MALDONADO v. S.C. (PEOPLE)Petitioner's Petition for ReviewCal.June 28, 2010 é) IN THE S " URT OF CALIFORNIA REYNALDO A. MALDONADO, No. Petitioner, Court of Appeal No. A126236 (First Dist. vs. Division Five) THE SUPERIOR COURT OF San Mateo Superior CALIFORNIA, COUNTY OF Ct. No. SC065313A SAN MATEO, ) SUPREME COURT Respondent. T D THE PEOPLE OF THE STATE JUN 98 2640 OF CALIFORNTA, Frederick K. Ohini ch Clerk Real Party in Interest. / Deputy _ PETITION FOR REVIEW - Following Filing ofMay 13, 2010 Court of Appeal Decision and May 17, 2010 Modification Changing the Judgment PAUL F. DeMEESTER (SBN 148578) 1227 Arguello Street Redwood City, California 94063 415.305.7280; 415.861.2695 (fax) Attorney for Petitioner under the auspices of the San Mateo County Bar Association’s Private Defender Program TABLE OF CONTENTS TABLE OF AUTHORITIES ii PETITION FOR REVIEW | 1 Issue Presented for Review 1 Necessity for Review ] Statementofthe Case 6 Statement of Facts 9 ARGUMENT 17 Introduction 17 I. PETITIONER’S FIFTH AND SIXTH AMENDMENT 20 RIGHTS REQUIRE PROTECTION UNTIL SUCH TIME THAT AN ACTUAL WAIVEROF THE FIFTH AMENDMENTPRIVILEGE AGAINST SELF- INCRIMINATION OCCURS A. Standard of Review 20 B. Fifth Amendment Not Waived Until Defense Offers 20 Evidence C. Pretrial Exam Permitted If Results Held Until Waiver 22 Occurs D. Affording Petitioner Derivative Use Immunity Only 23 Does Not Comport with Kastigar E. Fifth Amendment Trumps Reciprocal Discovery Needs 24 F. Accelerated Disclosure Violates Brooks v. Tennessee 27 G. Federal Rule 12.2 Supports Petitioner’s Position 28 CONCLUSION 29 RULE 8.504(D)(1) CERTIFICATION CERTIFICATE OF SERVICE i 30 31 TABLE OF AUTHORITIES U.S. CONSTITUTION Fifth Amendment Sixth Amendment Fourteenth Amendment CASES Battie v. Estelle (5" Cir. 1981) 655 F.2d 692 Brooks v. Tennessee (1971) 406 U.S. 605 Brown v. United States (1958) 356 U.S. 148 Buchanan v. Kentucky (1987) 483 U.S. 402 Chavez v. Martinez (2003) 538 U.S. 760 Estelle v. Smith (1981) 451 U.S. 454 In re Spencer (1965) 63 Cal.2d 400 Izazaga v. Superior Court (1991) 53 Cal.3d 356 Kastigar v. United States (1972) 406 U.S. 441 Maldonado v. Superior Court (2010) 184 Cal.App.4" 739 Miranda v. Arizona (1966) 384 U.S. 436 Mitchell v. United States (1999) 526 U.S. 314 passim passim 4,7,24 20,21 27,28 21 2,16,20,21 23 passim 2,16,18 passim 23,24 9 13 21 Oceanside Union SchoolDist. v. Superior Court (1962) 58 Cal.2d 180 2 People v. Seijas (2005) 36 Cal.4" 29] People v. Superior Court (Mitchell) (1993) 5 Cal.4™ 1229 ili 29 29 People v. Williams (1988) 197 Cal.App.3d 1320 Powell v. Texas (1989) 492 U.S. 680 Schneider v. Lynaugh (5™ Cir. 1988) 835 F.2d 570 United States v. Nobles (1975) 422 U.S. 225 Verdin v. Superior Court (2008) 43 Cal.4" 1096 Wardius v. Oregon (1973) 412 U.S. 470 Williams v. Florida (1970) 399 U.S. 78 Woods v. Superior Court (1994) 25 Cal.App.4" 178 STATUTES Evidence Code Section 730 Penal Code Section 187 Section 190.2 Section 190.3 Section 1054.3 Section 1054.6 Section 1367 RULES OF COURT Rule 8.500 iv 16 21 21 25,26 3,4 24 passim 27 passim 6 6 28,29 passim 27 13 Rule 8.504 FEDERAL RULES OF CRIMINAL PROCEDURE Rule 12.2 MISCELLANEOUS Proposition 115 30 28 PETITION FOR REVIEW TO THE HONORABLE RONALD M.GEORGE, CHIEF JUSTICE AND TO THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURT OF CALIFORNIA: Petitioner REYNALDO A. MALDONADO, by counsel, petitions this Court for review following thefiling of the Court of Appeal’s [First Appellate District, Division Five] published opinion on May 13, 2010 (Appendix 1), which was modified on May 17, 2010, changing the judgment (Appendix 2), and the denial ofhis petition for rehearing on June 3, 2010 (Appendix 3). Issue Presented for Review Do the combination of the Fifth and Sixth Amendments’, this Court’s interpretations of California’s reciprocal discovery scheme and the text of Penal Code” section 1054.3, preclude the prosecution from receiving the results of compelled mental health evaluations? of a criminal defendant until after the close of the prosecution’s case-in-chief and the defendant’s confirmation of his intent to offer mental health evidence? Necessity for Review Review is necessary to settle an important question of law. (Cal. Rules of Ct., rule 8.500, subd. (b)(1).) Review is appropriate to address “questions offirst impression that are of general importanceto thetrial “Noperson ... shall be compelled in any criminal case to be a witness against himself.” (U.S. Const., 5“ Amendment [Self-Incrimination Clause].) The Sixth Amendmentprovides petitioner with a rightto counsel. 2 All further statutory references are to the Penal Code unless otherwise noted. ; The term “mental health evaluations”as usedin this petition includes psychiatric, psychological, neuropsychological and neurological evaluations regarding petitioner’s mentalstate. (Seealso slip opn., p. 14, fn. 9.) courts and to the profession, and where general guidelines can be laid down for future cases.” (Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185-186,fn. 4.) Court-ordered mental health evaluations of a criminal defendant conducted at the prosecution’s requestin order to assist the prosecution on rebuttal implicate Fifth and Sixth Amendment concerns. (See Buchananv. Kentucky (1987) 483 U.S. 402 (Buchanan), and Estelle v. Smith (1981) 451 U.S. 454 (Smith).) The United States Supreme Court suggested in Smith - without deciding the issue as it was not before the Court - that prosecution requested mental health examinationsare nottriggered until “a defendant asserts the [mental]* defense and introduces supporting psychiatric testimony.” (d., p. 465; italics added.) For over four decades, the procedure in California for the examination of the defendant in cases in which the mental condition other than insanity or incompetency wasat issue was that defined by this Court in In re Spencer (1965) 63 Cal.2d 400 (Spencer). Spencer provided proceduralprotections involving the Sixth Amendmentright to counsel in such casesbut did not address the timing of any disclosuresto the prosecution of the results of any mental health examinations compelled by the court. This case presents an opportunity for the Court to determine a constitutionalissue offirst impression involving the legal effect of the timing of defendant’s Fifth Amendment waiver - when defendant actually introduces mental health evidenceattrial - on the needforthe prosecution to rebut defense mental health evidence. No California published case addressesthis pointprior to the decision of the court below. ‘ The Smith Court cited to an insanity defense. (Smith, supra, 451 U.S., p. 465.) Petitioner maintains that the Fifth and Sixth Amendmentstothe United States Constitution require that the results of any compelled mental health evaluations not be disclosedto the prosecution until defendant actually waives the privilege, which will not occur until after the close of the prosecution case-in-chief and the defendant’s confirmation ofhis intent to introduce mental health evidence. Recently, this Court held that court-ordered mental examinations of a defendant constitute discovery and must be authorized by statute. (Verdin v. Superior Court (2008) 43 Cal.4" 1096 (Verdin).) The criminal discovery statutes did not provide for such authorization at the time. (Id. p. 1 109.) This Court did not decide whether Evidence Code section 730 permits court-ordered examinationsat the prosecution’s request,asthetrial prosecutorin Verdin hadnotrelied on that below. (/d., pp. 1109-1110.) The prosecution in this case sought the examinations pursuantto Evidence Code section 730. Shortly thereafter, the Legislature responded to Verdin by amendingsection 1054.3. The text of recently amended section 1054.3 - which provides for compelled mental health evaluations of defendants at the request of the prosecution by experts selected by the prosecution - supports this requirementby affording the prosecution a right to request the examinations only when a defendant“placesin issuehis or her mentalstate.” (§ 1054.3, subd. (b)(1).) This does not occur until defense mental health evidenceis introduced into evidenceattrial. Although the prosecution in this case sought the requested exams pursuant to Evidence Codesection 730, the Fifth and Sixth Amendment protection issues are identical, whether the compelled examsare pursuantto Evidence Code section 730 or the amendedsection 1054.3, which did not go into effect until January 1, 2010, after the prosecution’s August 18, 2009 motion for court-ordered mentalhealth exams of defendant. The Court of Appeal noted thatin light of the effectiveness of the amended section 1054.3, “the trial court on remand will have the authority to order Maldonadoto submit to examination by prosecution-selected experts.” (Slip opn., p. 38.) Given this Court’s holding in Verdin, there was no needforthis Court to delve into what type of procedural Fifth and Sixth Amendment protections are necessary in the context of court-ordered mental examinations of defendantsat the behest of the prosecution. The procedural questions surrounding the court-ordered examination ofthe accused have not been answered by the current, pertinent, statutory scheme - which explainsthe protractedlitigation and Court of Appealopinionin this case. This Court’s reciprocal discovery jurisprudenceis in accord with petitioner’s position. The reciprocal discovery scheme enacted by the electorate in 1990 (Proposition 115) was approved by this Court against constitutional Fifth Amendment and DueProcess constitutional challenges because it excepts defendant statements from its reach. (Uzazagav. Superior Court (1991) 54 Cal.3d 356, 364, fn. 1 (Zzazaga); see also Williams v. Florida (1970) 399 U.S. 78 (Williams) [Fifth Amendmentnot a bar to requiring defendantto provide notice and discovery ofalibi defense in case wherestate rule excepted defendant’s testimony from the reciprocal discovery requirement].) Section 1054.3, which wasoriginally added by Proposition 115, requires criminal defendants to provide accelerated disclosure oftheirtrial defense to the prosecution with one important exception: what defendant will say at trial (“other than the defendant”), (§ 1054.3, subd. (a)(1).) This Court provided the Fifth Amendmentrationale why defendant statements are not subject to the requirementsofreciprocal discovery: “We conclude that the statements ofthe witnessesthat the defenseintendsto call at trial are not personalto the defendant, and therefore compelled discovery of such statements does not implicate the self-incrimination clause. (zazaga, supra, 54 Cal.3d, pp. 368-369; footnote omitted; italics in original.) Hence, the difference in treatment: non-defendant witness statements are discovered to the prosecution before trial as they do not implicate the Fifth Amendment but defendant statements are not discoveredto the prosecution prior to trial because they trigger Fifth Amendmentprotections as they are incriminating, personal to the defendant, compelled, and testimonial or communicative in nature. (See zazaga, supra, 54 Cal.3d., p. 366.) Yet, respondent court and the Court of Appeal required accelerated disclosure to the prosecutionofthe results of petitioner’s compelled mental health evaluations, the content of which is incriminating and personalto petitioner as well as testimonial or communicative in nature, and therefore is entitled to Fifth Amendmentprotection that bans accelerated disclosure. The fact that both courts below treated defendant statements the same as non-defendantstatements for purposesofreciprocal discovery, points to the need for this Court to pronounce explicitly that the Fifth and Sixth Amendmentspreclude the prosecution from receiving the results of the compelled mental health evaluations of a criminal defendantuntil after the close of the prosecution’s case-in-chief and the defendant’s confirmation of his intent to offer mental health evidence into evidence at trial. The Court of Appeal erred in denyingpetitioner’s request to prohibit accelerated disclosure of the evaluation results to the prosecution. (Slip opn., p. 25.) In light of the amendmentsto section 1054.3, it is vital that this Court provide guidanceto thetrial courts in how to effectuate a defendant’s Fifth and Sixth Amendmentrights when the prosecution seeks to havethe defendant’s mental health evaluatedpriorto trial, by holding expressly that the results of such evaluations not be disclosed to the prosecution until after the close of the prosecution’s case-in-chief and the defendant’s confirmation to introduce mental health evidenceattrial. It is vital for this Court to instructtrial courts that this protective mechanism is neededin order to render the amended section 1054.3 congruent with the constitutional requirements of/zazaga, the Fifth and Sixth Amendments. Theissue raised herein is one that the Court should now resolve. If the resolution does not occurin this case, it will likely have to occur in another, similar, case. If the prosecution receives accelerated disclosure of the results of any prosecution-initiated mental health evaluations, then the issue presented for determination now will merely have been tabled until direct appeal in the eventpetitioner is convicted. This is a matter of constitutional importance which should be resolved now. Statement of the Case On January 8, 2008,the district attorney for San Mateo County filed an information chargingpetitioner with having willfully, unlawfully, and with malice aforethought murdered Quetzalcoatl Alba, in violation of section 187, subd. (a). The information furtheralleges that petitioner committed the murder bymeansoflying in wait, a special circumstance within the meaning ofsection 190.2, subd. (a)(15). On January 10, 2008, petitioner pled not guilty and denied the special circumstance allegation. (Petn., p. 2; Petn. exh. 1, p. 2.) On August 18, 2009, respondent Court ordered petitioner to submit - over his objection - to physical, psychological and psychiatric examinations by experts to be appointed by respondent Court pursuant to Evidence Code section 730, thereby granting the People’s motion for such order.> ° On August 28, 2009,petitioner soughtrelief from this order by extraordinary writ. The Court of Appeal, First Appellate District, Division Five, ordered the Attorney Generalto file an opposition but denied the writ for prohibition and/or mandate. (Maldonado v. Superior Court, (Sept. 4, 2009, A125920) [nonpub.order].) Petitioner then filed a petition for review which this Court denied (Maldonado v. Superior Court (Sept. 23, Petitioner immediately sought the imposition of protective measures to prevent suffering from any Fifth, Sixth, and Fourteenth Amendment constitutional injuries as a result of being compelled to submit to the court- ordered examinations. On August18, 2009, petitioner filed Defendant's Requestfor Protective Measures in Relation to Court-Ordered Evidence Code Section 730 Examinations. (Petn. exh.2.) On August 21, 2009, the Peoplefiled their Response to Motionfor Protective Limitations upon Proposed Examinations ofDefendant by Experts Appointed by the Court. (Petn. exh. 3.) On August 24, 2009, petitioner filed Defendant’s Supplemental Requestfor Protective Measures and Reply to People’s Response in Relation to Court-Ordered Evidence Code Section 730 Examinations. (Petn. exh. 4.) On September3, 2009, the People filed their Response to Supplemental Requestfor Protective Limitations upon Proposed Examinations ofDefendant by Experts Appointed by the Court. (Petn.exh. 5.) On September8, 2009,petitioner filed Defendant’s Memorandum of Points & Authorities in Favor ofIssuance ofProtective Measures in Relation to Court-Ordered Evidence Code Section 730 Examinations. (Petn. exh. 6.) Respondent court conducted a hearing on petitioner’s requests on September 8, 2009, denying most of them. (Petn. exh. 7.) On September 29, 2009,petitioner filed a Petitionfor Writ of Mandate and/or Prohibition and Requestfor Stay ofProceedings in the Court of Appeal for the First Appellate District. (Maldonadov. Superior Court (Sept. 29, 2009, A126236)[Div. 5].) 2009, S176084) [nonpub.order]). This petition raises issues that are distinct from those broughtin the earlier writ proceeding. The Court of Appeal stayed the court-ordered examinations of petitioner and directed the Attorney Generalto file an opposition to the petition, while permitting petitioner to reply. (Maldonadov. Superior Court (Sept. 29, 2009, A126236) [nonpub.order].) On October2, 2009, the Attorney Generalfiled his Opposition to Petitionfor Writ ofMandate and/or Prohibition. On October 6, 2009, petitionerfiled Petitioner ’s Reply to Opposition to Petition for Writ of Mandate and/or Prohibition. On October 14, 2009, the Court of Appeal issued an alternative writ of mandate commanding respondentcourt to set aside andvacateits September 8, 2009 order with respectto five of petitioner’s requested protective measures, and to enter a new anddifferent order after reconsidering those requests or to show cause in the Court of Appeal why a peremptory writ of mandate should not be granted. (Maldonadov. Superior Court (Oct. 14, 2009, A126236) [nonpub.order].) On October 20, respondent court declined to modify its order. (See Return exh. 1.) On October 29, 2009, the Court of Appeal directed the filing of a return addressing the issues in the petition and stayedthetrial and all further proceedings concerning the mentalhealth evaluations. (Maldonado v. Superior Court (Oct. 29, 2009, A126236) [nonpub.order].) On November10, 2009, the Attorney Generalfiled his Return to Order to Show Cause. On November24, 2009, petitioner filed Peitioner’s Reply to the Return. On February 9, 2010, the Attorney Generalfiled an Application to File Supplemental Briefin Support ofReturn to Order to Show Cause. The supplementalbrief addressed the newly enacted amendmentsto section 1054.3. On February 11, 2009, the Court ofAppeal grantedleaveto file the supplementalbrief and invited petitioner to respond. (Maldonado vy. Superior Court (Feb. 1, 2010, A126236) [nonpub.order].) On February 16, 2010,petitioner filed Petitioner’s SupplementalBrief. Oral argument was held on March 24, 2010. On May 13, 2010, the Court of Appeal issued a peremptory writ and filed its opinion which the Court certified for publication. (Maldonado v. Superior Court (2010) 184 Cal.App.4" 739; see appendix 1.) On May 17, 2010, the Court of Appeal on its own motion modified its judgment, thereby changing the judgment. (See appendix 2.) On June 1, 2010, petitioner filed a Petitionfor Rehearing, which the Court of Appeal denied on June 3, 2010. (Maldonado v. Superior Court (June 3, 2010, A126236) [nonpub.order]; see appendix 3.) This petition follows. Statement of Facts Petitioner is charged with special circumstance murder (while lying in wait). (Petn., p. 2.) As part ofpetitioner’s reciprocal discovery obligations, petitioner provided the prosecution with the evidence petitioner intends to tenderattrial, including: evidencethatpetitioner, as a youth, had fallen from a bridge and landed on his head amidst rocks some thirty feet below, rendering him unconscious andleadingto petitioner developing chronic headaches;findings by psychologist Jeffrey Kline, Ph.D., that petitioner has an IQ that puts him in the mildly retarded range andthat he suffers moderate to severe neuro-cognitive deficits in a numberofareas including visual-spatial construction, visual-spatial memoryrecall, perceptual organization, nonverbal problem solving, verbal abstraction, shifting cognitive set, and cognitive processing speed; findings by neuro- psychologist Robert Perez, Ph.D, confirming Dr. Kline’s findings after conducting a number of neuro-psychologicaltests in petitioner’s native language (Spanish); andfindings by neurologist Peter Cassini, M.D., whose neurological examinationofpetitioner revealedleft lateralized hearing deficits (relating to inner ear or central brain impairment, not peripheral ear structure) and visual field deficits. Dr. Cassini recommended conducting magnetic resonance imaging (MRI) of petitioner’s brain, which confirmed the existence of an old brain injury. The three experts’ evaluations converge on a finding ofpetitioner suffering significant neuro-cognitive deficits suggestive of acquired brain injury and/or congenital brain dysfunction. (Petn., pp. 20-21.)