1

Filed 4/23/12

IN THE SUPREME COURT OF CALIFORNIA

REYNALDO A. MALDONADO, )

)

 Petitioner, )

) S183961

v. )

) Ct.App. 1/5 A126236

THE SUPERIOR COURT OF SAN )

MATEO COUNTY, )

) San Mateo County

 Respondent; ) Super. Ct. No. SC065313

)

THE PEOPLE, )

 Real Party in Interest. )

____________________________________)

A criminal defendant who tenders his or her mental state as a guilt or 

penalty issue waives the Fifth Amendment privilege against self-incrimination, 

and the Sixth Amendment right to counsel, ―  ̳to the extent necessary to permit a 

proper examination of that condition.‘ ‖ (People v. Carpenter (1997) 15 Cal.4th 

312, 412 (Carpenter); see Buchanan v. Kentucky (1987) 483 U.S. 402, 422-423 

(Buchanan).) In order to afford the prosecution a fair opportunity to rebut mentalstate evidence proffered by the defense, a recent amendment to California‘s 

criminal-case reciprocal discovery statute (Pen. Code, § 1054.3)1 specifically 

provides that when the defendant ―places in issue his or her mental state at any

phase of the criminal action,‖ the prosecution may seek and obtain a court order 

 

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

―that the defendant . . . submit to examination by a prosecution-retained mental 

health expert.‖ (Id., subd. (b)(1) (§ 1054.3(b)(1).) Here we must decide what 

general limits, if any, may properly be imposed on prosecutorial access to courtordered examinations and their results, both before and after the defendant actually 

introduces mental-state evidence in the criminal trial, in order to vindicate or 

protect the defendant‘s Fifth and Sixth Amendment rights.

Petitioner Reynaldo A. Maldonado faces charges of first degree murder 

with a special circumstance. (§§ 187, subd. (a), 190.2, subd. (a).) In compliance 

with his statutory pretrial discovery obligations, he notified the prosecution of his 

intent to introduce evidence, through designated expert witnesses, that he suffers 

from neurocognitive deficits as a result of childhood brain trauma or congenital 

brain dysfunction. In response, the prosecution obtained an order for his 

examination by a psychiatrist, a psychologist, and a neurologist chosen by the 

prosecution.

Invoking his federal constitutional rights to counsel (U.S. Const., 

6th Amend.) and against self-incrimination (id., 5th Amend.), petitioner sought 

various protective orders as conditions of his submission to court-ordered pretrial 

mental examinations. Urging that a Fifth Amendment waiver would occur only if 

and when he presented mental-state evidence at trial, petitioner sought to bar the 

prosecutors from observing the examinations directly, from discussing them with 

the examiners, and from otherwise learning anything about them, unless and until 

he actually introduced such evidence. Even then, he proposed, prosecutors should 

not have contact with the examiners, or learn anything about the examination 

results, until the court first inspected the examination materials in camera to 

determine what information the prosecution was entitled to receive as potential 

rebuttal evidence.
3

The trial court agreed that prosecutors should not be present in the 

examination room itself, but the court otherwise denied these requests. It reasoned 

that the prosecution is entitled to the examination results under the reciprocal 

discovery statute, and that petitioner‘s Fifth Amendment privilege is protected 

despite such disclosure because the prosecution cannot make direct or derivative 

use of the examinations or their results at his criminal trial, except as necessary to 

rebut any mental-state evidence he introduces in his own behalf.

Petitioner sought a writ of mandate, and the Court of Appeal granted partial 

relief. The majority acknowledged that the Fifth Amendment bars not mere 

disclosure, but actual use, direct or derivative, of a declarant‘s compelled 

utterances to convict or criminally punish that person. The majority also agreed 

with the People that the prosecution need not wait to receive and evaluate the 

examination results until petitioner actually presents mental-state evidence at trial. 

However, the majority expressed concern that if information about the 

examinations is prematurely disclosed, the prosecution may use it for purposes 

prohibited by the Constitution. The majority therefore concluded that the 

constitutional bar itself is not an adequate protection of petitioner‘s Fifth 

Amendment privilege against self-incrimination, and that further ―prophylactic‖ 

measures are required.

Accordingly, the majority directed the trial court to modify its prior orders 

to provide that (1) prosecutors be precluded from monitoring the examinations as 

they occur in ―real time,‖ (2) pretrial access by the prosecution to the examiners 

and the examination materials be prohibited until, within times specified by the 

trial court, petitioner files, under seal if he desires, motions asserting privilege 

objections to full or partial disclosure of any statements he made during the 

examinations, whereupon (3) the court will inspect the examination materials in 

camera, resolve issues of privilege, redact the materials accordingly, and disclose 
4

only the remainder to the prosecution, subject to any conditions necessary to 

preserve further valid assertions of privilege, and to preclude improper derivative 

use.

The Court of Appeal dissenter contended at length that use and derivative 

use immunity, enforced as necessary during the trial itself, are sufficient 

safeguards of petitioner‘s constitutional rights. In the dissenter‘s view, the 

elaborate prophylactic procedures adopted by the majority are unnecessary, 

impractical, and unfair to the prosecution, and would produce needless delay in the 

trial proceedings.

We agree, for the most part, with the conclusions reached by the Court of 

Appeal dissent. By forcing the trial court to resolve defense claims of privilege 

prior to trial, without prosecutorial access to the evidence in dispute, the Court of 

Appeal majority has imposed procedures that are neither required nor justified by 

the Fifth and Sixth Amendments, and are manifestly unfair to the prosecution. We 

will therefore reverse the Court of Appeal‘s judgment with directions to deny the 

petition for mandamus.

FACTS AND PROCEDURAL BACKGROUND

In January 2008, the San Mateo County District Attorney charged 

petitioner with first degree murder and alleged a lying-in-wait special 

circumstance. (§§ 187, subd. (a), 190.2, subd. (a)(15).)2 Petitioner retained three 

mental health professionals to evaluate him for purposes of a possible mental-state 

defense. Thereafter, in compliance with its obligations under the criminal-case 

reciprocal discovery statute (§ 1054.3, subd. (a)(1)), the defense furnished the 

prosecution with an outline of the mental-state evidence it intended to tender at 

 

2 The prosecution is not seeking the death penalty.
5

trial. This included evidence that, as the result of a childhood fall, petitioner was 

rendered unconscious and now suffers chronic headaches. Also provided were the 

examination reports of Jeffrey Kline, Ph.D., a psychologist, Peter Cassini, M.D., a 

psychiatrist, and Robert Perez, Ph.D., a neuropsychologist, indicating that 

petitioner has a mildly retarded IQ and suffers moderate to severe neurocognitive 

defects suggestive of acquired brain injury or congenital brain dysfunction.3

In response, the prosecution moved, pursuant to Evidence Code section 

730, for an order compelling petitioner to submit to mental examinations by courtappointed experts, including a psychologist, a psychiatrist, and a neurologist. On 

August 18, 2009, the trial court granted the motion.4 On August 28, 2009, 

petitioner sought a writ of mandamus/prohibition to bar the examinations. On 

September 4, 2009, the Court of Appeal summarily denied the petition. Petitioner 

 

3 These facts, undisputed by the People, are derived solely from 

representations in the mandamus petition and its supporting exhibits. The sparse 

record does not include the defense experts‘ reports themselves.

4 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 prosecution‘s motion, and the court‘s order, predated the adoption of 

Penal Code section 1054.3(b)(1), which now specifically provides that when a 

criminal defendant places his or her mental state in issue, the prosecution may 

obtain a court order ―that the defendant . . . submit to examination by a 

prosecution-retained mental health expert.‖ (See further discussion in fn. 5, post.)
6

sought review, and we stayed further proceedings pending our consideration of the 

petition for review. We denied review on September 23, 2009.5

Meanwhile, on August 18 and August 24, 2009, petitioner moved in the 

trial court for various protective measures related to the court-ordered 

examinations. These included requests that all prosecution or law enforcement 

representatives be prohibited from attending the examinations, and that the 

prosecution be denied all access to reports, notes, and recordings of the 

examinations, and barred from all contact with the examiners themselves, until the 

close of the defense case, and thereafter until the court (1) inspected the 

examination materials in camera to determine whether the prosecution should have 

 

5 The August 28, 2009, petition was based on our decision in Verdin v. 

Superior Court (2008) 43 Cal.4th 1096 (Verdin). There we held that, except for 

―other express statutory provisions‖ (§ 1054, subd. (e)), section 1054.3 sets forth 

the exclusive scope of required reciprocal discovery in criminal cases, and that, as 

then constituted, section 1054.3 made no provision for the defendant‘s compelled 

submission to evaluations by prosecution mental health experts. We declined, 

however, to consider the People‘s argument in Verdin that the court-ordered 

examination there sought was expressly authorized by Evidence Code section 730. 

We pointed out that the prosecution had not invoked this statute in seeking the 

examination. Moreover, we observed, the trial court in Verdin had not itself 

appointed an expert, as Evidence Code section 730 specifies, but had ordered the 

defendant to submit to examination by an expert retained by the prosecution.

