PEOPLE v. POKOVICH PART - II

PEOPLE v. POKOVICH

Filed 8/31/06

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S127176

v. )

) Ct.App. 3 C043253

CHARLES G. POKOVICH, )

) Shasta County

Defendant and Appellant. ) Super. Ct. No. 02F2465

_ )

Continue from Part I ………

Having considered and weighed the competing interests, we conclude that the impairment of the mental competency evaluation process if impeachment is permitted outweighs the speculative risk to the truth-seeking function of the criminal trial if impeachment is denied.[1] Accordingly, we conclude that the Fifth Amendment’s privilege against self-incrimination prohibits the prosecution from using at trial, for the purpose of impeachment, statements a defendant has made during a court-ordered mental competency examination.[2]

We have considered, but rejected as impractical, an alternate route to essentially the same result. Instead of simply disallowing impeachment at trial with a defendant’s statements during a competency examination, we could require trial courts to advise the defendant, before the competency examination, of the right to counsel and the right to remain silent. (See Estelle, supra, 451 U.S. at p. 468.) If the defendant invoked those rights, the court could nevertheless order the competency examination to proceed, but any statements the defendant made during the examination could then be used only for the purpose of determining competency. (Ibid.; see fn. 2, ante.) Acting on the advice of counsel, defendants would, we confidently predict, routinely invoke their rights, and thus the end result would be the same—the defendant’s statements during the competency examination would be inadmissible for impeachment at trial. Because we see no advantage in these additional procedural steps, we adopt the more direct approach. Moreover, we are reluctant to place our trial courts in the awkward position of advising defendants of their rights to counsel and to remain silent, and then, after the defendants invoke those rights, ordering the defendants to participate in the evaluation and informing them they cannot remain silent.

Our resolution of the issue before us fully protects both a defendant’s Fifth Amendment privilege against self-incrimination and a defendant’s Sixth Amendment right to counsel because the use immunity recognized here adequately safeguards those rights. (Baqleh v. Superior Court, supra, 100 Cal.App.4th at pp. 502-503.) Accordingly, we need not resolve here the difficult question whether counsel would have a right to be present at a court-ordered competency examination if a defendant’s statements during such an examination could later be used against him. Nor need we determine here whether statements obtained in violation of the right to counsel may be used to impeach a testifying defendant. (See United States v. Ortega (9th Cir. 2000) 203 F.3d 675 [statements may be used to impeach]; United States v. Brown (2d Cir. 1983) 699 F.2d 585 [statements may not be used to impeach]; People v. Brown (1996) 42 Cal.App.4th 461 [statements may be used to impeach]; People v. Harper (1991) 228 Cal.App.3d 843 [statements may not be used to impeach].)

The use of statements that defendant made during his mental competency evaluation to impeach his testimony at trial violated defendant’s constitutional right not to incriminate himself. Whether that error prejudiced defendant is explored below.

III

Under Chapman v. California (1967) 386 U.S. 18, 24, a violation of a criminal defendant’s federal constitutional rights requires reversal of the judgment unless the reviewing court determines “beyond a reasonable doubt that the error complained of did not contribute to the verdict.” Applying this standard here, we agree with the Court of Appeal that the violation of defendant’s Fifth Amendment privilege not to incriminate himself did not prejudice defendant.

The evidence against defendant was overwhelming. The bullet fragment taken from one of the victims’ cars matched not only the shell casings found at defendant’s home, but also his rifle. Also, defendant was seen holding his rifle at the time of the car shootings.

The extent of defendant’s impeachment at trial with statements he made at his mental health evaluation was minimal. Whether, as defendant told Dr. Pai, he drank one or two cans of beer on the day of the shootings was of little probative value at trial. There was no allegation that alcohol consumption played any part in the car shootings, and the jury was aware that there was no alcohol in the sample of defendant’s blood drawn two hours after his arrest. The prosecution’s impeachment of defendant with his statement to Dr. Pai, made at the mental competency examination, that he usually got along with Joyce Muse was minimal. It was undermined by defendant’s trial testimony on redirect examination that Muse was intimidating when she was arguing with her parents or with a boyfriend but that she was otherwise congenial.