° On August 18, 2009, over petitioner’s objection, respondent Court granted the People’s motion to compelpetitioner to submit to physical, psychological and psychiatric examinations pursuant to Evidence Code section 730. (Petn. exh. 5, p. 5 of attached transcript.) Petitioner immediately filed a request for the imposition of protective measures. (Petn. exhs. 2, 4, 5 [attachedtranscript, p. 6), and 6.) Petitioner filed twosets of requests for protective measures: petn. exh. 2 covering request nos. 1-14, and petn. exh. 4 covering requestnos. 15-24 and onebrief in support of the various requests (petn. exh. 6). The Peoplefiled two responses (petn. exhs. 3, 5). Petitioner’s requests were (respondent Court’s decision on each is noted in brackets): 1) To appoint objective evaluators as experts, whoare not reputed to beallied to one party or the otherin this case [granted, see petn. exh.7, p. 25); 2) To inform both parties of the court’s intended choices of experts and to allow each party sufficient time to review the qualifications of each expert in order to decide whetheror not to object to the appointmentofsaid 6 Thefacts in the StatementofFacts that forms part of the Memorandum ofPoints and Authorities of the petition in the Court of Appeal, were incorporated by reference into the verified part ofthepetition. (See petn., p. 12.) 10 person as an expert pursuant to Evidence Code section 730, which objections shall be duly considered by the court and ruled upon [granted, see petn. exh. 7, p. 27]; 3) To allow defense counsel to be present at each and every one of the examinations ofpetitioner to be conducted by any expert pursuantto the court’s Evidence Code section 730 order [granted in modified fashion, see petn. exh. 7, p. 29]; 4) To allow a defense expert ofpetitioner’s choosing to be presentat each and every one ofthe examinations ofpetitioner to be conducted by any expert pursuantto the court’s Evidence Code section 730 order [granted in modified fashion, see petn. exh. 7, p. 29]; 5) To prohibit any district attorney, attorney general, U.S. attorney, or special prosecutor, or any oftheir respective staff, or any oftheir law enforcement agents, including but not limited to Daly City Police, San Mateo CountySheriff's Office, from being present during the conduct of any of the examinationsofpetitioner by any of the Evidence Codesection 730 court-appointed experts [denied in modified fashion, see petn. exh.7, pp. 47-48]; 6) To prohibit access by anyofficials referred to under item 5 to any of the reports, notes, and/or recordingsof the examinations and investigations by any of the experts appointed by the court pursuant to Evidence Code section 730 until after the close of the defensecase at the jury trial of the above-mentioned case, upon which the court will inspect, in camera, any such reports, notes, and/or recordings of the examinations and investigations resulting from the court’s appointment to determine whether the prosecution should have copies of such reports, notes, and/or recordings [denied, see petn. exh. 7, pp. 54-55]; 7) To decide the question of admissibility of any of the evidence adduced as a result of the work ofthe experts appointed by the court 1] pursuant to Evidence Codesection 730 only after the steps in item 6 have been completed and only upon a hearing at which both parties have the right to be heard [denied, see petn. exh.7, p. 55]; 8) To prohibit any officials referred to under item 5 from any contact with any experts appointed bythe court under Evidence Code section 730 until after the court’s in camera decision referred to in item 6 and only if the court grants the prosecution permissionto do so [denied, see petn. exh. 7,p. 55]; 9) To require the experts appointed pursuant to Evidence Code section 730 to provideto petitioner’s counsel copies oftheir notes, reports, and recordings within 24 hours oftheir creation [granted in modified fashion, see petn. exh. 7, pp. 29-30]; 10) To require the experts appointed pursuant to Evidence Code section 730 to maintain confidentiality regarding their examinations and investigationsofpetitioner, with the exceptions provided for in items 3, 4, and 9 as well as the exception that said experts will provide the court with copies oftheir notes, reports, and recordings, immediately following the conclusion oftheir work [granted in part and denied by implication in part, see petn. exh. 7, pp. 30-31, 54-55]; 11) To require the appointed experts to provide defense counsel with five days’ notice of any visit said experts pay upon petitioner for the purposes of their examination ofpetitioner pursuantto the court’s appointment, in order for defense counsel and the latter’s designated expert (see item 4) to be present at any such examination [granted in modified fashion, see petn. exh. 7, p. 32]; 12) To require the appointed experts to meet and confer with defense counsel regarding scheduling their examinationofpetitioner, reasonably calculated to assure defense counsel’s and his chosen defense expert’s presence [denied,see petn.exh. 7, p. 33]; 12 13) To require court-appointed experts to advise petitioner at the outset of their examination of petitioner’s Miranda rights (see Miranda vy. Arizona (1966) 384 U.S. 436) [denied, see petn. exh. 7, p. 35]; 14) To require videotaping of any psychological, neuropsychological or psychiatric examinationofpetitioner, and to require audiotaping only of any physical examinationofpetitioner, which examinations are conducted by any of the experts appointed by the court pursuant to Evidence Code section 730 [grantedin part and deferredin part, see petn. exh.7, p. 36]; 15) Any experts whoare court-appointed under Evidence Code section 730 be given exactly the same discovery that was madeavailable to Drs. Jeffrey Kline, Peter Cassini (including the Neurostar MRI imaging data) and Robert Perez, in addition to the reports prepared by said doctors- but that the section 730 appointed experts not be given any other information besides the items mentioned underitem 15 [denied,see petn. exh. 7, p. 37]; 16) Any experts who are court-appointed under Evidence Code section 730 be precluded from having the reports of Drs. Jonathan French and Arturo Silva, who were both appointed pursuant to the provisions of Penal Code section 1367 et seq. [granted, see petn. exh. 7, p. 39]; 17) Any experts whoare court-appointed under Evidence Code section 730 be required to consult with Drs. Kline, Cassini and Perez regarding their respective evaluations and findings, prior to the section 730 experts examiningpetitioner [denied, see petn. exh. 7, p. 39]; 18) Any experts whoare court-appointed under Evidence Code section 730 be precluded from discussing the facts of the underlying homicide case with petitioner and be precluded from asking him questions about it [denied, see petn. exh. 7, p. 40]; 19) Any experts whoare court-appointed under Evidence Code section 730 be required to provide notice of any testing instruments 13 intended to be used during any examination ofpetitioner, in such fashion as to permit petitioner to object to any test proposed to be administered, or to any area of inquiry during the examination; the court will rule on the objections in camera andexparte priorto the release of any reports, test data, or client statements obtained during the examinations to the prosecution [denied, see petn. exh. 7, p. 42]; 20) Require that any expert appointed by the court pursuant to Evidence Code section 730be a neurologist or a neuro-psychologist [granted, see petn. exh. 7, p. 42]; 21) Continuethe jury trial until all reports and recordings have been received by petitioner and sufficient time has been permitted for the defense to review the reports and recordings in consultation with the necessary experts [ruling deferred but underlying concerns accommodated informally, see petn. exh. 7, pp. 42-44]; 22) If the prosecution calls any Evidence Code section 730 court- appointed expert as a witness, that the court conduct a hearing outside the presenceofthe jury prior to any intended expert testimony before the jury, to determine the scopeof allowable testimony by said expert; the court- appointed expert will be requiredto testify at the non-jury hearing [ruling deferred, see petn. exh. 7, p. 47]; 23) Fashion appropriate limiting instructions, in sua sponte manner, if any of the court-appointed Evidence Code section 730 experts testify before the jury; either party may submit suggested languageto the court for such instructions [deferred, see petn. exh. 7, pp. 44-45]; 24) Exclude any experts contacted by the People from consideration and appointment pursuant to Evidence Code section 730 [denied, see petn. exh. 7, p. 46]; and, 25) Prohibit the People from contacting any other experts for the purpose ofpossible appointment pursuant to Evidence Code section 73 0; 14 the court to direct the Probation Departmentto select the appropriate experts without any input whatsoeverfrom either party [denied, see petn. exh. 7, p. 47]. (See petn. exhs. 2 (request nos. 1-14), and 4 (request nos. 15-25).) Respondent court conducted a hearing on the requests on September 8, 2009. (Petn. exh. 7.) At issue in this petition are respondent court’s denials of petitioner’s requests for protective measures that would prevent the prosecution from learning the contents and results of any of the evaluationspriorto the endofthe prosecution case-in-chief andpetitioner’ s confirmation ofhis intent to offer mental health evidenceattrial. After ruling on petitioner’s request for the imposition of protective measures, respondentcourt - over petitioner’s objections - appointed psychiatrist Jose R. Maldonado, M.D., neuro-psychologist Shelly Peery, Ph.D., and neurologist Jaime Lopez, M.D. Thethree experts had been suggested for appointmentby the prosecution, which had contacted them and forwarded the names and resumesto respondent court on September8, 2009. (Petn., p. 8.) On September 29, 2009,petitionerfiled a petition for writ of mandate and/or prohibition in the Court of Appeal. On October 14, 2009, the Court of Appealissuedan alternative writ of mandateandstatedthat: It appears to this court that respondentsuperior court erred in its disposition of petitioner’s requests numbers5, 6, 7, 8, and 10. In general, the superior court has permitted the prosecution to contemporaneously observe the examinations (request number5) and to have accessto reports, notes and/or recordings of the examinations withouta prior in camera review by the court (request number6, and see also follow-up request number 7 regarding admissibility questions). The superior court declined petitioner’s request to prohibit contact between the prosecution and the appointed experts until the court granted permission for such contact after an in camera hearing (request number8). The court further declined petitioner’s request to require the experts to maintain 15 confidentiality regarding their examinations, except as otherwise specified in petitioner’s request (request number 10). Absentpetitioner proffering evidenceat trial pertinent to the Evidence Code section 730 examinations, the superior court’s disposition ofpetitioner’s requests numbers 5, 6, 7, 8 and 10 appears to violate petitioner’s Fifth Amendmentrights. (Maldonado v. Superior Court (Oct. 14, 2009, A126236) [nonpub. order], pp. 1-2, citing Smith, supra, 451 U.S.at p. 468; Buchanan, supra, 483 U.S.at pp. 422-423; Spencer, supra, 63 Cal.2d at pp. 412-413; and People v. Williams (1988) 197 Cal.App.3d 1320.) The Court of Appeal commanded respondent court to set aside and vacate its order as to petitioner’s requests numbers5, 6, 7, 8 and 10, and to enter a new and different order or show cause in the Court of Appeal why a peremptory writ of mandate should not be granted. (Maldonado v. Superior Court (Oct. 14, 2009, A126236) [nonpub.order].) On October 20, 2009, respondentcourt, at the urging of the prosecution, declined to modify its order. (Return, p. 6.) On May13, 2010, the Court of Appeal issued a peremptory writ. (Slip opn., p. 2.) On its own motion, on May 17, 2010, the Court of Appeal modified its opinion changing the judgment. (See appendix 2.) In order to protect petitioner’s Fifth Amendmentprivilege, the Court of Appeal ordered that: the prosecution is barred from observing the mental health examinations compelled by respondent court at the request of the prosecution; any statements by petitioner during the course of the examinations remain confidential until further order of respondentcourt; petitioner will have an opportunity to assert privilege objectionsat an in camera hearing; after ruling on those objections, respondentcourt shall redact any statements it finds to be privileged; and may order the balance of the examination results disclosed to the prosecution with possiblelimiting conditions. (See appendices 1 and 2.) The Court of Appeal deniedpetitioner’s request to preclude the prosecution from receiving theresults of the compelled mental health 16 evaluations until after the close of the prosecution’s case-in-chief and petitioner’s confirmationofhis intent to offer mental health evidence at trial.’ This denial constitutes error. ARGUMENT Introduction Whendefense counseltells the jury in opening statementthat his client will testify in his own criminal case, the prosecution is then not permitted to call that defendantin its case-in-chief. Likewise, the prosecution does notget to interview a criminal defendantso as to prepareitself for rebuttal in the event that the defendant testifies. Whythen should the prosecution obtain the results of compelled mental health evaluationsprior to the commencementoftrial, even though the defense may not present any mentalhealth evidenceat all, a decision the defense in a criminaltrial does not have to renderuntil after the close of the prosecution-case-in-chief? The answerunder the Fifth and Sixth Amendmentsis the same for all three illustrations. The prosecution may not call the defendantas a witness when the defendant’s attorney has told the jury that defendantwill testify and perhaps what he maytell them; nor does the prosecution receive an opportunity to interview the defendantin order for the prosecution to prepareits rebuttal; nor should the prosecution obtainthe results of compelled mentalhealth evaluations of a defendant until after the close of the prosecution’s case-in-chief and after the defense has confirmed its 7 In respondent court, petitioner requested that the results not be disclosed to the prosecution until after the close of the defensecase. (Petn., p. 4 [request number6].) At oral argument, petitioner agreed uponearlier disclosure, as stated abovein the main text. The Court of Appeal acknowledgedpetitioner’s flexibility. (Slip opn., p. 18, fn. 14.) 17 intent to offer mental health evidenceat trial. The Fifth and Sixth Amendments prohibitall three. The Court of Appeal provided petitioner with important Fifth Amendment? protections: the prosecution is barred from observing the mental health examinations compelled by respondent court at the request of the prosecution; any statements by petitioner during the course of the examinations remain confidential until further order of respondent court; petitioner will have an opportunity to assert privilege objections at an in camera hearing; after ruling on those objections, respondent courtshall redact any statementsit finds to be privileged; and mayorder the balance of the examinationresults disclosed to the prosecution with possible limiting conditions. (Slip opn., pp. 39-40, as modified on May 17, 2010 (see appendix 2).) The Fifth and Sixth Amendments require more than what the Court of Appeal ordered. Disclosureof all materials stemming from the compelled mental health evaluations should be precluded until after the prosecution case-in-chief and until after defendant has confirmedhisintent to offer mental health evidenceattrial. If petitioner decides notto offer any such evidence, the prosecution must never obtain the results of the compelled mental health evaluations. Disclosure preclusionis the only protective measure that affords petitionerhis Fifth and Sixth Amendmentrights. Use immunity as a protective measure is unavailing. If the prosecution cannot use his statements, or any evidence derived from those statements, then why bother 8 The Court of Appeal, in deciding this case on the basis of the Fifth Amendment, held that the Sixth Amendmentissues raised by petitioner “appear moot and/or unmeritorious.” (Slip opn., p. 6.) Petitioner, however, maintains that his Sixth Amendmentrights are implicated, as recognized by Smith, supra, 451 U.S. 454, and Spencer, supra, 63 Cal.2d 400. 