Filed 1/29/99

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL 0F THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT

(Sacramento)

----

3 Crim. C026382
(Sup.Crt.No. 95F07800)

MAE ELLA ROBERTSON,
Petitioner,

v.

SUPERIOR COURT, SACRAMENTO COUNTY,
Respondent.

PEOPLE OF THE STATE OF CALIFORNIA,
Real Party In Interest.

ORIGINAL PROCEEDING. Petition for Writ of Mandate.

Michael Virga, Judge. Writ granted.

Paulino G. Duran, Sacramento County Public Defender, and Karol Martin Repkow, Assistant Public Defender, for Petitioner.

No appearance for Respondent.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Harry Joseph Colombo and Timothy L. Rieger, Deputy Attorneys General, for Real Party In Interest.

This matter arises on a petition for a writ of mandate to overturn an order in a pending criminal proceeding. Petitioner (defendant) pleaded not guilty by reason of insanity. The respondent superior court appointed two psychologists to examine defendant and investigate her mental status, pursuant to Penal Code section 1027. (Further statutory references to sections of an undesignated code are to the Penal Code.) Over the objections of the defendant, the superior court granted the prosecution's motion to videotape the mental status examinations.

Defendant asserts the superior court acted without authority and, in any event, was constrained to hold a hearing before entering the order. We will conclude the court is empowered to order videotaping of the examination but only after defendant is afforded an opportunity to establish that videotaping will materially affect the conduct of the examination. Accordingly, we shall issue a writ of mandate directing that the challenged order be vacated.

FACTS AND PROCEDURAL BACKGROUND

Defendant is charged with the murder ( 187, subd.(a)) of Malcolm J., with the use of a deadly and dangerous weapon ( 12022, subd.(b), as well as assaulting him by means of force likely to produce great bodily injury, resulting in death (273ab), and torturing (206) him with the use of deadly and dangerous weapons (12022, subd. (b)). Defendant is also charged with felony child abuse (273a, subd. (a)) of Quintessa J. and willfully inflicting corporal injury (273d) on her.

Defendant entered a plea of not guilty by reason of insanity on March 4, 1997. Pursuant to section 1027, subdivision (a), the respondent court appointed two psychologists, Drs. Mattiuzzi and Liebert (one recommended by the prosecution and the other by the defense), to examine defendant and investigate her mental status. 1

At a hearing on March 11, 1997, the People moved to have videotaped or audiotaped those portions of the mental status examinations that involve defendant's responses to questions about her psychological history and the events that occurred on the night Malcolm J. was killed. The prosecutor argued taping the examinations would ensure an accurate record of defendant's statements, for use by the psychologists and both sides.

Defendant opposed the motion as unauthorized, and further argued that before ordering videotaping of the mental status examinations the court should consider the psychologists' opinions regarding videotaping. After taking the matter under submission, the superior court granted the People's motion on March 21, 1997. The court's formal order, filed April 11, 1997, directed the psychologists to videotape "those portions of the mental status examination in which the defendant relates her history, and while the defendant discusses or relates the facts surrounding the commission of the act forming the basis for the charges, as well as any subsequent history related by the defendant." The order directed the district attorney to make arrangements for, and bear the expense of, the videotaping. 2

Thereafter, defendant filed a motion for reconsideration of the order, asserting "the court is in essence initiating a procedure whereby it will appoint (hire) only those medical experts who are willing to conduct examinations on the district attorney's terms." According to defendant, the order intruded on discretion vested in medical professionals to determine how best to conduct their examination, and the court was without authority "to dictate to those professionals how their analysis should be conducted." (Original emphasis.) In closing, defendant also requested "that the court at least grant a hearing so that it may consider further evidence on this issue."

Defendant supported the motion with copies of letters addressed to the court by Drs. Mattiuzzi and Liebert, declining their appointments. Dr. Mattiuzzi thought having an observer present would be disruptive and "not the optimal manner in which to proceed." He opined that ultimately he was responsible for his methods and his opinions and "[f]or this reason, it is not correct for me to allow either the defense or the prosecution to dictate my methods --especially when I believe the method to be flawed." He also worried that it would require thought and consideration and "the fact that it requires a great deal of my attention is a warning to me that it is going to disrupt and alter the process by which I normally conduct my work." He thought himself "entirely competent with respect to the task of creating an accurate record" and when "alerted to the level of potential scrutiny" he would make an audio recording.

In a second letter Dr. Mattiuzzi expressed the view that in a videotaped examination he would be assisting the prosecutor's efforts to obtain evidence, a task independent from conducting a sanity examination. The court's order thus required him to choose between conducting "a video-taped interrogation" or a "proper clinical examination." He also opined the camera would affect the subject's behavior as well as his own and would be disruptive and intrusive. Dr. Liebert asserted videotaping may constitute a significant departure from an appropriate standard of practice.