In response to Verdin, the Legislature added subdivision (b)(1) to section 

1054.3, effective January 1, 2010. (Stats. 2009, ch. 297, § 1.) As noted above 

(fn. 4, ante), this provision explicitly authorizes the prosecution to obtain a court 

order for the defendant‘s examination by a prosecution-retained mental health 

expert when the defendant places his or her mental state in issue. Though the 

instant trial court‘s original August 2009 examination order was made under 

authority of Evidence Code section 730, petitioner does not dispute before us that 

the prosecution‘s selection of experts was proper under the later-enacted 

provisions of section 1054.3(b)(1).
7

access to them, and (2) decided issues of admissibility at a hearing at which both 

parties would have the right to be heard.6

Petitioner premised these requests primarily on his Fifth Amendment 

privilege against self-incrimination. He urged that he would waive this privilege 

only if, when, and to the extent he actually presented mental-state evidence in his 

own behalf at the trial. Until then, he insisted, the prosecution was not entitled to 

learn of the fruits of the compelled examinations, or of any statements he made to 

the examiners.

The People agreed that only petitioner and the experts should be directly 

present in the examination room. They also acknowledged that, if petitioner 

ultimately chose not to introduce mental-state evidence at trial, evidence from the 

 

6 These proposals were items Nos. 5, 6, 7, 8, and 10 of petitioner‘s August 

18, 2009, request. As pertinent here, they provided that the court should ―[¶] 5) 

. . . prohibit any district attorney, attorney general, U.S. Attorney, or special 

prosecutor, or any of their law enforcement agents, including but not limited to 

Daly City Police, [and the] San Mateo County Sheriff‘s Office from being present 

during the conduct of any of the examinations . . . ; [¶] 6) . . . prohibit access by 

any officials referred to under item 5 to any of the reports, notes, and/or recordings 

of the examinations and investigations by any of the [court-appointed] experts . . . 

until after the close of the defense case at the jury trial . . . , upon which the Court 

will inspect, in camera, any such reports, notes, and/or recordings . . . to determine 

whether the prosecution should have copies of such reports, notes, and/or 

recordings; [¶] 7) . . . decide the question of admissibility of any of the evidence 

adduced as a result of the work of the [court-appointed] experts . . . only after the 

steps in item 6 have been completed and only upon a hearing at which both parties 

have the right to be heard; [¶] 8) . . . prohibit any officials referred to under item 

5 from any contact with any [court-appointed] experts . . . until after the Court‘s in 

camera decision referred to in item 6 and only if the Court grants the prosecution 

permission to do so; [¶] 9) . . . ; [¶] 10) . . . require the [court-appointed] experts 

. . . to maintain confidentiality regarding their examinations and investigations of 

[petitioner], with the . . . exception that said experts will provide the Court with 

copies of their notes, reports, and recordings, immediately following the 

conclusion of their work.‖
8

court-ordered examinations would not be admissible. Nonetheless, the People 

urged they were entitled to monitor the examinations in ―real time,‖ and to know 

the examination results in advance of trial, in order to anticipate and develop their 

response in the event petitioner pursued his mental-state defense. In open court, 

the prosecutor also made the representation — unchallenged by defense counsel 

— that in this particular case, the prosecution already had petitioner‘s several 

police statements, the results of petitioner‘s examinations by the defense experts, 

and the statements petitioner had made to these experts.7 Accordingly, the 

prosecutor argued, the People would gain no unfair tactical advantage by advance 

access to the results of the court-ordered examinations.

The trial court agreed there was no need for prosecution representatives to 

be in the examination room itself, since it appeared possible to monitor the 

examination in ―real time‖ from a remote location. The court deferred a ruling on 

when issues of trial admissibility should be decided. But it otherwise declined to 

bar the prosecution from observing the examinations as they occurred, or from 

obtaining prompt access to the examiners and their examination notes and reports. 

The court agreed with the prosecution that ―[i]f you‘re going to get the reports 

anyway, which you‘re entitled to under reciprocal discovery, then it doesn‘t make 

much sense to preclude you from attending the actual interview.‖ The court also 

noted the prosecutor‘s representation that, under the specific facts of this case, the 

prosecution would not profit unfairly by obtaining advance access to the 

examinations and their results, including any statements made by petitioner to the 

examiners about the charged crimes.

 

7 None of these items is included in the record on mandamus.
9

Petitioner sought mandate. The Court of Appeal, First Appellate District, 

Division Five, issued an alternative writ directing the trial court to vacate its order 

denying items Nos. 5, 6, 7, 8, and 10 and to enter a new order granting those 

items, or to show cause why a peremptory writ to that effect should not issue. 

When the trial court declined to modify its order, the Court of Appeal stayed the 

trial proceedings and scheduled the matter for argument. Thereafter, the Court of 

Appeal ordered issuance of a peremptory writ of mandate directing the trial court 

to implement certain protective measures.

The Court of Appeal majority agreed with the People that the Fifth 

Amendment does not forbid disclosure, as such, of incriminating words a person 

was officially compelled to utter, but simply prohibits use of the compelled 

utterances against the declarant in a criminal case, either as direct evidence or as 

an aid to discovery of other incriminating evidence (derivative use). The majority 

also recognized that the reciprocal discovery statutes call for accelerated (i.e., 

pretrial) disclosure of anticipated witnesses and evidence, and observed that such 

accelerated discovery does not, in and of itself, offend the Constitution. 

Accordingly, the majority rejected petitioner‘s argument that disclosure to the 

prosecution of his examination results, including his statements to the examiners, 

must await the actual waiver of his Fifth Amendment privilege by his presentation 

of mental-state evidence at trial. The majority was persuaded that such belated 

disclosure would be unfair to the prosecution in its efforts to prepare a rebuttal 

case, and would lead to unnecessary midtrial delay.

Nonetheless, the Court of Appeal majority concluded, certain prophylactic 

measures are necessary to ensure that the prosecution does not make improper use 

of any statements by petitioner to the prosecution examiners that would potentially 

fall outside the scope of a limited Fifth Amendment waiver occasioned by his 

presentation of a mental-state defense. The majority ruled that, while nothing 
10

should preclude the prosecution from immediately learning their experts‘ ultimate 

opinions and diagnoses, any prosecutorial access to petitioner‘s statements to the 

prosecution examiners, or to materials containing such statements, should be 

subject to a ―minor pretrial delay‖ (italics added) during which the court, after

inspecting the statements in camera, should rule on privilege objections asserted 

by the defense in timely fashion, should redact the examination materials 

accordingly, and only then should release them to the prosecution.

Accordingly, the Court of Appeal‘s judgment specified that, insofar as the 

trial court‘s original order denied petitioner‘s requested items Nos. 5, 6, 7, 8, and 

10, that order should be replaced with new provisions (1) barring the prosecuting 

attorneys and their agents from observing the examinations in real time; 

(2) precluding all persons present at the examinations, including the examiners, 

from disclosing any statements made by petitioner therein until expressly 

authorized by the court to do so; (3) allowing petitioner, ―[w]ithin a specified 

amount of time after the conclusion of each examination (to be determined by the 

trial court),‖ to assert, by a sealed motion if he so desires, privilege objections to 

disclosure of statements he made during the examination; and (4) providing that 

the court, after inspecting the materials in camera, ―shall determine if [petitioner‘s] 

statements to the examiners, in whole or in part, remain subject to Fifth 

Amendment privilege [and shall] redact any statements it finds to be privileged,‖ 

following which the court may release the balance of the examination materials to 

the prosecution, subject to any conditions or limitations necessary to preserve a 

valid assertion of privilege or prevent improper derivative use.

The dissenting justice first urged that extraordinary writ relief is premature 

and inappropriate. Petitioner has not yet uttered any incriminating statement, the 

dissent observed, and he could seek a protective order against direct or derivative 

use of any such statement once the prosecutor actually learned of it. In any event, 
11

the dissent asserted, if petitioner is convicted in a trial where the court has erred 

prejudicially by allowing the prosecution‘s direct or derivative evidentiary use of 

statements protected by the privilege, he will have an adequate remedy by appeal.

On the merits, the dissent contended vigorously that the majority‘s 

prophylactic procedures are unnecessary to protect petitioner‘s Fifth Amendment 

rights. The dissent reasoned that these rights are adequately safeguarded by the 

immunity against use, either direct or derivative, of petitioner‘s statements against 

him, except as necessary to rebut any mental-state defense he actually presents at 

trial. Moreover, the dissent asserted, despite the majority‘s contrary assurances, 

the procedures it has dictated will produce significant trial delay and create 

―daunting‖ problems for a trial court forced to rule on petitioner‘s privilege 

objections without knowing what mental-state evidence he will ultimately present.

Both petitioner and the People sought review. Petitioner urged that the 

Court of Appeal had erred by allowing the prosecution even limited access to the 

court-ordered examinations before he actually waives his Fifth Amendment 

privilege by presenting mental-state evidence at trial. The People argued that the 

Court of Appeal‘s prophylactic restrictions on such pretrial access are 

unwarranted, and that pretrial mandamus relief is inappropriate in any event.

We granted the People‘s petition and denied petitioner‘s. We now 

conclude that the Court of Appeal‘s judgment must be reversed with directions to 

deny the petition for mandamus.
12

DISCUSSION8

1. Propriety of extraordinary relief.

The People first urge that pretrial writ proceedings to review the trial 

court‘s examination order are not justified. The People argue, as did the Court of 

Appeal dissent, that interim review of discovery orders is generally disfavored, 

that such review is unnecessary to protect petitioner‘s Fifth Amendment privilege 

against improper use of his examination statements at his criminal trial, and that if 

the trial court were to allow such improper use, petitioner would have an adequate 

remedy by appeal. Citing the majority opinion in the Court of Appeal, petitioner 

responds that courts frequently employ extraordinary writ proceedings to review 

discovery requests to ensure that the discovery itself does not infringe Fifth 

Amendment rights.