18 even having the exam,the purpose of whichis to give the prosecution some rebuttal ammunition. Use immunity hurts the prosecution,notaidit. Constitutional casesfix the timing of the waiver of the Fifth Amendmentprivilege at the point of the actual introduction ofpetitioner’s mental health evidence. Both parties agree onthat. Becausethe Fifth Amendmentprivilege is deemed waived only whenpetitioner’s evidenceis introduced, it logically flows that in order to avoid mid-trial continuances by having the examinations conducted before trial, petitioner must be put in the sameposition in which the Fifth Amendmententitles him to be, with the prosecution not knowing what he said during the pretrial examinations. Such delayed disclosure does not disrupt the trial. The time- consuming aspectsare the selection of experts; conducting the exams; analyses of raw data; translations of interviews (petitioner is Spanish- speaking); andinterpretation of results and report writing by the experts. The trial prosecutor - having already received the reciprocal defense mental health discovery (see pp. 9-10 above) - knows what the mental health issues are that will be raised by the defense attrial before the compelled examsin question are conducted. Accelerating the disclosure of the compelled pretrial examination materials is akin to permitting the prosecutor to interview a defendantprior to trial so as to afford the prosecutor an opportunity to rebut any potential trial testimony by the defendant, a procedure without legal sanction. Accelerated disclosure has only been found warranted when the discovery materials did not include a defendant’s statements. Petitioner has fully complied with the accelerated disclosure requirements imposed on him by reciprocal discovery provisions, as constitutionally allowed by the United States Supreme Court (Williams), this Court (Izazaga), and required 19 by the relevant statutes. It is not warranted in this case with respect to the compelled mental health evaluations. I. PETITIONER’S FIFTH AND SIXTH AMENDMENT RIGHTS REQUIRE PROTECTION UNTIL SUCH TIME THAT AN ACTUAL WAIVEROF THEFIFTH AMENDMENTPRIVILEGE AGAINST SELF- INCRIMINATION OCCURS A. Standard of Review Thetrial court’s resolution ofissues that affect petitioner’s constitutional rights is reviewed de novo. (People v. Seijas (2005) 36 Cal.4" 291, 304.) B. Fifth Amendment Not Waived Until Defense Offers Evidence Petitioner and real party in interest agree that, in the wordsofthe Attorney General, “[i]f petitioner chooses to present psychiatric evidence at trial, he will waive his Fifth Amendmentprivilege at that point.” (Return, p. 18; emphasis added; Petn.’s Replyto the Return, p. 13.) The Attorney General adds in a footnote that “The People do not contend hereinthat petitioner already waived his Fifth Amendmentprivilege by giving notice of his psychiatric defense.” (Return, p. 18, fn. 5.) Petitioner agrees. Case lawis in accord. “Submitting to a psychiatric or psychological examination does notitself constitute a waiver of the Fifth Amendment’s protection.” (Battie v. Estelle (5™ Cir. 1981) 655 F.2d 692, 702.) “The waiver doctrine is inapplicable ... when the defendant does not introduce the testimony of a mental health expert on the issue of a-mentalstate relevant to the offense or a defenseraised by the evidencein the case.” (Ibid. ) The samefederal circuit court later interpreted the Buchanan decision to require the actual introduction ofpsychological evidence in addition to an examination (which in Buchanan was jointly requested by 20 defense and prosecution; see Buchanan, supra, 483 U.S, pp. 423-424) before a waiverofthe privilege occurs: The Court in Buchanan, however... stated that “if a defendant requests such an evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebutthis presentation with evidence from the reports of the examination that the defendant requested.” Although the Court’s use of the disjunctive might even suggest that the defendant’s requestis sufficient byitself to constitute forfeiture of the privilege, the rest of the sentence and the opinion as a whole strongly imply that the defendant must have gone further and actually introduced psychological evidence. (Schneider v. Lynaugh 5" Cir. 1988) 835 F.2d 570, 577; italics in original, footnote omitted, citing Buchanan, supra, 483 U.S., pp. 422-423.) The United States Supreme Court favorably referred to the Fifth Circuit’s Battie waiver discussion: “Language contained in Smith [Smith, supra, 451 U.S. 454] and in our later discussion in Buchanan ... provides some support for the Fifth Circuit’s discussion of waiver.” (Powell v. Texas (1989) 492 U.S. 680, 684.) The fact that waiver does not occur until the actual introduction of evidenceattrial is implicit in another of the Court’s rulings: “The privilege is waived for the matters to which the witnesstestifies, and the scope of relevant cross-examination.’” (Mitchell v. United States (1999) 526 U.S. 314, 321; citing Brown v. United States (1958) 356 U.S. 148, 154-155 [Mitchell v. United States extended Smith’ to non-capital sentencing phase of any criminal case].) ? In Smith, supra, 451 U.S. 454, the Court held “that a capital defendant’s Fifth Amendmentright against compelled self-incrimination precludesthestate from subjecting him to a psychiatric examination concerning future dangerousness withoutfirst informing the defendantthat he hasa right to remain silent and that anything he says can be used against him at a sentencing proceeding.” (Powell v. Texas, supra, 492 US., p. 681.) 21 Language in Smith suggests federal constitutional support for petitioner’s position: the duty to submit to a mental health examination by a prosecution psychiatrist is not triggered until such time as “[w]hen a defendantasserts the insanity defense and introduces supporting psychiatric testimony.” (Smith, supra, 451 U.S., p. 465.) C. Pretrial Exam Permitted If Results Held Until Waiver Occurs Petitioner recognizes thepractical difficulty of yielding on his silence until after he has actually waived his privilege by introducing mental health evidence attrial. Petitioner has always been prepared to undergo such court-ordered examinationpriorto trial, thereby avoiding a mid-trial disruption, provided that his constitutional rights are accommodated. It is only whenpetitioner and his counsel know thatthetrial prosecutoris insulated from the process of compelled examinations, that the Sixth Amendmentright to counsel can be given its due, by allowing defense counsel to advise petitioner on the pros and cons ofpetitioner’s cooperation with the examinations. The right to counsel guarantee would be stifled were petitioner and his counsel to knowthat the prosecutoris looking over petitioner’s shoulderpriorto the start of the prosecution’s case-in-chief. The Sixth Amendmentright to counsel, as well as the Fifth Amendmentprivilege againstself-incrimination can onlybevitiated by precluding disclosure of the mental health evaluation results until after the prosecution case-in-chief andafter petitioner confirmshis intentto introduce mental health evidenceattrial. Use immunity, however, is not an appropriate prophylactic measure as it deprives the prosecution of any use of the exam materials, thereby obviating the need to have them inthefirst place. H/ 22 D. Affording Petitioner Derivative Use Immunity Only Does Not Comport with Kastigar The government’s power to compel testimonyis firmly established in Anglo-Americanjurisprudence. (Kastigar v. United States (1972) 406 U.S. 441, 443 (Kastigar).) “But the power to compeltestimonyis not absolute.” The most important exemption is the Fifth Amendment privilege against self-incrimination. (/d., p. 444.) The United States Supreme Court weighed under what circumstances a person whoasserts the privilege may be compelledto speak: The statute’s explicit prescription of the use in any criminal case of‘testimonyor other information compelled underthe order (or any information directly or indirectly derived from such testimony or other information)’ is consonant with Fifth Amendment standards. We hold that such immunity from use and derivative use is coextensive with the scopeofthe privilege againstself- incrimination, and therefore is sufficient to compel testimony over a claim oftheprivilege... It prohibits the prosecutorial authorities from using the compelled testimony in any respect. Ud., p. 453.) Our nation’s highest court recently cited Kastigar with approval: “...even though immunity is notitself a right secured by the text of the Self-Incrimination Clause, but rather a prophylactic rule we have constructed to protect the Fifth Amendment’s right from invasion.” (Chavez v. Martinez (2003) 538 U.S. 760, 769, fn. 2 (plurality opn. of Thomas,J.).) Kastigar assures that no use may be madeof any ofpetitioner’s statements in return for compelling him to speak to the mentalhealth experts pursuant to court order. Below,the People and the Court of Appeals dissenter suggested derivative use immunity - without use immunity - suffices to compel 23 petitioner to undergothepretrial exam. This course of action would violate Kastigar’s immunity requirements. Kastigar requires both use and derivative use immunity to be affordedto petitioner before he may be compelled to partake in the pretrial mental health exams. This outcome would not benefit the prosecution as Kastigar wouldprevent any use - including for rebuttal purposes - of anything petitionertells the examiners. Providing only derivative use immunity falls short of Kastigar. Compliance with Kastigar defeats the purpose of having the exams conducted as their fruits could neverbe usedagainstpetitioner. Therefore, the immunity route does not accomplish the aim of providing the prosecution with rebuttal evidence(a legitimate aim) while protecting petitioner’s Fifth Amendmentprivilege and Sixth Amendment right to counsel (a legitimate aim of constitutional import). E. Fifth Amendment TrumpsReciprocal Discovery Needs Section 1054.3 requires criminal defendants to provide accelerated disclosure oftheir trial defense to the prosecution with one important exception: what defendantwill say attrial (“other than the defendant’). (§ 1054.3.) The United States Constitution allows but does not require reciprocal discovery. (Williams, supra, 399 U.S. 78 [Fifth Amendment not a barto requiring defendantto provide notice and discovery ofan alibi defense in case wherestate rule excepted defendant’s testimony from the requirement].) If anything, constitutional due process considerations favor defendants with respectto reciprocal discovery: “We hold that the Due Process Clause of the Fourteenth Amendmentforbids enforcementofalibi rules unless reciprocal discovery rights are given to criminal defendants.” (Wardius v. Oregon (1973) 412 U.S. 470, 472.) 24 Both the Florida notice-of-alibi rule upheld in Williams and the reciprocal discovery requirement approvedby this Court in Izazaga, supra, 54 Cal.3d 356, contained exceptions from the rule for defendant statements. (Williams, supra, 399 U.S., p. 80; Izazaga, supra, 54 Cal.3d, p. 364,fn. 1.) Although the United States Supreme Court has not addressed this point directly (see Wardius v. Oregon, supra, 412 U.S., p. 472,fn. 4), the Fifth Amendmentrequires this statutory exception (exempting defendant’s statements and notice to be a witness in his own case from the requirements of accelerated pretrial discovery). In requiring disclosure of a defense investigator’s notes of an interview with a prosecution witness against whom theinvestigatortestified as an impeachmentwitness,the nation’s highest court analyzed non- defendant statements to be different from defendant statements: The Fifth Amendmentprivilege against compulsory self- incriminationis an ‘intimate and personal one,’ whichprotects ‘a private inner sanctum ofindividual feeling and thought and proscribesstate intrusion to extract self-condemnation.’ [Citations.] As wenoted in Couch [citation], the ‘privilege is a personal privilege:it adheresbasically to the person, not to information that may incriminate him. (United States v. Nobles (1975) 422 U.S. 225, 233 (Nobles).) Williams and Izazagaare therefore limited in their reach to accelerated disclosure of discovery that does not stem from defendant’s mindor lips. The Court of Appeal’s quotation from Williams must be read with that limitation in mind: ... he must revealtheir identity and submit them to cross- examination which in itself may prove incriminating or which may furnish the State with leads to incriminating rebuttal evidence. That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion ofthe privilege against compelled self-incrimination. (Williams, supra, 399 U.S., pp. 83-84; quoted in slip opn., p. 20.) 25 In quoting Williams, the Court of Appeal foundthat “[tJhis reasoning, of course, applies equally to a defendant who is compelled to undergo a prosecution psychiatric examination once he choosesto present psychiatric evidence of his own on his mental condition at trial. Maldonado has given notice ofhis intent to do so.” (Slip opn., p. 20.) Yet, the Court of Appeal did not includethe first five wordsofthat passage: “When hepresents his witnesses ....”. (Williams, supra, 399 U.S., p. 83.) These words signify that the Williams passage refers to discovery from defense witnesses other than the defendant. The distinction makes a difference: the defendant enjoys Fifth Amendmentprotection, which does not apply to early discovery relating to defense witnesses other than defendant. The Court of Appeal erred in extending the Williams reasoning - promulgatedin light of the defendant exception embeddedin Florida’s notice-of-alibi rule - to situations involving defendant’s statements, thought and beliefs. The Fifth Amendmentapplies to defendant’s statements, thoughts and beliefs but not to those of non-defendant witnesses, as the four requirements for the Fifth Amendmentto apply (incriminating; personal to the defendant; obtained by compulsion;andtestimonial) are not metas to the non-defendantstatements. (/zazaga, supra, 54 Cal.3d, p. 367.) The United States Supreme Court is in accord: third-party statements are not personalto the defendant. (Nobles, supra, 422 U.S., p. 234.) The Court of Appeal’s error is borne outby a passagein Izazaga that analyzes accelerated disclosure vis-a-vis the Fifth Amendment: The timing ofthe disclosure, whether before or duringtrial, does not affect any of the four requirementsthat togethertrigger the privilege against self-incrimination, and therefore cannot implicate the privilege. The acceleration doctrine of Williams, supra, 399 U.S. 78, compels this conclusion. We conclude that the statements ofthe witnessesthat the defense intendsto call at trial are not personalto 26 the defendant, and therefore compelled discovery of such statements does not implicate the self-incrimination clause. (Izazaga, supra, 54 Cal.3d, pp. 368-369; footnote omitted.) Accelerated disclosure is proper for any defense discovery that does not emanate from the mindorlips of a defendant. The Fifth Amendment privilege blocks accelerated disclosure of the mental health evaluations compelled by respondentcourt. The statutory discovery framework recognizes this constitutional block: the defendantis not “required to disclose any materials or information which ... are privileged as provided by the Constitution ofthe United States.” (§ 1054.6.)!° Whatendsthis blockageis a defendant’s waiveroftheprivilege, which does notoccuruntil after the prosecution completes its case-in-chief and then only if and when the defendant confirmshis intent to offer mental health evidenceattrial. F. Accelerated Disclosure Violates Brooks v. Tennessee Any court order requiring accelerated disclosure ofthe fruits of compelled pretrial mental health examsviolates the Fifth Amendment and is similar to the rule struck down in Brooks v. Tennessee (1971) 406 U.S. 605 (Brooks), wherein the Court heldthat a state rule requiring a criminal defendant whodesiresto testify, to do so before any other defense testimonyis heard, violates the Fifth Amendmentprivilege. The rule “is an '0 It is important to note the distinction between the court-ordered mental health exams andthe reciprocal discovery that was timely provided by petitioner with regard to defense expert witnesses whom defendant intends to call at trial (see slip opn., p. 3). The latter disclosures were of material that was not compelled, and hence, not subject to the privilege’s protection. (See Woods v. Superior Court (1994) 25 Cal.App.4" 178, 186.) The mental health evaluations, however, are compelled and are protected by the Fifth Amendment. 27 impermissible restriction on the defendant’s right against self- incrimination.” (/d., p. 609.) Brooks standsfor the proposition that no one other than defendant may choose when defendant actually waives the privilege. Accelerated disclosure of what went on at the compelled mental health exams removes that choice from defendant, a practice Brooks does not permit. Delaying disclosure follows logically from the decisions establishing the actual timing of the Fifth Amendment waiver. G. Federal Rule 12.2 Supports Petitioner’s Position In federal capital cases, Federal Rule of Criminal Procedure 12.2(c)(2) requires that the results and reports of any mental health examinations conducted by the governmentpriorto trial (merits and penalty phases) be sealed until “the defendant is found guilty of one or more capital crimes and the defendant confirms anintentto offer during sentencing proceedings expert evidence on mental condition.” (Fed. R. Crim. P. 12.2(c)(2).) The federal capital case requirement is consistent with petitioner’s request to delay disclosure until petitioner confirmshis intent to offer expert evidence on mental condition, which confirmation wouldbe stated, if at all, after the conclusion of the prosecution case-in-chief. In penalty phases in capital cases, the intention of what evidenceto offer in mitigation with respect to mental condition will not depend on what the prosecution offers in aggravation. Indeed, the prosecution does not have to offer any evidenceat the penalty phase and mayrely on “the circumstancesof the crime of which the defendant was convicted in the present proceeding andthe existence of any special circumstances found to be true ....” in seeking death. (§ 190.3(a).) In deciding penalty, a jury weighs the aggravating and mitigating circumstances andis permitted to return a death verdict only if the jury 28 “concludesthat the aggravating circumstances outweigh the mitigating circumstances.” (§ 190.3.) Hence,the two disclosure procedures are similar in that disclosure is not warranted until the defendant confirmshis intent to introduceparticular evidence. This similarity militates in favor of waiting until the prosecution has completed their case-in-chief in a non-capital proceeding before permitting disclosure of the compelled pretrial mental health examinations. This Court’s endorsement of delayed disclosurerelating to a defendant’s penalty phase evidencein a capital case fully comports with petitioner’s request for delayed disclosure in this case. (People v. Superior Court (Mitchell) (1993) 5 Cal.4" 1229, 1237-1239 (Mitchell).) It is important to note that Mitche/l did not involve the assertion of any privilege; instead it dealt with a defendant’s argumentthat the reciprocal discovery provisionsof section 1054.3 did not apply to the penalty phase of capital cases. (/d., pp. 1232, 1235.) CONCLUSION For the foregoing reasons, review should be granted. DATED: June 28, 2010. Respectfully submitted, PAUL F. DOEMEESTER Attorney for Petitioner 29 RULE8.504(D)(1) CERTIFICATION I, Paul F. DeMeester, certify that this petition, including the argument, contains 8,391 words, and therefore does not exceed 8,400 words. In stating this, I am relying on the word count of the computer program usedto preparethis petition. I makethis certification pursuant to the requirements of Cal. Rules of Ct., Rule 8.504, subd. (d)(1). I declare under penalty of perjury under the lawsofthe State of California that the foregoingis true and correct. Executed on the 28” day of June, 2010, at San Francisco, California. 30 CERTIFICATE OF SERVICE I, the undersigned,say that I am over eighteen years of age and nota party to the aboveaction. My business address is 1227 Arguello Street, Redwood City, California 94063. On June 28, 2010,I served the attached PETITION FOR REVIEWonthe personsindicated below, by placing a true copy thereof in a sealed envelope with first class postage thereon fully prepaid in the United States mail at San Francisco, California, addressed as follows (unless otherwise indicated by personalservice): Mr. Eric Cyman, Deputy Clerk, Division Five - by personal service Court of Appeal, First Appellate District 350 McAllister Street San Francisco, California 94102 Hon. Mark R. Forcum, Judge (Respondent Court) c/o Clerk of the Superior Court 400 County Center, Department 8 RedwoodCity, California 94063 Jeffrey Laurence, Esq. (Counsel for Real Party in Interest) - by personal Deputy Attorney General service 455 Golden Gate Av., Ste. 11,000 San Francisco, California 94102-7004 Alfred F. Giannini, Esq. (Real Party in Interest’s Trial Counsel) Deputy District Attorney 400 County Center, 3" floor RedwoodCity, California 94063 I declare underpenalty of perjury underthe laws of the State of California that the foregoingis true and correct. Executed this 28" day of June, 2010, at San Francisco, California. PAUL F. DOMEESTER 31 APPENDIX 1 - COURT OF APPEAL MAY13,2010 OPINION COPY Filed 5/13/10 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA Court ot AppealFirst Appeliate! District FIRST APPELLATE DISTRICT E LED DIVISION FIVE May 13 2010 Diana Herbert, ClerkREYNALDO A. MALDONADO, byDeputyClerk Petitioner, : . V. THE SUPERIOR COURT OF SAN A126236 MATEO COUNTY, (San Mateo County Respondent, Super. Ct. No. $C065313A) THE PEOPLE, Real Party in Interest. Petitioner Reynaldo A. Maldonadois awaiting trial in the Superior Court of San Mateo County on an information charging him with special circumstance murder while lying in wait. (Pen. Code, §§ 187, subd.