During the hearing on the motion for reconsideration, the prosecutor represented that videotaping could be accomplished by conducting the mental status examinations in a jail lineup room, where a video camera is mounted on the wall near the ceiling, thus obviating the need for the presence of a videographer during the examinations. The respondent court denied the motion for reconsideration, and ordered Drs. Mattiuzzi and Liebert replaced with two other psychologists, Drs. Miller and Otto.

However, by letters dated April 10 and April 16, 1997, respectively, Drs. Miller and Otto also declined their appointments. Dr. Miller objected to videotaping because it would likely affect defendant's candor and responsiveness in the same manner as would the presence of a third person. Thereafter, the superior court appointed yet two more experts to conduct defendant's mental status examinations, Drs. Davis and Piciucco. On April 28, 1997, defendant filed the writ petition in this court. On May 8, 1997, we ordered the trial and all proceedings related to defendant's mental status examinations stayed, and requested that the People file informal opposition. Upon receipt of the People's informal opposition, we notified the parties on June 17, 1997, we were considering issuing a peremptory writ of mandate in the first instance. The time for further opposition has expired, and we have complied with the procedures required by Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171. Accordingly, we are authorized to issue a peremptory writ in the first instance. We have determined that review by mandate is appropriate given that this case presents a question of first impression of considerable interest to the legal profession. (See, e.g., Stermer v. Superior Court (1993) 20 Cal.App.4th 777, 779-780, fn. 1.)

DISCUSSION

We begin with the statutory context. The plea of not guilty by reason of insanity is authorized by section 1016, subdivision 6. If the defendant pleads both not guilty and not guilty by reason of insanity, the guilt phase is tried first, "and in that trial the defendant shall be conclusively presumed to have been sane at the time the offense is alleged to have been committed." ( 1026, subd. (a).) If the defendant is found guilty, the question whether he was sane or insane at the time of the offense is tried either before the same jury or a new jury, in the trial court's discretion. ( 1026, subd. (a).)

Section 1027 prescribes the procedure to be followed following the insanity plea, in pertinent part, as follows:

"(a) When a defendant pleads not guilty by reason of insanity the court must select and appoint two, and may select and appoint three, psychiatrists, or licensed psychologists who have a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders, to examine the defendant and investigate his mental status. It is the duty of the psychiatrists or psychologists so selected and appointed to make the examination and investigation, and to testify, whenever summoned, in any proceeding in which the sanity of the defendant is in question. . . .

"(b) Any report on the examination and investigation made pursuant to subdivision (a) shall include, but not be limited to, the psychological history of the defendant, the facts surrounding the commission of the acts forming the basis for the present charge used by the psychiatrist or psychologist in making his examination of the defendant, and the present psychological or psychiatric symptoms of the defendant, if any.

"(c) This section does not presume that a psychiatrist or psychologist can determine whether a defendant was sane or insane at the time of the alleged offense. This section does not limit a court's discretion to admit or exclude, pursuant to the Evidence Code, psychiatric or psychological evidence about the defendant's state of mind or mental or emotional condition at the time of the alleged offense.

"(d) Nothing contained in this section shall be deemed or construed to prevent any party to any criminal action from producing any other expert evidence with respect to the mental status of the defendant . . . .

"(e) Any psychiatrist or psychologist so appointed by the court may be called by either party to the action or by the court itself and when so called shall be subject to all legal objections as to competency and bias and as to qualifications as an expert. When called by the court, or by either party, to the action, the court may examine the psychiatrist, or psychologist as deemed necessary, but either party shall have the same right to object to the questions asked by the court and the evidence adduced as though the psychiatrist or psychologist were a witness for the adverse party. When the psychiatrist or psychologist is called and examined by the court the parties may cross-examine him in the order directed by the court. When called by either party to the action the adverse party may examine him the same as in the case of any other witness called by such party."

"The object of this statute is to obtain expert evidence of the mental responsibility of a person who is accused of a crime, which shall be entirely free from any possible bias which may influence the employment of an alienist by either party to the action." (People v Carskaddon (1932) 123 Cal.App. 177, 180.) "Alienists appointed by the court in insanity proceedings should be deemed to be the court's own witnesses, and their opinions should not be deemed evidence produced either by the state or the person whose sanity is the subject of inquiry." (People v. Richardson (1961) 192 Cal. App. 2d 166, 710-171.) They "are not appointed as agents of the attorney, but of the court; the communications are not made in confidence and are not made to the attorney." (People v. Lines (1975) 13 Cal.3d 500, 515.)

