PEOPLE v. POKOVICH PART - III

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 II ………

If the defendant’s statements may be used for impeachment, he suffers that consequence only if he voluntarily testifies in his own behalf at trial, and, in doing so, makes statements at odds with what he told the competency examiners—an indication that he has lied in one instance or the other. A rule forbidding impeachment, on the other hand, gives the defendant an unfair advantage—he may testify falsely, secure in the knowledge that the fact-finder will not learn of contrary statements he has made in the past. In my view, it does not thwart the legitimate purposes of a competency examination for counsel to advise his client that, while his statements cannot be used to prove his guilt, they may come back to haunt him if he testifies at trial and changes his story. In effect, such advice promotes the proper purposes of both the competency examination and the trial—to discover the truth.

Finally, the majority suggests that, under the Sixth Amendment, allowing use of a competency examinee’s statements for impeachment might compromise the current California practice which allows the defendant’s counsel to be excluded from the examination itself. I am not persuaded. In the first place, as the majority acknowledges, federal decisions are split about whether voluntary statements obtained in direct violation of the Sixth Amendment may be used for impeachment. More fundamentally, I seriously question whether the Sixth Amendment right to counsel includes the unqualified right to the personal presence of counsel at a proceeding, such as a competency examination, that is not concerned with obtaining evidence of the defendant’s guilt.

Decades ago this court held that, where the defendant’s Sixth Amendment right to counsel had attached, and the defendant was represented by counsel, statements obtained at a psychiatric examination in counsel’s unwaived absence could be admitted at the guilt trial only if counsel was notified of the examination in advance, the defendant placed his mental condition in issue at trial, and the statements were used solely to support the psychiatrist’s expert opinion. (In re Spencer (1965) 63 Cal.2d 400, 409-412; see also In re Cowans (1970) 2 Cal.3d 733, 737-738; People v. Morse (1969) 70 Cal.2d 711, 738.) But none of our decisions on this subject involved the use of such statements exclusively to impeach the defendant’s own trial testimony.

Moreover, the high court’s more recent decision in Estelle strongly suggested that, while the defendant has a Sixth Amendment right to his counsel’s help and guidance in connection with a court-ordered psychiatric examination, he is not entitled to counsel’s personal presence at the examination itself. In Estelle, after Benjamin Ernest Smith was indicted for murder, and while he was confined in jail, he was examined for trial competency by a court-appointed psychiatrist. Smith’s appointed counsel were not present at the examination; indeed, it was not clear counsel had received notice of the psychiatrist’s appointment, and counsel were not advised until afterward that the examination had occurred. (Estelle, supra, 451 U.S. 454, 457-459 & fn. 5, 471, fn. 15.) Later, at Smith’s sentencing trial, the psychiatrist testified that Smith would commit violent criminal acts in the future if given the opportunity to do so.

In its Sixth Amendment discussion, Estelle held that Smith’s right to counsel had been violated insofar as “[d]efense counsel . . . were not notified in advance that the psychiatric examination would encompass the issue of their client’s future dangerousness, and [Smith] was denied the assistance of his attorneys in making the significant decision of whether to submit to the examination and to what ends the psychiatrist’s findings could be employed.” (Estelle, supra, 451 U.S. 454, 470-471, fn. omitted, italics added.)

The court pointed out that “[b]ecause ‘[a] layman may not be aware of the precise scope, the nuances, and the boundaries of his Fifth Amendment privilege,’ the assertion of that right ‘often depends upon legal advice from someone who is trained and skilled in the subject matter.’ [Citation.]” Given the difficult choices to be made in deciding whether to undergo an examination, and how to approach it, said the court, “[i]t follows logically . . . that a defendant should not be forced to resolve such an important issue without ‘the guiding hand of counsel.’ [Citation.]” (Estelle, supra, 451 U.S. 454, 471.)

