this type of mental examination
would be testimonial in nature, section 1054.4 is inapplicable. Accordingly, we
conclude section 1054.4 does not authorize the trial court’s order granting the
prosecution access to petitioner for purposes of a mental examination by a
prosecution expert.
4. Is a Court-ordered Psychiatric Examination “Mandated by the
Constitution of the United States”?
Having found neither the criminal discovery statutes (§ 1054 et seq.) nor
any other statute specifically authorizes the People to discovery in the form of a
court-ordered mental examination of petitioner, we lastly determine whether the
trial court’s order is “mandated by the Constitution of the United States.” (§ 1054,
subd. (e).) The People argue that “[t]here is no constitutional impediment to such
an examination. Both the United States Supreme Court and this Court have held
that a defendant who proffers a defense based upon a mental condition waives his
Fifth Amendment privilege against [compelled] self-incrimination . . . to the extent
necessary to permit a proper examination of that condition.” The People also
contend that “a defendant’s constitutional rights do not confer upon him the right
to present testimony free from the legitimate demands of the adversarial system.”
These arguments misapprehend the pertinent inquiry. Section 1054,
subdivision (e) authorizes pretrial discovery if “mandated by the Constitution of
the United States.” (Italics added.) That such discovery may be constitutionally
permitted is insufficient. It is not petitioner’s constitutional rights (such as his
22

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Fifth Amendment rights) that dictate this result, it is the plain language of section
1054. We conclude nothing in the United States Constitution mandates the trial
court’s order that the People be granted access to petitioner for purposes of a
mental examination by a prosecution expert on the ground that he intends to raise
a mental defense.
5. Due Process Under the State Constitution
Finally, the People argue that an interpretation of section 1054 precluding
the trial court from ordering petitioner to grant access to a prosecution expert for a
psychiatric examination would violate the People’s right to due process under the
California Constitution. (Cal. Const., art. I, § 29.) That provision states in
pertinent part that “[i]n a criminal case, the people of the State of California have
the right to due process.” The People argue that included in this right is “the
concept of fundamental fairness as well as a meaningful opportunity to be heard”
and that “the prosecution cannot meaningfully meet petitioner’s evidence without
an opportunity to examine petitioner prior to trial.”
While it is probable the People could more effectively challenge
petitioner’s anticipated mental defense if a prosecution expert were granted access
to him for purposes of a mental examination, that probability does not establish
that denial of such access violates article I, section 29 of the California
Constitution. Should petitioner present a mental defense at trial, the People’s
strong interest in prosecuting criminals can often be vindicated by challenging that
defense in other ways. The People can challenge the defense expert’s professional
qualifications and reputation, as well as his perceptions and thoroughness of
preparation. The People will have access to “any relevant written or recorded
statements” examined by Dr. Gomez, “including any reports or statements of
experts made in connection with the case, and including the results of physical or
23

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mental examinations, scientific tests, experiments, or comparisons which the
defendant intends to offer in evidence at the trial.” (§ 1054.3, subd. (a).) The
People can also have their own experts review Dr. Gomez’s report and interview
notes and comment on petitioner’s alleged mental condition. What the People
cannot do, because it is neither authorized by statute nor mandated by the United
States Constitution, is have the trial court order petitioner to grant their retained
expert access for the purpose of a psychiatric examination. Just as our law,
consonant with due process, generally prohibits the People from proving their case
against a criminal defendant by using evidence compelled from the defendant’s
spouse, attorney, priest, or psychotherapist, so does it preclude the People from
proving their case by compelling petitioner to grant a prosecution expert access for
a psychiatric examination.
CONCLUSION
Whether and when trial courts can order persons to undergo an undesired
psychiatric examination is a complicated question.8 This case does not require us
to plumb the depths of this complex issue. Instead, we need merely to interpret
section 1054. As explained above, we find the trial court’s order granting the
prosecution access to petitioner for purposes of having a prosecution expert
conduct a mental examination is a form of discovery that is not authorized by the
criminal discovery statutes or any other statute, nor is it mandated by the United
States Constitution. Although we have in the past found merit in a rule
authorizing such discovery when a defendant places his mental state in issue
(McPeters, supra, 2 Cal.4th 1148), following Proposition 115 and the enactment

8
See Ballard v. Superior Court, supra, 64 Cal.2d 159 (prosecutrix in sex
assault case can be required to submit to a psychiatric examination), abrogated by
statute, section 1112.
24

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of the exclusivity guidelines in section 1054, subdivision (e), we are no longer free
to create such a rule of criminal procedure, untethered to a statutory or
constitutional base.9 Our conclusion renders it unnecessary to decide whether the
trial court’s order violates petitioner’s constitutional rights.
The case is remanded to the Court of Appeal, which is instructed to issue a
writ of mandate directing the trial court to vacate its order and to issue a new order
denying the People’s motion. Our order staying the examination is vacated as
moot. The People remain free on remand to move the trial court to appoint an
expert pursuant to Evidence Code section 730 if, in its discretion, it decides that
expert evidence “is or may be required.”
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

9
The Legislature remains free, of course, to establish such a rule within
constitutional limits.
25

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

Name of Opinion Verdin v. Superior Court
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 137 Cal.App.4th 1159
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S143040
Date Filed: June 2, 2008
__________________________________________________________________________________

Court:

Superior
County: Riverside
Judge: Robert J. McIntyre

__________________________________________________________________________________

Attorneys for Appellant:

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

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

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

__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

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

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

---

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

Richard V. Myers
Deputy Public Defender
4200 Orange Street
Riverside, CA 92501
(951) 955-6080

John T. Philipsborn
507 Polk Street, Suite 350
San Francisco, CA 94102
(415) 771-3801