We need not debate these points. Mandamus is appropriate to address 

discovery issues that present novel issues of first impression and general 

importance. (E.g., Williamson v. Superior Court (1978) 21 Cal.3d 829, 833; 

Daly v. Superior Court (1977) 19 Cal.3d 132, 140; Oceanside Union School 

Dist. v. Superior Court (1962) 58 Cal.2d 180, 185-186, fn. 4.) Recently, in 

Verdin, supra, 43 Cal.4th 1096, we assumed without discussion that pretrial 

mandamus review was a proper means to address whether a court order for the 

mental examination of a criminal defendant by prosecution-retained experts, 

similar to the order at issue here, was authorized by the limited and exclusive 

reciprocal criminal discovery provisions of section 1054.3, as then in force. We 

 

8 Amicus curiae briefs have been submitted on petitioner‘s behalf (1) by 

California Attorneys for Criminal Justice and (2) jointly by the California Public 

Defenders Association and the Public Defender of Ventura County (Ventura 

County Public Defender).
13

answered ―no‖ to that question, thereby making it unnecessary to address the 

federal and state constitutional issues the petitioner in that case had also raised.

In response to Verdin, the Legislature amended section 1054.3 to provide 

express authority for such court-ordered examinations where the defendant ―places 

in issue his or her mental state at any phase of [a] criminal action.‖ (Id., 

subd. (b)(1), (2).) The instant examination order preceded the effective date of 

these amendments. However, the parties do not dispute that current section 

1054.3 provides sufficient statutory support for an order requiring petitioner, 

having signaled his intent to present mental-state evidence in his defense, to 

submit to a mental examination by prosecution-retained experts.

This case thus presents an early opportunity to determine whether, and if 

so, what, protective measures in the conduct of the examination, and in the 

disclosure of its results, are necessary to protect a defendant‘s rights under the 

Fifth and Sixth Amendments to the United States Constitution. The importance of 

resolving such issues sooner rather than later is manifest. We have no doubt that 

the Court of Appeal made proper use of this writ proceeding to address them. We 

proceed to the merits of the parties‘ substantive arguments.

2. Fifth Amendment.

At the outset, the Court of Appeal and the parties appear to agree on the 

following points: By presenting, at trial, a mental-state defense to criminal 

charges or penalties, a defendant waives his or her Fifth Amendment privilege to 

the limited extent necessary to allow the prosecution a fair opportunity to rebut the 

defense evidence. Under such circumstances, the Constitution allows the 

prosecution to receive unredacted reports of the defendant‘s examinations by 

defense mental experts, including any statements by the defendant to the 

examiners and any conclusions they have drawn therefrom. The prosecution is 

also constitutionally permitted to obtain its own examination of the accused, and 
14

to use the results, including the accused‘s statements to the prosecution examiners, 

as is required to negate the asserted defense. If the defendant refuses to cooperate 

with the prosecution examiners, the court may impose sanctions, such as advising 

the jury that it may consider such noncooperation when weighing the opinions of 

the defense experts. On the other hand, except for appropriate rebuttal, the 

defendant‘s statements to the prosecution experts may not be used, either directly 

or as a lead to other evidence, to bolster the prosecution‘s case against the 

defendant. (E.g., People v. Jones (2003) 29 Cal.4th 1229, 1264; Carpenter, supra, 

15 Cal.4th 312, 412-413; People v. McPeters (1992) 2 Cal.4th 1148, 1190; 

People v. Coleman (1989) 48 Cal.3d 112, 151-152; People v. Williams (1988) 

44 Cal.3d 883, 961 [insanity plea]; see Buchanan, supra, 483 U.S. 402, 422-423 

[where defendant places mental state in issue, or otherwise requests mental 

examination, prosecution may rebut defense mental case with examination 

results]; Kastigar v. United States (1972) 406 U.S. 441, 453 (Kastigar) [state may 

compel potentially incriminating testimony despite witness‘s invocation of Fifth 

Amend. privilege, but only upon providing direct and derivative use immunity that 

affords witness same protections against criminal prosecution as if he or she had 

remained silent].)9

 

9 This bar extends at least to the prosecution‘s case-in-chief. In People v. 

Pokovich (2006) 39 Cal.4th 1240, the majority concluded that when the defendant 

testifies in his or her own behalf at his criminal trial, the Fifth Amendment bars 

impeachment of such testimony with statements the defendant earlier made to 

mental health examiners appointed by the court to determine his or her 

competence to stand trial. (But see Pokovich, supra, at p. 1255 et seq. (conc. & 

dis. opn. of Baxter, J.).) The majority reasoned that this rule is necessary to 

protect the defendant‘s constitutional privilege against self-incrimination while 

encouraging cooperation in a court-initiated competency proceeding in which the 

defendant is not compelled to respond. (Pokovich, supra, at pp. 1244-1254; see 

Estelle v. Smith (1981) 451 U.S. 454, 468-469 (Estelle).) Neither United States 

(Footnote continued on next page.)
15

From then on, the parties‘ respective positions diverge sharply, and neither 

entirely agrees with the Court of Appeal‘s holding. Petitioner urges as follows: 

No limited waiver of Fifth Amendment rights will occur unless and until he 

actually presents mental-state evidence in his defense at trial. In the meantime, he 

may assert, and has asserted, his constitutional privilege to refuse to respond to the 

prosecution examiners in ways that may incriminate him. Accordingly, the Fifth 

Amendment directly excuses him from providing such responses under 

compulsion unless he receives advance assurances, akin to immunity guarantees, 

that the prosecution will use evidence derived from the examinations solely as 

proper rebuttal to any mental evidence he ultimately presents. This can only be 

accomplished, he insists, by shielding the prosecution from all access to the courtordered examinations or their results until he actually presents mental evidence at 

trial (or, at a minimum, until ―after the close of the prosecution case-in-chief[,] but 

only if the defense [then] confirms its intent to present mental health evidence‖).

On the other hand, the People insist that the Fifth Amendment does not, per 

se, prohibit official compulsion to communicate information that may be 

personally incriminating. Instead, they posit, the constitutional bar is simply 

against the actual use of compelled self-incriminating communications to support 

a criminal guilt or penalty case against a declarant who has not waived the 

privilege.

 

(Footnote continued from previous page.)

Supreme Court nor California decisions have confronted the question, not 

presented here, whether, if the accused chooses to testify at trial, his or her prior 

statements during a court-ordered examination initiated by the defense‘s voluntary 

decision to present mental-state evidence on the issue of guilt or penalty may be 

used to impeach that testimony.
16

The People thus urge that here, as in other cases where self-incriminating 

disclosures may be officially compelled despite invocation of the Fifth 

Amendment privilege, petitioner‘s rights are fully protected by the rule —

understood to apply in this case — that he has full use immunity, both direct and 

derivative, for any statements he makes in the examinations, except to the extent 

he voluntarily waives the privilege by presenting a mental-state defense at trial. 

Accordingly, the People argue, there is neither a direct constitutional mandate, nor 

prophylactic justification, for further measures, such as bans or limitations on the 

prosecution‘s pretrial observation of, or access to, mental examinations by its own 

experts, as ordered under section 1054.3(b)(1).

The Court of Appeal majority took a third tack. It agreed that the 

prosecution is entitled to some accelerated (i.e., pretrial) access to the examination 

materials. However, it concluded that immunity against improper trial use, direct 

or derivative, of the materials is insufficient to safeguard petitioner‘s Fifth 

Amendment rights. Believing that further prophylactic measures are required, the 

Court of Appeal majority ruled that, although prosecution representatives must be 

barred from observing the examinations directly, recordings and reports of the 

examinations may be released to the prosecution before trial, but only after the 

trial court inspects them in camera, rules on petitioner‘s Fifth Amendment 

privilege objections, and redacts the materials accordingly.

We are not persuaded by the approaches of petitioner or the Court of 

Appeal majority. As both this court and the United States Supreme Court have 

made clear, the Fifth Amendment does not directly prohibit the government from 

eliciting self-incriminating disclosures despite the declarant‘s invocation of the 

Fifth Amendment privilege. Absent a valid waiver of Fifth Amendment rights, 

this constitutional provision simply bars the direct or derivative use of such 
17

officially compelled disclosures to convict or criminally punish the person from 

whom they were obtained.

Nothing convinces us that, as a general proposition, further measures are 

necessary or justified to safeguard Fifth Amendment rights in the context of 

pretrial court-ordered mental examinations by prosecution experts, as triggered by 

a criminal accused‘s notice of intent to present a mental-state defense through his 

own experts. Indeed, as we explain below, the protective procedures devised by 

the Court of Appeal majority appear impractical and decidedly unfair to the 

prosecution.

At the outset, we find no merit to petitioner‘s primary argument — that 

because a waiver of his Fifth Amendment privilege will occur only if and when he 

actually presents mental-state evidence at trial, he has, in the meantime, a direct 

constitutional right to refuse to speak to court-ordered examiners unless he is 

assured that all access to his statements will be withheld from prosecutors until 

such a waiver occurs. This argument misconceives the Fifth Amendment as a 

guarantee against officially compelled disclosure of potentially self-incriminating 

information. Such is not the case.

The Fifth Amendment provides, in pertinent part, that no person ―shall be 

compelled in any criminal case to be a witness against himself.‖ (U.S. Const., 

5th Amend., italics added.) The meaning of this language was extensively 

discussed in Chavez v. Martinez (2003) 538 U.S. 760 (Chavez). In Chavez, a 

federal civil rights action (42 U.S.C. § 1983), the plaintiff alleged that defendant 

police officer had violated his Fifth Amendment right when, during a custodial 

interview while the plaintiff was receiving treatment for gunshot wounds sustained 

in a shootout with police, the officer extracted self-incriminating information 

without providing the warning and obtaining the waiver required by Miranda v. 