(a), 190.2, subd. (a)(15).)' He has notified the prosecution ofhis intentto introduce evidence, through designated expert witnesses, of neurocognitive deficits he purportedly suffers as a result of childhood brain trauma or congenital brain dysfunction. The prosecution thereafter successfully moved for an order, pursuant to Evidence Code section 730, compelling Maldonado to submit to examinations by court-appointed experts, including a psychiatrist, a psychologist, and a neurologist. Maldonado’sefforts to overturn that order through writ of mandate and/or prohibition wererejected in both this court and in the California Supreme Court. (Maldonado v. Superior Court (Sept. 4, 2009, A125920) [nonpub. order]; Maldonadov. ' All further code referencesare to the Penal Code unless otherwise indicated. Superior Court (Sept. 23, 2009, $176084) [nonpub.order].) Maldonado also concurrently filed motions in the trial court seeking certain protective orders relating to the court-ordered examinations. On September 9, 2009, the court granted the requested protective orders in part, but otherwise denied them. Amongthe requested protective measures sought and denied were orders that would have barred the disclosure of the results of any of the examinationsto the prosecution unless and until Maldonado actually presented his own mentalhealth evidenceattrial, and then onlyafter an in camera hearing at which the trial court would determine which materials should be disclosed. He further objected to prosecutionparticipation in selection of the appointed experts. Maldonadoagain seeks a writ of mandate/prohibition challenging denial of seven ofhis requested protective orders. Weissuedan alternative writ of mandate directing the superior court to set aside and vacate its order denying five of the requested protective measures, or to show cause why a peremptory writ of mandate should notissue. Thetrial court declined to modify its order. Wethen stayed proceedings, ordered briefing, and scheduled the matterfor argument. | Having received and considered the People’s Return to Order to Show Cause and ~ Maldonado’s Reply to the Return, and the argument of counsel, we will issue a peremptory writ permitting the examinations to proceed, but directing thetrial court to delay disclosure ofthoseportionsofthe examination reports containing statements by Maldonadountil he has an opportunity to challenge disclosure of materials potentially still subject to privilege, despite the fact that he has placed his mentalstate in issue. We hold that Maldonado must begiven an opportunity to assert a claim ofprivilege, at least initially in camera, with redaction of any material as to which a privilege claim is sustained, before disclosure to the prosecution. We reject Maldonado’s contention that disclosure of the examinationresults and supporting data must be deferred until defense evidence on his mentalstate is adducedat trial. The prosecutionis entitled to access to the full reports beforetrial so that it has a reasonable opportunity to prepareits rebuttal case and subject Maldonado’s evidenceto meaningful adversarial testingat trial. We find noerrorin thetrial court’s consideration ofprosecution recommendationsin the court’s appointmentof experts to examine petitioner. I. BACKGROUND Petitioner Reynaldo A. Maldonadois charged with the murder of Quetzalcoatl Alba. (§ 187, subd. (a).) The special circumstancethat the murder was committed while petitioner waslying in waitis alleged.’ (§ 190.2, subd. (a)(15)) Defense counselretained the services of three mentalhealth professionals as part of an investigation into the mental state issues in the case: Jeff Kline, Ph.D., a psychologist; Peter Cassini, M.D., a neurologist; and Robert Perez, Ph.D., a neuropsychologist. As part ofits reciprocal discovery obligations, the defense provided the prosecution with mental health evidence resulting from this investigation, including statements made by Maldonadoto the examiners. The prosecution then askedthetrial court to appoint experts pursuant to Evidence Code section 730 to conduct physical, psychological and psychiatric examinations of Maldonado. Over Maldonado’s objection, the court granted the motion. Maldonado petitioned this court for relief from the order by extraordinary writ. We denied the petition and the Supreme Court denied review. (Maldonado v. Superior Court, supra, A125920; Maldonadov. Superior Court, supra, 5176084.) Immediately after the trial court granted the prosecution’s motion to appoint experts, Maldonadofiled a motion asking the court to implement protective measures he asserted were required to preserve his Fifth and Sixth Amendmentrights with respect to the examinations. Thefirst category ofrequests involves Maldonado’sefforts to restrict the prosecution’s accessto the examinations and to the expert reports. Asrelevanthere, he askedthe court to allow defense counsel and a defense expert to observethe examinations and to obtain reports, notes and recordings of the examinations within 24 hoursoftheir creation, but to restrict the prosecution’s accessto that same information. Thespecific requests in issue were: ? The prosecution is not seeking the death penalty. 5) To prohibit any district attorney, attorney general, U.S. attorney, or special prosecutor, or any oftheir respective staff, or any of their law enforcement agents, including but not limited to Daly City Police, San Mateo County Sheriffs Office, from being present during the conduct of any of the examinations of defendant by any ofthe Evidence Code section 730 Court-appointed experts; | “6) To prohibit access by any officials referred to under item 5 to any of the reports, notes and/or recordings of the examinationsandinvestigations by any of the experts appointed by the Court pursuant to Evidence Code section 730 until after the close of the defense case at the jury trial of the above-mentioned case, upon which the Court will inspect, in camera, any such reports, notes, and/or recordings of the examinations and investigations resulting from the Court’s appointment to determine whether the prosecution should have copies of such reports, notes and/or recordings; “7) To decide the question of admissibility of any of the evidence adduced as a result of the work ofthe experts appointed by the Court pursuant to Evidence Code section 730 only after the steps in item 6 have been completed and only upon a hearing at which both parties have the right to be heard; “8) To prohibit any officials referred to under item 5 from any contact with any experts appointed by the Court under Evidence Code section 730 until after the Court’s in cameradecision referred to in item 6 and only if the Court grants the prosecution permission to do so; [¥] .. . [] “10) To require the experts appointed pursuant to Evidence Code section 730 to maintain confidentiality regarding their examinationsand investigations of defendant with the exceptions[ofproviding information to the defendantas allowed by other protective measures] as well as the exceptionthat said experts will provide the Court with copies oftheir notes, reports and recordings, immediately following the conclusion of their work.” (Italics omitted.) In a supplemental motion, Maldonadochallenged the prosecution’s participation in selecting the experts. As relevant here, he asked the court to: 24) Exclude any experts contacted by the People from consideration and appointment pursuant to Evidence Codesection 730; 25) Prohibit [the] People from contacting any further experts for the purpose of possible appointment pursuant to Evidence Code section 730; the Court to direct the Probation Departmentto select the appropriate experts without any input whatsoever from either party.” The prosecution argued that both the defense and prosecution should be permitted to observe the examinations, but from a separate room with simultaneous video monitoring rather than from the examination roomitself. The prosecution also argued that both the defense and prosecution should have accessto the experts andto reports, notes and recordings of the examinations promptly after their creation, and that the admissibility of evidenceresulting from the examinations should be determined before jury selection. With respectto request numbers 24 and 25, the prosecution argued it was appropriate for it to assist the court in identifying Spanish-speaking doctors available to take such an appointment. Following a hearing on September8, 2009,the trial court granted certain of Maldonado’s requestsin part, and deniedthe remainder, including request numbers 5, 6, 7, 8, 10, 24 and 25. The court ruled that both the defense and prosecutioncould observe the examinations from a separate room by simultaneous video monitoring as proposed by the prosecution. The court denied the request to preclude prosecution access to reports, notes and recordings of the examinations until afterclose of the defense case and in camera review, as well as the request to delay determination ofthe admissibility of the evidence until after those events and a court hearing on the matter. The court also denied the request to prevent any prosecution contact with experts who might be candidates for appointmentby the court. The court then appointedas experts three individuals whose names and resumes had beenprovidedto the court by the prosecution: Jose R. Maldonado, M.D., a psychiatrist; Shelly Perry, Ph.D., a neuropsychologist; and Jaime Lopez, M.D., a neurologist. On September 29, 2009, Maldonadofiled this petition for writ relief challenging the court’s denial of his requests for protective measures numbers 5, 6, 7, 8, 10, 24 and 25 on Fifth and Sixth Amendmentgrounds. He soughta stayoftrial court proceedings pending resolution ofthe writ petition. Westayed the court-ordered examinations, but not the trial, and asked for informal opposition to the petition. After receiving that opposition and a reply by Maldonado, we issued an alternative writ of mandate. We explained: “It appearsto this court that respondentsuperior court erredin its disposition ofpetitioner’s request numbers5, 6, 7, 8 and 10... . [§] Absent petitioner proffering evidenceattrial pertinent to the Evidence Code section 730 examinations, the superior court’s disposition ofpetitioner’s request numbers 5, 6, 7, 8 and 10 appears to violate petitioner’s Fifth Amendment rights. (See Estelle v. Smith (1981) 451 U.S. 454, 468 [‘A criminal defendant, whoneitherinitiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respondto a psychiatrist if his statements can be used against him at a capital sentencing proceeding.’]; Buchananv. Kentucky (1987) 483 U.S. 402, 422-423 [elaborating on the foregoing statement from Estelle v. Smith, supra, as follows: ‘This statementlogically leads to another proposition: if a defendant requests such an evaluation or presents psychiatric evidence, then,at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested.’]; In re Spencer (1965) 63 Cal.2d 400, 412-413 (Spencer); People v. Williams (1988) 197 Cal.App.3d 1320; and see Petn., pp. 22-27.) The Attorney General’s reliance on United States v. Stockwell (2d Cir. 1984) 743 F.2d 123 to support the superior court’s ruling does not appear persuasive.” In an immediately following footnote, we wrote: “Althoughit appears the Fifth Amendmentissuesasserted by petitioner have merit, the Sixth Amendmentissues raised by petitioner appear moot and/or unmeritorious. Additionally, petitioner’s objections to the superior court’s rulings on request numbers 24 and 25 (concerning the expert selection process) appear unmeritorious. Consequently,the alternative writ will not address those issues.” The alternative writ commandedthetrial court to either (a) vacateits September8, 2009 order with respect to request numbers 5, 6, 7, 8 and 10 and enter a new anddifferent order after reconsiderationin light of this court’s order, or (b) show cause why a peremptory writ of mandate should notissue. On October 22, 2009, Maldonado’s counsel informedus thatthe trial court had declined to vacate its order and opted to show cause why a peremptory writ should not issue. We were advised that, “Respondent court’s choice was madein light of the People’s request to follow that course ofaction and the recentarrest (October 12, 2009) of the codefendantin this case, Mr. Erick Morales, who had been wanted since June of 2001, and whose capture will necessarily delay petitioner’s trial (petitioner was arrested on October 15, 2007).” On October 29, westayedthetrial and all further proceedings concerning the court-ordered examinations pendingfurtherorderofthis court, and set a briefing schedule.* Our order specified that the “issues to be addressed in this proceeding are limited to the claimsraised in the petition herein, regardless ofwhether those claims were found meritorious in the court’s October 14, 2009 order granting the alternative writ.’ II. DISCUSSION Maldonadoseeksa writ requiring thetrial court to grantprotective orders delaying the disclosureofany of the results of the examinations unless and until he presentshis . own expert evidence attrial, requiring in camera review by the court prior to disclosure, and barring any prosecution involvementin the selection ofthe court-appointed experts. Wefirst consider whether these matters are appropriately considered on writ review. * Maldonado argues that we mustdisregard the factual assertions in the People’s return because the return wasnotverified. We neednot decide whetherthe return needed to be verified, because we concludethat no additionalfacts alleged in the return are necessary to our resolution of the petition. * Jones, P.J. and Bruiniers, J. concurring. Justice Needham “would deny the petition on the groundthat petitioner possesses other adequate remedies at law, making writ relief inappropriate.” A. Propriety of Writ Review Writ relief by mandamuswill lie “to compel exercise ofjurisdiction or to correct an abuse ofdiscretion, but it cannot control the exercise of discretion.” (6 Witkin & Epstein, Cal. Criminal Law (3ded. 2000) Criminal Writs, § 92, p. 624.) “The conditions limiting issuance of the writ of mandamusin criminalcasesare similar to those in civil cases. (See generally 8 [Witkin,] Cal. Proc[edure] (4th [ed.]), Extraordinary Writs, §§ 72 et seq., 115 et seq. [inadequacy of appeal or other remedy] ....” (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Writs, § 97, p. 628,italics omitted.) “[T]he prerogative writ is not the favored method of reviewing discovery orders. Ordinarily the aggrieved party mustraise the issue on direct appeal from a final judgment. [Citations.] The premise upon whichthis general policy restsis that in the great majority of cases the delay dueto interim review of discovery ordersis likely to result in greater harm to the judicial processby reason ofprotracted delay than is the enforcementofa possibly improperdiscovery order. [Citation.]” (Sav-On Drugs, Inc. vy. Superior Court (1975) 15 Cal.3d 1, 5 (Sav-On Drugs).) Extraordinary review of a discovery order will be granted, however, whena ruling “threatens immediate harm, such as loss of a privilege against disclosure, for which there is no other adequate remedy.” (O'Grady v. Superior Court (2006) 139 Cal_App.4th 1423, 1439 [subpoena seeking information protected by California reporter’s shield privilege (Cal. Const., art. I, § 2, subd. (b))].) It is well established that writ review of a discovery orderis appropriate if the orderallegedly violates a privilege ofthe petitioning party. (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169-170 & fn. 11 [following Oceanside Union SchoolDist. v. Superior Court (1962) 58 Cal.2d 180, 185-186, fn. 4 (Oceanside)}; Roberts v. Superior Court (1973) 9 Cal.3d 330, 336 (Roberts); Sav-On Drugs, supra, 15 Cal.3d at p. 5.) Courts routinely entertain writ petitions that raise claimsof attorney- client or work product privilege (San Diego Professional Assn. v. Superior Court (1962) 58 Cal.2d 194, 198-199: Mitchell y. Superior Court (1984) 37 Cal.3d 591, 594-595: Garcia v. Superior Court (2007) 42 Cal.4th 63, 68 (Garcia) [criminal case]; Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 740-741 (Costco); Venture Law Group v. Superior Court (2004) 118 Cal.App.4th 96 [writ relief granted where discovery order erroneously orderedattorney to violate attorney-client privilege in answering deposition questions]),° patient-physician and patient-psychotherapist privilege (Roberts, at pp. 333, 336),° marital privilege (Duggan v. Superior Court(1981) 127 Cal.App.3d 267, 269 & fn. 4), other statutory privileges (County ofSan Diegov. Superior Court (1986) 176 Cal.App.3d 1009, 1014-101 5, 1018-1019 [privilege for the proceedings of governmenthealth care oversight committees]; Schnabel v. Superior Court (1993) 5 Cal.4th 704, 708, 720 & fn. 4 [implied privilege against disclosure of information providedon tax returns]; Sav-On Drugs, at pp. 6-7 [same]), the California constitutionalright to privacy (Britt v. Superior Court (1978) 20 Cal.3d 844, 85 1-852),’ and the state and federal constitutional right to freedom of association (Bodenheimerv. Superior Court (1980) 108 Cal.App.3d 885, 887-888). Reviewing courts havealso regularly entertained writ petitions challenging,as here, criminal discovery orders allegedly violating a defendant’s Fifth Amendment privilege against self-incrimination and the related Sixth Amendmentright to the assistance of counsel when being questioned by the prosecution. (See Verdinv. Superior ° See also Suezakiv. Superior Court (1962) 58 Cal.2d 166, 169-170; D. 1 Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 727; Hiottv. Superior Court(1993) 16 Cal.App.4th 712, 714-715, 716; Soltani-Rastegarv. Superior Court (1989)208 Cal.App.3d 424, 425; Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d1487, 1490, 1493; Willis v. Superior Court (1980) 112 Cal.App.3d 277, 289: AmericanMut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal.App.3d 579, 5 88-590; Sanders vy.Superior Court (1973) 34 Cal.App.3d 270, 272-275; Atchison, T.opeka & S. F. Ry. Co. v.Superior Court (1962) 208 Cal.App.2d 73, 76; Gene Compton's Corp. v. Superior Court(1962) 205 Cal.App.2d 365, 367-368. ° See also Palay v. Superior Court (1993) 18 Cal.App.4th 919, 925; County ofAlameda v. Superior Court (1987) 194 Cal.App.3d 254, 256-25 7; Smith v. SuperiorCourt (1981) 118 Cal.App.3d 136, 138 & fn. 1; Huelterv. uperior Court (1978) 87Cal.App.3d 544, 545-546. ” See also Moskowitz v. Superior Court (1982) 137 Cal.App.3d 313, 315; Board ofTrustees v. Superior Court (1981) 119 Cal.App.3d 516, 521-524; Morales y. SuperiorCourt (1979) 99 Cal.App.3d 283, 286-287. Court (2008) 43 Cal.4th 1096, 1100, 1102 (Verdin); Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 322°; Centenov. Superior Court (2004) 117 Cal.App.4th 30, 35— 36, 40 (Centeno); Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 482, 485 [court of appealfirst denied writ review, but was directed by Supreme Court to issue an alternative writ]; Woods v. Superior Court (1994) 25 Cal.App.4th 178, 181-182 (Woods) [same]; Rodriguez v. Superior Court (1993) 14 Cal.App.4th 1260, 1263; Posnerv. Superior Court (1980) 107 Cal.App.3d 928, 930; McGuire v. Superior Court (1969) 274 Cal.App.2d 583, 586, 590, disapproved ondifferent grounds by Prudhomme, at p. 327, fn. 11; see also Sandeffer v. Superior Court (1993) 18 Cal.App.4th 672, 675 [writ review of order requiring disclosure of defense expert reports, which waschallenged as - exceeding statutory authority]; Torres v. Municipal Court (1975) 50 