Dr. Caruso’s testimony that defendant told him at the mental competency evaluation that he knew the shots fired at the cars came from his property at a time when defendant claimed he was shooting at blue jays, is largely cumulative of testimony by one of the sheriff’s deputies. Deputy Sheriff Ronald Smith testified that defendant admitted he was the man they were looking for, that Joyce Muse thought defendant had been shooting at her, and that he had been shooting at blue jays by his house.

In view of the overwhelming evidence of guilt and the insignificant nature of defendant’s mental competence examination statements later used by the prosecution to impeach him, we conclude that, beyond a reasonable doubt, the error in allowing such impeachment did not contribute to the verdict. (Chapman v. California, supra, 386 U.S. at p. 24.)

Disposition

The judgment of the Court of Appeal is affirmed.

KENNARD, J.

WE CONCUR:

GEORGE, C. J.

CHIN, J.

MORENO, J.

CONCURRING AND DISSENTING OPINION BY BAXTER, J.

I concur in the judgment of affirmance, and in the majority’s conclusion that any error in allowing use of defendant’s statements to court-appointed competency examiners to impeach his trial testimony was harmless by any standard. But I must dissent from the majority’s determination that error occurred when the prosecution was allowed to impeach defendant’s testimony in this fashion.

The majority holds that, even though a defendant is not compelled by California law to speak to court-appointed competency examiners, but does so, is adjudged competent, later elects to testify in his own behalf at his criminal trial, and takes that opportunity to tell the court something different than what he previously told the examiners, it is a violation of the Fifth Amendment of the United States Constitution to use his earlier statements to impeach his testimonial credibility. Moreover, the majority insinuates, the Sixth Amendment may compel a similar result to the extent the defendant’s counsel was not permitted to attend the competency examination itself. I cannot agree.

At the outset, as Justice Werdegar observes, although California’s judicially declared “blanket use immunity” for statements made in a court-ordered competency examination is designed in part to protect the privilege against self-incrimination, it is a creature of state, not federal, law. (Tarantino v. Superior Court (1975) 48 Cal.App.3d 465, 469-470 (Tarantino); see People v. Arcega (1982) 32 Cal.3d 504, 521-523 (Arcega); cf. Centeno v. Superior Court (2004) 117 Cal.App.4th 30, 43-44.) Tarantino characterized the immunity as one “reasonably to be implied from the [statutory] provisions [for determining competency]” (Tarantino, supra, at p. 469), and it has never been squarely premised on the federal Constitution. It has survived the Truth-In-Evidence provisions of Proposition 8 (see Arcega, supra, at pp. 521-523), presumably under that measure’s express preservation of “existing statutory rule[s] of evidence relating to privilege” (Cal. Const., art. I, § 28, subd. (d); see Evid. Code, § 940; Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 807-808 (Ramona R.); see also conc. & dis. opn. of Werdegar, J., post, at pp. [2-5], & fns. 3, 4).

Though I would not do so for reasons discussed below, I therefore assume, as Justice Werdegar concludes, that we could now construe this “existing” state-privilege-related immunity to include protection against use for impeachment. (Cf. People v. Macias (1997) 16 Cal.4th 739, 751-753 (Macias).) In that event, reversible prejudice would presumably be measured by the standard applicable to errors of state law. (See People v. Cahill (1993) 5 Cal.4th 478, 487-510; People v. Watson (1956) 46 Cal.2d 818, 835.) However, by rejecting this option, and placing its ruling squarely on federal constitutional grounds, the majority locks in the more stringent standard of reversibility set forth in Chapman v. California (1967) 386 U.S. 18. The majority’s constitutional ruling is unnecessary and incorrect.