Arizona (1966) 384 U.S. 436. The plaintiff‘s responses to the officer were never 
18

used against him in any criminal prosecution. The issue in Chavez was whether, 

in the civil suit, the officer could assert the defense of qualified immunity for 

discretionary official actions taken in good faith that ―[do] not violate clearly 

established statutory or constitutional rights of which a reasonable person would 

have known.‖ (Harlow v. Fitzgerald (1982) 457 U.S. 800, 818.)

Finding that the qualified immunity was available, six members of the 

Chavez court agreed that a ―core‖ Fifth Amendment violation is completed, not 

merely by official extraction of self-incriminatory answers from one who has not 

waived the privilege, but only if and when those answers are used in a criminal 

proceeding against the person who gave them. (Chavez, supra, 538 U.S. 760, 

766-773 (plur. opn. of Thomas, J.); see id., at p. 777 (conc. opn. of Souter, J., 

joined by Breyer, J.).) As Justice Thomas explained, ―[s]tatements compelled by 

police interrogations of course may not be used against a defendant at trial, 

[citation], but it is not until their use in a criminal case that a violation of the SelfIncrimination Clause occurs, see United States v. Verdugo-Urquidez, 494 U.S. 

259, 264 (1990)  ̳The privilege against self-incrimination guaranteed by the Fifth 

Amendment is a fundamental trial right of criminal defendants. Although conduct 

by law enforcement officials prior to trial may ultimately impair that right, a 

constitutional violation occurs only at trial‘ . . .; Withrow v. Williams, 507 U.S. 

680, 692 (1993) (describing the Fifth Amendment as a  ̳ ―  ̳trial right‘ ‖ ‘); id., at 

p. 705 (O‘Connor, J., concurring in part and dissenting in part) (describing  ̳true 

Fifth Amendment claims‘ as  ̳the extraction and use of compelled testimony‘ 

. . .).‖ (Chavez, supra, at p. 767 (plur. opn. of Thomas, J.), italics added & altered 

in Chavez.) Only when statements officially coerced from a person are ―admitted 

as testimony against him in a criminal case,‖ Justice Thomas observed, is that 

person ―made to be a  ̳witness‘ against himself in violation of the Fifth 

Amendment‘s Self-Incrimination Clause.‖ (Ibid.)
19

Justice Thomas further explained that ―[i]n the Fifth Amendment context, 

we have created prophylactic rules designed to safeguard the core constitutional 

right protected by the Self-Incrimination Clause. [Citations.] Among these rules 

is an evidentiary privilege that protects witnesses‖ who invoke their Fifth 

Amendment rights ―from being forced to give incriminating testimony, even in 

non-criminal cases, unless that testimony has been immunized from use and 

derivative use in a future criminal proceeding before it is compelled. See 

Kastigar, supra, [406 U.S.] at 453; Maness v. Meyers, 419 U.S. 449, 461-462 

(1975) (noting that the Fifth Amendment privilege may be asserted if one is 

 ̳compelled to produce evidence which later may be used against him as an 

accused in a criminal action‘ . . . .).‖ (Chavez, supra, 538 U.S. 760, 770-771 (plur. 

opn. of Thomas, J.), first italics added.) The rule allowing a witness to assert the 

privilege prior to testifying, and to refuse to testify unless granted immunity, 

Justice Thomas indicated, protects the ―core‖ Fifth Amendment privilege simply 

by assuring that the witness has not forfeited the right against self-incriminating 

use of his or her testimony in later criminal proceedings. (Chavez, supra, at 

p. 771.)

We recently confirmed this view of the Fifth Amendment, holding that a 

public employee could be threatened with, and subjected to, job discipline for

refusing, on Fifth Amendment grounds, to answer his superiors‘ questions about 

his job performance despite repeated assurances from the employer that what he 

said could not be used against him, directly or indirectly, in a criminal prosecution. 

(Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704.) Adopting the 

conclusion of Chavez that the Fifth Amendment does not prohibit official 

compulsion to speak, but merely precludes the use of compelled statements in a 

criminal case against the declarant, we held that in the context of a noncriminal 

investigation by a public employer, the employee could be compelled to answer 
20

questions about his performance of duty, even without a formal immunity 

agreement, so long as he was not required to surrender the immunity conferred by 

the Fifth Amendment itself against use and derivative use of his statements to 

prosecute him for a criminal offense. (Spielbauer, supra, at pp. 714-730; see 

Sanitation Men v. Sanitation Comm’r (1968) 392 U.S. 280, 285; Gardner v. 

Broderick (1968) 392 U.S. 273, 277-279; Uniformed S.M. Ass’n, Inc. v. 

Commissioner of S. of N.Y. (2d Cir. 1970) 426 F.2d 619, 626-627; see also 

Adams v. Maryland (1954) 347 U.S. 179, 181.)

Here, as noted above, the parties agree that the Fifth Amendment protects

petitioner against any direct or derivative use of his statements to the prosecution 

examiners, except to rebut any mental-state evidence he presents through his own 

experts.10 That is all it does. Yet petitioner seeks more. As a condition of his 

submission to the examinations, he proposes to exclude the prosecution from 

 

10 To the extent petitioner and other criminal defendants are entitled, as a 

prophylactic protection of their Fifth Amendment privilege, to decline to submit to 

court-ordered mental examinations until they receive advance assurance of 

immunity against overbroad direct and derivative use of their responses to the 

examiners, we may, and we do, judicially declare such an immunity as 

―  ̳reasonably to be implied‘ ‖ from the statutory provision allowing the 

prosecution to obtain such examinations for the limited purpose of rebutting 

anticipated mental-state defenses. (People v. Arcega (1982) 32 Cal.3d 504, 520 

[confirming judicial immunity against use, in prosecution‘s case-in-chief, of 

accused‘s compelled statements to court-ordered competency examiners]; 

Tarantino v. Superior Court (1975) 48 Cal.App.3d 465, 469 [same]; see Byers v. 

Justice Court (1969) 71 Cal.2d 1039, 1049-1058 [as protection against potential 

for violation of privilege against self-incrimination, financial responsibility law 

requiring motorist involved in accident causing property damage to furnish his or 

her identity to owner of damaged property must be construed to provide immunity 

from direct or derivative use of such information in criminal prosecution against 

motorist], vacated on other grounds in California v. Byers (1971) 402 U.S. 424 

[holding that above described ―hit and run‖ statute does not implicate Fifth 

Amend. concerns]; but see fn. 9, ante.)
21

observing them, and then to bar prosecutors from all access to the examiners, or to 

the reports, notes, and recordings of the examinations, until he has actually 

presented such defense evidence at trial. Even then, he insists, the prosecution 

may only receive a version of the examination materials that the court has redacted 

after an in camera inspection.

Though the Court of Appeal majority did not go quite so far, it also devised 

protections beyond those the Constitution itself provides. While the Court of 

Appeal majority disagreed with petitioner that prosecutors should be denied all 

access to the examination materials unless and until petitioner presents mentalstate evidence at the trial itself, the majority nonetheless concluded that 

prosecutors could not observe the examinations, and could obtain access to the 

examination materials only under a procedure whereby the court would consider 

petitioner‘s privilege objections pretrial, and would inspect and redact the 

examination materials in camera, before allowing the prosecution any access to 

them.

But because these protections exceed those afforded by the Constitution, 

they also exceed the scope of any prophylactic assurances, ―coextensive with . . . 

the [constitutional] privilege,‖ to which petitioner might be entitled before being 

compelled to speak over his invocation of his Fifth Amendment rights. (Kastigar, 

supra, 406 U.S. 441, 453.) ―While a grant of immunity must afford protection 

commensurate with that afforded by the [constitutional] privilege, it need not be 

broader.‖ (Ibid., italics added.)11 The same principle applies to the advance 

assurances and protections petitioner seeks here.

 

11 Applying this principle, Kastigar held that one compelled to testify in a 

noncriminal proceeding despite invoking the Fifth Amendment privilege is 

entitled only to immunity against use of the compelled statements in a subsequent 

(Footnote continued on next page.)
22

Furthermore, the United States Supreme Court has strongly indicated that 

Fifth Amendment rights are not compromised by a requirement that the accused 

provide the prosecution with accelerated pretrial discovery about a defense he or 

she anticipates presenting in the trial itself. In Williams v. Florida (1970) 399 U.S. 

78, the high court upheld a state law that required a criminal accused who intended 

to present an alibi defense to disclose to the prosecution, prior to trial, where he 

claimed to have been at the time of the charged offense and the names and 

addresses of the alibi witnesses he intended to call; in return, the prosecution was 

required similarly to disclose to the defense the witnesses it proposed to call in 

rebuttal.

The defendant in Williams v. Florida had challenged the notice-of-alibi law 

on due process, fair trial, and self-incrimination grounds. The high court quickly 

rejected the due process and fair trial contentions. Stressing the reciprocal nature 

of the parties‘ discovery obligations, the court noted, among other things, that ―the 

State‘s interest in protecting itself against an eleventh-hour defense is both 

obvious and legitimate‖ (Williams v. Florida, supra, 399 U.S. 78, 81), and that 

―[t]he adversary system of trial is hardly an end in itself; it is not yet a poker game 

in which players enjoy an absolute right always to conceal their cards until 

played‖ (id., at p. 82).