A defendant is not compelled to submit to a mental status examination and may refuse to answer questions posed by the examiner(s). 3 (People v. Coombes (1961) 56 Cal.2d 135, 149-150; People v. Danis (1973) 31 Cal.App.3d 782, 785; McGuire v. Superior Court, 274 Cal.App.2d 583, 598.) Though their presumed objectivity renders their opinions compelling, experts appointed under section 1027 are not the exclusive source of testimony regarding a defendant's mental condition. The defense may secure its own experts; if the defendant cannot afford a psychiatrist, 4 one must be provided at public expense. (Ake v. Oklahoma (1985) 470 U.S. 68, 74; People v. Samayoa (1997) 15 Cal.4th 795, 801-802.) The prosecution is also entitled to offer testimony of its experts and may obtain an order compelling defendant to submit to an examination for that purpose. (People v. McPeters (1992) 2 Cal.4th 1148, 1190.)

"[T]he sole issue to be tried under a plea of not guilty by reason of insanity (Pen. Code, [] 1026) is the sanity of the accused at the time of the commission of the act constituting the crime; and the very purpose of allowing the court to appoint alienists pursuant to the provisions of section 1027 of said code is to aid and assist the court and jury in the determination of that issue." (People v. Lee (1930) 108 Cal.App. 609, 612.) Given their mission, psychological experts must necessarily inquire into the circumstances surrounding the commission of the offense and the defendant's conduct on that occasion. The defendant's account of his conduct and thought processes at the time of the offense can be critical factors in forming an opinion as to the defendant's sanity. The value of such information is recognized by section 1027 which requires that any report detail "the facts surrounding the commission of the acts forming the basis for the present charge used by the psychiatrist or psychologist in making his examination of the defendant." These facts may also tend to incriminate the defendant. However, by tendering his mental condition as an issue at trial, a defendant waives the privilege against self incrimination to the extent necessary to permit a proper examination of that condition. 5 (People v. McPeters, supra, 2 Cal.4th at p. 1161.) Incriminating statements made during the course of the examination are admissible at trial for the limited purpose of explaining the basis for the psychiatrist's opinion.

Though section 1027 requires "any report" prepared by experts appointed thereunder to include information obtained from the defendant, it does not specify the manner or form in which such information should be submitted to the court. Nowhere does section 1027 or any other statute expressly authorize videotaping of the mental examination. That void becomes the centerpiece of defendant's argument that the superior court exceeded its authority in ordering portions of the mental status examinations videotaped. Defendant cites cases holding that orders for the videotaping of a criminal deposition (People v. Watkins (1996) 45 Cal.App.4th 485) and medical examinations in civil or criminal cases (Edmiston v. Superior Court (1978) 22 Cal.3d 699) require express statutory authority, and argues the absence of express authority under section 1027 dooms the present order.

Certainly the presence of a statute conferring express authority for a court to act in a particular manner avoids disputes of the type here presented. However, the absence of express authority does not necessarily mean there is no authority. In addition to authority conferred expressly by statute, authority may be implied, either from the language of the statute or the practical realities of its implementation. Further, it has been declared, in various other contexts, that "every court of record has powers requisite to its proper functioning as an independent constitutional department of government." (Bloniarz v. Roloson (1969) 70 Cal.2d 143, 147-148.) 6

The lack of express authority is thus not the end but the beginning of our inquiry.

Implied Authority

The language of a legislative enactment may imply powers and duties not expressly provided. Thus, for example, section 1027 does not expressly confer power on the court to order the examiners to prepare a report. However, the listing of matters that "any report shall include" clearly implies a power to compel production of a report which, at a minimum, addresses those matters and other issues identified by the court.

Powers may also be implied from a statute's purpose. As a general rule, in granting express powers, the Legislature impliedly intends that the recipient of the powers expressly conferred shall have whatever power may be necessary to carry out the specific power so as to achieve the legislative purpose. (2B Sutherland, Statutes and Statutory Construction (5th ed. 1992)  55.02.)

Unlike examinations conducted by the parties' experts, the examination conducted pursuant to section 1027 is intended to provide the court and jury with an objective evaluation of a defendant's sanity at the time of the offense. It is inquisitorial in nature and thus represents a departure from the rules of engagement that normally apply in adversarial proceedings. While either side may choose to call the experts appointed under section 1027, the experts are "deemed to be the court's own witnesses." (People v. Richardson, supra, 192 Cal.App.2d at p. 171.) The court has a vital interest in insuring the integrity of information provided by the court's own witnesses. However, section 1027 does not address the whole range of actions which may be necessary to assure the court-ordered examination advances the truth-seeking function of the trial. Section 1027 covers the core issues: the number and minimal qualifications of the examiners, the basic scope of the examination, the duty to testify. It imposes no time limits on the conduct of an examination, does not detail the form in which the report is submitted, or the conditions under which the examination is conducted. While it describes the matters that "any report" shall include, it does not restrict the scope of the examination or report to the matters listed. Such details are left to case-by-case determination by the court.

An order that all or a portion of the examination be recorded by some method falls well within the legislative purpose served by section 1027. In section 1027 the Legislature recognized the crucial facts which underlie a psychologist's opinion on sanity: "the psychological history of the defendant,[and] the facts surrounding the commission of the acts forming the basis for the . . . charge." The court's order reflects the same recognition and a desire that all parties involved in the determination of defendant's sanity have a faithful account of the critical facts on which the court's experts base their opinions. Given their critical nature, it can hardly be disputed that an accurate recording of defendant's disclosures advances the underlying purpose of section 1027.