Even where federal constitutional principles preclude substantive use of an accused’s statements to prove his criminal guilt, the United States Supreme Court has stressed that it has denied impeachment use of such statements in only one instance—where the statements were truly involuntary. (Michigan v. Harvey (1989) 494 U.S. 344, 351 (Harvey), citing, as examples, New Jersey v. Portash (1979) 440 U.S. 450 (Portash) [grand jury testimony under statutory grant of use immunity, but subject to threat of contempt for refusal to talk]; Mincey v. Arizona (1978) 437 U.S. 385 [statements extracted over protests of seriously wounded suspect in hospital intensive care unit].)

If no true coercion or compulsion is involved, both the high court and the courts of this state have held that, even when an accused’s statements in a particular context are inadmissible to prove he committed a crime, they are available to impeach him if he voluntarily testifies at the trial on criminal charges or allegations. (E.g., Harvey, supra, 494 U.S. 344, 348-354 [voluntary statements elicited by police-initiated conversation with custodial defendant who had previously invoked Sixth Amendment right to counsel]; Oregon v. Hass (1975) 420 U.S. 714, 720-724 [voluntary statements obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436]; Harris v. New York (1971) 401 U.S. 222, 224-226 (Harris) [same]; People v. Peevy (1998) 17 Cal.4th 1184, 1191-1208 [voluntary statements elicited in deliberate violation of Miranda]; People v. Coleman (1975) 13 Cal.3d 867, 892 [inconsistent statements at probation revocation hearing]; People v. Crow (1994) 28 Cal.App.4th 440, 449-453 [prior inconsistent statements during unsuccessful plea negotiations]; People v. Drews (1989) 208 Cal.App.3d 1317, 1324-1326 [prior inconsistent statements during pretrial suppression hearing]; People v. Stanfill (1986) 184 Cal.App.3d 577, 581-582 (Stanfill) [prior inconsistent statements to court-appointed competency examiners]; Sheila O. v. Superior Court (1981) 125 Cal.App.3d 812, 816-817 [juvenile’s testimony at fitness hearing]; cf. United States v. Havens (1980) 446 U.S. 620, 624-628 [physical evidence obtained in violation of Fourth Amendment]; but see Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 499, fn. 5 (Baqleh) [statements to competency examiners not available for impeachment]; People v. Harris (1987) 192 Cal.App.3d 943, 949-950 [same].)

Whether substantive use protection is granted to protect constitutional rights, or to encourage the accused to speak the truth in a particular nontrial setting, or both, modern California and high court cases have emphasized that these considerations do not give the accused a license to commit perjury on the witness stand. In this regard, the United States Supreme Court has noted that “[e]very criminal defendant is privileged to testify in his own defense, or to refuse to do so. But . . . [h]aving voluntarily taken the stand, [the accused is] under an obligation to [testify] truthfully and accurately,” and by impeaching him with his prior inconsistent statements, “the prosecution [does] no more than utilize the traditional truth-testing devices of the adversary process.” (Harris, supra, 401 U.S. 222, 225, italics added.)

In Macias, supra, 16 Cal.4th 739, we considered a question similar to that which confronts us here. Macias addressed California’s long-standing judicial use immunity for a juvenile’s statements to a probation officer evaluating whether the minor is fit for treatment within the juvenile system or instead must be tried as an adult (see Ramona R., supra, 37 Cal.3d 802). The issue was whether this immunity extended to use of such statements to impeach the minor’s testimony at his subsequent adult criminal trial. A majority of this court concluded that the answer is “no.”

Ramona R. had determined that although the minor was not statutorily compelled to speak to the probation officer, use immunity was essential to protect the juvenile’s California right not to incriminate herself. Otherwise, Ramona R. reasoned, the minor would be forced to choose between cooperating fully with the probation officer, thereby obtaining fair treatment at the fitness hearing, or remaining silent, thus preserving her privilege against self-incrimination. As Ramona R. observed, the juvenile’s lack of communication could be used against her in the fitness determination—especially when, as in the murder case there at issue, the burden of proving fitness for juvenile treatment was on her—and “the certification of a juvenile offender to an adult court has been accurately characterized as ‘the worst punishment the juvenile system is empowered to inflict.’ [Citation.]” (Ramona R., supra, 37 Cal.3d 803, 810.) “Hence, we concluded [in Ramona R.] that the consequences of deciding between silence and incrimination are so severe that they warrant substantive use immunity for statements the minor makes in preparation for a fitness hearing. [Citation.]” (Macias, supra, 16 Cal.4th 739, 750.)

