Filed 9/17/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F090616
Petitioner,
(Super. Ct. No. CR-24-007863)
v.
THE SUPERIOR COURT OF STANISLAUS
COUNTY, OPINION
Respondent;
ANDRES LYNDELL JACKSON,
Real Party in Interest.
ORIGINAL PROCEEDING; petition for writ of mandate and/or prohibition.
Dawna Reeves, Judge. Petition denied.
Jeff Laugero, District Attorney, and Margot L. Roen, Deputy District Attorney, for
Petitioner.
No appearance for Respondent.
M. Donnell Snipes, Deputy Alternate Defender, and Karen Kelly, Deputy Public
Defender, for Real Party in Interest.
-ooOoo-
Real party in interest Andres Lyndell Jackson, a defendant in a criminal action,
moved for pretrial mental health diversion pursuant to Penal Code1 section 1001.36. The
People then filed a request to have Jackson submit to an examination by a prosecution-
retained mental health expert pursuant to section 1054.3, subdivision (b). The Stanislaus
County Superior Court denied the People’s request and later granted Jackson’s motion.
The People petition this court for a peremptory writ of mandate and/or prohibition
reversing the superior court’s denial of its section 1054.3, subdivision (b) request. The
People contend trial courts have the authority to order a defendant moving for diversion
under section 1001.36 to submit to an examination by a prosecution-retained mental
health expert. Based on a review of the statutory language, we conclude courts have no
such authority in the context of diversion because a defendant moving therefor does not
“place[] in issue his or her mental state at any phase of the criminal action … through the
proposed testimony of any mental health expert.” (§ 1054.3, subd. (b)(1).) Accordingly,
we deny writ relief.
BACKGROUND
Jackson was charged with one count of organized retail theft (§ 490.4,
subd. (a)(1)) and one count of grand theft (§ 487, subd. (a)). On May 22, 2025, he moved
for diversion pursuant to section 1001.36, specifying he had been diagnosed with
schizophrenia and substance use disorder.2 On May 28, 2005, the People filed a request
to have Jackson submit to an examination by a prosecution-retained mental health expert
pursuant to section 1054.3, subdivision (b) in order “to assess the nexus, if any, between
said diagnosis and the alleged criminal activity.” Following a June 10, 2025 hearing, the
superior court denied the People’s request. It subsequently denied the People’s motion
1 Undesignated statutory references are to the Penal Code.
2 Defendants who are charged with certain misdemeanors and/or felonies cannot be
considered for diversion. (See § 1001.36, subds. (a), (d).) Here, Jackson was not charged with a
disqualifying offense.
2.
for reconsideration. Following an August 27, 2025 hearing, the court granted Jackson’s
diversion motion.
On October 22, 2025, the People filed a petition asking this court to issue a
peremptory writ of mandate and/or prohibition reversing the superior court’s denial of the
People’s section 1054.3, subdivision (b) request. We issued an order to show cause why
relief should not be granted. Jackson timely filed a return, and the People timely filed a
reply thereto.
DISCUSSION
I. Mootness
As a threshold matter, we must decide whether the People’s writ petition should be
denied on the basis of mootness. Jackson contends the petition should be denied because
he (1) was already granted pretrial mental health diversion and (2) has complied with the
terms of his treatment plan. The People counter the “novel issue” “regarding the
applicability of [section] 1054.3 to [section 1001.36] mental health diversion
proceedings” is “highly relevant given the disparate rulings in various counties in
California, including Stanislaus,” and “must be addressed to settle an important
question.” We exercise our inherent discretion to decide the merits of the People’s writ
petition because it involves a matter of continuing public interest that is likely to recur.
(See Fagan v. Superior Court (2003) 111 Cal.App.4th 607, 611; Medina v. Superior
Court (2000) 79 Cal.App.4th 1280, 1285–1286; see also Maldonado v. Superior Court
(2012) 53 Cal.4th 1112, 1124 [“Mandamus is appropriate to address discovery issues that
present novel issues of first impression and general importance.”].)