A court may not seek to control a psychologist's opinion or exercise untoward influence on the outcome of a psychological examination. However, psychiatrists are not oracles to whom courts submit questions and then retire to await their divine pronouncements. A psychiatrist appointed pursuant to section 1027 is an "agent" of the court (People v. Lines, supra, 13 Cal.3d at p. 515) engaged to assist the court in resolving a critical issue. Absent contrary statutory authority, a court may take appropriate steps to assure the accuracy of such an examination and to facilitate a thorough review at trial of the expert's work product. An order to record critical information on which the expert's opinions are based would advance both goals. 7

Hostile Authority

Defendant correctly observes that authority cannot be implied in the face of a hostile legislative scheme and cites several cases wherein videotaping orders were found invalid in the absence of express legislative authority. In Edmiston v. Superior Court, supra, 22 Cal.3d 699, the defendants in a personal injury action moved for an order directing plaintiff to submit to an independent medical examination. The trial court so ordered on the condition the examination be videotaped. The Supreme Court reversed, concluding Code of Civil Procedure section 2032, subdivision (b)(1) directed medical examinations be reported in writing which, as defined, did not include videotape. (Ibid.) In People v. Watkins, supra, 45 Cal.App.4th 485, this court applied Edmiston's reasoning to a criminal prosecution wherein the court had admitted the videotape of a conditional examination in lieu of the written transcript of the absent witness' testimony. Penal Code section 1343 provided "[t]he testimony given by the witness must be reduced to writing." We concluded "writing" did not include videotaping. (Id. at. p. 489.) To the same effect is the court's decision in Ramirez v. MacAdam (1993) 13 Cal.App.4th 1638 wherein the court decided Code of Civil Procedure section 2032, which permitted a court ordered medical examination to be recorded "stenographically or by audiotape," did not permit an order to videotape the examination.

Unlike the legislative schemes in these cases, neither section 1027 nor any other statute prescribes a method for recording or reporting a mental status examination. The maxim expressio unius est exclusio alterius (expression of one thing is the exclusion of another) applied in the cases cited by defendant; it does not apply here. None of defendant's authorities precludes an order requiring portions of the examination to be videotaped. 8

Videotaping as a Suitable Recording Method

We have concluded the authority to order the recording of a defendant's statements during a mental status examination can be implied from the general authority conferred by section 1027, and that videotape as a recording method is not precluded by statute. Such authority is not free of constraints. If it appears videotaping is so intrusive, either by its very nature or by the means employed, that the reliability of the examination will be compromised in a particular case, a videotaping order would constitute an abuse of the court's authority. Defendant so claims. The present record does not permit an evaluation of defendant's claim.

Letters in the record from Doctors Mattiuzzi and Liebert simply express their hostility to videotaping. The letters offer no medical or scientific reasons for believing that videotaping would affect the integrity of the examination. A letter from Dr. Mattiuzzi expresses many concerns, none of them clinical. He worries that he is being asked to create evidence and apparently deplores this role at least if it inures to the prosecution's benefit. He professes ignorance on the crucial issue of whether videotaping will affect his ability to conduct a valid examination, though he sympathizes with Supreme Court Justice Souter's views on cameras in the courtroom and indicates cameras would affect his own behavior - but doesn't explain how or why. Dr. Liebert's letter simply expresses his opinion that videotaping "may well represent a significant departure from an appropriate standard of practice." (Emphasis added.) This equivocal statement, even if accepted as the opinion of an expert, hardly supports a finding that videotaping would compromise the examination or, as stated by defendant, "corrupt the examination process." We are not compelled to accept such opinions, unadorned as they are with any scientific analysis or reference to credible research studies.

The literature and case law on the subject belies defendant's claim. 9 We acknowledge that videotaping may alter the behavior of examination participants in some fashion. Perhaps, "[k]nowledge that the defendant's medical examination is being videotaped will interfere with the defendant's unfettered communication with the expert" as suggested by defendant. Such interference might be unacceptable in a traditional therapist-patient relationship. However, a mental status examination is not a therapeutic procedure and often proceeds under conditions that a practitioner might find objectionable in a therapeutic setting. As the Attorney General notes, "the possibility of a free and candid interview with the alienist is impaired" by defendant's knowledge her statements can be used against her later in the same proceedings. (Quoting People v. Spencer (1963) 60 Cal.2d 64, 82.) Such impairment has never been held to bar the later admission of defendant's statements or require a change in examination procedures. The antiseptic conditions of a laboratory are not required. The effect of videotaping on a defendant's responses or a psychiatrist's perceptions may be explored and commented on at trial. However, neither psychiatric angst nor abstract speculation about the harmful effects of videotaping provides a basis for denying a trial court the authority to order videotaping.