As the plurality opinion in Macias explained, “[t]he purpose of the Ramona R. use immunity is to encourage the minor to give the probation officer candid and unencumbered evidence to aid the officer’s—and ultimately the court’s—determination of the best forum to consider the case. [Citation.] The grant of immunity also avoids the risk that the prosecution might take unfair advantage of an admission or silence by using it against the minor at a subsequent trial. [Citation.] In other words, substantive use immunity allows juveniles to exercise their right to present mitigating evidence to probation officers without giving prosecutors in subsequent trials the unfair advantage of using their statements as substantive evidence of guilt. [Citation.]” (Macias, supra, 16 Cal.4th 739, 752-753.)

However, the plurality opinion in Macias concluded, “we can easily distinguish the prosecution’s use for impeachment purposes of a juvenile’s statements made to a probation officer determining fitness from the use of those statements as substantive evidence of guilt. . . . [N]othing in the state Constitution or our judicial decisions protects juveniles from impeachment if their voluntary trial testimony is inconsistent with the substantively immunized statements they made to their probation officers before their fitness hearings.” (Macias, supra, 16 Cal.4th 739, 753, italics added.)

As part of its analysis, the plurality opinion in Macias traced the history of California’s pre-Proposition 8 rule which, contrary to United States Supreme Court decisions addressing the federal Constitution, had precluded even the impeachment use of statements obtained in violation of Miranda. (See People v. Disbrow (1976) 16 Cal.3d 101; cf. Harris, supra, 401 U.S. 222.) As the Macias plurality opinion explained, we concluded after Proposition 8 that the Truth-in-Evidence provisions of that initiative measure had abrogated the Disbrow ruling and required California’s adherence to Harris. (People v. May (1988) 44 Cal.3d 309.) In this regard, the Macias plurality opinion stressed May’s observation that “the ‘federal rule announced in Harris . . . , allowing impeachment by the defendant’s prior statements taken in violation of Miranda, may have been based on the premise that the privilege against self-incrimination cannot be invoked by one who has voluntarily taken the witness stand to testify concerning the subject matter of his prior statement. [Citations.]’ ” (Macias, supra, 16 Cal.4th 739, 752, quoting May, supra, 44 Cal.3d 309, 319, italics added; see also Stanfill, supra, 184 Cal.App.3d 577, 581-582.)

Macias also expressly distinguished and limited Portash, supra, 440 U.S. 450, which had held that “legislatively compelled” testimony at a grand jury proceeding, given pursuant to a statutory use immunity but under threat of contempt for any refusal to testify, could not be used against the witness for any criminal purpose, including impeachment. As Macias explained, “[w]e agree . . . that Portash forbids the use in any criminal trial of involuntary statements that a defendant gave following a use immunity grant. But we do not believe Portash prohibits the limited use of statements [voluntarily] made to a probation officer in preparation for a juvenile fitness hearing to impeach the same minor defendant’s voluntary, inconsistent trial statements. [¶] The United States Supreme Court has recognized that Portash was a unique and limited case, demonstrating the essence of coerced testimony in the ‘classic Fifth Amendment’ sense because a witness who had been given use immunity was later ordered to testify or face contempt sanctions. [Citation.]” (Macias, supra, 16 Cal.4th 739, 754-755.)[3]

This case cannot be distinguished from Macias in any material way. In each instance, California has recognized a use immunity for statements made by a criminal accused in a particular proceeding—one not intended to obtain evidence of criminal guilt—in order to encourage the accused to speak, and to do so candidly and truthfully, for purposes of the proceeding at issue, without compromising the privilege against self-incrimination. Yet California law does not compel the accused to speak in either situation. Thus, protection of state and federal self-incrimination principles does not require that the prohibition on substantive use of the accused’s voluntary statements be extended to use for impeachment. Here, as in Macias, when the accused later voluntarily takes the stand and changes his story, the prosecution must be permitted to challenge his credibility by bringing to light his inconsistent prior statements.