II. Relevant Statutes
a. Section 1054.3
“The California laws governing discovery in criminal cases underwent a major
change on June 5, 1990, when the electorate approved Proposition 115, the Crime
Victims Justice Reform Act.” (Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1102
3.
(Verdin), superseded by statute as stated in People v. Camacho (2022) 14 Cal.5th 77,
108.) Proposition 115 added section 30, subdivision (c) to article I of the California
Constitution, which states: “In order to provide for fair and speedy trials, discovery in
criminal cases shall be reciprocal in nature, as prescribed by the Legislature or by the
people through the initiative process.” (See § 1054, subds. (a), (c) [purposes of criminal
discovery statutes include “promot[ing] the ascertainment of truth in trials by requiring
timely pretrial discovery” and “sav[ing] court time in trial and avoid[ing] the necessity
for frequent interruptions and postponements”].) Proposition 115 “also added a new
Penal Code Chapter on discovery” (Izazaga v. Superior Court (1991) 54 Cal.3d 356,
364), “establishing the procedures for, and limitations on, discovery in criminal cases”
(Verdin, at pp. 1102–1103). (See § 1054 et seq.; see also People v. Superior Court
(Pearson) (2010) 48 Cal.4th 564, 570 (Pearson) [“the substance of the discovery
requirements relates entirely to evidence that might be presented at trial”].) As set forth
in subdivision (e) of section 1054, “no discovery shall occur in criminal cases except as
provided by this chapter, other express statutory provisions, or as mandated by the
Constitution of the United States.”
Section 1054.3 describes a criminal defendant’s discovery obligations. As
originally enacted, section 1054.3 read in its entirety:
“The defendant and his or her attorney shall disclose to the prosecuting
attorney:
“(a) The names and addresses of persons, other than the defendant, he or
she intends to call as witnesses at trial, together with any relevant written or
recorded statements of those persons, or reports of the statements of those
persons, including any reports or statements of experts made in connection
with the case, and including the results of physical or mental examinations,
scientific tests, experiments, or comparisons which the defendant intends to
offer in evidence at the trial.
“(b) Any real evidence which the defendant intends to offer in evidence at
the trial.”
4.
An attempt to transcend the scope of these obligations was rebuffed in Verdin. In
that case, Verdin—who was charged with attempted premeditated murder, among other
things—“announced his intention to rely on a ‘diminished actuality’ defense” at trial
(Verdin, supra, 43 Cal.4th at p. 1100) and produced a report prepared by a psychiatrist
(id. at pp. 1100–1101). The prosecution moved to compel Verdin “to submit to a mental
examination by a prosecution expert.” (Id. at p. 1101.) The trial court granted the
prosecution’s request, and the appellate court denied Verdin’s petition for a writ of
mandate. (Id. at pp. 1101–1102.) The California Supreme Court, however, reversed the
appellate court’s denial. (Id. at p. 1100.) Citing section 1054, subdivision (e) (id. at
pp. 1103, 1106–1109, 1115–1116), the high court held an “order granting the prosecution
access to” (id. at p. 1116) a defendant “who places his mental state in issue” (id. at
p. 1107) “for purposes of having a prosecution expert conduct a mental examination is a
form of discovery that is not authorized by the criminal discovery statutes or any other
statute, nor is it mandated by the United States Constitution” (id. at p. 1116).3 The high
court acknowledged, “The Legislature remains free, of course, to establish such a rule
within constitutional limits.” (Verdin, at p. 1116, fn. 9.)
In response to Verdin, the Legislature passed Assembly Bill No. 1516 (2009–2010
Reg. Sess.) (Assembly Bill 1516). (See Assem. Com. on Public Safety, Analysis of
Assem. Bill No. 1516 (2009–2010 Reg. Sess.) as amended Apr. 20, 2009, p. 2 [“ ‘As a
result of Verdin, the prosecution cannot request a pretrial mental examination by a
prosecution expert over a defense objection, even after the defendant has placed his
mental state in issue by asserting a psychiatric defense or retaining mental health experts
on his behalf. This means the prosecution has no means to independently investigate the
3 The California Supreme Court also held: “[A]ny rule that existed before 1990 suggesting
or holding a criminal defendant who places his or her mental state in issue may thereby be
required to grant the prosecution access for purposes of a mental examination by a prosecution
expert was superseded by the enactment of the criminal discovery statutes in 1990.” (Verdin,
supra, 43 Cal.4th at p. 1109.)
