Filed 5/31/12




      IN THE SUPREME COURT OF CALIFORNIA


CALVIN LEONARD SHARP,               )
                                    )
           Petitioner,              )
                                    )                              S190646
           v.                       )
                                    )                       Ct.App. 2/6 B222025
THE SUPERIOR COURT OF VENTURA )
COUNTY,                             )
                                    )                         Ventura County
           Respondent;              )                   Super. Ct. No. 2008014330)
                                    )
THE PEOPLE,                         )
                                    )
           Real Party in Interest.  )
____________________________________)


        When the defendant in a criminal action has placed his or her mental state
at issue through the proposed testimony of a mental health expert, Penal Code
section 1054.3, subdivision (b)(1)1 authorizes the trial court to order the defendant
to submit to examination by an expert retained by the prosecution. In this case, we
decide whether that statutory authority extends to a defendant who has pleaded not
guilty by reason of insanity (NGI) and proposes to call a mental health expert on
the issue of sanity. (See § 1027.)
        We conclude section 1054.3, subdivision (b)(1) (hereafter section
1054.3(b)(1)) does apply in these circumstances. By its terms, the statute

1       All further unspecified statutory references are to the Penal Code.




                                          1
authorizes an order compelling examination by a prosecution-retained expert
“whenever . . . at any phase of the criminal action” the defense has proposed its
own expert testimony on mental state, “[u]nless otherwise specifically addressed
by an existing provision of law.” (Italics added.) Section 1027, which governs the
adjudication of an NGI plea, specifically addresses the defendant‟s examination by
court-appointed experts, but not by prosecution-retained experts, the subject of
section 1054.3(b)(1). The exception in section 1054.3(b)(1) therefore does not
pertain, and the statute as a whole applies.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Petitioner Calvin Leonard Sharp is charged with several felonies, including
murder with special circumstances, though the People have stated they are not
seeking the death penalty. (§§ 187, 190.2, subd. (a)(17).) Petitioner initially
pleaded not guilty to the offenses, as well as NGI, but later withdrew the not guilty
plea, leaving only the issue of sanity for trial, and waived his right to a jury trial on
that issue. The defense disclosed to the prosecution reports of four mental health
experts who opined on petitioner‟s sanity at the time of the offenses. In addition,
the court appointed two mental health experts under section 1027; their reports, as
well as those of the defense experts, were introduced by stipulation at the court
trial on sanity.
       The People moved under section 1054.3(b)(1) to have petitioner examined
by a prosecution-retained expert, and the trial court granted the motion. Petitioner
sought a writ of mandate or prohibition from the Court of Appeal to prevent the
compelled examination but, after issuing an order to show cause, the Court of
Appeal denied the petition, holding section 1054.3(b)(1) applied to sanity
proceedings.
       We granted petitioner‟s petition for review and stayed both the order
compelling an examination and the sanity trial pending further order of this court.

                                           2
                                     DISCUSSION
       Under the California law of reciprocal discovery in criminal cases, the
defense must disclose before trial the witnesses it intends to call, including expert
witnesses, as well as reports of experts, including the results of mental health
examinations. (§ 1054.3, subd. (a)(1).) In Verdin v. Superior Court (2008) 43
Cal.4th 1096 (Verdin), this court held that the defense‟s disclosure of a potential
mental state defense did not justify an order compelling the defendant to submit to
examination by a prosecution expert. We reasoned that mandatory criminal
discovery is limited to that provided by statutory or federal constitutional authority
(§ 1054, subd. (e)), and no such authority provided for a compelled mental health
examination of a defendant. (Verdin, at pp. 1106-1116.) We explained that, while
the court had no authority to create a rule allowing a compelled examination as
discovery, “[t]he Legislature remains free, of course, to establish such a rule
within constitutional limits.” (Id. at p. 1116, fn. 9.)
       The Legislature responded to Verdin by amending section 1054.3 to add a
new subdivision (b), expressly authorizing orders for compelled examination.
(Stats. 2009, ch. 297, § 1.) Subdivision (b)(1) of the amended statute provides that
“[u]nless 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.”2

2     In its entirety, section 1054.3, subdivision (b) provides: “(1) Unless
otherwise specifically addressed by an existing provision of law, whenever a
defendant in a criminal action or a minor in a juvenile proceeding brought
                                                           (footnote continued on next page)


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        The trial court‟s appointment of mental health experts to testify as to a
defendant‟s sanity, after a plea of NGI, is governed by section 1027. Under that
provision, when a defendant pleads NGI, the court selects and appoints two or, at
the court‟s option, three psychiatrists or psychologists to examine the defendant
and testify, if called, at a sanity trial. (§ 1027, subd. (a).) Section 1027 expressly
does not preclude “any party to any criminal action from producing any other