In its attempt to distinguish Macias, the majority purports to apply a balance-of-interests test, concluding that the balance must be struck differently here than in Macias. The majority stresses the importance of the constitutional right not to be tried while incompetent, the concomitant need for reliability in the competency evaluation, and the resulting strength of the policy that the examinee not be discouraged by self-incrimination concerns from responding to the examiners’ questions. The majority observes in particular that, unlike the juvenile fitness evaluation procedure at issue in Macias, which “provides . . . alternatives . . . for producing any mitigating evidence that would rebut the fitness presumption” (Macias, supra, 16 Cal.4th 739, 752), a reliable competency evaluation requires a direct examination of the accused, in which candid and truthful answers to examiners’ questions are crucial.[4] Finally, the majority notes that, in a juvenile fitness evaluation, the minor’s counsel may be present at any interview of the minor by the probation officer, while counsel may be excluded from a competency examination.

But nothing in these suggested distinctions demonstrates that we should interpret the Fifth Amendment to preclude use for impeachment of the accused’s voluntary statements to competency examiners. As noted above, time and again the United States Supreme Court has indicated that this most stringent use restriction is limited, for federal constitutional purposes, to statements that were truly involuntary when made. In all other situations, the high court has counseled, even if self-incrimination considerations prohibit the substantive criminal use of an accused’s statements, the statements are available to impeach the accused’s later testimony, because the voluntary decision to take the stand at trial includes the obligation to testify truthfully, and the Fifth Amendment is not a license to commit perjury.[5]

Contrary to the majority’s implication, nothing in Estelle v. Smith (1981) 451 U.S. 454 (Estelle) compels the majority’s result. If anything, Estelle supports the conclusion that, for purposes of the federal Constitution, an accused’s uncompelled statements to competency examiners are available for impeachment. The core holding of Estelle—which did not directly involve the impeachment issue—is that “[a] criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him” on the issues of guilt or penalty. (Estelle, supra, at p. 468, italics added; see also id. at pp. 462-463.) Thus “[i]f, upon being adequately warned [that he has the right to remain silent, and that he may incriminate himself by speaking], [the defendant] . . . indicate[s] that he [will] not answer [the examiner’s] questions, [a] validly ordered competency examination nevertheless [may] proceed[ ] upon the condition that the results [will] be applied solely for that purpose.” (Id. at p. 468)

Much of Estelle’s analysis focused on the need to withhold incriminatory use of statements made by the defendant during a compulsory court-ordered competency examination where the defendant was not fully advised of his Fifth Amendment rights and given an opportunity to invoke or waive them. In this regard, Estelle drew a direct analogy to Miranda.

As Estelle indicated, the considerations leading to Miranda’s requirement that a suspect undergoing interrogation in the inherently coercive atmosphere of police custody receive such warnings “apply with no less force to the pretrial psychiatric examination at issue here.” (Estelle, supra, 451 U.S. 454, 467.) The accused in Estelle was in custody, the court’s opinion explained, and, even though the psychiatrist was court-appointed and ostensibly neutral, when he testified against Estelle at the latter’s penalty trial, “his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting. During the psychiatric evaluation, [the defendant] assuredly was ‘faced with a phase of the adversary system’ and was ‘not in the presence of [a] perso[n] acting solely in his interest.’ [Citation.] Yet he was given no indication that the compulsory examination would be used to gather evidence necessary to decide whether, if convicted, he should be sentenced to death. He was not informed that, accordingly, he had a constitutional right not to answer the questions put to him.” (Ibid.)