5.
appropriateness of the mental defense. [¶] It is imperative when defendants claim a
mental defense that they are subject to a mental health examination by a prosecution
expert.’ ”]; see also § 1054.3, subd. (b)(2) [“[t]he purpose of [new] subdivision[ (b)] is to
respond to Verdin” (italics added)].) Assembly Bill 1516 redesignated the original
language of section 1054.3 as subdivision (a)(1) and (2) and “add[ed] a new
subdivision (b), expressly authorizing orders for compelled examination.” (Sharp v.
Superior Court (2012) 54 Cal.4th 168, 172 (Sharp); see Stats. 2009, ch. 297, § 1.)
Section 1054.3, subdivision (b) provides in pertinent part:
“(1) Unless otherwise specifically addressed by an existing provision of
law, whenever a defendant in a criminal action … places in issue his or her
mental state at any phase of the criminal action … through the proposed
testimony of any mental health expert, upon timely request by the
prosecution, the court may order that the defendant … submit to
examination by a prosecution-retained mental health expert.
“(A) The prosecution shall bear the cost of any such mental health expert’s
fees for examination and testimony at a criminal trial .…
“(B) The prosecuting attorney shall submit a list of tests proposed to be
administered by the prosecution expert to the defendant in a criminal
action .… At the request of the defendant in a criminal action …, 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 in a criminal action .… For the purposes of this
subdivision, the term ‘tests’ shall include any and all assessment techniques
such as a clinical interview or a mental status examination.” (§ 1054.3,
subd. (b)(1)(A), (B).)
By amending section 1054.3 in the foregoing manner, “the Legislature broadly
authorized examination by a prosecution-retained expert whenever the defendant has put
his or her mental condition[4] at issue ‘at any phase of the criminal action’ ” and “did not
4 In Sharp, the California Supreme Court used the phrase “mental condition” once (Sharp,
supra, 54 Cal.4th at p. 174) and the phrase “mental state” numerous times (id. at pp. 171–173,
175 & fn. 2). We deduce the high court likely viewed the former as synonymous with the latter.
6.
limit its authorization to guilt phase mental defenses” (Sharp, supra, 54 Cal.4th at p. 174;
see id. at p. 173 [section 1054.3, subdivision (b)(1) “encompasses trial of the defendant’s
sanity” following plea of not guilty by reason of insanity].)
b. Section 1001.36
Section 1001.36, which was originally enacted in 2018 (Stats. 2018, ch. 34, § 24),
“create[s] a program of pretrial diversion for criminal defendants with diagnosed mental
health disorders” (Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 890
(Sarmiento)). “ ‘Pretrial diversion’ means the postponement of prosecution, either
temporarily or permanently, at any point in the judicial process from the point at which
the accused is charged until adjudication, to allow the defendant to undergo mental health
treatment .…” (§ 1001.36, subd. (f)(1).) Recently, the California Supreme Court
construed the phrase “until adjudication” to signify “a [timely] request for diversion must
be made before attachment of jeopardy at trial or the entry of a guilty or no contest plea,
whichever occurs first.” (People v. Braden (2023) 14 Cal.5th 791, 819.) “If the
defendant has performed satisfactorily in diversion, at the end of the period of diversion,
the court shall dismiss the defendant’s criminal charges that were the subject of the
criminal proceedings at the time of the initial diversion.” (§ 1001.36, subd. (h).) “The
stated purpose of this legislation is to keep people with mental disorders from entering
and reentering the criminal justice system while protecting public safety, to give counties
discretion in developing and implementing diversion across a continuum of care settings,
and to provide mental health rehabilitative services.” (People v. Whitmill (2022)
86 Cal.App.5th 1138, 1149; accord, § 1001.35.) “The Legislature intended the mental
health diversion program to apply as broadly as possible.” (Whitmill, at p. 1149.)