We acknowledge the possibility that videotaping may so impair the ability of an expert to conduct a psychiatric examination as to make the examination impossible to conduct or render the expert's opinion unreliable. The videotaping method, the obtrusiveness of the equipment, the physical setting of the examination are extrinsic factors that impinge on the conduct of an examination and may appropriately be taken into account in deciding whether to permit videotaping or in prescribing conditions under which videotaping may take place. Moreover, it is possible that defendant, if given an opportunity, will be able to demonstrate that videotaping is inherently inimical to the conduct of a credible examination and a reliable assessment of a defendant's mental condition. We cannot determine on this record whether videotaping in the manner proposed by the People will have such an effect. We have expressed our misgivings about the views of Drs. Mattiuzzi and Liebert. However, the trial court denied defendant's request for an evidentiary hearing and thereby deprived her of the opportunity to present credible evidence addressing the impact of videotaping on the conduct of the examination. We decline to speculate on what such evidence may show, but will instead vacate the videotaping order of April 11, 1997, and remand this matter for an evidentiary hearing.

Having complied with the procedural requirements delineated in Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d 171, we are authorized to issue a peremptory writ of mandate in the first instance.

Let a peremptory writ of mandate issue commanding respondent superior court to: (1) set aside its order granting the People's motion to videotape defendant's mental status examination; (2) hold a hearing at which defendant shall be given an opportunity to establish that videotaping will hamper the conduct of the examination and prevent a reliable assessment of defendant's mental status; and (3) reconsider said motion consistent with the views expressed in this opinion. Upon the finality of this decision, the stay previously issued is vacated.

(CERTIFIED FOR PUBLICATION.)

RAYE , J.

I concur:

 


FOOTNOTES

1 Initially, the court appointed Dr. Mehtani, but when Mehtani declined the appointment, the court appointed Mattiuzzi in his place. The court may appoint psychologists with five years' postgraduate experience in the diagnosis and treatment of emotional and mental disorders in lieu of psychiatrists. ( 1027, subd. (a).)

2 The April 11, 1997, order was apparently intended to supersede a March 21, 1997, order which referred to both videotaping and audiotaping. During a hearing on April 4, 1997, the respondent court explained it understood the People's motion sought only to videotape the mental status examinations. According to the representation of defendant's counsel, the parties stipulated to entry of the April 11, 1997, "corrected minute order."

3 In contrast to an examination to determine competency to stand trial under Penal Code section 1369.

4 The terms psychiatrist and psychologist are used interchangeably throughout this opinion.

5 Similarly The psychotherapist-patient privilege does not apply to an examination under section 1027. (Evid. Code 1017(a).) The privilege applies to communications between defendant and defendant's court appointed psychiatrist, although once the psychiatrist has testified at trial, the privilege dissolves. (Evid. Code,  1016, People v. Lines, supra, 13 Cal.3d at p. 512; People v. Coleman (1989) 48 Cal.3d 112, 151-152.)

6 In the absence of express statutory authority, the courts have found inherent authority to take innovative actions where justice demands, including authority to use closed-circuit television in child dependency proceedings (In re Amber S. (1993) 15 Cal.App.4th 1260); to impose evidence preclusion remedies in circumstances not expressly authorized by statute (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 285; Cottle v. Superior Court (1992) 3 Cal.App.4th 1367); to transfer a matter to municipal court where information developed during pre-trial litigation established that plaintiff could not hope to recover the Superior Court jurisdictional amount (Walker v. Superior Court (1991) 53 Cal.3d 257); to disqualify an attorney (Zador Corp. v. Kwan (1995) 31 Cal.App.4th 1285); to entertain a motion for rehearing after trial de novo from small claims court (Adamason v. Superior Court (1980) 113 Cal.App.3d 505); to order disclosure of witness lists in juvenile proceedings (In re Jeanette H. (1990) 225 Cal.App.3d 25); to hold a competency hearing in juvenile proceedings (James H. v. Superior Court (1978) 77 Cal.App.3d 169, 175). We will conclude the court's authority to order videotaping of the mental status examination can be implied from the purposes underlying section 1027 and therefore will not consider the closely related issue of whether the order falls within the court's inherent powers.

7 The admissibility of the videotape at trial is not before us and we offer no views on that question.

8 For out-of-state authority supporting a videotape order in the absence of express statutory language, see In the Matter of Michael "J" (1995) 211 AD.2d 155, 627 N.Y.S.2d 155 (order mandating videotaping of interactions between child abuse victim and experts who might be called to testify); Mosel v. Brookhaven Memorial Hospital (1986) 134 Misc.2d 73, 509 N.Y.S.2d 754.) "[T]he court is not constrained to deny the application because there is no statutory authority on the matter. . . . The procedural law of the state is not static and must be sufficiently flexible to adjust to and use new technological innovations as they become available." (Id. at pp. 756-757 [videotaping of physical examination of incompetent patient].) Videotaping of child witnesses has frequently been permitted in the absence of statutes providing therefor. (See e.g., State v. Thomas (1989) 150 Wis.2d 374, 4442 N.W.2d 10; In the Matter of Angelica C. (1991) 149 Misc.2d 698, 567 N.Y.S.2d 351.)