Cal._App.3d 778, 781, 783-784 [writ review of order requiring disclosure of defense expert’s examination, which was challenged as violating Sixth Amendmentright to assistance of counsel].) Courts have similarly entertained writ petitions challengingcivil discovery orders that implicate the discovery targets’ Fifth Amendment privileges. (See People v. Superior Court (Kaufman) (1974) 12 Cal.3d 421, 424 [writ review of discovery order in civil action brought by the People]; Fullerv. Superior Court (2001) 87 Cal.App.4th 299, 302-303 (Fuller) [writ review ofcivil discovery order that implicated deponents’ Fifth Amendmentprivilege]; Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 878— 881 [writ review of order denying motion to stay discovery in civil action pending disposition of related criminal case, which was challenged as violating Fifth Amendment]; Gonzales v. Superior Court (1980) 117 Cal.App.3d 57, 60-61 [writ review of civil discovery order challenged on groundit violated defendants’ Fifth Amendment ® As the dissent notes, Prudhomme’s holding on the merits has been superseded by constitutional amendmentas explained in Izazaga v. Superior Court (1991) 54 Cal.3d 356, 370-371 (izazaga). (See dis. opn., post, p. 6, fn. 2.) The dissent, however, cites no authority that overrules or questions Prudhommeon theissue of the propriety of writ review. The dissent argues Prudhommeis distinguishable on the ground the defendant there wasnot assured use immunity for the information he was ordered to disclose before trial. (/bid.) We discuss the relevance ofuse immunity post. 10 rights]; People v. Superior Court (Taylor) (1975) 53 Cal.App.3d 996, 998 [writ review of discovery orderin civil action brought by the People].) Review by writ has also been found appropriate to review the manner in which a trial court handlespretrial disclosure of materials alleged to be privileged underthe Fifth Amendment. (See Centeno, supra, 117 Cal.App.4th at pp. 36, 41-46 [issuing writ directing trial court to rule on relevance ofpsychiatric tests before requiring defendantto submit to the tests (on the issue of mental retardation as barto imposition of death penalty); Fuller, supra, 87 Cal.App.4th at pp. 302-303, 309-310 [denying without prejudice writ petition challengingtrial court refusal to bar civil defendants from testifying about matters on whichthey invoked their Fifth Amendment privilege, and givingtrial court guidance on how and whentorule on any privilege claim on remand]; Woods, supra, 25 Cal.App.4th at pp. 181, 187-188 [entertaining writ petition that challenged order requiring pretrial disclosure of defense psychiatric examination on the grounddisclosure should be delayed until after defendant presents his own psychiatric evidenceat trial].) The dissent cites Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1038 (Warford), also involving review ofa civil discovery orderthat allegedly violated a deponent’s Fifth Amendment rights, as an exception that provesthe rule that writ review is generally inappropriate for claimsofFifth Amendmentprivilege unless no other opportunity for review is available, or unless the Oceanside standards apply. (Dis. opn., post, pp. 7-8, fn. 4, also citing Fuller, supra, 87 Cal.App.4th at pp. 308-310; Oceanside, supra, 58 Cal.2d at pp. 185-186, fn. 4.) We do notbelieve that Warford can be read SO narrowly. In that case, the underlying civil action generating the discovery wasfiled in Hawaii, the deponents were nonparty California residents, and there was a direct appeal from a proceedinginitiated by the deponents in a California court to challenge the Hawaii discovery order. (Warford, at p. 1038-1039.) It wasin that context that the court observed that “[A] party normally may not appeal from a discovery order. [Citations.] ... However, wethink an exceptionto the general rule exists where, as here, no final 11 review of the underlyingaction will take place in a California forum.” (/d. at pp. 1040— 1041.) In arguing for a more limited scope of writ review here, the dissent seeks to distinguish the multitude of cases that have provided writ review of discovery orders in criminaland civil cases on the groundthat Fifth Amendmentprivileges are infringed, even though theparties might havealso raised those claims in a direct appeal from a final judgment. Citing Chavez v. Martinez (2003) 538 U.S. 760, 767-773 (Chavez) and Spielbauer v. County ofSanta Clara (2009) 45 Cal.4th 704, 727 (Spielbauer), the dissent also contends that writ review is unnecessary because “the mere disclosure of [Maldonado’s] statements (as opposedto their use at trial) does not violate Maldonado’s constitutional privilege againstself-incrimination.” (Dis. opn., post, pp. 7, 11-12.) The dissent further contends that, in the eventthe trial court subsequently determines any of Maldonado’s statements in the examination exceed the scope of his waiver of the privilege, Maldonado’s constitutionalrights will be sufficiently protected by the prohibition against derivative use of such statements. (Dis. opn., post, p. 7.) Whether use immunityaloneis a sufficient safeguard in the context of compelled disclosure of potentially incriminating information depends, among other things, on the balance between the defendant’s right and competing concernsofthe truth-ascertaining adversarial processesoftrial in the particular circumstances. (See Centeno, supra, 117 Cal.App.4th at pp. 36, 41-46[issuing writ directing trial court to rule on relevanceofpsychiatric tests before requiring defendant to submit to the tests despite immunity against improperuse oftest results at trial].) As wediscuss in detail post, even though the Fifth Amendment expressly addresses only compulsion “to be a witness against himself” at a criminaltrial, the United States Supreme Court has repeatedly fashioned prophylactic rules designed to ensure that the constitutional guarantees are respected in the first instance. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); Kastigar v. United States (1972) 406 U.S. 441, 453 12 (Kastigar).) The constitutional protection is not limited to direct or derivative use ofthe statementsattrial. “The needfor the availability of the prerogative writs in discovery cases where an orderofthetrial court granting discovery allegedly violates a privilege of the party against whom discovery is granted, is obvious. The person seeking to exercise the privilege must either succumbto the court’s order and disclose the privileged information,or subject himself to a charge of contemptfor his refusal to obey the court’s order pending appeal. Thefirst of these alternatives is hardly an adequate remedy and could lead to disruption of a confidential relationship. The secondis clearly inadequate as it would involve the possibilityof a jail sentence and additional delay in the principal litigation during review of the contemptorder.” (Roberts, supra, 9 Cal.3d at p. 336.) Thedissent argues the Roberts rationale does not support writ review here because “[a]t this point[] . .. Maldonadohasnot madeany statement subject to any privilege, and the trial court has not decided whether any statement by Maldonadois orwill be outside the scope of his waiver. [Citation.]” (Dis. opn., post, pp. 6-7.) The gravamen of- Maldonado’s writ petition, however,is that his constitutional privileges will be violated by the immediate disclosure ofhis statements during the examination pursuantto thetrial court order (which allows the prosecution to monitor the examination in real time) before any waiver has occurred(i.e., by Maldonado’sintroduction ofpsychiatric evidenceat trial) and before the court determines whetherhis statements during the examination are outside the scope of any waiver. Given the subject matter of the examination (Maldonado’s mental state at the time of the crime) and the absence of counsel during the anticipated examination,there is a not insignificant possibility that statements may be elicited that both incriminate Maldonadoandfall outside the scope of his waiver. In sum, wefollow the well-established practice of granting writ review of discovery ordersthat allegedly violate an established privilege. 13 B. Compelled Psychiatric Examinations’ of Criminal Defendants The prosecution cannotconstitutionally use the results!° of a court-ordered psychiatric examination of a defendantattrial unless the defendant has put his mental condition in issue at the trial and has a meaningful opportunity to consult with his counsel before deciding whetherto submit to the examination. (Estelle v. Smith, supra, 451 U.S. at pp. 462-473 (Smith), Buchanan v. Kentucky, supra, 483 U.S.at pp. 421-425 (Buchanan); Spencer, supra, 63 Cal.2d at pp. 409-413 [right to assistance of counsel]; People v. Arcega (1982) 32 Cal.3d 504, 522-523 [right against self-incrimination].) Use of the results of such an examinationviolates the Fifth Amendment right against self- incrimination because the defendant’s statements to the examiner were compelled, incriminating, testimonial, and personal to the defendant. (Smith, at pp. 464469;see Izazaga, supra, 54 Cal.3dat p. 366;cf. Buchanan,at pp. 422-424 [no Fifth Amendment violation where defendant requested the psychiatric examination and tendered the issue of his mental condition at trial].) Use of such statements violates the Sixth Amendment right to counsel(at least where the examination occurs after the initiation of adversary proceedings) because the defendantis entitled to the assistance of informed counsel(i.e., informed ofthe scope andnature ofthe examination andthe uses to which it might be put) in deciding whetherto submit to the examination. (Smith, at pp. 470-471; cf. Buchanan,at pp. 424-425 [no Sixth Amendmentviolation where defense counsel requested examination, knowingthe results could be used against the defendant if he put his mental condition in issue at trial].) In this opinion, for purposes of simplicity, we use “psychiatric examination”asshorthand for any examination of a defendant’s mental condition or mental health by amental health expert, and we use “psychiatric evidence”as shorthand for any expert evidence on the mental condition of a defendant. Here, of course, the defense expertswho examined Maldonadoandtwoofthe three experts appointed by the court to examinehim were not psychiatrists, but psychologists, neuropsychologists, and neurologists. '° When werefer to the “results” of the examinations, we include a defendant’sstatements to the examiners, the raw data andresults of any testing, and the reports andnotes of the examiners. 14 When a defendant presents psychiatric evidence on his mental conditionattrial, however,he has no Fifth Amendmentprivilege against prosecution rebuttal psychiatric evidence onthat issue, even if based on defendant’s own self-incriminating statements. (Buchanan, supra, 483 U.S. at pp. 422-423.) Werethe rule otherwise, the defendant’s silence might “ ‘deprive the State of the only effective means it has of controverting his proofon an issue that he interjected into the case’ ” (id. at p. 422, quoting Smith, supra, 451 U.S.at p. 465), and defendants “could, with impunity, present mental defenses . . . ; secure in the assurance they could notbe rebutted by expert testimony based on an actual psychiatric examination. Obviously, this would permit and, indeed, encourage spurious mentalillness defenses” (People v. McPeters (1992) 2 Cal.4th 1148, 1190 (McPeters) [citing Buchanan, supra, 483 U.S. 402], overruled on other grounds in Verdin, supra, 43 Cal.4th at p. 1116). Similarly, a defendant’s Sixth Amendment rights are protected if he has the opportunity to consult with counsel before submitting to a psychiatric examination and counsel knowsatthat time thatthe results of the examination might be used against the defendantifhe raises his mental condition as an issueattrial. (Buchanan, supra, 483 U.S. at pp. 424-425; Spencer, supra, 63 Cal.2d at p. 412.) The California Supreme Court has further held that defense counsel may be excluded from a compelled psychiatric examination without violating the Sixth Amendmentright to counselif safeguards are observed: “Before submitting to an examination by court-appointed psychiatrists a defendant must be represented by counsel or intelligently and knowingly have waived that right. Defendant’s counsel must be informed as to the appointment of such psychiatrists. [Citation.] If, after submitting to an examination, a defendant doesnot specifically place his mental conditioninto issue at the guilt trial, then the court-appointed psychiatrist should not be permitted to testify at the guilt trial. If defendantdoesspecifically place his mental conditioninto issueat the guilt trial, then the court-appointed psychiatrist should be permittedto testify at the guilt trial, but the court should instructthe jurors that the psychiatrist’s testimony as to defendant’s incriminating statements should not be regarded as proofofthe truth of the facts disclosed by such statements andthat such evidence may be considered only forthe 15 limited purpose of showing the information upon whichthe psychiatrist based his opinion.” (Spencer, supra, 63 Cal.2d at p. 412,fn. omitted.) Prior to the effective date of Proposition 115,'’ which introduced reciprocal criminal discovery in this state, California courts held that a defendant who tendershis mental condition attrial can lawfully be compelled understate and federal law to submit to a psychiatric examinationbya prosecution expert for purposes ofobtaining rebuttal evidence. (McPeters, supra, 2 Cal.4th at p. 1190, citing Buchanan, supra, 483 U.S. 402; see also People v. Danis (1973) 31 Cal.App.3d 782, 786 [psychiatrist appointed by court on prosecutor’s motion].) After the passage ofProposition 115, however, the Supreme Court ruled that criminal discovery waslimited by statute and nostatute then on the books authorized a compelled psychiatric examination of a defendantby a prosecution expert. (Verdin, supra, 43 Cal.4th at pp. 1106-1114.)In response to Verdin, the Legislature recently amendedthe criminal discovery statutes to provide: “Unless otherwise specifically addressed by an existing provision of law, whenever a defendantin a criminalaction . . . places in issue his or her mentalstate at any phaseofthe criminal action . . . through the proposed testimony of any mental health expert, upon timely request by the prosecution, the court may orderthat the defendant. . . submitto examination by a prosecution-retained mental health expert.” (§ 1054.3, subd. (b)(1).) That amendmenttook effect on January 1, 2010. n Proposition 115 (an initiative measure entitled “Crime Victims Justice ReformAct” adding Cal. Const., Art.I, § 30, subd. (c) and § 1054 et seq.) was adopted by voters on June 5, 1990. ? The Court did not reach the question ofwhether Evidence Code section 730authorized such an order. (Verdin, supra, 43 Cal.4th at pp. 1109-1110.) In this case, thetrial court relied on Evidence Code section 730 as authority for its order. As noted, wedenied a writ seeking immediate review ofthe order and the Supreme Court deniedreview. The propriety of ordering Maldonadoto submit to an examination underthisstatute is not before us in this writ proceeding,although,as wediscuss,it may now beamoot question. ? The full subdivision provides: (1) Unless otherwise specifically addressed by an existing provision of law,whenever a defendantin a criminal action or a minorin a juvenile proceeding brought 16 The trial court’s authority to order Maldonado to submit to a psychiatric examination is not contested in this writ proceeding. We assumehere the validity of that order. It is clear, and Maldonado doesnotdispute, that the prosecution may use the results of the examinations in rebuttalto his trial evidence of his mental condition. The questions we considerare: (1) when, and under what circumstances, are the examination results, to be disclosed to the prosecution, and (2) whetherthe prosecution may properly have anyrole in the selection of court appointed experts to conduct the examinations. C. Timing and Content of Prosecution Discovery . Maldonadoarguesthat, in order to preserve his Fifth Amendment right against self-incrimination, the results of his compelled examinationsshould notbe disclosed to pursuant to a petition alleging the juvenile to be within Section 602 of the Welfare and Institutions Codeplacesin issue his or her mentalstate at any phase ofthe criminal action or juvenile proceeding through the proposedtestimony of any mental health expert, upon timely request by the prosecution, the court mayorderthat the defendantor 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 criminaltrial or juvenile court proceeding. “(B) The prosecuting attorney shall submit a list oftests proposedto be administered by the prosecution expert to the defendantin a criminal action or a minorin a juvenile proceeding. At the request of the defendantin a criminal action or a minor ina juvenile proceeding,a hearing shall be held to consider any objectionsraised to the proposedtests before anytest 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 placedin issue by the defendantin a criminal action or a minorin a juvenile proceeding. For the purposesofthis subdivision, the term ‘tests’ shall include any and all assessment techniques such as a clinical interview or a mental status examination. “(2) The purposeofthis subdivisionis to respond to Verdin v. Superior Court 43 Cal.4th 1096, whichheld that only the Legislature may authorize a court to order the appointment of a prosecution mental health expert when a defendant hasplacedhis or her mental state at issue in a criminalcase or juvenile proceeding pursuantto 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 admissionofthe results of these tests into evidence.” (§ 1054.3, subd.(b).) 17 the prosecution atall unless and until he actually waives those rights by introduction at trial of psychiatric evidence on his mental condition.'* He further argues that his Sixth Amendmentright to counsel cannot be adequately safeguarded unless he knows,before he decides whether or not to submit to the examination,that the results of the examinations will be revealed to the prosecutoronly if he ultimately makes the choice to tender the issue of his mental condition attrial. The prosecutor arguedin the trial court that he required the information before trial in order to adequately framethe issues for the jury. He also contended that, in the particular circumstancesofthe case, there waslittle risk that Maldonado would make statements during the examination that had not already been disclosed to the prosecution. Thetrial court concurred “given the very specific facts of this case.” The court permitted the prosecution and its agents to remotely observe the examination in realtime on the same termsas the defense, stating that “in fairness, if I’m allowingthe defense expert and [defense counsel] to be present during this I don’t think it’s appropriate to limit the People’s ability to have people present as long as they are present throughtherealtime monitor process.” The court added,“If [the prosecution is] going to get the reports anyway, which you’re entitled to under reciprocal discovery, then it doesn’t make much sense to preclude you from attendingthe actual interview.” The court also reasoned that, given that the prosecution already received petitioner’s statements to the police, his statements to defense experts, and the defense experts’ reports, the prosecution did not obtain anytactical advantage from being present at the examinations. In granting immediate and concurrent disclosure of the examinationresults to both the defense and the prosecution, the court concurred with the prosecutor’s observationsthat “in this particular case there has been such a lengthy history with this defendant of saying what he is going to say, and as I say the details vary hugely, but his main story is the same, that the other fellow did it and he was simply there or came later or came sooner ordidn’t ' At oral argument, Maldonado’s counsel appeared to concede thatearlier disclosure, at the close of the prosecution’s case in chief, would be appropriate. 