Though counsel were given no opportunity to attend the examination in Estelle, the high court expressly declined to identify counsel’s absence as a violation of Smith’s Sixth Amendment rights. Estelle merely indicated that Smith’s right to the “assistance” of counsel (Estelle, supra, 451 U.S. 454, 471) was infringed when he was denied an advance opportunity to consult with his attorneys.

Indeed, in a telling footnote, the Estelle court remarked: “[Smith] does not assert, and the Court of Appeals did not find, any constitutional right to have counsel actually present during the examination. In fact, the Court of Appeals recognized that ‘an attorney present during the psychiatric interview could contribute little and might seriously disrupt the examination.’ [Citations.]” (Estelle, supra, 451 U.S. 454, 470, fn. 14.)

Given this strong signal from the high court, and notwithstanding our older precedents, I am not willing to assume that the Sixth Amendment requires counsel’s presence at a California competency examination before the examinee’s statements may be used to impeach him when, after consulting with counsel, he later voluntarily takes the stand and testifies in a manner inconsistent with his statements to the examiners.

For all these reasons, I respectfully dissent from the majority’s conclusions that the federal Constitution, or any other principle of law, barred impeachment use of defendant’s voluntary statements to his court-appointed competency examiners.

BAXTER, J.

I CONCUR:

CORRIGAN, J.

Concurring and Dissenting Opinion by Werdegar, J.

I concur in the judgment of affirmance. Like the majority and Justices Baxter and Corrigan, I agree that any error here was harmless. In determining whether there was error, both the majority and Justice Baxter’s concurrence and dissent wrestle with a difficult constitutional problem: whether the Fifth Amendment to the federal Constitution prohibits impeaching a defendant with statements made, in the absence of counsel and without Miranda warnings (Miranda v. Arizona (1966) 384 U.S. 436), during a competency examination. Because this case can be resolved without squarely confronting that issue, I would do so. (See Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230; People v. McKay (2002) 27 Cal.4th 601, 626-627 (conc. opn. of Werdegar, J.).) As will appear, the state immunity we have previously recognized for statements made during competency examinations, properly understood, applies to bar their use for impeachment.

I

The Court of Appeal first recognized a state use immunity applicable to competency hearings in Tarantino v. Superior Court (1975) 48 Cal.App.3d 465 (Tarantino). There, the trial court expressed a doubt as to the defendant’s mental competence and appointed two psychiatrists to examine him. (See Pen. Code, § 1368, subd. (a).)[1] The defendant refused to proceed without counsel, the psychiatrists refused to proceed in the presence of counsel, and the trial court attempted to resolve the standoff by holding the defendant in contempt.

In reversing the contempt order, the Court of Appeal concluded any statements made at a competency examination should receive use immunity: “[W]e have no hesitancy in declaring that neither the statements of petitioner to the psychiatrists appointed under section 1369 nor the fruits of such statements may be used in trial of the issue of petitioner’s guilt, under either the plea of not guilty or that of not guilty by reason of insanity.” (Tarantino, supra, 48 Cal.App.3d at p. 470.) The court found this immunity implicit in the code provisions compelling defendants to submit to competency examinations: “The purpose of such inquiry [into competency] is not to determine guilt or innocence. It has no relation to the plea of not guilty by reason of insanity. Rather, the sole purpose of these statutes is the humanitarian desire to assure that one who is mentally unable to defend himself not be tried upon a criminal charge.^[[2]] This purpose is entirely unrelated to any element of guilt, and there is no indication of any legislative intent that any result of this inquiry into a wholly collateral matter be used in determining the issue of guilt. Moreover, the issue of present competency, once the trial court’s doubt has been expressed, must be decided before any trial of the charged offense. Both humanitarian and practical considerations call for a judicially declared immunity.” (Tarantino, at p. 469.) Thus, the court interpreted section 1367 et seq. as reflecting an intent to compel a defendant to submit to a competency examination, but only on the implicit understanding that any statements he or she made would not be used for any purpose at the subsequent guilt phase of trial.

