# People v. Pokovich

> California Supreme Court · August 31, 2006 · 48 Cal. Rptr. 3d 158

URL: https://www.frixlaw.com/law-library/cases/9796928

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. CHARLES G. POKOVICH, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** August 31, 2006
- **Citations:** 48 Cal. Rptr. 3d 158; 39 Cal. 4th 1240; 2006 Daily Journal DAR 11759; 141 P.3d 267; 2006 Cal. Daily Op. Serv. 8248; 2006 Cal. LEXIS 10228
- **Precedential status:** Published
- **Opinion:** Concurring in part by Werdegar
- **Judges:** Kennard, Baxter, Werdegar
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

WERDEGAR, J., Concurring and Dissenting.
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 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 ]), 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 [ 45 Cal.Rptr.2d 207 , 902 P.2d 225 ]; People v. McKay (2002) 27 Cal.4th 601, 626-627 [ 117 Cal.Rptr.2d 236 , 41 P.3d 59 ] (cone. 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.
*1267 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 [ 122 Cal.Rptr. 61 ] (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 [ 186 Cal.Rptr. 94 , 651 P.2d 338 ] (Arcega), there explaining that the immunity *1268 “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 Centeno v. Superior Court (2004) 117 Cal.App.4th 30, 42 [ 11 Cal.Rptr.3d 533 ] [“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. (Ar cega, at p. 523, fn. 6; see Estelle v. Smith (1981) 451 U.S. 454, 468-469 [ 68 L.Ed.2d 359 , 101 S.Ct. 1866 ]; 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 [ 38 Cal.Rptr.3d 98 , 126 P.3d 938 ]; People v. Weaver (2001) 26 Cal.4th 876, 959-963 [ 111 Cal.Rptr.2d 2 , 29 P.3d 103 ]), and neither the majority nor Justice Baxter’s concurrence and dissent questions its ongoing validity. (See maj. opn., ante, at pp. 1245-1246; cone. & dis. opn. of Baxter, J., ante, at pp. 1256-1257.) As Justice Baxter correctly notes (cone. & dis. opn. of Baxter, J., ante, at pp. 1256-1257), 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 p. 960, and Jablonski , at p. 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 *1269 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 protected] 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)(B)), 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 *1270 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 [ 237 Cal.Rptr. 747 ] [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 [ 24 Cal.Rptr.2d 710 , 862 P.2d 710 ].)
*1271 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.
All further unlabeled statutory references are to the Penal Code.
As the majority correctly notes, the humanitarian impulse reflected in competency hearings is of constitutional dimension. (Maj. opn., ante, at p. 1250; see also Pate v. Robinson (1966) 383 U.S. 375, 378 [ 15 L.Ed.2d 815 , 86 S.Ct. 836 ] [“[T]he conviction of an accused person while he is legally incompetent violates due process”]; People v. Lawley (2002) 27 Cal.4th 102, 131 [ 115 Cal.Rptr.2d 614 , 38 P.3d 461 ]; People v. Castro (2000) 78 Cal.App.4th 1402, 1419 [ 93 Cal.Rptr.2d 770 ] [“Due process requires that any doubt regarding the defendant’s competency be properly evaluated by experts prior to proceeding with trial”].)
Contrary to the majority’s suggestion that the immunity lacks any such statutory foundation (maj. opn., ante, at p. 1253, 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)].)
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 [ 276 Cal.Rptr. 326 , 801 P.2d 1077 ].)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9796928. Public record. Not legal advice.