“Effective January 1, 2023, mental health diversion requires trial court findings that
the defendant is both eligible for diversion and suitable for the program.” (Sarmiento,
supra, 98 Cal.App.5th at p. 891, italics omitted.) “Defendants are eligible if they have
7.
been diagnosed with a recognized mental disorder[5] that was a significant factor in the
commission of the criminal offense with which they are charged.” (Sarmiento, citing
§ 1001.36, subd. (b).) “Evidence of the defendant’s mental disorder shall be provided by
the defense and shall include a diagnosis or treatment for a diagnosed mental disorder
within the last five years by a qualified mental health expert.” (§ 1001.36, subd. (b)(1).)
Such evidence triggers “a presumption that the defendant’s diagnosed mental disorder
was a significant factor in the commission of the charged crime.” (Sarmiento, supra,
98 Cal.App.5th at p. 891; see Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished
Business Analysis of Sen. Bill. No. 1223 (2021–2022 Reg. Sess.) as amended Aug. 25,
2022, p. 7 [amended statute “ ‘creates a rebuttable presumption that there is a nexus
between a person’s mental health condition and the charged offense’ ”].)
Section 1001.36 specifies:
“If the defendant has been diagnosed with a mental disorder, the court shall
find that the defendant’s mental disorder was a significant factor in the
commission of the offense unless there is clear and convincing evidence
that it was not a motivating factor, causal factor, or contributing factor to
the defendant’s involvement in the alleged offense. A court may consider
any relevant and credible evidence, including, but not limited to, police
reports, preliminary hearing transcripts, witness statements, statements by
the defendant’s mental health treatment provider, medical records, records
or reports by qualified medical experts, or evidence that the defendant
displayed symptoms consistent with the relevant mental disorder at or near
the time of the offense.” (§ 1001.36, subd. (b)(2).)
5 Recognized mental disorders include schizophrenia and any mental disorder “identified
in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders,”
“excluding antisocial personality disorder and pedophilia.” (§ 1001.36, subd. (b)(1).)
8.
“It [is] the prosecution’s burden to present such clear and convincing evidence.” (Lacour
v. Superior Court (2025) 110 Cal.App.5th 391, 404; see People v. Harlow (2025)
113 Cal.App.5th 485, 488 [“[c]onsistent with its intent to apply mental health diversion
‘as broadly as possible’ [citation], the Legislature amended [section 1001.36] effective
January 1, 2023, to make it much easier for defendants to establish threshold
eligibility”].)
Defendants “are suitable [for diversion] if: (1) in the opinion of a qualified mental
health expert, the defendant’s mental disorder would respond to treatment; (2) the
defendant agrees to waive their speedy trial rights; (3) the defendant agrees to comply
with treatment requirements; and (3) the defendant will not pose an ‘unreasonable risk of
danger to public safety’ as defined in sections 1170.18 and 667,
subdivision (e)(2)(C)(iv).” (Sarmiento, supra, 98 Cal.App.5th at p. 891, citing & quoting
§ 1001.36, subd. (c).) An “ ‘unreasonable risk of danger to public safety’ means an
unreasonable risk that the petitioner will commit a new violent felony within the meaning
of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.”
(§ 1170.18, subd. (c).) “The violent felonies encompassed in [section 667,
subdivision (e)(2)(C)(iv)] ‘are known as “super strikes” and include murder, attempted
murder, solicitation to commit murder, assault with a machine gun on a police officer,
possession of a weapon of mass destruction, and any serious or violent felony punishable
by death or life imprisonment.’ ” (People v. Moine (2021) 62 Cal.App.5th 440, 449.)
Thus, to deny diversion on the grounds the defendant poses an unreasonable risk of
danger to public safety, “a trial court necessarily must find the defendant is ‘likely to
commit a super-strike offense.’ ” (Id. at p. 450.)