9 See generally, The Psychiatric Examination and the Fifth Amendment Privilege in Capital Cases, 74 J. Crim. L. & Criminology 943; Comment, Use of Videotape in the Courtroom and the Stationhouse, 20 DePaul L.Rev. 924; Government Psychiatric Examinations and the Death Penalty (1995) 37 Ariz. L. Rev. 869; State v. Steiger (1991) 218 Conn. 349, 590 A.2d 408. In the Matter of Michael "J," supra, 627 N.Y.S.2d 155, 211 AD.2d 155; State v. Garcia (1983) 233 Kan. 589, 597-602 664, P.2d 1343, 1350-1354; Eaton v. State (Del. 1978) 394 A.2d 217, 220.


 

CALLAHAN , J.

I dissent.

The majority concede there is no statutory authority to order videotaping. They reject the contrary statutory and case law authority in the criminal law which bars discovery by videotaping and in the civil law which bars discovery by such means over the objection of the affected party. Notwithstanding, they fashion a common law power to order the videotaping by the prosecution of the psychiatric examination of the mental status of the defendant for use in the hearing to determine the defendant's sanity. They grant that "videotaping may alter the behavior of examination participants in some fashion" but say that is of no concern unless the defendant can show it would compromise the validity of the expert's conclusions. They say little about how that is to be done and discount the statements of four alienists who refused to conduct an examination under such circumstances.

I

The People Seek Discovery

The majority opinion proceeds from the premise a mental examination under section 1027 is not a discovery proceeding but an examination conducted under the aegis of the court and therefore court-ordered videotaping of the examination is not subject to the statutes which preclude discovery by videotaping. The premise is wholly at odds with the function that videotaping would play in a sanity proceeding in the judicial forum.

In this case the court's authority was invoked by the prosecutor. The People moved the trial court to authorize the videotaping or audiotaping of the defendant's responses to the alienists' questions about her psychological history and the events that occurred on the night the victim was killed. The prosecutor argued that taping the examinations would ensure an accurate record of defendant's statements for use in the sanity phase of the trial. As the prosecutor explained:

"I'm asking for this because of the reason I think it's important to have an accurate summary or accurate record of what was said by the defendant in regards to her prior history, psychiatric and psychological history, any mental health breakdowns she has had, as well as the need to question her surrounding the events to which she has now entered a plea of not guilty by reason of insanity." (Emphasis added.)

Plainly, the purpose of the videotaping was to allow the prosecutor to discover evidence for use in the trial. The only use to which such evidence could be put in the sanity phase of the trial is to impugn or support the report or the testimony of the alienists regarding the defendant's sanity. This case therefore is about discovery pure and simple.

Section 1027 is not per se a discovery statute. In re Spencer (1965) 63 Cal.2d 400, 410, a case the majority neglects to discuss, says "the purpose of the [ 1027] psychiatric interview is not to gather evidence for the prosecution" and therefore the defendant's statements are admissible only for the purpose of showing his or her mental state. (Ibid.) For that reason the court held a defendant is not constitutionally entitled to the presence of counsel at the examination. (Id. at p. 412.)

In re Spencer should have led the majority to conclude section 1027 provides no authority for ordering videotaping. Instead, they invert the logic and imply from section 1027 a judicial authority to gather evidence for use in the criminal proceeding. They say a section 1027 proceeding differs from ordinary discovery procedures because the court rather than a party appoints the examiners. It follows, they claim, that discovery statutes cannot limit the court's discretion under section 1027. They argue, in effect, that since section 1027 is not a discovery statute, a discovery order based upon it is free of the restrictions that pertain to discovery statutes. The illogic is transparent. The fact that discovery by the prosecution is predicated upon the court's authority rather than statutory authority does not make it any the less discovery nor free the court from the legislative policies manifest in the discovery statutes. Since section 1027 is not a discovery statute it cannot be the source of a policy justifying compelled videotape discovery. Such a policy must be founded, if at all, upon analogy to statutes which authorize discovery.

II

The Discovery Order
Contravenes Section 1027

Section 1027 prescribes the procedure to be followed in conducting an investigation into the defendant's sanity. 1 It provides for the appointment of two or three alienists "to examine the defendant and investigate his mental status." ( 1027, subd. (a).) "The information gained from these examinations [is] communicated to the court, either by written medical report or in court testimony [of the alienists]." (People v. Lines (1975) 13 Cal.3d 500, 515; see also People v. Ashley (1963) 59 Cal.2d 339, 363 ("written report").) Other evidence, including "other expert evidence" ( 1027, subd. (d)), may be admitted regarding the defendant's mental condition at the time of the alleged offense but the "court's discretion to admit or exclude" such evidence is governed by "the Evidence Code" ( 1027, subd. (c)).