As to the self-incrimination argument, the court observed that accelerated 

discovery of the defendant‘s alibi defense and witnesses does not improperly 

 

(Footnote continued from previous page.)

prosecution, not to complete ―transactional‖ immunity against prosecution itself. 

As Kastigar explained, use immunity suffices to place the witness in the same 

position as if he or she had provided no self-incriminating testimony. (Kastigar, 

supra, 406 U.S. 441, 457, 462.) The Constitution requires no more.
23

compel him to choose between his Fifth Amendment privilege and his right to 

present a defense. At trial, the court explained, the defendant would have to 

decide whether to present the defense through his own witnesses and, perhaps, his 

own testimony, or to remain silent and abandon the defense. Such a trial choice, 

the court noted, has never been thought to violate the Fifth Amendment. 

―However  ̳testimonial‘ or  ̳incriminating‘ the alibi defense proves to be,‖ the 

court indicated, ―it cannot be considered  ̳compelled‘ within the meaning of the 

Fifth . . . Amendment[ ].‖ (Williams v. Florida, supra, 399 U.S. 78, 84.)

A pretrial notice-of-alibi requirement, the court stated, presents no 

fundamentally different decision. ―Nothing in such a rule requires the defendant 

to rely on an alibi or prevents him from abandoning the defense; these matters are 

left to his unfettered choice. That choice must be made, but the pressures that bear 

on his pretrial decision are of the same nature as those that would induce him to 

call alibi witnesses at the trial . . . .‖ (Williams v. Florida, supra, 399 U.S. 78, 84-

85, fn. omitted.)

―At most,‖ the high court stressed, ―the rule only compelled petitioner to 

accelerate the timing of his disclosure, forcing him to divulge at an earlier date 

information that [he] from the beginning planned to divulge at trial. Nothing in 

the Fifth Amendment privilege entitles a defendant as a matter of constitutional 

right to await the end of the State‘s case before announcing the nature of his 

defense, any more than it entitles him to await the jury‘s verdict on the State‘s 

case-in-chief before deciding whether or not to take the stand himself.‖ 

(Williams v. Florida, supra, 399 U.S. 78, 85.)

If there were no notice-of-alibi rule, the court made clear, the prosecution 

would be entitled to a midtrial continuance, on grounds of surprise, the moment 

the defendant offered an alibi witness. The Fifth Amendment then would not 

prohibit the prosecution from doing exactly what the rule allowed it to do pretrial 
24

— take the witness‘s deposition and prepare a rebuttal. (Williams v. Florida, 

supra, 399 U.S. 78, 85-86.) ―[I]f so utilizing a continuance is permissible under 

the Fifth . . . Amendment[ ], then surely the same result may be accomplished 

through pretrial discovery, as it was here . . . .‖ (Id., at p. 86.)12

In Woods v. Superior Court (1994) 25 Cal.App.4th 178, the Court of 

Appeal applied the Williams v. Florida analysis to conclude that the defense 

obligation to provide pretrial discovery of the results of ―mental examinations . . . 

which the defendant intends to offer in evidence at the trial‖ (§ 1054.3, 

subd. (a)(1), italics added) does not violate the Fifth Amendment. The Court of 

Appeal reasoned that, as with the notice-of-alibi evidence at issue in Williams v. 

Florida, mere accelerated disclosure of mental-state evidence the defendant plans 

to introduce at trial (but may ultimately decide to forgo) cannot be deemed 

compelled self-incrimination prohibited by the constitutional provision. (Woods,

supra, at pp. 185-186.)

 

12 In Wardius v. Oregon (1973) 412 U.S. 470, the high court decided a 

question left open in Williams v. Florida, supra, 399 U.S. 78, ruling that the due 

process clause prohibits the state from requiring pretrial notice of an alibi defense 

and witnesses when the state is not required to provide reciprocal discovery to the 

accused. Petitioner raises no such due process issue here, nor could he. Section 

1054.1 requires the prosecution to disclose to the defendant or his attorney ―[t]he 

names and addresses of persons the prosecutor intends to call as witnesses at trial 

(id., subd. (a)), and ―[r]elevant written or recorded statements of witnesses or 

reports of the statements of witnesses whom the prosecutor intends to call at the 

trial, including any reports or statements of experts made in conjunction with the 

case, including the results of physical or mental examinations . . . which the 

prosecutor intends to offer in evidence at the trial‖ (id., subd. (f)). These 

provisions afford the accused reciprocal discovery of the prosecution‘s intended 

rebuttal witnesses and their statements, sufficient to satisfy the due process 

concerns addressed in Wardius. (People v. Gonzalez (2006) 38 Cal.4th 932, 955-

957; Izazaga v. Superior Court (1991) 54 Cal.3d 356, 375-377 (Izazaga).)
25

Similar considerations apply in the case before us. Having given notice, 

under his reciprocal discovery duties, of his intent to present a mental-state 

defense, petitioner is obliged to submit to an examination by prosecution-retained 

experts. However, he retains the ―unfettered choice‖ whether to actually present 

such a defense at trial. If he decides to abandon the defense, any selfincriminating results of the examinations cannot be introduced or otherwise used 

against him. On the other hand, by electing to present it, he will waive his 

privilege against self-incrimination to the extent necessary to support his claim 

and allow fair rebuttal. Forcing him to this choice does not offend the 

Constitution. If he decides to go forward with the defense, and is thus exposed at 

trial to self-incriminating direct or rebuttal evidence, that exposure cannot be 

deemed ―compelled‖ within the meaning of the Fifth Amendment.

If there were no advance disclosure and examination requirement, the Fifth 

Amendment would not preclude the prosecution from obtaining a midtrial 

continuance when petitioner proffered his defense, and from then requiring him to 

submit to examination by prosecution experts as a means of obtaining rebuttal 

evidence. Insofar as section 1054.3(b)(1) merely accelerates the timing of the 

examinations, and the disclosure of their results, in order to avoid such midtrial 

surprise and delay, it similarly does not imperil his constitutional privilege.13

 

13 In Izazaga, supra, 54 Cal.3d 356, we addressed a claim, among others, that 

the reciprocal discovery statute violates the Fifth Amendment guarantee against 

compelled self-incrimination by requiring the defendant to provide the 

prosecution, not only with the names and addresses of witnesses, other than the 

defendant, that he or she intends to call at trial, but also with ―any relevant written 

or recorded statements of those persons.‖ (§ 1054.3, subd. (a)(1), italics added.) 

We agreed with the petitioner that this broad statutory demand for the 

―statements‖ of intended defense witnesses does not satisfy the ―accelerated 

timing‖ doctrine endorsed in Williams v. Florida by merely ―forcing [the accused] 

to divulge at an earlier date information that [he or she] from the beginning 

(Footnote continued on next page.)
26

 

(Footnote continued from previous page.)

planned to divulge at trial‖ (Williams v. Florida, supra, 399 U.S. 78, 85), because 

some witness statements whose disclosure is required by section 1054.3, 

subdivision (a)(1) might never be offered at trial. (Izazaga, supra, at p. 367.) 

However, we explained, the statements of third party witnesses, as demanded by 

the statute, do not, in any event, meet one of the four tests for incriminatory 

statements protected by the Fifth Amendment — i.e., that they be 

―(i)  ̳incriminating‘; (ii)  ̳personal to the defendant‘; (iii) obtained by 

 ̳compulsion‘; and (iv)  ̳testimonial or communicative in nature‘ . . .‖ (Izazaga, 

supra, at p. 366) — because the statements of persons other than the accused ―are 

not . . .  ̳personal to the defendant‘ ‖ (id., at p. 367).

Of course, the recordings and reports of court-ordered mental examinations 

are likely to contain, or to mention, statements by the accused to the examiners. 

Depending on the exact mental-state defense ultimately presented (if any), at least 

some of these ―personal‖ statements by the defendant might ultimately not become 

defense or rebuttal evidence at trial. But that circumstance is not fatal to our 

analysis in this case. In the first place, our discussion in Izazaga of the 

―accelerated timing‖ analysis in Williams v. Florida, supra, 399 U.S. 78, was 

dictum, since, in Izazaga, we found other grounds to reject the Fifth Amendment 

challenge presented there. 

In the second place, Izazaga‘s analysis of the ―accelerated timing‖ point 

may have conceded too much by distinguishing Williams v. Florida too closely. 

In applying its ―accelerated timing‖ rationale, the Williams v. Florida court 

assumed that the proper purpose of the Florida statute requiring an accused to 

provide pretrial discovery of the names and addresses of potential alibi witnesses 

was to allow the prosecution, ―prior to trial,‖ to ―take the deposition[s] of the 

witness[es] and find rebuttal evidence.‖ (Williams v. Florida, supra, 399 U.S. 78, 

86, italics added.) Yet the court expressed no concern that some of those potential 

alibi witnesses, or some of the statements obtained by the prosecution from them, 

might not figure in the actual trial. On the contrary, as a central tenet of its 

analysis, the court stressed that, despite his or her pretrial disclosure obligation, 

the accused could later decide to abandon the proposed alibi defense entirely.

In the third place, even if a defendant‘s statements to prosecution mental 

examiners are incriminatory, testimonial, compelled, and personal —thus 

satisfying the four Fifth Amendment criteria noted by Izazaga — our dictum in 

that decision regarding Fifth Amendment limits on pretrial disclosure does not 

directly apply to the instant circumstances. In Izazaga we confronted a facial Fifth 

(Footnote continued on next page.)
27

In an aside, petitioner urges that the reciprocal discovery law itself 

guarantees his Fifth Amendment right to withhold from the prosecution his 

potentially self-incriminating statements to prosecution examiners unless and until 

he waives the constitutional privilege by presenting mental-state evidence at trial. 