“At any stage of the proceedings, the court may require the defendant to make a
prima facie showing that the defendant will meet the minimum requirements of eligibility
for diversion and that the defendant and the offense are suitable for diversion. The
hearing on the prima facie showing shall be informal and may proceed on offers of proof,
9.
reliable hearsay, and argument of counsel.” (§ 1001.36, subd. (e).) This hearing is “not a
trial” but “a pretrial hearing involving a statutorily created alternative to criminal
prosecution.” (People v. Watts (2022) 79 Cal.App.5th 830, 837, italics omitted (Watts).)
III. Analysis
The question before us on appeal is whether a court’s authority under
section 1054.3, subdivision (b)(1) to order a defendant who “places in issue his or her
mental state at any phase of the criminal action … through the proposed testimony of any
mental health expert” to “submit to examination by a prosecution-retained mental health
expert” extends to a defendant who requests pretrial mental health diversion under
section 1001.36. To resolve this issue, we must engage in statutory interpretation.
“The proper interpretation of a statute is a question of law we review de novo.”
(People v. Lewis (2021) 11 Cal.5th 952, 961.) “The court’s role in construing a statute is
to ‘ascertain the intent of the Legislature so as to effectuate the purpose of the law.’
[Citations.] In determining the Legislature’s intent, a court looks first to the words of the
statute. [Citation.] ‘[I]t is the language of the statute itself that has successfully braved
the legislative gauntlet.’ ” (People v. Snook (1997) 16 Cal.4th 1210, 1215, third
bracketed insertion in original.) “When we interpret statutes, we usually begin by
considering the ordinary and usual meaning of the law’s terms .…” (In re Friend (2021)
11 Cal.5th 720, 730; see Wasatch Property Management v. Degrate (2005) 35 Cal.4th
1111, 1121–1122 [“When attempting to ascertain the ordinary, usual meaning of a word,
courts appropriately refer to the dictionary definition of that word.”].) “When, however,
a term has developed a particular meaning in the law, we generally presume the
legislative body used the term in that sense rather than relying on ordinary usage.” (In re
Friend, at p. 730; see § 7, subd. (c) [“Words and phrases … as may have acquired a
peculiar and appropriate meaning in law … shall be construed according to that peculiar
and appropriate meaning.”]; Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063 [“If
the Legislature has provided an express definition of a term, that definition ordinarily is
10.
binding on the courts.”]; People v. Weidert (1985) 39 Cal.3d 836, 845–846 [“Where the
language of a statute uses terms that have been judicially construed, ‘ “the presumption is
almost irresistible” ’ that the terms have been used ‘ “in the precise and technical sense
which had been placed upon them by the courts.” ’ ”].) Moreover, “[w]e do not …
consider the statutory language ‘in isolation.’ [Citation.] Rather, we look to ‘the entire
substance of the statute … in order to determine the scope and purpose of the
provision .…” (People v. Murphy (2001) 25 Cal.4th 136, 142.) “We must harmonize
‘the various parts of a statutory enactment … by considering the particular clause or
section in the context of the statutory framework as a whole.’ ” (Ibid.)
Section 1054.3, subdivision (b)(1) applies whenever a defendant “places in issue
his or her mental state at any phase of the criminal action … through the proposed
testimony of any mental health expert.” (Italics added.) Before the Legislature enacted
this provision via Assembly Bill 1516, the meanings of the italicized terms had already
been well established. The phrase “mental state” refers to the “purpose, intent,
knowledge, premeditation, deliberation, or malice aforethought, with which the accused
committed the [criminal] act.” (§ 28, subd. (a), as amended by Stats. 1982, ch. 893, § 3,
p. 3318.)6 It is an essential element of a crime. (§ 20, enacted 1872; People v. Morales
(2001) 25 Cal.4th 34, 45; accord, People v. Mumin (2023) 15 Cal.5th 176, 190 [“The
mental state, or mens rea, that must accompany each crime is an element of the
offense.”].) “The question as to whether the defendant had or did not have the required
mental state[] shall be decided by the trier of fact” “[i]n the guilt phase of a criminal
action.” (§ 29, added by Stats. 1984, ch. 1433, § 3, p. 5030; see, e.g., People v. Soto
(1879) 53 Cal. 415, 415–416 [intent with which a defendant charged with burglary
entered dwelling a factual question left to jury].) A defendant commonly “places in issue
6 Section 28, subdivision (a) recognizes other criminal mental states exist. (See ibid.
[definition of “mental state” contains qualifier “including, but not limited to”].)