The language of section 1027 bars the very inference of implied authority which the majority would indulge. They concede that a judicial authority cannot be implied in the face of a hostile legislative scheme. (See Edmiston v. Superior Court (1978) 22 Cal.3d 699; People v. Watkins (1996) 45 Cal.App.4th 485; Ramirez v. MacAdam (1993) 13 Cal.App.4th 1638.) The majority would distinguish these cases on the ground they are based on statutes which specified a method of reporting (e.g., a written report) which excluded other methods. The implied premise is that the "report" referred to in section 1027, subdivision (b), may be satisfied by something called a videotaped report. That plainly is not the case.

Subdivision (b) provides that any "report on the examination and investigation . . . shall include . . . the psychological history of the defendant, the facts surrounding the commission of the acts forming the basis for the present charge used by the [alienist] in making his examination of the defendant, and the present psychological or psychiatric symptoms of the defendant, if any." The report necessarily must be in written form. It is a report "on the examination" not of the examination. It must include matter obtained by "investigation" as well as by examination of the defendant, i.e. matter outside of the examination, such as psychological history that can be investigated but not videotaped.2

As next I show there is no statutory or other warrant for videotaping.

III

Videotaping is Barred by the Penal Code

The Penal Code specifies the exclusive means of discovery in criminal cases. "In criminal proceedings, under the reciprocal discovery provisions of section 1054 et seq., all court-ordered discovery is governed exclusively by -- and is barred except as provided by -- the discovery chapter newly enacted by Proposition 115. ( 1054, subd. (e), 1054.5, subd. (a).)" (In re Littlefield (1993) 5 Cal.4th 122, 129, fn. omitted.) Section 1054, subdivision (e), provides "that 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." "[T]his chapter" refers to Chapter 10 of Title VI, Part II of the Penal Code. It does not include section 1027 nor does section 1027 include an "express" authorization for discovery. Nor are there other "express statutory provisions" or constitutional mandate which authorize videotaping.

IV

Videotaping is Not Authorized
by the Civil Law

Even assuming that videotaping of a mental status examination is not barred by sections 1027 and 1054, an order compelling such can be justified only if it is within the bounds of some implicit residual discretion over the proceedings conferred upon the superior court. (But c.f., Edmiston v. Superior Court, supra, 22 Cal.3d at pp. 702-703 ["The Legislature has directed medical examinations be reported by means of communications not including videotaping.") There is no such discretion.

"The discretion conferred upon the court 'is a discretion, governed by legal rules, to do justice according to law or to the analogies of the law, as near as may be.' (Lybecker v. Murray (1881) 58 Cal. 186, 189.) That is to say, the range of judicial discretion is determined by analogy to the rules contained in the general law and in the specific body or system of law in which the discretionary authority is granted. As we recently explained in City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297-1298 [255 Cal.Rptr. 704]: '[t]he scope of discretion always resides in the particular law being applied . . . .' The legal principles that govern the subject of a discretionary action 'are derived from the common law or statutes under which discretion is conferred.' (Id. at p. 1298.)" (County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1778.) To ascertain the boundaries of discretion to videotape the mental status examination we look to the analogous law.

The closest analogy in the civil law is the law excluding videotaping of medical examinations from civil discovery procedure if any party objects. (See, e.g., Edmiston, supra; Ramirez, supra.) In that area the case law says the Legislature has made a decision not to authorize videotaping of medical examinations, either physical or mental. (Ibid.)

Even apart from the proscription of section 1054, it would create an obvious anomaly in the law to decide that a trial court has discretion to compel videotaping of a mental status examination in a criminal proceeding when the Legislature prohibits that practice in civil proceedings. To justify a different rule for criminal proceedings would require some persuasive basis for distinguishing the two situations. No such distinction is suggested nor do I discern one.

V

Assuming for the sake of discussion that some basis for distinction between civil and criminal proceedings might be proposed, there is an additional ground for concluding the videotaping order in this case is not within the discretion of the superior court. There is an adverse analogy in the criminal law pertaining to examinations under section 1027, In re Spencer, supra.

In In re Spencer the California Supreme Court noted that, notwithstanding the constitutional right to the assistance of counsel, the presence of defense counsel may largely negate the value of a mental status examination under section 1027 because it may hinder the establishment of the necessary rapport between the defendant and the impartial expert. (63 Cal.2d at pp. 410-411.) It prescribed a scheme of safeguards to allow examination, without defense counsel and without violating the defendant's constitutional rights. "Although, with these protections, a defendant is not entitled to counsel at the psychiatric examinations, the court may in its discretion authorize defense counsel to be present as an observer, not as a participant. Such authorization would depend on the attitude of the psychiatrists involved." (Id. at p. 413.)