(footnote continued from previous page)

pursuant to a petition alleging the juvenile to be within Section 602 of the Welfare
and Institutions Code places in issue his or her mental state at any phase of the
criminal action or juvenile proceeding through the proposed testimony of any
mental health expert, upon timely request by the prosecution, the court may order
that the defendant or juvenile 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 or
juvenile court proceeding. [¶] (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 or a minor in a juvenile proceeding. At the request of the
defendant in a criminal action or a minor in a juvenile proceeding, 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 or a minor in a juvenile proceeding. 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. [¶] (2) The purpose of this
subdivision is to respond to Verdin v. Superior Court 43 Cal.4th 1096, which held
that only the Legislature may authorize a court to order the appointment of a
prosecution mental health expert when a defendant has placed his or her mental
state at issue in a criminal case or juvenile proceeding pursuant to Section 602 of
the Welfare and Institutions Code. Other than authorizing the court to order
testing by prosecution-retained mental health experts in response to Verdin v.
Superior Court, supra, it is not the intent of the Legislature to disturb, in any way,
the remaining body of case law governing the procedural or substantive law that
controls the administration of these tests or the admission of the results of these
tests into evidence.”




                                           4
expert evidence with respect to the mental status of the defendant . . . .” (Id., subd.
(d).)
        Section 1054.3(b)(1) does not expressly include or exclude a sanity trial as
an occasion for which a compelled examination may be ordered. It applies,
however, “whenever” the defendant places his or her mental state at issue “at any
phase of the criminal action.” The trial on a plea of NGI is frequently referred to
as a “phase” of the criminal action. (See, e.g., People v. Smith (2007) 40 Cal.4th
483, 494-495; People v. Jablonski (2006) 37 Cal.4th 774, 786; People v. Wright
(2005) 35 Cal.4th 964, 971; People v. Coddington (2000) 23 Cal.4th 529, 601.)
The broadly inclusive language of section 1054.3(b)(1)—“whenever . . . at any
phase of the criminal action”—thus impliedly encompasses trial of the defendant‟s
sanity after an NGI plea.
        Expressly excepted from the reach of section 1054.3(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.” We conclude the trial of an NGI plea is not such
a circumstance.
        Section 1027 addresses only the selection and appointment of mental health
experts by the trial court. Indeed, subdivision (d) of section 1027 disclaims for the
section any effect on the parties’ presentation of evidence produced by their own
retained experts. In contrast, the subject of section 1054.3(b)(1) is the
examination of the defendant by an expert selected and retained by the
prosecution. Although the list of tests to be administered by the prosecution
expert is subject to judicial review (§ 1054.3, subd. (b)(1)(B)), the court is given
no role in selecting the expert, whose fees are paid by the prosecution (§ 1054.3,
subd. (b)(1)(A)). Section 1027 does not “specifically address[]” the same subject
as section 1054.3(b)(1).

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        To be sure, our decision in Verdin, in response to which section
1054.3(b)(1) was enacted, concerned a proposed “diminished actuality” defense to
guilt rather than an NGI plea. (Verdin, supra, 43 Cal.4th at p. 1101.) But when
the Legislature amended section 1054.3 to supply the statutory authorization for
compelled examinations we found lacking in Verdin, it did not limit its
authorization to guilt phase mental defenses. Rather, the Legislature broadly
authorized examination by a prosecution-retained expert whenever the defendant
has put his or her mental condition at issue “at any phase of the criminal action.”
(§ 1054.3(b)(1).) Although prompted by Verdin, the 2009 amendment to section
1054.3 does not by its terms confine its application to the circumstances of that
case.
        Nor does anything in the available legislative history of the 2009 bill
amending section 1054.3 suggest it was intended to be limited to guilt phase
defenses. Indeed, bill analyses by policy committees of both legislative houses
cited People v. McPeters (1992) 2 Cal.4th 1148, 1190 and People v. Carpenter
(1997) 15 Cal.4th 312, 412-413, both involving penalty phase mental defenses, as
pre-Verdin precedents recognizing trial courts‟ authority to order compelled
examinations—authority the bill proposed to restore. (Assem. Com. on Public
Safety, analysis of Assem. Bill No. 1516 (2009-2010 Reg. Sess.) as amended
Apr. 20, 2009, p. 3; Sen. Com. on Public Safety, analysis of Assem. Bill No. 1516
(2009-2010 Reg. Sess.) as amended June 29, 2009, p. G.)
        Moreover, the same committee reports quote a passage from Estelle v.
Smith (1981) 451 U.S. 454, 468, to the effect that federal courts have held a
compelled “ „sanity examination‟ ” is constitutionally permitted when the
defendant “ „asserts the insanity defense and introduces supporting psychiatric
testimony.‟ ” (Assem. Com. on Public Safety, analysis of Assem. Bill No. 1516
(2009-2010 Reg. Sess.) as amended Apr. 20, 2009, p. 6; Sen. Com. on Public