11.
his or her mental state” by proffering a “mental-state defense.” (Maldonado v. Superior
Court, supra, 53 Cal.4th at pp. 1117, 1119; see, e.g., Sharp, supra, 54 Cal.4th at pp. 171–
172 [the defendant intended to call four mental health experts to testify as to his sanity at
the time of the charged offenses]; Verdin, supra, 43 Cal.4th at p. 1100 [“ ‘diminished
actuality’ defense” based on testimony of defense-retained psychiatrist].)7
The phrase “criminal action” refers to “[t]he proceeding by which a party charged
with a public offense is accused and brought to trial and punishment.” (§ 683, enacted
1872; see Evid. Code, § 130, added by Stats. 1965, ch. 299, § 2 [“ ‘Criminal action’
includes criminal proceedings.”].) This definition in turn identifies the following
phases—i.e., “distinct stage[s],” “aspect[s],” or “facet[s]” (Webster’s II, New College
Dict. (1995) p. 824, col. 2)—of a criminal action: (1) the accusatory or charging
instrument (see People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403,
426 [“An indictment is the first step in the prosecution of a criminal case which may
culminate in a trial.”]); (2) trial (see Pearson, supra, 48 Cal.4th at p. 570 [“trial phase”];
cf. § 29 [“guilt phase of a criminal action”]); and (3) punishment (see People v. Superior
Court (Mitchell) (1993) 5 Cal.4th 1229, 1233 [“the penalty phase of a capital trial is
7 The People cite People v. Hoyt (2020) 8 Cal.5th 892 for the proposition section 1054.3,
subdivision (b)(1) applies outside the context of mental-state defenses. In that case, defendant—
who was charged with and convicted of an August 2000 kidnapping and murder—confessed to
law enforcement he killed the victim. (Hoyt, at pp. 898–907.) At some point, he claimed “he
gave a false confession induced by various psychological factors.” (Id. at p. 940.) The
prosecution successfully moved to compel defendant to undergo psychiatric examinations by its
own experts. (Ibid.) On appeal, defendant argued the trial court improperly ordered these
compelled examinations. (Ibid.) The Attorney General conceded error in view of Verdin, which
governed the case at the time (id. at pp. 940–941), but contended any impropriety was harmless
(id. at p. 941). The Supreme Court sided with the Attorney General and found, “Under the
circumstances, we conclude there is no reasonable probability that the jury would have reached a
result more favorable to defendant had the court not issued an order requiring him to submit to
mental examination by [prosecution-retained experts] and had these experts not testified against
defendant based on those examinations.” (Id. at p. 942.) The high court never decided whether
section 1054.3, subdivision (b)(1) applies outside the context of mental-state defenses. (See
People v. Casper (2004) 33 Cal.4th 38, 43 [“It is axiomatic that cases are not authority for
propositions not considered.”].) Furthermore, Hoyt is factually inapposite to the instant case.
12.
merely a part of a single, unitary criminal proceeding”]). Courts have regarded the trial
phase as incorporating the punishment phase as well as being comprised of other phases.
(See, e.g., People v. Deen (2026) 19 Cal.5th 151, 158 [“The trial proceeded in four
phases: competency, guilt, sanity, and penalty.”]; People v. Jantz (2006)
137 Cal.App.4th 1283, 1295 [“[t]he guilt and sanity phases are part of a single criminal
trial”]; People v. Green (1971) 15 Cal.App.3d 524, 527 [“guilt,” “sanity,” and “penalty
phases of the trial”]; see also Black’s Law Dict. (12th ed. 2024) pp. 848, col. 2 [“guilt
phase” defined as “[t]he part of a criminal trial during which the factfinder determines
whether the defendant committed a crime” (boldface omitted)], 1365, col. 2 [“penalty
phase” or “sentencing phase” defined as “[t]he part of a criminal trial in which the
factfinder determines the punishment for a defendant who has been found guilty”
(boldface omitted)].)