18 know aboutit or did know aboutit. That in this particular casethe orderis unnecessary andthe issue has in fact been waived by the defensefor a very good reason,that it’s really not anything that’s going to makeany difference under the peculiar facts ofthis case. So that’s my position. But in the abstract perhaps there might be a time to enter an order protecting his actual statements about the crime, but underthe facts ofthis case such an order is unnecessary, moot and waived.” We concludethatthe trial court erred in permitting the prosecution to contemporaneously observe the examinations over defense objection, and that the record before us does not support a determination that Fifth Amendmentissues arising from Maldonado’s statements about the crime are necessarily “moot,” or that he has already “waived” any such claims. Wereject Maldonado’s argumentthatdisclosure of examination results must be delayeduntil he actually presents his own psychiatric evidenceattrial (or, alternatively, until the prosecutorrests its case-in-chief). In order to preservethe truth-ascertainment function ofthe trial, the prosecution must haveaccessto the results before trial (subject to a bar againstdirect or derivative use and after any necessary redaction) soit has adequate timeto prepare its rebuttal on the mental health issues. However, a minor delay in pretrial disclosure to allow Maldonadoto seek the redaction of allegedly privileged statements before pretrial disclosure to the prosecution is necessary to protect Maldonado’s constitutionalrights and is minimally prejudicial to the prosecution, which will still have ample time to prepare. We disagree with the People’s contention that direct and derivative use immunityalone are necessarily sufficient safeguards of Maldonado’s constitutional rights. We therefore hold that disclosure of the complete examination results to the prosecution must be deferred until after Maldonado has had an in camera opportunity to seek redaction of any statements which may beoutside the scope of his Fifth Amendmentprivilege waiver. 1, Pretrial Disclosure ofExamination Results Maldonadoarguesthat no disclosure of examination results should be permitted at all until he actually presents his own psychiatric evidence attrial and thereby explicitly 19 waives his Fifth Amendmentright. We concludethatpretrial disclosureof the examination results is necessary to permit the prosecution to prepare its rebuttal case so that it can subject Maldonado’s psychiatric evidence to the truth-revealing process of adversarial testing, and to avoid significant mid-trial delays in proceedings. In Williams v. Florida, the United States Supreme Court held that pretrial discovery rules requiring the defendantto “furnish the State with information useful in convicting him”did not violate the defendant’s Fifth Amendment right against self- incrimination. (Williams v. Florida (1970) 399 U.S. 78, 82-83 (Williams).) Atissue in Williams wasa notice-of-alibi rule that required defendants to givepretrial notice if they intended to claim an alibi, to identify the place they claimedto beat the time of the charged crime, and to provide the names and addressesofalibi witnesses they intended to call. Ud. at p. 79.) Thecourt first explained that defendants affected by the rule are not “compelled”to disclosethis information because the obligationarises only if they choose _to present an alibi defense. Whenever a defendantpresents witnesses, the Court explained, “he must reveal their identity and submit them to cross-examination which in itself may prove incriminating or which may furnish the State with leads to incriminating rebuttal evidence. That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion ofthe privilege against compelled self-incrimination.” (Ud. at pp. 83-84.) This reasoning, of course, applies equally to a defendant whois compelled to undergo a prosecution psychiatric examination once he chooses to present psychiatric evidence of his own on his mental condition at trial. Maldonado has given notice of his intent to do so. Regardingthe timing of the disclosure, the Williams Court explainedthat the pretrial discovery rule “in no wayaffected [the defendant’s] crucial decision to call alibi witnesses or added to thelegitimate pressures leading to that course of action. At most, the rule only compelled [him] to accelerate the timing ofhis disclosure, forcing him to divulgeat an earlier date information that [he] from the beginning planned to divulge at trial. Nothing in the Fifth Amendment privilege entitles a defendant as a matter of constitutional right to await the end ofthe State’s case before announcing the nature of 20 his defense, any more thanit entitles him to await the jury’s verdict on the State’s case- in-chief before deciding whetheror notto take the stand himself.” (Williams, supra, 399 U.S. at p. 85.) The Court further observed that “[nJothing in such a rule requires the defendantto rely on an alibior prevents him from abandoningthe defense; these matters are left to his unfettered choice.” (/d. at p. 84, fn. omitted.) In Izazaga, supra, 54 Cal.3d 356, the California Supreme Court upheld the constitutionality of section 1054.3’s pretrial disclosure requirement that defendants reveal the names and addressesofall witnesses defendantsintendtocallattrial. (Id. at pp. 365— 367.) Citing Williams, supra, 399 U.S. 78, the Court held the rule merely accelerated the timingofa disclosure the defendants planned to make in any eventandthus did not compel disclosurein violation ofthe Fifth Amendment. (/d. at pp. 366-3 67.) The Court also upheld the statutory discovery rules against a Sixth Amendment challenge. The Court cited United States v. Nobles, in which the United States Supreme Court held a defendant could be orderedto turn overa defense investigator’s notes if the defendantcalled the investigator as a witness. (United States v. Nobles (1975) 422 U.S. 225, 240-241 (Nobles).) Izazaga explains: “In Nobles the court stated, ‘The Sixth Amendmentdoes not confer the right to present testimony free from the legitimate demandsofthe adversarial system; one cannotinvoke the Sixth Amendment asa justification for presenting what might havebeen a half-truth.’ ({Nobles,] at p. 241 ) Prosecutorial discovery of the statements ofintended defense witnessesis a ‘legitimate demand’ofthe criminal Justice system aimedat avoiding testimonial ‘half-truths’ by promoting what then-Justice Traynorreferred to as ‘the orderly ascertainmentofthe truth.’ (Jones [v. Superior Court (1962)] 58 Cal.2d 56, 60.)” (zazaga, at p. 379, parallel citations omitted.) The California Supreme Court rejected the argumentthat these principles did not apply to pretrial discovery,as distinct from discovery duringtrial (at or just before the time the defendant actually presents the witness). “Thelimited and conditional discovery authorized by the new discovery chapteris constitutionally acceptable underthe reasoning ofNobles, supra, 422 U.S. 225, regardless of the timing of the discovery.” (Id. at p. 380.) 21 TwoCalifornia Court ofAppeal decisions support application ofthese principles to pretrial disclosure of the results of a court-ordered psychiatric examination, even though such results mayinclude direct statements by the defendant himself(a factor not present in Williams, supra, 399 U.S. 78, Nobles, supra, 422 U.S. 225, and Izazaga, supra, 54 Cal.3d 356).'° In Centenov. Superior Court, the defendant raised the issue ofhis mental retardation as a bar to imposition ofthe death penalty, and the court ordered him to submit to a psychiatric examination by a prosecution expert. (Centeno, supra, 117 Cal.App.4th at pp. 35-36, disapproved on other grounds by Verdin, supra, 43 Cal.4th at p. 1105.) The court rejected the defendant’s argument that examination should be delayed until the defendantpresented his own psychiatric evidenceat the mental retardation hearing. (Jd. at p. 40.) “A midhearing postponement ofproceedings in order to permit testing and examination of defendant by a prosecution expert would be extremely inefficient, induce unwarranted delay in the proceedings, be unfairto the prosecution,andserve nolegitimate interest of defendant.” (Ibid) In Woods, the court held a defendant who announcesanintent to raise a mental defenseattrial may be required to disclose the test results of his experts beforetrial, even though they include defendant’s statements. (Woods, supra, 25 Cal.App.4th 178, 181—182, 186.) “A defendant whois required to make a pretrial disclosure of the alibi witnesses he intends to call at trial [as in Williams, supra, 399 U.S. 78,] is for all practical purposesin the same shoes as one presenting a mental defense who must turn overhis expert’s test results beforetrial: nothing requires the defendant to rely on the defense; no different pressures distinguish the pretrial decision to use the defense from those that are brought to bearattrial; and nothing penalizes the defendantifhe abandonsthe defenseattrial.” (/d. at p. 187.) While the court “sympathize[d]” with the defendant’s argumentthat “the 's Izazaga distinguished Brooks v. T,ennessee (1972) 406 U.S. 605, which struckdown a state court rule that required defendants to testify first in the defensecase or nottestify at all, on the groundthatit dealt “with the special componentofthe FifthAmendmentprotecting an accused’s choice of whetheror not to testify.” Uzazaga,supra, 54 Cal.3d at p. 367,fn.5, parallel citations omitted.) 22 vice of acceleration is that disclosure must be made solely to preserve the option of calling the witness (§ 1054.5) even thoughnotall reasonably anticipated witnesses are actually called to the stand,” the court held that pretrial disclosure was justified to further “the statutory objectives of ascertaining the truth, saving timein trial, avoiding the necessity ofpostponementsand protecting against undue delay. (§ 1054, subds.(a), (c), (d).) This is especially true in cases of “psychological character evidence’... . [Citations.] ‘No preciselegal rules dictate the proper basis for an expert’s journey into a patient’s mind to make judgments abouthis behavior.’ [Citation.] When delvinginto such murky, subjective and debatable diagnostic processes, more akin to ‘a learned professionalart, rather than the purported exact“science” with which Kelly/Fryeis concerned’[citation], the greater the pretrial access to the underlying data, the less chancethere is for the ‘eleventh hour defense,’ guessworkattrial, incomplete cross- examination or delay to conduct the necessary discovery.” (/d. at pp. 187-188.) Weagree. The only meaningful way to rebut a defendant’s anticipated psychiatric evidence on his own mental condition is to subject the defendant to a psychiatric examination by independentorprosecution experts, and the only wayto subject the defense evidence to meaningful adversarial testing is to provide the results of the examinations beforetrial so the prosecution has an adequate opportunity to prepare for trial. | Maldonadorefers usto rule t2.2ofthe Federal Rules of Criminal Procedure and a case applyingthatrule (US. v. Johnson (N.D.lowa 2005) 362 F-Supp.2d 1043), which require that the results of a court-ordered examination be kept under seal unless and until the defendantintroduces his own psychiatric evidenceattrial. This sealing requirement, however, only applies in capital cases and only when the defendant intendsto introduce psychiatric evidence on the issue ofpenalty rather than guilt. (Fed. Rules Crim.Proc., rule 12.2(c)(2).) In those circumstances, the results of the examination are kept under seal unless and until the jury returns a verdict of guilty and the defendantreaffirms his intent to introduce psychiatric evidence at the penalty trial. (/bid.) The sealing procedure was adoptedby several federal district courts even before it was mandated by the rule, 23 and in those cases wasjustified as necessary to protect the defendant’s constitutional rights, apparently by ensuring that the statements were not misused by the prosecution during the guilt phase ofthetrial in violation of a baron their use or derivative use. (See U.S. v. Beckford (E.D.Va. 1997) 962 F.Supp. 748, 763-764 & fn. 17; U.S. v. Edelin (D.D.C. 2001) 134 F.Supp.2d 45, 55-56; see also US. v. Vest (W.D.Mo. 1995) 905 F.Supp. 651, 653-654; U.S. v. Haworth (D.N.M. 1996) 942 F.Supp. 1406, 1408-1409; U.S. v. Minerd (W.D.Penn. 2002) 197 F.Supp.2d 272, 276; but see U.S. v. Hall (5th Cir. 1998) 152 F.3d 381, 399-400 (Hall) [holding defense opportunity to demonstrate misuse of examination results offers sufficient protection]; U.S. v. Allen (8th Cir. 2001) 247 F.3d 741, 774-775 [same], vacated on different grounds by Allen v. United States (2002) 536 U.S. 953.) The California Supreme Court has similarly endorsed the delayed disclosure of defense penalty phase evidencein a capital case until after conclusion of the guilt phase. (People v. Superior Court (Mitchell) ( 1993) 5 Cal.4th 1229, 1237-1239 (Mitchell).) In all of these cases, however, the results of the examination were ordered released to the prosecution before the start of the penaltyphase, even though the defendant would not formally waive his Fifth Amendment rights as to the statements unless and until he actually presented psychiatric evidence of his own during that phaseofthetrial. Thatis, these courts allowed pretrial disclosure ofthe results of the examination before the start ofthe trial in which the defendantintendedto present his own psychiatric evidence, a procedure analogousto pretrial disclosure in this case. As the Fifth Circuit has acknowledged,the risk of misuse wasstill present: “Giventhat the government presents its case-in-chief during the guilt phaseprior to the defendant, we perceive no functional distinction between the risk that the governmentwill improperly utilize the fruits of a psychiatric examination undertaken pursuant to Rule 12.2 during its case-in-chief (and thus prior to the defendant’s offering psychiatric evidence of insanity) and the risk that the governmentin this case would improperly utilize the fruits of the court-ordered psychiatric examination priorto Hall’s introduction ofpsychiatric evidence during the penalty phase.” (Hall, supra, 152 F.3d at p. 400, fn. omitted.) 24 Maldonadohascited no case delaying disclosure ofa court-ordered psychiatric examination over the prosecution’s objection until the defendant actually presented his ownpsychiatric evidenceattrial. To the extent that petitioner asks us to impose a prophylactic rule mandating delayed disclosure, we decline to do so. We conclude such a delay is not constitutionally mandated, would be judicially inefficient, and would interfere with the truth-seeking mechanism ofthetrial. 2. Prophylactic Protection ofConstitutional Guarantees Maldonadoaskedthetrial court to bar the prosecution and its agents from access to the results of the examinations until the court conducts an in camera review ofthe materials. Although Maldonado does not propose substantive standardsforthetrial court’s in camera review of the material, his implication is that some information he may disclose during the examinations should not be provided to the prosecution atall, even if he does present his own psychiatric evidenceattrial. In denying petitioner’s requests the trial court concludedthat “given the very specific facts of this case,”i.e., the prosecution having already received Maldonado’s statementsto the police and to the defense experts, “it’s not necessary to engagein any protective measures that [defense counsel] has asserted are appropriate.” Recognizingthat the trial court presumably has familiarity with the facts of the case that we do not share, we nevertheless do not believe that a blanket prospective determination can be made. While it may ultimately prove to be the case that all statements made by Maldonadoin the course ofthe examinations are subject to disclosure, the scopeofhis waiver of the Fifth Amendment privilege is not unlimited. The court cannotabdicateits responsibility to rule on particularized privilege objections on the assumption that Maldonadohadalready madeall of the self-incriminating disclosures he would makein the case. a. Statements Outside the Scope ofPrivilege Waiver Although a defendant waiveshis Fifth Amendment right against self-incrimination by voluntarily providing testimonyin his own defense, he does so only on the issues covered byhis affirmative evidence. “[T]he breadth ofhis waiveris determined by the 25 scope of relevant cross-examination.” (Brown v. United States (1958) 356 U.S. 148, 154-155 (Brown); see alsoid. at p. 155 [the defendant“determinesthe area of disclosure and therefore of inquiry”]; People v. Loker (2008) 44 Cal.4th 691, 709 [“scope ofproper rebuttal is determined by the breadth and generality of the direct evidence”); ibid. [we havefirmly rejected the notion that ‘any evidence introduced by defendant ofhis “good character” will open the door to any andall “bad character” evidencethe prosecution can dredge up’ ” in penalty phaseofcapitaltrial].) In Powell v. Texas, the Court appliedthis principle to the context of a court- ordered psychiatric examination conducted to rebut psychiatric evidence the defense plannedto presentat trial. (Powell v. Texas (1989) 492 U.S. 680, 685, fn. 3 (Powell).) The Court held that a capital defendant’s introduction of psychiatric evidence on the issue of sanity did not open the door to the admission of psychiatric evidence on future dangerousnessatthe penalty phase. (Ibid. [finding violation of Sixth Amendment right to counsel where defense attorney was not on notice that psychiatric examination of defendant would coverissue of future dangerousness].) In People v. Williams, this court similarly held that a defendant’s statements during a court-ordered psychiatric examination on theissue of his defense of insanity could not be used against him in the guilt phase because the defendant“did not put his mentalstate at issue at the guilt phase.” (People v. Williams, supra, 197 Cal.App.3d at p. 1324; see also People v. Jantz (2006) 137 Cal.App.4th 1283, 1295 [“a defendant waivesthe privilege against self-incrimination and the right to counsel regarding expert testimony in sanity trials to the extent necessary to permit useful sanity examinations by defense and prosecution mentalhealth experts”’].) A moredifficult issue is defining the extent ofthe privilege waiver on the specific issues raised by the asserted defense. If a defense expert testifies to an opinion thatis basedin part on statements made by the defendant, the defense can be compelled to disclose those statements to the prosecution for purposes of cross-examination. (See People v. Jones (2003) 29 Cal.4th 1229, 1263-1264; People v. Coleman (1989) 48 Cal.3d 112, 151-152; People v. Whitmore (1967) 251 Cal.App.2d 359, 366; see also Peoplev. Mazoros (1977) 76 Cal.App.3d 32, 44-45 [prosecutionentitled to review same 26 information defense expert relied on to form his opinion of defendant’s mental condition].) But what ifprosecution experts assert the need to interview the defendant on matters not previously subjected to inquiry by defense experts in order to form a reliable opinion,or if the defendant conveys additional information regarding the offense (or even other offenses) in responding to questions during the course of the examinations? Rodriguez v. Superior Court, supra, 14 Cal.App.4th 1260, touched onthese issues in discussing the extent of a waiver of attorney-client privilege effected by the presentation ofpsychiatric evidence in a criminaltrial. Pursuantto the reciprocal discovery statute, the defendant gave notice that he intendedto call a psychologist as a witness in the guilt phase ofhis capitaltrial, and produceda redacted version ofthe expert’s report that deleted his statements aboutthe crime. (Id. at p. 1263-1264.) The court of appeal held that the statements neednot be disclosed before the defense expert took the stand because the report “does not demonstrate any referenceto or reliance on petitioner’s statementregarding the offense. Therefore, nothing containedin the report can be construedas necessitating disclosure ofpetitioner’s statement in orderto understand the balance ofthe report. . . . [§] . . . [W]e do not concludethat revelation of a patient’s mental health history or the results of diagnostic testing necessarily incorporate directly or inferentially petitioner’s statements regardingthe crime.” (Jd. atp. 1270.) The court noted that once the defense expert testified it might become apparent that the withheld statements were relevantto his opinion, at which time the court could compel their disclosure. (/d. at p. 1269,fn. 5; see also Andrade v. Superior Court (1996) 46 Cal.App.4th 1609, 1611-1614 [following Rodriguez v. Superior Court].) The approach takenin Rodriguez finds Support in decisions from other jurisdictions. That is, other courts have rejected the conclusion that the presentation of defense psychiatric testimony automatically effects a waiver asto all of the defendant’s statements in the defense examination or necessarily opens the door to unlimited questioning by prosecution experts on the issue raised by the defense psychiatric evidence. 