We approved this state immunity in People v. Arcega (1982) 32 Cal.3d 504 (Arcega), there explaining that the immunity “protects both an accused’s privilege against self-incrimination and the public policy of not trying persons who are mentally incompetent.” (Id. at p. 522.) We described Tarantino as recognizing a “blanket immunity” against use of competency examination statements, and recognized that this immunity was broader than that yet recognized by the United States Supreme Court under the federal Constitution. (Arcega, at p. 523, fn. 6; see People v. Centeno (2004) 117 Cal.App.4th 30, 42 [“The California rule of judicial immunity is broader than the federal rule for compliance with the Fifth and Sixth Amendments”].) While under United States Supreme Court precedent the voluntary statements of an adequately warned defendant could be used, we held Tarantino dispensed with the need for warnings by reading the underlying statutes as confining use to the question of competence. (Arcega, at p. 523, fn. 6; see Estelle v. Smith (1981) 451 U.S. 454, 468-469; Tarantino, supra, 48 Cal.App.3d at p. 469.)

Subsequently, we have unanimously reaffirmed the existence of this state immunity (People v. Jablonski (2006) 37 Cal.4th 774, 802-803; People v. Weaver (2001) 26 Cal.4th 876, 959-963), and neither the majority nor Justice Baxter’s concurrence and dissent questions its ongoing validity. (See maj. opn., ante, at pp. 5-6; conc. & dis. opn. of Baxter, J., ante, at pp. 1-2.) As Justice Baxter correctly notes (conc. & dis. opn. of Baxter, J., ante, at p. 2), Arcega’s approval of this immunity in the months following passage of Proposition 8 (as well as our subsequent reaffirmance of the rule in Weaver, at page 960, and Jablonski, at page 802) indicates the immunity was not invalidated by Proposition 8’s “Truth-in-Evidence” provisions, which left unaffected “existing statutory rule[s] of evidence relating to privilege.” (Cal. Const., art. I, § 28, subd. (d).)[3]

While acknowledging the state immunity’s validity, the majority treats it as little more than an echo of the Fifth Amendment to the federal Constitution. It is not. The state immunity predates the United States Supreme Court’s recognition of Fifth Amendment limits on the use of competency examination statements. (See Estelle v. Smith, supra, 451 U.S. at pp. 468-469; Tarantino, supra, 48 Cal.App.3d at pp. 469-470.) Moreover, while the interpretation of our state statutes as giving rise to immunity certainly was motivated in part by self-incrimination considerations, it was equally motivated by an understanding of the legislative policy considerations underlying the specific Penal Code provisions themselves. (See People v. Weaver, supra, 26 Cal.4th at p. 960, quoting Arcega, supra, 32 Cal.3d at p. 522 [“ ‘[T]he rule protects both an accused’s privilege against self-incrimination and the public policy of not trying persons who are mentally incompetent’ ” (italics added)].) We have never before treated the state immunity as limited by the Fifth Amendment. We have rejected the assertion that it is less protective than the Fifth Amendment (see People v. Jablonski, supra, 37 Cal.4th at p. 802 [rejecting claim that the state immunity “inadequately protect[ed] a defendant’s Fifth Amendment interest against self-incrimination” and allowed use of statements prohibited by the Fifth Amendment]) and have acknowledged that it may in some respects operate differently or more broadly (see Arcega, at p. 523, fn. 6).[4] We thus can decide this case without reaching difficult and uncertain federal constitutional questions. We should do so.

II

The question remains whether the state immunity applies to use of Pokovich’s statements to impeach him during guilt proceedings. I conclude that it does.