Finally, the term “testimony” “is generally described in both statutory and
decisional law as oral statements made by a person under oath in a court proceeding.”
(People v. Belton (1979) 23 Cal.3d 516, 524.) Section 7, subdivision (a)(4) defines
“testify” as embracing “every mode of oral statement, under oath or affirmation.” (See
Belton, at p. 524, fn. 12 [original 1872 statutory enactment contained same or similar
language].) “Decisional law of this state has interpreted the word ‘testimony’ in similar
fashion. Testimony, ‘strictly speaking, means only that evidence which comes from
living witnesses who testify orally.’ [Citation.] ‘All evidence is not testimony.
Testimony is limited to that sort of evidence which is given by witnesses speaking under
oath or affirmation [citation] .…’ ” (Id. at p. 524, first bracketed insertion added.) In
view of section 1054.3, subdivision (b)(1)(A), under which “[t]he prosecution shall bear
the cost of [a prosecution-retained] mental health expert’s fees for examination and
testimony at a criminal trial” (italics added) and the overall aim of Proposition 115 to
facilitate trials (see Cal. Const., art. I, § 30, subd. (c); § 1054, subds. (a), (c); Pearson,
supra, 48 Cal.4th at pp. 570, 572), “testimony” as used in section 1054.3
13.
subdivision (b)(1) must necessarily be confined to trial testimony. (See People v.
Murphy, supra, 25 Cal.4th at p. 142.)
A defendant moving for diversion pursuant to section 1001.36 must prove at the
outset that he or she has been diagnosed with a recognized mental disorder (§ 1001.36,
subd. (b)) that “exist[ed] at the time of the offense” (People v. Braden, supra, 14 Cal.5th
at p. 814). If such a showing is made, the court “shall find that the defendant’s mental
disorder was a significant factor in the commission of the offense unless there is clear and
convincing evidence that it was not a motivating factor, causal factor, or contributing
factor to the defendant’s involvement in the alleged offense.” (§ 1001.36, subd. (b)(2).)
The questions of whether a defendant has been diagnosed with a recognized mental
disorder and whether the disorder was a motivating, causal, or contributing factor to his
or her criminal involvement are not tantamount to and distinct from the question of
whether the defendant possessed the requisite criminal intent to support a conviction.
(See §§ 20, 28, subd. (a), 29; contra, People v. Velador (2024) 103 Cal.App.5th 687, 697
[“[d]iversion is based on the defendant’s mental state during the commission of the
crime”].)8 Furthermore, questions of diversion eligibility are addressed not at a phase of
a criminal action but at an “informal” hearing (§ 1001.36, subd. (e)) stemming from a
statutorily created alternative to said action (Watts, supra, 79 Cal.App.5th at pp. 837–
838). As per the language of section 1001.36, at said hearing, a defendant may make a
prima facie showing of his or her diversion eligibility and suitability “on offers of proof,
reliable hearsay, and argument of counsel” (§ 1001.36, subd. (e)) instead of “through the
proposed testimony of any mental health expert” (§ 1054.3, subd. (b)(1)). (See Watts, at
p. 838 [“Live testimony is the opposite of a hearing based on offers of proof and
8 We note People v. Velador, supra, 103 Cal.App.5th 687, which held a trial court has
jurisdiction to grant diversion “after a doubt has been declared with respect to [a] defendant’s
competency to stand trial, but before the issue of competency has been decided” (id. at p. 691),
never addressed section 1054.3.