27 In Traywicks v. State, for example, the Court of Criminal Appeals of Oklahoma held that a defendant whoraised mental defect and alcoholism as a defense to guilt did not have to answer questions about the charged crime during a court-ordered examination on his mental condition, where the defendant hadnottestified about the crime or talked about the crime with the defense examiner. (Traywicks v. State (Okla.Crim.App. 1996) 927 P.2d 1062, 1063-1064.) In these circumstances, the court held, the defendant “did not waive his right to silence as to the facts of the crimeitself.” (Ud. at p. 1064[finding Fifth Amendmentviolation where prosecution expert was allowedto testify about the defendant’s refusal to answer questions about the crime].) The Oregon Supreme Court has similarly held that a defendant cannot be required to answerquestions pertaining to his conduct during commission ofthe charged crimein a court-ordered psychiatric examination, but has left open the question ofwhether he could be compelled to testify about his thoughts during the commission ofthe crime. (Shepard v. Bowe (Or. 1968) 442 P.2d 238, 240-241; State ex rel. Johnson v. Richardson (Or. 1976) 555 P.2d 202, 204-205; State v. Petersen (Or. 2009) 218 P.3d 892, 895.) The Supreme Court ofNew Jersey takes a case-specific approach. If a defendant intends to offer psychiatric evidence onhis sanity or other mental condition relevantto his guilt of the charged offenses, the following rules apply: “If a defendant stands mute at the [court-ordered] examination or cooperates except for a refusal to discuss the alleged criminal event, at the trial his own psychiatrists will not be permitted over the State’s objection to testify to the history of the event given to them. See State v. Whitlow, 45 N.J. at pp. 25, 26, 210 A.2d 763. Further,if, as is generally the case, defendant’s psychiatrists required the history in order to form an opinion as to insanity [or other mental condition], they would be precluded from testifying to that opinion. [§]... [9]... Suppose defendant’s psychiatrists testify that ordinary questioning plus a physical examination were sufficient and that they did not need his accountofthe alleged criminal eventin orderto reach their opinion that he was insane whenthe victim waskilled. In this rare situation the defense psychiatrists should be allowed to testify. But if the State psychiatrists are of the view that an opinion on insanity cannot be formedin the absence 28 of unrestricted discussion with defendant, they should be allowed to testify that defendant’s refusal to answer questions aboutthe nature ofhis participation in the alleged crime prevented them from performingtheir function. [Citations.] .. . [I]n view ofthe tule set forth herein limiting the probative force of the doctor’s testimonyto the issue of mental competency, such facts are some evidence of defendant’s mental condition and should be received. [Citation.]” (State v. Obstein (N.J. 1968) 247 A.2d 5, 12, overruled on other grounds by State v. Engel (N.J. 1985) 493 A.2d 1217, 1228 & State v. Williams (N.J. 1983) 459 A2d 641, 645, 658, fn. 19.) The New Jersey Court clearly indicated that, as a general matter, an expert needsto question a defendantaboutthe charged offense in order to form an opinion about the defendant’s mental condition at the time of the offense. (/d. at pp. 12-13.) A thoroughdiscussion ofthe issue appears in U.S. v. Johnson, a federal district court opinion that reviews the Oklahoma, Oregon and New Jersey cases mentioned above. (U.S. v. Johnson (N.D.lowa2005) 383 F.Supp.2d 1145, 1154-1158 (Johnson).)'® The court held that when the defendant offers psychiatric evidence on a mitigating factor that can only meaningfully be evaluated in relation to the defendant’s thinking or conduct at the time ofthe offense, “the defendant’s waiver ofthe Fifth Amendmentright against self-incrimination necessarily includes a waiver of the right to refuse to answeroffense- specific questions. [Citation.]” (Jd. at p. 1161.) Whenthe evidencerelates to a post- offense mental condition or a long-standing mental condition that may havenospecific impact on the thinking or conductofthe defendantat the time of the offense, on the other hand, the court must “determinethe needthat defense or government experts have for offense-specific questions, before the government’s experts are allowed to ask offense- specific questions, the defendantis required to answer such questions, or the prosecution '6 Johnson also discusses three California cases, but concludes “it is not clear fromthese or other California cases under what circumstances questions about the defendant’sconduct duringorin relation to the charged offenses would be “necessary to permit aproper examination of[the defendant’s asserted mental] condition.’ Centenof, supra,|117 Cal-App.4th at [p.] 40.” (Johnson, supra, 383 F.Supp.2d at pp. 1158-1159, parallelcitations omitted,first brackets in original.) 29 is allowed to use the defendant’s responses to rebut her mental condition [evidence].” (/d. at p. 1162.) “If the defendant discussed offense-specific information with her own experts, and her experts present such evidence, but she refuses to discuss such information with the prosecution’s experts, the defendant shouldeither be compelled to answerthe prosecution’s experts questionsor her mental condition defense,if not stricken in its entirety, should be impeached with her failure to answerthe government’s experts’ questions. [Citations.]” (/d. at p. 1163.) In recognizing the possibility that some of Maldonado’s statements in the context of a compelled examination maystill be subject to a claim ofprivilege, we do not attempt to delineate the permissible scope of questioning by the court-ordered experts.'? We agree with Obstein and Johnson, however, that the permissible scope of disclosure of information revealed in the course of compelled examinations will depend on(1) the scope of inquiry by the defendant’s psychiatric examiners, and (2) whether inquiry by the appointed experts, if beyondthe scope ofthe defense examination, is nevertheless necessary to rendera reliable and informed opinion on the mental condition issue raised by the defendant. b. Use Limitations of Petitioner’s Statements The People argue that, becausethetrial court’s order confirms that the prosecution can only make useofthe examinationresults at trial if Maldonado actually presents his ownpsychiatric evidence, prophylacticly barring disclosure of the examination results is not required by the Fifth Amendment. The contentionis that there can be no Fifth Amendmentviolation unless the prosecution “improperly uses a compelled statement against the defendantattrial.” Onthis point, the People cite United States Supreme Court casesthat distinguish between the core constitutional “right”—aprohibition against the use of a compelled self- incriminatory statement against a defendantin a criminal case—andprophylactic rules '’ Indeed, we could not do so without supplemental briefing because the matter has not been directly addressed in the parties’ briefs, and because the issue was notlitigated in the trial court. 30 imposed by the Court as a means ofprotecting this core right. In United States v. Verdugo-Urquidez, the Court drew a distinction between Fourth and Fifth Amendment violations. (United States v. Verdugo-Urquidez (1990) 494 U.S. 259, 264.) The Court wrote that in contrast to a violation of the Fourth Amendment guarantee against unreasonable searches and seizures, which occurs whenthe search and seizure occurs, a violation of the Fifth Amendment guaranteeagainst self-incrimination occurs at the time that a defendant’s compelled self-incriminating statements are used against him in a criminal case, rather than at the time that the statements are compelled. (/bid.) Similarly, in United States v. Balsys, the Court held that no constitutional violation occurred where an individual’s self-incriminating statements were compelled within the United States, but the anticipated use of the statements in a criminaltrial (implicating the core right of the Fifth AmendmentSelf-Incrimination Clause) would occur outside the United States (and thus would not be covered by the Fifth Amendment). (United States v. Balsys (1998) 524 U.S. 666, 671, 691-698.) In Chavez, the Court revisited the distinction between core rights and prophylactic rules in the context of a federal civil rights action. (Chavez, supra, 538 U.S. 760.) A plurality of the Court wrote, “Although our cases have permitted the Fifth Amendment’s self-incrimination privilege to be asserted in non-criminal cases [citations], that does not alter our conclusion that a violation of the constitutional right against self-incrimination occurs only if one has been compelled to be a witness against himself in a criminalcase.” (Id. at p. 770 [plur. opn. of Thomas,J.].) The nature of the constitutional “right” was dispositive because the federalcivil rights statute provides a private civil remedy only for violation of a constitutional right. (Id. at p. 766; 42 U.S.C. § 1983.) The plurality acknowledged the existence of Fifth Amendment “prophylactic rules designed to safeguard the core constitutional right protected by the Self-Incrimination Clause. [Citations.] Among these rules is an evidentiary privilege that protects witnesses from being forced to give incriminating testimony, even in noncriminal cases, unless that testimony has been immunized from use andderivative use in a future criminal _ proceeding before it is compelled. See Kastigar, supra, [406 U.S.] at [p.] 453; 31 [citation].” (Jd. at p. 770-771.) Similarly, the concurring opinion of Justice Souter identified the core right of the Self-Incrimination Clause as courtroom use of a criminal defendant’s compelled self-incriminating testimony, but acknowledged “ ‘extensions’ of the bare guarantee”in the Court’s Fifth Amendment holdings ofKastigar and Miranda. (Chavez, at pp. 777-778(conc.opn. of Souter, J.).) Although the Court majority agreed that a damages remedy should not be recognized for violations of the prophylactic rules, nothingin the plurality or concurring opinions suggest that the prophylactic rules lack constitutional force or are less than binding on the lowercourts. (See also id., at p. 791 (conc. & dis. opn. of Kennedy,J.) [“the Self-Incrimination Clause is a substantive constraint on the conduct of the government, not merely an evidentiary rule governing the workofthe courts”]; Dickerson v. United States (2000) 530 U.S. 428, 437-438, 444 [Miranda announceda “constitutional rule” binding on Congress]; People v. Lessie (2010) 47 Cal.4th 1152, 1164 [Miranda andits progeny “continueto bindthe state courts”].) | The People note that the California Supreme Court recently cited with approval the distinctions drawn in Chavez in Spielbauer, supra, 45 Cal.4th 704. There the Court held that a public employee may not refuse to answera public employer’s job-related questionsthatelicit potentially incriminating information, which the Court noted could not legally be used against him at trial, even if the employee hasnot been granted express use immunity. (/d. at pp. 709-710.) Rejecting the employee’s Fifth Amendment claim, the Court wrote that the state and federal guarantees against self-incrimination “do not prohibit officially compelled admissions of wrongdoing as such. They only forbid the criminal use of such statements against the declarant. Constitutionally based prophylactic rules, such as a prior-immunity requirement in some cases, havearisen to protect the core privilege, but the right against self-incriminationis notitself violated until statements obtained by compulsion are used in criminal proceedings against the person from whom the statements were obtained. (Chavez, supra, 538 U.S. 760, 767— 773 (plur. opn. of Thomas, J.); see also id.[] at pp. 777-778 (conc. opn. of Souter, J.).)” (Id. at p. 727.) 32 Wedo not understand the Court’s opinion in Spielbauer to be inconsistent with our analysis. Like Chavez, Spielbauer expressly acknowledgesthe validity and binding nature of the established prophylactic rules protecting Fifth Amendmentguarantees, such as the rule that an individual may not be compelled to answerincriminating questions evenin a civil proceeding absent an express grant of immunity. (Spielbauer, supra, 45 Cal.4th at p. 714.) The Court simply identified a limited exceptionto that rule in the narrow context ofthe job-related inquiry of a public employer: “The Constitution cannot mean that a public employee may refuse with impunity to accountfor his or her performance on the public payroll, and may delay the progress ofan employer’s inquiry, unless and until he or she obtains a formal and legally binding guarantee that any statements obtained by the employer will never be used to prosecute the employee on criminal charges.” (/d. at p. 726.) While there is a recognized distinction between the core right ofthe Self- Incrimination Clause and prophylactic measures designedto protect that core right,it doesnotfollow that a trial court may ignore a defendant’s assertion of the constitutional privilege and summarily deny prophylactic safeguards when properly invoked. c. Derivative Use . In Kastigar, supra, 406 U.S.at p. 453, the United States Supreme Court recognized that a defendant’s Fifth Amendmentright against self-incrimination can be meaningfully preserved following a compelled disclosure only if both the use and derivative use of the compelled statements in a criminal-case is prohibited.’® Moreover, '8 See also Federal Rules of Criminal Procedure, rule 12.2, which authorizes the court to order a defendant to submit to a psychiatric examinationifthe defendant intends to introduce expert evidencerelating to any mental condition of the defendant bearing on the issue of guilt (Fed. Rules Crim.Proc., rule 12.2(b)(1), (c)(1)(B)), and further provides “Nostatement made by a defendantin the course of any examination conducted under this rule (whether conducted with or without the defendant’s consent), no testimony by the expert based on the statement, and nootherfruits of the statement may be admitted into evidence against the defendant in any criminal proceeding except on an issue regarding mental condition on which the defendant: [{] (A) has introduced evidence . . . requiring notice under Rule 12.2[](b)(1) ....” (Fed. Rules Crim.Proc., 2 33 the prosecution bearsthe “affirmative duty to prove that evidenceit proposesto use [in a criminal case] is derived from a legitimate source wholly independentofthe compelled testimony.” (/d. at p. 460.) Here, the People concede thatthe prosecution is not allowed to “use” Maldonado’sstatements during the court-ordered examinations unless anduntil Maldonadopresents his own psychiatric evidenceattrial. Although the People do not explicitly include derivative use in this prohibition, Kastigar compels such a bar and we so construe the People’s concession.'” Despite this bar on both use and derivative use, courts have acknowledgedthe risk that prosecutors will misuse compelled statements and the difficulty (despite the prosecution’s affirmative burden of proof) of a defendant’s establishing misuse. In Garcia, supra, 42 Cal.4th at pp. 76-77,the California Supreme Court heldthat a pretrial Pitchess declaration, which disclosed defense theories of the case, should be redacted before being disclosedto the city attorney, rather than simply being released under a protective order, because “the city attorney is not an entirely neutral third party.” (Cf. Woods, supra, 25 Cal.App.4th at pp. 187-188 [sympathizing with the argumentthat“the vice of acceleration [i.e., pretrial discovery] is that disclosure must be made solely to preserve the option of calling the witness . . . even throughnotall reasonably anticipated witnesses are actually called to the stand”].) In Mitchell, the Court found merit in the defendant’s argument“that advancedisclosure ofhis intended penalty phase evidence may jeopardize his guilt phase defense, potentially violating his privilege against self- incrimination andinfringing onhis right to a fair trial.” (Mitchell, supra, 5 Cal.4th at p. 1237.) The Court held that a trial court could choose to delay disclosure of such evidencein order to safeguard the defendant’s rights. (/d. at pp. 1237-1239.) rule 12.2(c)(4)(A)). In other words,the rule expressly limits the prosecution’s use and derivative use of a defendant’s statements during a court-ordered psychiatric examination (1) to the specific mental condition issue the defendant raisesattrial, and (2) only if thedefendant “has introduced evidence”attrial. ? The Attorney General conceded atoral argument that derivative use of any statements which remain privileged is prohibited. 