Though “ ‘[v]olunteered statements . . . are not barred by the Fifth Amendment,’ ” the court concluded, “under Miranda . . . we must conclude that, when faced while in custody with a court-ordered psychiatric inquiry, [the defendant’s] statements to [the examiner] were not ‘given freely and voluntarily without any compelling influences’ and, as such, could be used as the State did at the penalty phase only if [the defendant] had been apprised of his rights and had knowingly decided to waive them. [Citation.]” (Estelle, supra, 451 U.S. 454, 469.)

Thus, Estelle likened a custodial accused’s court-ordered competency examination to a custodial police interrogation, in which, even if strict coercion is not present, the situation has an inherently coercive atmosphere which must be ameliorated by advisements of Fifth Amendment rights and an opportunity to invoke them. Of course, statements obtained, without proper advisements, in the coercive environment of custody may not be used as substantive proof of the accused’s guilt, but they may be used for impeachment unless they were truly involuntary.[6]

I realize that under California’s judicially declared use immunity, the defendant need not be warned he has a Fifth Amendment right not to speak to competency examiners. Indeed, California decisions have suggested that the accused cannot invoke his Fifth Amendment privilege as a means of avoiding compelled submission to a court-ordered competency examination, because the use immunity itself affords all protection the Constitution would provide against the criminal use of his statements to the examiners. (See People v. Weaver (2001) 26 Cal.4th 876, 959, 961; Arcega, supra, 32 Cal.3d 504, 523, fn. 6; Tarantino, supra, 48 Cal.App.3d 465, 470.)

But a use immunity arising under state law, even if adopted to protect the right against self-incrimination, cannot expand the scope of the federal Constitution—the basis on which the majority purports to decide this case. As the majority itself makes clear, even if a defendant must face court-appointed competency examiners, nothing in California law compels him to speak to them, though, in consequence of the use immunity, he cannot invoke federal or state constitutional privileges against self-incrimination as a basis for declining to do so. If he chooses to speak under such circumstances, it appears the self-incrimination provisions of the federal Constitution do not preclude impeachment use of his voluntary statements.

The majority worries that if a defendant’s statements during a court-ordered competency examination can be used to impeach his later, inconsistent trial testimony, his counsel will warn him not to cooperate, and the purpose of the examination will be thwarted. Of course, to the extent a similar consideration was present in Macias, it did not dissuade us from concluding that the statements at issue there could be used for impeachment.

In any event, as competent counsel should understand, it remains in the defendant’s interest to cooperate fully in a court-ordered competency examination, in order to minimize the chance of an erroneous determination on the issue of competence to stand trial. In return for this cooperation, counsel may advise, the defendant receives full substantive immunity from criminal use of his statements—the prosecution cannot obtain an unfair advantage by employing the statements as affirmative proof of his guilt.

To be continue as Part III ..

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[1] To the extent it is inconsistent with the views expressed herein, People v. Stanfill, supra, 184 Cal.App.3d 577, is disapproved.

[2] The concurring and dissenting opinion of Justice Werdegar asserts that the immunity at issue arises from California statutory law, not federal law. From this premise it argues that our decision here should not be founded upon the federal Constitution’s Fifth Amendment privilege against self-incrimination. That view is untenable.

The rule of immunity was first judicially declared in Tarantino, supra, 48 Cal.App.3d at page 469. As this court observed in People v. Arcega, supra, 32 Cal.3d at page 522, “the basis for the Tarantino decision was the constitutional privilege against self-incrimination.” (See, e.g., People v. Jablonski (2006) 37 Cal.4th 774, 802-803 [judicially declared immunity and Fifth Amendment coextensive]; People v. Weaver, supra, 26 Cal.4th at p. 960 [“the rule of immunity ‘is necessary to ensure that an accused is not convicted by use of his own statements made at a court-compelled examination’ ”].) The concurring and dissenting opinion of Justice Werdegar thus errs in asserting that the judicially declared immunity rule at issue here is based on statutory law.

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

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

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

[5] I discuss below the Sixth Amendment implications of counsel’s exclusion from a competency examination.

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