Petitioner points to section 1054.6, which specifies that a defendant is not required 

to disclose, inter alia, ―any materials or information which . . . are privileged 

pursuant to an express statutory provision, or are privileged as provided by the 

Constitution of the United States.‖ As is plain from its language, however, section 

1054.6 merely protects those ―privilege[s]‖ the Constitution or statutes themselves 

afford, and thus imposes no broader restrictions on pretrial discovery than the 

Constitution, or the statutes defining privileges, otherwise require. As we have 

seen, the Fifth Amendment does not provide a privilege against the compelled 

―disclosure‖ of self-incriminating materials or information, but only precludes the 

use of such evidence in a criminal prosecution against the person from whom it 

 

(Footnote continued from previous page.)

Amendment challenge to statutory requirements for pretrial disclosure. We had no 

occasion in Izazaga to address specific situations such as that presented here, 

where the defendant has given notice of an anticipated waiver of his or her Fifth 

Amendment privilege.

Finally, as explained elsewhere in this opinion, the prosecution‘s pretrial 

access to materials derived from mental examinations conducted under section 

1054.3(b) does not contravene the constitutional privilege for another reason that 

has become clearer since Williams v. Florida and Izazaga were decided. This 

reason is that the Fifth Amendment does not directly prohibit official compulsion 

to provide ―testimonial‖ disclosure of personally incriminating information; it 

merely bars the use, direct or derivative, of such a compelled disclosure in a 

subsequent criminal prosecution against the person from whom it was obtained.
28

was compelled. Accordingly, nothing in section 1054.6 exempts the results of the 

prosecution examinations from pretrial discovery.14

Nor is our conclusion altered by consideration of Evidence Code section 

940 (not cited by petitioner or the Court of Appeal majority), which provides that 

―[t]o the extent that such privilege exists under the Constitution of the United 

States or the State of California, a person has a privilege to refuse to disclose any 

matter that may tend to incriminate him.‖ (Italics added.) As its language 

suggests, this statute ―does not determine the scope of the privilege against selfincrimination,‖ its exceptions, or the circumstances of its waiver; those matters are 

determined by the federal and state Constitutions themselves ―as interpreted by the 

courts.‖ (Cal. Law Revision Com. com., 29B pt. 3A West‘s Ann. Evid. Code 

(2009 ed.) foll. § 940, p. 283.) To the extent the Fifth Amendment provides no 

 

14 Two Court of Appeal decisions, Rodriguez v. Superior Court (1993) 

14 Cal.App.4th 1260 (Rodriguez) and Andrade v. Superior Court (1996) 

46 Cal.App.4th 1609, have held that section 1054.6 absolves the defendant from 

disclosing, prior to trial, the otherwise discoverable written or recorded statement 

of an expert witness he or she intends to call (§ 1054.3, subd. (a)(1)) if the 

statement includes or discusses communications from the defendant to the expert 

that are protected by the statutory attorney-client privilege. This privilege, unlike 

that provided by the Fifth Amendment, is one of true confidentiality. Unless and 

until waived, it protects against any and all disclosure of most communications 

from a client to his or her lawyer, or to a third person to whom the communication 

is necessary for ―accomplishment of the purpose for which the lawyer is 

consulted.‖ (Evid. Code, § 952; see also Cal. Law Revision Com. com., 29B 

pt. 3A West‘s Ann. Evid. Code (2009 ed.) foll. § 952, p. 307 [privilege covers 

client‘s disclosures to expert consultant, such as physician, for purposes of 

assisting counsel in advising client].) But neither the attorney-client privilege, nor 

any other privilege of true confidentiality, is at issue here. Petitioner has never 

claimed that his examination by prosecution experts might involve the disclosure 

of private communications to his counsel, as to which confidentiality has not been 

waived, or of attorney work product, and the Court of Appeal majority did not 

devise its prophylactic measures with those issues in mind.
29

absolute privilege against disclosure of potentially self-incriminating information, 

neither does Evidence Code section 940.

In determining that prophylactic measures, including provisions for delayed 

and redacted disclosure of the examination materials, are nonetheless necessary to 

protect petitioner‘s Fifth Amendment rights, the instant Court of Appeal majority 

expressed two general constitutional concerns about court-ordered pretrial 

examinations by prosecution experts.

First, the majority posed the problem of keeping the examinations 

themselves strictly relevant to the mental-state defense petitioner intends to 

present, and thus within the terms of the limited Fifth Amendment waiver such a 

defense would entail. For example, the majority suggested, unless this intended 

defense relates to the facts and circumstances of the charged crimes, or to the 

accused‘s feelings and attitudes about the crimes, questions on these subjects by 

the prosecution examiners may infringe upon petitioner‘s Fifth Amendment rights. 

(Citing, e.g., U.S. v. Johnson (N.D. Iowa 2005) 383 F.Supp.2d 1145, 1154-1163 

(Johnson) [prosecution experts‘ right to ask questions about charged crime 

depends on the questions‘ relation to specific mental defense accused intends to 

offer]; Traywicks v. State (Okla.Crim.App. 1996) 927 P.2d 1062, 1063-1064 

[where accused raised mental defect and alcoholism as defenses, and did not 

discuss crimes with defense examiners, defendant did not have to answer crimerelated questions during court-ordered mental examination].)

The Court of Appeal majority disclaimed any attempt, on the incomplete 

record before it, to delineate the proper scope of questioning by the courtappointed prosecution experts in this case. Nonetheless, the majority ruled that, 

once the court-ordered examinations are concluded, ―the permissible scope of 

disclosure‖ to the prosecution must depend on whether particular information 
30

from the examinations is ―necessary to render a reliable and informed opinion on 

the mental condition issue raised by [petitioner].‖ (Italics added.)

Second, the Court of Appeal majority worried that unless the examination 

materials are purged of all Fifth Amendment-privileged information before their 

release to the prosecution, they may be used to seek out other evidence of 

petitioner‘s guilt — evidence unrelated to rebutting his mental-state defense — for 

presentation at his trial. Rather than burden petitioner, and interrupt the trial, with 

later litigation over whether such derivative use of the examination materials has 

led to the prosecution‘s presentation of ―forbidden fruit,‖ the Court of Appeal 

majority concluded that it is better, in the first instance, to limit the prosecution‘s 

opportunity to exploit the examinations beyond their proper purpose.

We do not believe these concerns justify the measures devised by the Court 

of Appeal majority — measures that may seriously undermine the prosecution‘s 

fair opportunity to rebut a mental-state defense proffered by petitioner at trial. In 

the first place, the Court of Appeal majority‘s procedures require the trial court to 

resolve petitioner‘s privilege claims before it has heard his actual mental-state 

case, as presented at the trial itself. Forced to work with incomplete information 

in advance of trial, the court risks deciding the privilege issues erroneously, and 

may wrongly rule that portions of the examinations are inadmissible, even though, 

as it later turns out, the prosecution could properly have used them to rebut the 

ultimate defense evidence.

This danger is greatly compounded because the Court of Appeal majority‘s 

ruling would unfairly deny the prosecution all access to its potential rebuttal 

evidence until after the trial court has ruled on petitioner‘s claims of privilege. 

Hence, the prosecution would be deprived of the opportunity to litigate the 

privilege issues with full knowledge of the evidence in dispute, and prosecutors 

would never know what potentially useful rebuttal evidence, obtained by their own 
31

experts pursuant to court order, had been kept from them. The absence of a fully 

informed, two-sided debate on the Fifth Amendment privilege issues raised by the 

court-ordered examinations constitutes an additional, and substantial, obstacle to 

their fair and accurate resolution.

The Court of Appeal majority suggested that one-sided pretrial redaction 

procedures, such as the one it ordered, are neither unprecedented nor beyond the 

competence of trial courts. But such procedures are usually employed to protect 

privileges of true confidentiality — i.e., rights which, unless waived or otherwise 

limited, preserve particular information from all compelled disclosure. (See, e.g., 

In re Lifschutz (1970) 2 Cal.3d 415, 437, fn. 23 [in camera review to determine 

scope of patient-litigant exception to psychotherapist-patient privilege]; Evid. 

Code, §§ 915, subd. (b) [in camera review of allegedly privileged materials where 

necessary to rule on work-product or other nondisclosure privileges limited by 

requirements of justice], 1045, subd. (b) [in camera review of confidential peace 

officer personnel records to rule on ―relevance‖ exception for complaints, 

investigations, or discipline against officer].) If information entitled to true 

confidentiality is mistakenly disclosed, the disclosure itself breaches the privilege, 

the ―cat is out of the bag,‖ and the damage cannot be undone. Careful advance 

screening may be the only means of guarding against this danger.

By contrast, the Fifth Amendment privilege against self-incrimination does 

not target the mere compelled disclosure of privileged information, but the 

ultimate use of any such disclosure in aid of a criminal prosecution against the 

person from whom such information was elicited. Advance redaction is not the 

only, or even the best, means of safeguarding this privilege. That is especially true 

where, as here, the screening court must attempt to resolve complicated issues 

about partial waivers of the privilege that will occur only if, when, and to the 

extent a particular defense is presented in the trial itself. Preservation of the 
32

privilege against self-incrimination does not require that trial courts be taxed with 

such difficult and uncertain duties.15

Nor are we persuaded by the Court of Appeal majority‘s efforts to prevent 

the prosecution‘s use of ―tainted‖ evidence derived from the examinations. The 

pretrial screening and redaction procedures devised by the Court of Appeal 

majority stem from an unjustified assumption that, absent such redaction, the 

prosecution will exploit the examination materials for improper purposes. One 

consequence of this misguided approach, as noted above, is a substantial danger 

that the redaction process, conducted without full and fair participation by the 

prosecution, and before the defense has actually presented its mental-state case at 

trial, will be overbroad, and will thus leave the prosecution with insufficient 

information to prepare a legitimate rebuttal case.