                                           6
Safety, analysis of Assem. Bill No. 1516 (2009-2010 Reg. Sess.) as amended
June 29, 2009, p. J.) Immediately following the quote, the reports add: “This bill
requires courts to make the defendant available to the People when the defendant
places his or her mental state in issue.” (Ibid.) Though most directly intended to
assure legislators the proposed amendment was constitutional, these passages also
suggest the amendment‟s drafters viewed the amendment as authorizing
examinations relating to NGI pleas as well as to guilt and penalty phase mental
health defenses.
        Read in isolation, section 1054.3(b)(1)‟s exception for existing statutes
“specifically address[ing]” the same subject matter could perhaps be understood to
encompass section 1027, since specificity is a relative quality and section 1027‟s
provisions for court appointment of experts when a defendant pleads NGI are at
least related to section 1054.3(b)(1)‟s authorization of orders for examination by a
prosecution-retained expert. In context, however, such a reading is not reasonable.
Had the Legislature meant to exclude discovery in sanity phase proceedings from
the scope of section 1054.3(b)(1), it would not have expressly stated the statute
applies “at any phase of the criminal action.” Together with the legislative history
suggesting the Legislature anticipated section 1054.3(b)(1) would apply to
proceedings other than guilt trials, and particularly to NGI trials, that express
statutory language precludes a conclusion that the exception for existing statutes
specifically addressing the same subject was intended as a reference to section
1027.
        Petitioner argues that section 1027‟s provision for court appointment of
independent experts is an “effective and economical means of controverting
defense evidence” and is “sufficient to protect the rights of the People.” Petitioner
may be correct that in general the People have less need for an examination by
their own expert when the defendant has pleaded NGI, requiring the court to

                                           7
appoint its own expert examiners under section 1027, than where, as in Verdin,
supra, 43 Cal.4th 1096, the defense proposes to present a mental health defense to
guilt through its own retained experts. But the need for, or wisdom of, section
1054.3(b)(1)‟s authorization for compelled examination is not the question before
us. Even if we agreed with petitioner as to the lack of need for it, we could not
ignore the statute‟s broadly inclusive language authorizing a compelled
examination “whenever” the defendant has put his or her mental state at issue “at
any phase of the criminal action” through the proposed testimony of a mental
health expert. (§ 1054.3(b)(1).)
       Sections 1027 and 1054.3(b)(1) are in no way inconsistent; indeed, when a
defendant pleads NGI the two statutes appear to operate in a complementary
manner. Under section 1027, court appointment of experts to evaluate the
defendant is mandatory. Under section 1054.3(b)(1), the court may grant the
People‟s motion to compel a further examination by a prosecution-retained expert.
In deciding how to exercise its section 1054.3(b)(1) discretion, the trial court may
consider the extent to which such an additional examination is needed, in light of
any existing court appointments, to rebut the defense‟s proposed expert testimony.
That appointments have already been made under section 1027 thus may
influence, but does not preclude, the decision to order an examination under
section 1054.3(b)(1).
       We therefore conclude the Court of Appeal was correct in holding section
1054.3(b)(1) authorized the trial court to order defendant examined by a
prosecution-retained mental health expert.




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                                  DISPOSITION
      The judgment of the Court of Appeal is affirmed. Our stays of the order
compelling examination and the sanity trial, issued on May 5, 2011, are dissolved.

                                                WERDEGAR, J.

WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
LIU, J.




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

Name of Opinion Sharp v. Superior Court
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 191 Cal.App.4th 1280
Rehearing Granted

__________________________________________________________________________________

Opinion No. S190646
Date Filed: May 31, 2012
__________________________________________________________________________________

Court: Superior
County: Ventura
Judge: Kevin G. DeNoce

__________________________________________________________________________________

Counsel:

Duane A. Dammeyer and Stephen P. Lipson, Public Defenders, and Michael C. McMahon, Chief Deputy
Public Defender, for Petitioner.

No appearance for Respondent.

Gregory D. Totten, District Attorney, and Lisa O. Lyytikainen, Deputy District Attorney, for Real Party in
Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael C. McMahon
Chief Deputy Public Defender
800 S. Victoria Avenue, HOJ-207
Ventura, CA 93009
(805) 477-7114

Lisa O. Lyytikainen
Deputy District Attorney
800 S. Victoria Avenue
Ventura, CA 93009
(805) 654-2710