State law expressly forbids trial of one who is mentally incompetent (§ 1367, subd. (a)) and in specified circumstances mandates that the defendant undergo a mental competency examination (§§ 1368, 1369). As the Court of Appeal observed in Tarantino, supra, 48 Cal.App.3d at pages 469-470, the statutes requiring a competency examination implicitly contemplate use of the defendant’s statements obtained during the examination only in the competency proceeding itself, not in the separate, subsequent guilt proceeding. The competency proceeding is wholly distinct from the criminal trial. The initiation of a competency proceeding requires suspension of criminal proceedings (§§ 1368, subd. (c), 1370, subd. (a)(1)), and the competency proceeding is subject to its own special rules and procedures (§ 1369, subds. (b)-(f); People v. Lawley, supra, 27 Cal.4th at p. 131 [“Although it arises in the context of a criminal trial, a competency hearing is a special proceeding, governed generally by the rules applicable to civil proceedings”]). The psychiatrists and psychologists appointed by the court to examine a defendant are tasked with making a series of determinations wholly unrelated to guilt or innocence: (1) whether the defendant has a mental disorder, (2) whether the defendant is able to understand proceedings and assist counsel in presentation of a defense, and (3) whether the defendant is susceptible to treatment with antipsychotic medication and able to make decisions about consenting to medication. (§ 1369, subd. (a).) As Tarantino originally recognized, “there is no indication of any legislative intent that any result of this inquiry into a wholly collateral matter be used in determining the issue of guilt.” (Tarantino, at p. 469, italics added.)

These statutory provisions are intended to vindicate the Legislature’s compelling interest in avoiding trial of those who, due to mental illness or developmental disability, cannot defend themselves. Vindication of that interest through accurate psychiatric evaluations requires full cooperation on the part of defendants compelled to submit to competency examinations, as the facts of Tarantino amply demonstrate. Clearly, however, full cooperation, although essential, cannot be anticipated from defendants counseled not to speak for fear statements made while in a questionable mental state will subsequently be used to impeach their later testimony should they exercise their right to testify at trial.

We have approved Tarantino’s recognition of “blanket immunity” (Arcega, supra, 32 Cal.3d at p. 523, fn. 6); a blanket immunity connotes an absolute bar on any use of statements from the competency examination in the separate guilt proceeding. Using such statements, even in rebuttal, to prove a defendant’s guilt would contravene the Legislature’s intent that a mentally incompetent defendant not be tried and that information about the accused’s mental state be gathered solely to determine whether he is able to defend himself. Because satisfaction of the Legislature’s compelling interest in trying only the competent depends on the defendant’s cooperation, it follows that vindication of that interest requires the defendant be granted full immunity. (Accord, People v. Harris (1987) 192 Cal.App.3d 943, 950 [competency examination statements may not be used for impeachment during guilt proceedings].)

I note as well that, to the extent the statutory structure might be read to permit compelled competency examinations, followed by use of any statements obtained therein in guilt proceedings, such an interpretation would raise serious constitutional questions. Whether one concludes such an interpretation would countenance a Fifth Amendment violation (as does the majority) or not (as does Justice Baxter’s concurrence and dissent), we generally will prefer interpretations that avoid grave constitutional doubts. (People v. Brown (1993) 6 Cal.4th 322, 335.)

Thus, consistent with Tarantino and Arcega, I conclude the statutes authorizing competency examinations and proceedings preclude any use of statements obtained therein in guilt phase proceedings, and the impeachment use of Pokovich’s competency examination statements in his subsequent guilt trial violated this state immunity. Accordingly, I express no opinion as to whether the Fifth Amendment to the federal Constitution also precludes the use of such statements in this case.

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

Werdegar, J.

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

Name of Opinion People v. Pokovich

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 120 Cal.App.4th 436

Rehearing Granted

Opinion No. S127176

Date Filed: August 31, 2006

Court: Superior

County: Shasta

Judge: William Gallagher

Attorneys for Appellant:

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

Attorneys for Respondent:

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Carlos A. Martinez, Janet E. Neeley, Ruth M. Saavedra and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.

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

Hayes H. Gable III

428 J Street, Suite 354

Sacramento, CA 95814

(916) 446-3331

Robert Gezi

Deputy Attorney General

1300 I Street

Sacramento, CA 94244-2550

(916) 324-5248

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

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

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

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

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