Generally, therefore, the proper balance between the competing interests is 

best maintained by resolving Fifth Amendment privilege issues arising from 

section 1054.3(b)(1) mental examinations after the prosecution has obtained 

unredacted access to the examination materials. Fair procedures are available to 

ensure that a defendant‘s Fifth Amendment rights are not infringed at the trial by 

prosecutorial misuse of these materials. For example, once the prosecution has 

received them, the trial court is free to entertain a defense motion in limine to limit 

 

15 Section 1054.3(b)(1) actually includes a preexamination screening 

provision designed to help keep court-ordered examinations by prosecutionretained experts within relevant bounds. Subdivision (b)(1)(B) provides that 

―[t]he prosecuting attorney shall submit a list of tests proposed to be administered 

by the prosecution expert to the defendant . . . . At the request of the defendant 

. . . , a hearing shall be held to consider any objections raised to the proposed tests 

before any test is administered. Before ordering that the defendant submit to the 

examination, the trial court must make a threshold determination that the proposed 

tests bear some reasonable relation to the mental state placed in issue by the 

defendant . . . .‖
33

their use at trial. If the defense desires such pretrial assurances against improper 

use, it must, of course, provide the court, and the prosecution, with the details of 

its anticipated mental-state defense sufficient to permit fully informed argument 

and resolution of the privilege issues. Both parties, with full access to the 

examination materials, can then debate how those materials may apply as fair 

rebuttal to this defense. The court can issue all appropriate protective orders 

against improper use, both direct and derivative, of evidence derived from the 

examinations.16

Alternatively, the defense can raise its privilege arguments at the trial itself. 

Once the defendant has presented his or her mental-state evidence, and the 

prosecution commences its rebuttal case, the defense can raise specific objections 

to particular evidence from the section 1054.3(b)(1) examinations the prosecution 

seeks to introduce. At this stage, the court is in the best possible position to 

determine whether particular rebuttal evidence proffered by the prosecution 

exceeds the scope of the defendant‘s Fifth Amendment waiver.

Moreover, the cases have developed a well-established framework for 

resolving ―forbidden fruit‖ issues at trial. Under this scheme, if the defendant 

claims that all or some portion of the prosecution‘s case was obtained by 

constitutionally improper means, the defendant ―must go forward with specific 

evidence demonstrating taint,‖ after which the government ―has the ultimate 

burden of persuasion to show that its evidence is untainted.‖ (Alderman v. United 

States (1969) 394 U.S. 165, 183 [evidence obtained by illegal search]; see, e.g., 

 

16 As with many limine rulings on the admissibility of evidence, the court‘s 

pretrial privilege determinations necessarily would be preliminary, and must be 

subject to reconsideration if the circumstances at trial differ significantly from 

those anticipated at the time of the motion.
34

U.S. v. Hall (5th Cir. 1998) 152 F.3d 381, 399, cert. denied sub nom. Hall v. U.S. 

(1999) 526 U.S. 1117 (Hall) [evidence derived from court-ordered psychiatric 

exam]; see also U.S. v. Allen (8th Cir. 2001) 247 F.3d 741, 773-774, judgment 

vacated and cause remanded on other grounds sub nom. Allen v. U.S. (2002) 

536 U.S. 953 (Allen) [same].)17

 

17 Where, in one proceeding, a witness has provided self-incriminating 

testimony pursuant to a grant of immunity, then is later prosecuted on related 

charges, he or she need only point to the earlier immunized testimony in order to 

shift to the prosecution ―the heavy burden of proving that all of the evidence it 

proposes to use was derived from legitimate independent sources.‖ (Kastigar, 

supra, 406 U.S. 441, 461-462; see also Murphy v. Waterfront Comm’n (1964) 

378 U.S. 52, 79, fn. 18.) In such a case, the previously immunized witness is 

being prosecuted, on matters related to his or her immunized testimony, by 

officials who have no legitimate basis to possess or use that testimony. The 

suspicions aroused by such a situation may justify a broad presumption of 

improper use. In the instant case, by contrast, there is nothing presumptively 

improper about the prosecution‘s access to the results of its own experts‘ mental 

examinations of petitioner, conducted pursuant to court order. The prosecution 

may use those results, including petitioner‘s statements to the examiners, as 

necessary to rebut any mental-state defense he voluntarily presents. Under these 

circumstances, it is doubtful that mere pretrial disclosure to the prosecution of the 

unredacted examination results should force the prosecution to justify the 

independent basis for its entire case. (See, e.g., U.S. v. Stockwell (2d Cir. 1984) 

743 F.2d 123, 126-127 [prosecutors‘ direct observation of court-ordered insanity 

examination would not, without more, require prosecution to prove independent 

basis for its evidence].)

In any event, the scope of legitimate dispute about the source of 

prosecution evidence seems sharply reduced where, upon probable cause, an 

indictment or information has already been filed against the accused, reciprocal 

discovery is already under way, and the defendant has given notice of intent to 

present a mental-state defense, before the prosecution obtains the court-ordered 

examinations that might give rise to ―forbidden fruit.‖ Moreover, the subject 

matter of the examinations is confined to the accused‘s mental state at the time of 

the charged crimes. While this issue may sometimes involve statements by the 

accused to the examiners about the crimes themselves, often it will not. Contrary 

to the speculation of the Court of Appeal majority, we are not convinced that 

midtrial claims of tainted evidence arising from court-ordered mental 

(Footnote continued on next page.)
35

Finally, current rule 12.2 of the Federal Rules of Criminal Procedure (rule 

12.2), cited by petitioner and the Court of Appeal majority, does not persuade us 

to contrary conclusions. Before 2002, as now, rule 12.2 provided that a defendant 

who intends to present an insanity defense, or a mental-state defense bearing on 

guilt, must notify a government attorney, whereupon the government may move 

for a court-ordered mental examination. Then, as now, the rule further specified 

that the government may not make direct or derivative evidentiary use of such an 

examination except to rebut mental-state evidence actually presented by the 

defendant. (Fed. Rules Crim.Proc., former rule 12.2(a)-(c), 18 U.S.C. (1994 ed.) 

p. 749.)

The rule was amended in 2002 to authorize a similar court-ordered mental 

examination when the accused in a capital case provides required notice of an 

intent to present mental-state evidence on the issue of punishment. The amended 

rule further declares that the results of any such examination related solely to 

penalty ―must be sealed and must not be disclosed to any attorney for the 

government or the defendant‖ until after he or she is found guilty and thereafter 

confirms an intent to present mental-state evidence at the penalty trial. (Fed. 

Rules Crim.Proc., rule 12.2(c)(2), 18 U.S.C.; see id., rule 12.2(b).)18

 

(Footnote continued from previous page.)

examinations will present serious and widespread obstacles to the efficient 

conclusion of the trial proceedings.

18 For California purposes, we have held that, while the requirements of 

timely reciprocal pretrial discovery, as set forth in section 1054.3, apply to the 

penalty phase of a capital case, the trial court has discretion to delay prosecution 

discovery of defense penalty evidence until after conclusion of the guilt trial. 

(People v. Superior Court (Mitchell) (1993) 5 Cal.4th 1229, 1239.)
36

This ―seal and gag‖ provision was intended to avoid the consumption of 

time and resources that might arise if the government ―obtains early access to the 

accused‘s statements‖ and then is ―required to show that it has not made any 

derivative use of that evidence.‖ (Com. Notes on Rules—2002 Amendment, Fed. 

Rules Crim.Proc., 18 U.S.C. (2006 ed.) foll. rule 12.2, p. 71.)19 Notably, however, 

the amended rule only delays the government‘s access to court-ordered pretrial 

mental examinations bearing solely on the issue of penalty in a capital case, and 

does so only until the guilt trial is complete and the defendant confirms an intent to 

proceed with mental-state evidence at the penalty phase.

The competing interests may justify the limited restrictions imposed by 

amended rule 12.2. Depending on the verdict at the guilt phase of a capital trial, 

the case may never proceed to a penalty phase. Under such circumstances, it may 

not be unfair to delay the prosecution‘s discovery of potentially incriminating 

penalty evidence —evidence for which the prosecution has no legitimate need or 

use at the guilt phase — until the need for a penalty trial becomes clear.

 

19 Prior to the 2002 amendment of rule 12.2, several federal courts, concerned 

about the government‘s potential improper use, on the issue of guilt, of statements 

by capital defendants during court-ordered mental examinations pertinent only to 

penalty, had similarly specified that the government should have no access to 

information about such examinations until after the defendant‘s conviction at the 

guilt phase. (E.g., U.S. v. Minerd (W.D.Pa. 2002) 197 F.Supp.2d 272, 278; U.S. v. 

Edelin (D.D.C. 2001) 134 F.Supp.2d 45, 55; U.S. v. Beckford (E.D.Va. 1997) 

962 F.Supp. 748, 764; U.S. v. Haworth (D.N.M. 1996) 942 F.Supp. 1406, 1408; 

U.S. v. Vest (W.D.Mo. 1995) 905 F.Supp. 651, 654.) However, other courts have 

seen no necessity for such restrictions, finding sufficient Fifth Amendment 

protection in the normal trial procedures for resolving claims of tainted evidence. 

