Opinion
E054769
12-02-2011
THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; NOEL LEON JACKSON, Real Party in Interest.
Paul E. Zellerbach, District Attorney, and Ivy B. Fitzpatrick, Deputy District Attorney, for Petitioner. No appearance for Respondent. James S. Thomson for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Super.Ct.Nos. CR23480 & RIC475367
OPINION
ORIGINAL PROCEEDINGS; petition for writ of mandate. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Petition granted.
Paul E. Zellerbach, District Attorney, and Ivy B. Fitzpatrick, Deputy District Attorney, for Petitioner.
No appearance for Respondent.
James S. Thomson for Real Party in Interest.
INTRODUCTION
In this matter, we have reviewed the petition and the opposition filed by real party in interest. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
DISCUSSION
Although we are not persuaded that the prosecution has a right to the discovery sought (see Verdin v. Superior Court (2008) 43 Cal.4th 1096; cf. Centeno v. Superior Court (2004) 117 Cal.App.4th 30), the newly enacted provisions of Penal Code section 1054.3, subdivision (b), clearly confer discretion upon the trial court to order a defendant to submit to a psychological examination at the behest of the People. In the circumstances of this case, we conclude that the trial court abused its discretion in refusing to permit such an examination.
It appears that the trial court's decision was based on the assumption that the evaluations conducted by defense-retained experts in the 1990's are essentially accurate. While we agree that some of the historical data appears to be unchallenged, to the extent that these evaluations rely on observation and the interpretation of test results, they are legitimately subject to challenge. The results cannot stand as the definitive opinion on real party in interest's level of functioning so as to make a direct examination by the opposing party's expert irrelevant.
We do not dispute that "mental retardation," as the term is used in Penal Code section 1376, is a permanent condition, and that if real party in interest was mentally retarded in the 1990's, he is mentally retarded now. But, it is just because mental retardation is not subject to "improvement" or change that his current level of functioning remains relevant. Real party in interest's experts believe that he was mentally retarded in the past and is so now. The prosecution hopes that its expert, after examining real party in interest, will conclude that he is not mentally retarded in the legal sense (and therefore never was). Perhaps his test results will be different. Perhaps, from direct observation, the expert will conclude that real party in interest is malingering or deliberately failing to do his best. This would create a conflict in the evidence to be resolved by the trial court. In light of the stakes to both sides, we believe the People are entitled to an examination by their own expert. If the evidence is as persuasive as real party in interest and the trial court believe, it is even possible that the prosecution's expert will agree that real party in interest is mentally retarded and further proceedings will be unnecessary.
Real party in interest's objections may be quickly disposed of. As for delay, the trial court did not rely on this ground and neither will we. Real party in interest's argument that if a new evaluation is performed by the People's expert, then real party in interest will also need to obtain new evaluations. This is inconsistent with real party in interest's claim that his condition was established by the earlier evaluations. Further, real party in interest can show no prejudice, even if he does choose to obtain fresh evaluations. Real party in interest's concerns that he might perform better on tests due to the "practice effect" or that a current evaluation of his current behavior might be "misleading" because mentally retarded people supposedly adapt better to prison life than others, go to the weight of any evidence developed by the People. These points cannot be accepted as scientifically accurate at this point. It may also be doubted that the "practice effect" would have a significant effect on real party in interest's scores, given the lapse of well over 10 years since the 1990's testing. We also note that any "adaptive effect" would very likely have manifested itself by that time as well.
Real party in interest's final argument is that there is simply no need for a personal examination. The fact that evaluations may be done without such an examination in some cases does not establish that it is not desirable, or preferable, for an evaluator to observe the subject face-to-face. Common sense says the opposite.
DISPOSITION
Accordingly, the petition for writ of mandate is granted. Let a peremptory writ of mandate issue, directing the Superior Court of Riverside County to vacate its order denying the People's request to order real party in interest to submit to an evaluation and testing its expert, and to enter a new order granting said motion.
The request for judicial notice is denied as petitioner did not provide copies of the documents or any reason why the files are necessary for this court's resolution of the matter.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J.
We concur:
McKINSTER
J.
MILLER
J.