14.
hearsay.”].) While testimony may nonetheless be permitted at the hearing (see, e.g.,
People v. Superior Court (Taylor) (2026) 118 Cal.App.5th 1153, 1161 [testimony of
mental health expert from county agency after trial court requested she independently
evaluate diversion applicant]; Negron v. Superior Court (2021) 70 Cal.App.5th 1007,
1011–1013 [doctor who conducted psychological evaluation on the defendant called by
defense as expert witness]), such testimony would not constitute the trial testimony
contemplated by section 1054.3, subdivision (b)(1).9
Though “[e]xpressly excepted from the reach of section 1054.3[,
subdivision ](b)(1) are circumstances in which the subject of that statute, the defendant’s
compelled examination by a prosecution-retained expert, is ‘otherwise specifically
addressed by an existing provision of law’ ” (Sharp, supra, 54 Cal.4th at pp. 173–174,
italics added), section 1001.36 “does not ‘specifically address[]’ the same subject as
section 1504.3[, subdivision ](b)(1)” (id. at p. 174, second bracketed insertion added).
This omission is telling given section 1001.36 was originally enacted more than a decade
after section 1054.3, subdivision (b)(1) and amended subsequent times thereafter. (See In
re Greg F. (2012) 55 Cal.4th 393, 407 [“The Legislature is presumed to be aware of all
laws in existence when it passes or amends a statute.”].)
9 The People assert People v. Superior Court (Taylor), supra, 118 Cal.App.5th 1153
“makes clear that the prosecution may utilize its own mental health experts to examine a
defendant seeking mental health diversion.” In that case, the defendant—who was charged with
attempted murder and multiple counts of assault with a deadly weapon, among other things—
filed a diversion motion. (Id. at p. 1158.) The prosecution’s opposition thereto included an
evaluation by a doctor who reviewed the defendant’s medical records and interviewed him at the
correction facility. (Id. at pp. 1160–1161.) It is uncertain whether this doctor was retained by
the prosecution or appointed by the court. In any event, the issue before Division One of the
Court of Appeal, Second Appellate District, was whether the trial court’s implicit finding that the
defendant would not pose an unreasonable risk of danger to public safety if he were treated in the
community constituted an abuse of discretion. (Id. at p. 1164.) The appellate court never
discussed section 1054.3, subdivision (b), let alone addressed whether compelled examinations
thereunder applies in the context of diversion. (See People v. Casper, supra, 33 Cal.4th at p. 43
[“It is axiomatic that cases are not authority for propositions not considered.”].)
15.
The People claim section 1054.3, subdivision (b) must be construed to authorize
orders compelling a defendant moving for diversion to submit to an examination by a
prosecution-retained mental health expert because such an examination presented “the
only opportunity to present ‘clear and convincing evidence’ to overcome
[section 1001.36, subdivision (b)(2)’s] statutory presumption that there is a nexus
between [a defendant]’s diagnosed mental health disorder and his crime.” To find
otherwise “produces absurd results that were not intended by the Legislature.” We
disagree. While a compelled examination under section 1054.3, subdivision (b) is
inapplicable to a diversion proceeding, the prosecution is not without recourse. Nothing
prevents the prosecution from presenting its expert’s critique of another expert’s findings.
(See § 1001.36, subd. (b)(2) [“records or reports by qualified medical experts”].) In
addition, the prosecution could file a motion asking the court to appoint a mental health
expert pursuant to Evidence Code section 730. (See, e.g., People v. Gerson (2022)
80 Cal.App.5th 1067, 1080–1081 [reports and testimony of court-appointed mental health
experts].)
For the foregoing reasons, we conclude trial courts do not have the authority under
section 1054, subdivision (b)(1) to order a defendant moving for pretrial mental health
diversion to submit to an examination by a prosecution-retained mental health expert.10
(See People v. Cochran (2002) 28 Cal.4th 396, 400–401 [“If there is no ambiguity or
uncertainty in the [statutory] language, the Legislature is presumed to have meant what it
said, and we need not resort to legislative history to determine the statute’s true
meaning.”].)
10 In light of our disposition, we need not address Jackson’s other arguments.
16.
DISPOSITION
The order to show cause is discharged, and the petition for a writ of mandate
and/or prohibition is denied.
HILL, P. J.
WE CONCUR:
DETJEN, J.
SNAUFFER, J.
17.