(Hall, supra, 152 F.3d 381, 399; see Allen, supra, 247 F.3d 741, 773-774; 

Phillips v. Araneta (Ariz. 2004) 93 P.3d 480, 483-484 [federally devised ―seal and 

gag‖ procedures generally not required even where penalty-specific prosecution 

mental examinations precede defendant‘s conviction].)
37

Even so, nothing in amended rule 12.2 bars the government from receiving 

penalty-specific examination results in advance of the penalty trial itself, so that it 

has ample time to prepare a rebuttal to the defense‘s anticipated penalty case. 

Moreover, the 2002 amendment to rule 12.2 placed no limits on the government‘s 

right to pretrial discovery of mental-examination evidence pertinent to the issue of 

guilt. There, the balance is altered; a trial on that issue is certain, and the 

defendant has already indicated his or her intent to defend the pending charges 

with mental-state evidence. In this situation, imposing delay on prosecutorial 

access to evidence that might rebut such a defense is neither fair nor appropriate. 

(See, e.g., U.S. v. Taveras (E.D.N.Y. 2006) 233 F.R.D. 318, 322; State v. Martin

(Tenn. 1997) 950 S.W.2d 20, 24-25.)20

Nor does rule 12.2 provide for advance screening and redaction of the 

examination materials before they are released to the prosecution for use in 

rebuttal. As explained above, a pretrial screening procedure that occurs before the 

accused has fully revealed his or her mental-state defense, and without 

prosecutorial access to the evidence in dispute, creates the danger of overbroad 

 

20 Amici curiae California Public Defenders Association and Ventura County 

Public Defender invite our attention to ―firewall‖ procedures adopted by some 

federal courts under the ―seal and gag‖ provisions of amended rule 12.2, as 

applicable to capital penalty evidence. Under these procedures, advance 

prosecutorial access to the results of court-ordered mental examinations pertinent 

only to sentencing is limited to ―firewall‖ attorneys or ―taint teams,‖ prosecutors 

otherwise unconnected to, and insulated from, the criminal case, who are 

appointed solely to manage the examinations. (See, e.g., Johnson, supra, 

362 F.Supp.2d 1043, 1084; U.S. v. Sampson (D. Mass. 2004) 335 F.Supp.2d 166, 

244-245.) But no sound reason appears to apply such procedures where, as here, 

the prosecution requires timely access to the examinations to prepare its rebuttal to 

anticipated defense evidence on the issue of guilt.
38

restrictions on the prosecution‘s access to evidence it needs, and to which it is 

entitled, to rebut the case actually presented.

For all these reasons, we are persuaded that neither the Fifth Amendment 

right against self-incrimination, nor prophylactic concerns about the protection of 

that right, justify precluding the prosecution from full pretrial access to the results 

of mental examinations by prosecution experts conducted, pursuant to section 

1054.3(b)(1), for the purpose of obtaining evidence to rebut a mental-state defense 

the defendant has indicated he or she intends to present on the issue of guilt. We 

conclude that the Court of Appeal majority erred in ordering such restrictions in 

this case.21

3. Sixth Amendment.

In a single paragraph of his brief on the merits, petitioner urges that 

advance prosecution access to the examination materials would also violate his 

Sixth Amendment right to counsel by making prosecutors privy to the information 

petitioner and his counsel must review in order to decide whether to present a 

mental-state defense. Though he occasionally referred below to the Sixth 

Amendment, he never made an argument even as developed or coherent as that 

presented here. The Court of Appeal majority concluded that petitioner‘s ―Sixth 

Amendment objections are obviated or adequately addressed by the ability of the 

defense to monitor the examinations, and to interpose timely objections to 

disclosure of statements which [petitioner] may make.‖

 

21 We conclude only that there appears no general constitutional or 

prophylactic reason to impose the access restrictions proposed by petitioner or 

adopted by the Court of Appeal majority. Nothing we say here is intended to 

suggest that a trial court may not address specific, as-yet-unforeseen problems that 

might arise in the course of particular examinations.
39

Petitioner‘s argument is, in any event, unmeritorious as presented here. 

The very purpose of mental examinations ordered by the court under section 

1054.3(b)(1) is to provide the prosecution with a fair opportunity to rebut mentalstate evidence the defense has already indicated it intends to present. They are not 

analogous to confidential consultations between the defendant and his or her 

attorney, from which prosecutors must be excluded. As we long ago made clear, 

such examinations do not violate a represented defendant‘s right to counsel so 

long as counsel is notified in advance of examination appointments and their 

purpose, and has the opportunity to consult with the client before they occur. 

(In re Spencer (1965) 63 Cal.2d 400, 412.) Nothing in United States Supreme 

Court cases suggests that more is required. (See Powell v. Texas (1989) 492 U.S. 

680, 685; Satterwhite v. Texas (1988) 486 U.S. 249, 254-255; Buchanan, supra, 

483 U.S. 402, 424-425; Estelle, supra, 451 U.S. 454, 471.)22

 

22 We note that portions of the trial court‘s order left undisturbed by the Court 

of Appeal majority provide that defense counsel (1) must receive reasonable 

notice of when examinations are to occur, (2) may, along with a defense expert, 

monitor the examinations in real time, and (3) must have prompt postexamination 

access to all examination materials.
40

CONCLUSION

The judgment of the Court of Appeal is reversed with directions to deny the 

petition for mandamus.

BAXTER, J.

WE CONCUR:

CANTIL-SAKAUYE, C.J.

KENNARD, J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

LIU, J.
1

CONCURRING OPINION BY LIU, J.

The court‘s opinion today holds that neither the Fifth Amendment nor the 

Sixth Amendment requires trial courts, as a general rule, to impose protective 

measures when the prosecution seeks to have the defendant examined by the 

prosecution‘s proposed expert to rebut a defendant‘s asserted mental health 

defense. I agree that such protections are not required in this case.

However, the court‘s opinion leaves the window open for trial courts to 

impose protections as necessary to avoid misuse of such examinations in a 

particular case. (Maj. opn., ante, at p. 38, fn. 21.)

In this case, the trial court found no need for protections beyond the general 

prohibition that the prosecution may not make direct or derivative use of the fruits 

of the examination. Here, the prosecution already has access to police interviews 

in which defendant recounted his version of the crime, and defendant does not 

raise particular concerns about the nature of the tests or the practices of the expert 

that would suggest an ulterior motive by the prosecutor. Nor is there any specific 

indication that defendant is unable to avoid making prejudicial or incriminating 

statements unrelated to his mental health defense. In sum, defendant‘s rights 

appear to be adequately protected by the general rule prohibiting the prosecution 

from making direct or derivative use of the examination except as necessary to 

rebut any mental health defense.
2

But this may not always be so. There may be cases in which the defendant 

has refused to make any statements to law enforcement, and thus the proposed 

mental examination might appear to serve as a surrogate for police interrogation. 

In other cases, the practices of the expert or the nature of the tests might suggest 

that the examination is more akin to an investigatory device than a procedure to 

allow the prosecution fair opportunity to rebut an anticipated mental health 

defense. Or a defendant‘s attorney may show that the defendant simply cannot 

stop talking and will infuse the examination with such prejudicial and inculpatory 

information that it is impossible to unring the bell. By implication, our rule 

prohibiting direct and derivative use except as necessary to rebut defendant‘s 

mental health defense is premised on the possibility that the examination may 

yield information useful to the prosecution beyond that limited purpose. And it is 

impossible for us today to anticipate the extent to which a particular examination 

might color, however innocently or subtly, the way a prosecutor frames the case, 

selects witnesses, or presents the evidence.

Under our direct and derivative use doctrine, the prosecutor bears the 

burden to establish that evidence presented outside of rebuttal was derived from an 

independent source and not the compelled examination. (Maj. opn., ante, at 

pp. 33–34.) When coupled with pretrial motions in limine to prevent obvious 

misuse, this basic rule will often suffice. In other cases, however, enforcing the 

bar against direct or derivative use at trial might be an inadequate or inefficient 

remedy. The trial court retains broad discretion, consistent with our opinion 

today, to decide whether and to what extent protective measures may be warranted 

in a particular case to ensure that any use of the examination by the prosecution is 

limited to rebuttal of a mental health defense.

LIU, J.

I CONCUR: WERDEGAR, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Maldonado v. Superior Court

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 184 Cal.App.4th 739

Rehearing Granted

__________________________________________________________________________________

Opinion No. S183961

Date Filed: April 23, 2012

__________________________________________________________________________________

Court: Superior

County: San Mateo

Judge: Mark R. Forcum

__________________________________________________________________________________

Counsel:

Paul F. DeMeester, under appointment by the Supreme Court, for Petitioner.

Law Offices of J.T. Philipsborn and John T. Philispborn for California Attorneys for Criminal Justice as 

Amicus Curiae on behalf of Petitioner.

Stephen P. Lipson, Public Defender (Ventura) and Michael C. McMahon, Chief Deputy Public Defender, 

for California Public Defenders Association and Public Defender of Ventura County as Amici on behalf of 

Petitioner.

No appearance for Respondent.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant 

Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman, Brent W. Wilner, Laurence 

K. Sullivan and Jeffrey M. Laurence, Deputy Attorneys General, for Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Paul F. DeMeester

1227 Arguello Street

Redwood City, CA 94063

(415) 305-7280

Jeffrey M. Laurence

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

(415) 703-5897