From this I distill two principles: (1) a mental status examination should not be conducted in a manner which may hinder the establishment of rapport between the defendant and the experts and, (2) the court should defer to the views of the experts prescribed by section 1027 in making this determination.

The knowledge that an examination is being videotaped, regardless of efforts to conceal the camera, may hinder the establishment of rapport between a defendant and the psychiatrist or psychologist conducting an examination. Knowledge of the presence of a recording camera may influence conduct and demeanor; some people are "camera shy," others are "hams." Accordingly, the trial court, at a minimum, should defer to the views of the alienist conducting the inquiry and has no discretion to impose a requirement of videotaping at the behest of the prosecution.

The record contains evidence that videotaping would compromise the psychiatric examination. The defendant in the proceedings below supported her motion for a rehearing with copies of letters addressed to the court by Drs. Mattiuzzi and Liebert, declining their appointments. Dr. Mattiuzzi raised a number of objections, including that videotaping would disrupt and alter his work, affecting his and defendant's behavior and would be disruptive and intrusive. Dr. Liebert asserted videotaping may constitute a significant departure from an appropriate standard of practice.

During the hearing on the motion for reconsideration, the prosecutor represented that videotaping could be accomplished by conducting the mental status examinations in a jail lineup room, where a video camera is mounted on the wall near the ceiling, thus obviating the need for the presence of a videographer during the examinations. The respondent court denied the motion for reconsideration, and ordered Drs. Mattiuzzi and Liebert replaced with two other psychologists, Drs. Miller and Otto.

However, by letters dated April 10 and April 16, 1997, respectively, Drs. Miller and Otto also declined their appointments. Dr. Miller objected to videotaping because it would likely affect defendant's candor and responsiveness in the same manner as would the presence of a third person. Thereafter, the superior court appointed two more experts to conduct defendant's mental status examinations, Drs. Davis and Piciucco.

The majority would remand the case for a determination whether videotaping would impair the sanity examination. But having rejected the evidence in the record the question arises - what evidence would suffice? Is it permissible to select alienists only from among those who do not object to videotaping? The majority opinion offers no guidance for the trial court on these important questions.

The evidence already adduced in this case shows that videotaping would compromise the examination and is therefore barred by section 1027. No further evidence is required.

For all of the foregoing reasons I would issue the writ, limited to commanding the superior court to set aside its order granting the People's motion to videotape defendant's mental status examination. (CERTIFIED FOR PUBLICATION.)

BLEASE , Acting P. J.

 


FOOTNOTES

1 Section 1027 provides in pertinent part:

"(a) When a defendant pleads not guilty by reason of insanity the court must select and appoint two, and may select and appoint three, psychiatrists, or licensed psychologists who have a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders, to examine the defendant and investigate his mental status. It is the duty of the psychiatrists or psychologists so selected and appointed to make the examination and investigation, and to testify, whenever summoned, in any proceeding in which the sanity of the defendant is in question. . . . .

"(b) Any report on the examination and investigation made pursuant to subdivision (a) shall include, but not be limited to, the psychological history of the defendant, the facts surrounding the commission of the acts forming the basis for the present charge used by the psychiatrist or psychologist in making his examination of the defendant, and the present psychological or psychiatric symptoms of the defendant, if any.

"(c) This section does not presume that a psychiatrist or psychologist can determine whether a defendant was sane or insane at the time of the alleged offense. This section does not limit a court's discretion to admit or exclude, pursuant to the Evidence Code, psychiatric or psychological evidence about the defendant's state of mind or mental or emotional condition at the time of the alleged offense.

"(d) Nothing contained in this section shall be deemed or construed to prevent any party to any criminal action from producing any other expert evidence with respect to the mental status of the defendant . . . .

"(e) Any psychiatrist or psychologist so appointed by the court may be called by either party to the action or by the court itself and when so called shall be subject to all legal objections as to competency and bias and as to qualifications as an expert. When called by the court, or by either party, to the action, the court may examine the psychiatrist, or psychologist as deemed necessary, but either party shall have the same right to object to the questions asked by the court and the evidence adduced as though the psychiatrist or psychologist were a witness for the adverse party. When the psychiatrist or psychologist is called and examined by the court the parties may cross-examine him in the order directed by the court. When called by either party to the action the adverse party may examine him the same as in the case of any other witness called by such party."

2 The Attorney General suggests a videotape itself is a written report, because under Evidence Code section 250, a writing extends to any means of recording. A related argument is rejected in Bailey v. Superior Court (1977) 19 Cal.3d 970, 974. The case concerned the construction of provisions of the Code of Civil Procedure. In rejecting the view the term "writing" included videotaping, the Supreme Court looked to the statutory definition of writing contained in that code. The statutory definition in the Penal Code mirrors the Code of Civil Procedure provision. (Compare Pen. Code,  7, with Code Civ. Proc.,  15.)