Elise J. Farrell
Deputy District Attorney
4075 Main Street, First Floor
Riverside, CA 92501
(951) 955-6620

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Petition for review after the Court of Appeal denied a petition for peremptory writ of mandate. This case includes the following issue: Can the prosecution compel a mental examination of the defendant in any criminal case in which the defendant places his or her mental state at issue, even though such an examination is not expressly provided for in the statutes covering discovery in criminal cases?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:	Cross Referenced Cases:
Mon, 06/02/2008	43 Cal. 4th 1096, 183 P.3d 1250, 77 Cal. Rptr. 3d 287	S143040	Review - Criminal Original (non-H.C.)	closed; remittitur issued	VERDIN v. S.C. (PEOPLE) (S134702)

Disposition
Jun 2 2008	Opinion filed

Dockets
May 2 2006	Petition for review with request for stay filed (criminal)   Jose de Jesus Verdin, Petitioner by Richard V. Myers, counsel
May 2 2006	Record requested   By overnight service
May 4 2006	Received Court of Appeal record   One doghouse
Jun 14 2006	Petition for review granted (criminal case)   Petition for review GRANTED. Pending further order of this court, the superior court's order compelling petitioner to submit to a mental examination in People v. Jose De Jesus Verdin, Riverside County Superior Court No. BAF-003065, is hereby stayed. Votes: George, C.J., Kennard, Werdegar, Moreno, and Corrigan, JJ.
Jul 18 2006	Application filed to:   file late opening brief on the merits, counsel for appellant
Jul 19 2006	Opening brief on the merits filed   w/permission by counsel for petitioner
Aug 15 2006	Answer brief on the merits filed   counsel for Real Party In Interest
Sep 6 2006	Reply brief filed (case fully briefed)   counsel for RPI ( People) (40.1(b)
Sep 21 2006	Received application to file Amicus Curiae Brief   California Attys for Criminal Justice (non-party) in support of petnr.
Sep 27 2006	Permission to file amicus curiae brief granted   California Attorneys for Criminal Justice in support of petitioner.
Sep 27 2006	Amicus curiae brief filed   California Attorneys for Criminal Justice in support of petitioner. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 4 2006	Received application to file Amicus Curiae Brief   Appellate Committee of the California District Attorneys Association in support of Respondent (Riverside County Superior Court). by Jeff H. Rubin, counsel
Oct 12 2006	Permission to file amicus curiae brief granted   The application of The Appellate Committee of the California District Attorneys Association for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 12 2006	Amicus curiae brief filed   The Appellate Committee of the California District Attorneys Association in support of respondent. Answer is due within twenty days.
Oct 16 2006	Filed:   counsel for Calif. District Attys. Assoc. Errata to Amicus Curiae brief filed 10-12-06 , pages 2 and 11.
Oct 18 2006	Response to amicus curiae brief filed   counsel for RPI (40.1(b))
Oct 24 2006	Received:   application; brief and, relief from default all under same cover re: amicus curiae brief in support of petitioner Jose De Jesus Verdin submitted by: L.A. Public Defender Terry Towery
Oct 30 2006	Permission to file amicus curiae brief granted   Michael P. Judge, Public Defender, Los Angeles Co. in support of petitioner
Oct 30 2006	Amicus curiae brief filed   Michael P. Judge, Public Defender Los Angeles County in support of petitioner is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. w/permission.
Oct 31 2006	Response to amicus curiae brief filed   counsel for petnr.
Nov 21 2006	Response to amicus curiae brief filed   Riverside County Dist. Atty. Office to amicus curiae of L. A. County Public Defenders Office. (40.1(b))
Feb 6 2008	Case ordered on calendar   to be argued Thursday, March 6, 2008, at 9:00 a.m., in San Francisco
Feb 13 2008	Filed letter from:   Richard V. Myers, counsel for petitioner, requesting to share 10 minutes of argument time with amicus curiae California Attorneys for Criminal Justice
Feb 13 2008	Filed letter from:   John T. Philipsborn, counsel for amicus curiae California Attorneys for Criminal Justice, supporting petitioner's request to share argument time.
Feb 13 2008	Order filed   The request of counsel for petitioner in the above-referenced cause to allow two counsel to argue on behalf of petitioner at oral argument is hereby granted. The request of petitioner to allocate to amicus curiae California Attorneys for Criminal Justice 10 minutes of petitioner's 30-minute allotted time for oral argument is granted.
Mar 6 2008	Cause argued and submitted
May 30 2008	Notice of forthcoming opinion posted
Jun 2 2008	Opinion filed   The case is remanded to the Court of Appeal, which is instructed to issue a writ of mandate directing the trial court to vacate its order and to issue a new order denying the People's motion. Our order staying the examination is vacated as moot. The People remain free on remand to move the trial court to appoint an expert pursuant to Evidence Code section 730 if, in its discretion, it decides that expert evidence "is or may be required." Opinion by: Werdegar, J. -----joined by: George, C. J., Kennard, Baxter, Chin, Moreno, and Corrigan, JJ.
Jul 7 2008	Remittitur issued (criminal case)
Jul 11 2008	Note:   records returned to CA 4/2 (briefs, 1 folder, transcript)
Jul 17 2008	Received:   Remittitur receipt from C/A 4/2 on July 17, 2008.

Briefs
Jul 19 2006	Opening brief on the merits filed
Aug 15 2006	Answer brief on the merits filed
Sep 6 2006	Reply brief filed (case fully briefed)
Sep 27 2006	Amicus curiae brief filed
Oct 12 2006	Amicus curiae brief filed
Oct 18 2006	Response to amicus curiae brief filed
Oct 30 2006	Amicus curiae brief filed
Oct 31 2006	Response to amicus curiae brief filed
Nov 21 2006	Response to amicus curiae brief filed

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