34 In United States v. Allen, a federal appeals court expressed similar concerns regarding the disclosure of a court-ordered psychiatric examination of a defendant. (U.S. v. Allen, supra, 247 F.3d at p. 773.) The court acknowledged the danger of “impermissible early introduction ofthe fruits of a government psychiatric examination,” but concluded a defendant’s constitutional rights were adequately protected “under a scheme wherein the defendant has the burden ofproducing someevidenceoftaint, and the governmenthasthe ultimate burden ofpersuading the court that the evidence is not tainted. [Citations.]” (/bid.; see also U.S. v. Taveras (E.D.N.Y. 2006) 233 F.R.D. 318, 322 [delaying disclosure becauseofrisk of unlawful leaks].) In Allen, however, the district court had allowed oneassistant prosecutor to begin evaluating theresults of the government’s psychiatric examination prior to the sentencing phase only under an order to not divulge any ofthe results to the rest of the prosecution team until after the completion of the guilt phase—a so-called “Chinese wall” procedure, a prophylactic procedure which the appellate court found “legally and constitutionally sufficient.” (US. v. Allen, supra, at p. 773 & fn.11.) Even casescited by the People acknowledgethese risks. (See United Statesv. Stockwell, supra, 743 F.2d at p. 127 [finding no constitutional violation in prosecutor’s direct monitoring of a compelled psychiatric examination, but advising against the practice becauseit “might raise a significant question as to whether [the prosecution] had improperly used information obtained in the psychiatric examination to develop evidence going beyondthe issue of insanity”]; Hall, supra, 152 F.3d at p. 399 [acknowledging that sealing the results of a psychiatric examination “advancesinterests ofjudicial economy by avoidinglitigation over whetherparticular pieces of evidencethat the government seeks to admit prior to the defendant’s offering psychiatric evidence were derived from the government psychiatric examination,”but holding such a measureis not constitutionally required].) These cases demonstrate that a simple bar against derivative use is not alone a fail- safe protective measure, and that courts may consider and implementotherprotective measuresifrequired. We do notbelievethat giving a defendantatleast the opportunity 35 to invoke the court’s protection at a time whenprotective measures wouldstill be meaningful “usher[s] in a new era of Fifth Amendment law,”as the dissent suggests. (Dis. opn., post, p. 1.) 3. Protective Measuresin this Case Again, the question is not whether the results of Maldonado’s examinations will be disclosed to the prosecution, but when and howthat disclosure will take place. Delaying disclosure of the examination results until and unless Maldonado actually introduces his own psychiatric evidenceattrial, or even, as Maldonadonowsuggests, until the close of the prosecution’s case-in-chief, would compromise the legitimate interests in “avoiding the necessity ofa disrupted trial” (Williams, supra, 399 U.S.at p. 86 [citing this interest and holding defendant can be compelled to disclose alibi before he actually waivesprivilege by presenting alibi evidenceat trial]), “enhanc[ing] the fairness of the adversary system” (Wardius v. Oregon (1973) 412 U.S. 470, 474 [citing this interest and concluding defendant’s constitutional rights cannotbeinfringed by pretrial discovery obligations unless discovery is reciprocal]), protecting the “‘integrity of the judicial system and public confidencein the system’ ” (Nobles, supra, 422 U.S. at pp. 231, 239-240 & fn. 14 [citing this interest and holding defense investigator who testifies about prosecution witness’s statements can be required to disclose his notes despite work product privilege]), “get[ting] the full benefit of cross-examination and the truth-finding process”(ibid. [same]), and adhering to “rules ofprocedure that govern the orderly presentation of facts and arguments” and allow the adversary system to function (Taylorv. Illinois (1988) 484 U.S. 400, 410-411 [citing this interest and holdingthereis no absolute bar against precluding defense witnessesas discovery sanction despite Sixth Amendment]). Postponing disclosure would unreasonably interfere with the prosecution’s ability to prepare its cross-examination andrebuttal evidence and would likely require a recess ofthetrial, thereby burdening jurors and disrupting their receipt and consideration of evidence. Weare not convinced that a minorpretrial delay of disclosure to permit an Opportunity for in camera review of the examination results, on the other hand, would 36 create a “daunting” burden for the prosecution or for the court, as our dissenting colleague suggests. (Dis. opn., post, p. 10.) Thetrial judge must, in any event, resolve at somepointthe admissibility of any statements of the defendant the prosecution seeks to introduce, whether for impeachmentor otherwise. Use of an in camera procedurein the first instance to ensure that confidential or privileged informationis not irrevocably compromisedis scarcely terra incognita for an experiencedtrial judge. (E.g., Evid. Code, §§ 915, subd. (b); 1045, subd. (b) [Pitchess motions”’]; see also In re Lifschutz (1970) 2 Cal.3d 415, 431, 437, fn. 23 [trial judge should take necessary precautions to protect unwarranted intrusions into the confidentiality ofpsychotherapist-patient communications, including routinely permitting such disclosure to be made ex parte in his chambers, even wherethe patient has placed his mentalstate in issue].) We can also foresee potentially far greater burdens and disruptionsto thetrial process shoulda trial judge, for example, later determinethat the prosecution has been privy to constitutionally privileged defense information,andis then required to consider disqualification in order to ensure that the defendant receives a fair trial. (§ 1424; see e.g., People v. Choi (2000) 80 Cal.App.4th 476.) A necessary corollary of preserving the right to assert disclosure objectionsis that the prosecution may not observe the examinationsin realtime. The prosecution will not be prejudiced by such a restriction, because they may not in any event directly participate in the examinations, andsince there will be remote video monitoring, and presumably recording,ofthe sessions. Since the defense will be permitted to contemporaneously observe the examinations, there is no reasonthat petitioner cannot promptly identify any arguably objectionable material and present those objections to the court within a reasonable time established by the court. Nothing in our discussion suggests that the prosecution maynot be immediately provided with at least the diagnostic opinions or conclusions of the appointed experts. Oncethe court has considered and ruled uponthe defense objections, and subject to any redactions that maybe required, the prosecution 0 Pitchess v. Superior Court (1974) 11 Cal.3d 531. 37 will then beentitled to pretrial access to the balance of the examination results, including any video or audio recordings. Wefind that Maldonado’s Sixth Amendment objections are obviated or adequately addressed bytheability of the defense to monitorthe examinations, and to interpose timely objections to disclosure of statements which Maldonado may make.It is only Fifth Amendmentissues which webelievethe trial court must then address and resolve ifproperly raised. We also emphasizethat wedo not suggest that prophylactic orders prohibiting or restricting prosecution accessto petitioner’s statements are, or necessarily will be required. The examinations have not taken place. The extent to which these issues mayarise is a matter of speculation. Thetrial court may, at the end of the day, be correct that further orders are “unnecessary.” That determination can only be made, however, after petitioner is given an opportunity to make particularized objection, and the court then exercisesits discretion with these considerations in mind. D. Selection of Experts Maldonadoarguesthat any involvement ofthe prosecutionin the selection of experts to examine him pursuant to Evidence Codesection 730 conflicts with the legislative intent of the statute, whichis to appoint disinterested experts to assist the court and jury in making factual determinations. Thetrial court, in rejecting this objection, explained that the prosecution’s assistance in identifying mental health experts who had the necessary language skills to interview Maldonadoin Spanish was “not in any way prejudicial to the defendant. It’s goingto be clear that when I makethese appointments they’re appointments made by the Court... .” The issue appears,forall practical purposes, to now be moot. Newly-amended section 1054.3 is in effect, and the trial court on remandwill have the authority to order Maldonado to submit to examination by prosecution-selected experts. We have assumed the court’s authority to make appointments under Evidence Code section 730 in these circumstances, but the court may decideto reviseits prior order and expressly provide for a prosecution psychiatric examination. 38 Wein any eventagree that the prosecution’s limited role in identifying qualified bilingual mental health experts for possible appointmentby thetrial court does not render the examination processbiasedor adversarial such thatit is inconsistent with Evidence Codesection 730. Maldonado hasnot cited any evidence that the experts appointed by the court are in fact biased in favor of the prosecution, nor did he identify alternative experts for the court’s consideration. The mere fact that the prosecution assisted the court in identifying candidates for the court’s own selection does notcall into question the neutrality of the process. Thetrial court properly denied Maldonado’s requests that the prosecution be barred from any involvementin the selection of court-appointed experts. III. DISPOSITION AND ORDER Thetrial court is directed to modify its orders to provide that: 1) Prosecuting attorneys andtheir agents shall be barred from observing the examinations ofMaldonadoin realtime. All personspresentat the examinations, including the examiners, shall be barred from disclosing any statements made by Maldonadoduring the course of the examination until expressly authorized to do so by the trial court. 2) Within a specified amountoftimeafter the conclusion of each examination (to be determined by thetrial court), Maldonado mayassert any privilege objections to disclosure of his statements, or any portion thereof, made during the course of the examinations. The motion may befiled under seal and thetrial court must conductan initial in camera review of the motion to determine whether the motion has merit. 3) In ruling on the motion,thetrial court shall determine if Maldonado’s statements to the examiners, in whole orin part, remain subject to Fifth Amendment privilege, redact any statementsit finds to be privileged, and may then orderthe balance of the results of the examinations, including any notes and recordings, disclosed to the prosecution. The court must also consider whether disclosure should be conditioned or limited in any fashion in orderto preserve any valid assertion ofprivilege, or to preclude derivative use. 39 A peremptory writ shall issue directing the trial court to vacate its September8, 2009 order with respect to request numbers 5, 6, 7, 8 and 10 and enter new orders consistent with the views expressedin this opinion. 40 Bruiniers,J. I concur: Jones, P. J. A126236 41 NEEDHAM,J., DISSENTING. In the matter before us, the prosecutor agreed that evidence obtained from the examinations of Maldonado wouldbeused only to the extent Maldonado pursued his neurocognitive defenseat trial. Such use would not run afoul of the Fifth Amendment. (E.g., Buchanan v. Kentucky (1987) 483 U.S. 402, 422-424 (Buchanan).) Furthermore,it was never contendedthat the prosecutor would make derivative useofthe evidence, so there was never any dangerthat the timing and method of disclosing the examination results would violate Maldonado’s Fifth Amendmentrightseither. Indeed, it was clear (at least until this court’s decision today) that a guarantee ofuse immunity and derivative use immunity protects the privilege against self-incrimination, since such immunity by itself “remove[s] the dangers against whichthe privilege protects.” (Kastigar v. United States (1972) 406 U.S. 441, 449 (Kastigar).) To the extent Maldonado could not convince thetrial court to impose additional safeguardsinits discretion, he has an adequate remedy at law. Hispetition for extraordinary relief therefore failed to allege circumstances justifying our review, andhis petition should have beendenied. The majority opinion, however, embraces Maldonado’s petition as an opportunity to usher in a new era of Fifth Amendmentlaw. Eschewing California and federal precedents, it suggests that use and derivative use immunity is no longer good enough. Overlookingpetitioner’s acknowledgementthata trial court might, in its discretion, properly employ a variety of approaches to adequately protect a defendant’s rights, this court stripsall trial courts in this state of discretion to tailor Fifth Amendment protections to the circumstancesofthe case, and forces them instead to don a one-size-fits-all procedure that will likely fit very few. I respectfully but strongly dissent. A. Background Plainly stated, Maldonadois seeking a writ of mandatedirecting thetrial court to grant his motion for a protective order in a discovery dispute. His motion did not challenge the prosecution’s right to compel his neurological, psychiatric, and psychological examination by court-appointed experts. Nor did his motion urge that he be granted use immunity and derivative use immunity for his statements, because his entitlement to it was never in dispute. Rather, Maldonado requested over two dozen limitations on how the examinations shouldproceedin light of the parties’ competing interests and the circumstances of the case, requesting protections above and beyond use and derivative use immunity. As relevant here, Maldonado contends: (1) the prosecutor should be barred from attending (from another room) the examination ofpetitioner by the court-appointed psychologist, psychiatrist and neurologist; (2) the prosecutor should be barred from access to reports, notes, and recordings of the examination until after the close of the defense case, upon whichthetrial court would inspect the materials in camera to determine whether production to the prosecutor would violate Maldonado’s privilege against self-incrimination; (3) the trial court should wait to decide the admissibility of the evidenceuntil after the in camera inspection and a hearing: (4) the prosecutor should be precluded from contacting the court-appointed experts until after the court’s in camera decision; and (5) the court-appointed experts should maintain confidentiality. Whilethetrial court found that the foregoing additional safeguards were unnecessary under the facts of the case, the majority opinion evisceratesthe trial court’s exercise ofits discretion and modifies the order, precluding the prosecutor from viewing the examinationin real time, barring the examiners from disclosing Maldonado’s statements until permitted by the court, allowing Maldonado to move, underseal, to bar disclosure of any of his statements, and requiring thetrial court to conduct an in camera review and determine if Maldonado’s statements remain subject to Fifth Amendment protection. Basing this new “prophylactic” rule on the perceived mandatesofthe federal Constitution, the majority opinion implies that this burdensome procedure must be used by every court from now on. The majority’s undertaking is unwarranted. B. Adequate Remedy at Law I begin my analysis with a fundamentalprinciple that has enabled boththetrial courts and the appellate courts of this state to function efficiently toward the goal of timely justice: no extraordinary writ shall issue unless the petitioner can demonstrate that he or she lacks any adequate remedy other than the appellate court’s immediate intervention in the processesofthetrial court. Writ relief is granted only in the discretion of the appellate court, in extraordinary cases, when compelled by equitable principles. (See generally Omaha Indemnity Co. v. Superior Court (Greinke) (1989) 209 Cal.App.3d 1266, 1271-1274 (Omaha Indemnity).) “ “If the rule were otherwise, in every ordinary action a defendant whenever he chose could halt the proceeding in the trial court by applyingfor a writ . . . to stop the ordinary progress of the action toward a judgmentuntil a reviewing tribunal passed upon an intermediate question that had arisen. If such were therule, reviewing courts would in innumerable cases be converted from appellate courts to nisi priustribunals’ . . . [and] [§J[{] would be trappedin an appellate gridlock.” (Id. at pp. 1272-1273.) Furthermore, an errorby the trial court may be curedatthetrial level, review on a direct appeal from the judgment may provide an adequate remedy, and the case mightbesettled or otherwise resolved in the interim. (/d. at p. 1273.) “In reality, perhaps the most fundamental reason for denying writ reliefis the caseis still with the trial court and there is a goodlikelihood purported error will be either mooted or cured by the time of judgment.” (Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1100.) Indeed,thetrial court must remain vested with the discretion necessary to apply the law and fine tuneits rulings in light of the parties’ interests and the evolving circumstancesofthe case, which may change dramatically during the course of a criminal proceeding. These well-established principles compel the denial of Maldonado’s petition. In the first place, Maldonado has not made any particularized showingthatthetrial court’s handling ofthe parties’ discovery dispute has causedorwill cause Maldonado any harm. There is, as of this moment, not one incriminating statement Maldonadohasutteredthat is poisedto fall into the hands of the prosecution. Nor does the record suggest any peculiar likelihoodthat he is going to make a self-incriminating statement that would be outside the scopeofhis “waiver”ofhis right against self-incrimination (occasioned by his neurocognitive defense), in response to queries by independent court-appointed examiners regarding his neurocognitive defense.! In addition, even if Maldonado were to make a statementhe thinksis constitutionally protected, and the prosecutor heard it, Maldonado could seek an order from thetrial court to preclude the prosecutor from using the statementor any derivative evidenceat trial. As mentioned, the prosecutor does not dispute that it cannot use any statements Maldonadoutters in the examinations except for the limited and express purpose of rebutting the defense Maldonado himself tendered. Given Maldonado’s failure to allege any factual circumstance that would suggest otherwise,this procedure in itself adequately protects Maldonado’sright against self-incrimination. (See Chavez v. Martinez (2003) 538 U.S. 760, 770-771 [plurality opn. of Thomas,J.| (Chavez); Kastigar, supra, 406 U.S. at p. 462.) Maldonado’spetition therefore established heis not constitutionally entitled to the relief he seeks. Furthermore — asif the foregoing were not enough — Maldonadoalsohas the adequate legal remedyof a direct appeal from any adverse judgment. Bydirect appeal, he could challengethe trial court’s denial of his motion for a protective order, whichis the subject of his current petition. He could also challenge any adverse ruling the court might makein deciding whetherto precludethe use of statements or derivative evidence . at trial. If, indeed,the trial court erred in any ofthese respects and Maldonado was prejudiced thereby, he would be granted appropriate relief. These matters are best viewed in an appeal after judgment. (See People v. Wallace (2008) 44 Cal.4th 1032, 1087 [in post-conviction review,trial court’s rulings requiring defendant to submit to psychiatric examination by prosecution expert and admitting testimony about defendant’s refusal to cooperate in the examination were held erroneous butnot prejudicial].) To me, the conclusionis inescapable: based on the allegations ofhis petition, Maldonadofails to establish that he lacks an adequate legal remedy, and his writ petition ! By waiver, I simply meanthe ramification of Maldonado’s noticethat he may assert a neurocognitive defense, to the extent it entitles the prosecution to conduct discovery in regard to that defense in orderto preparefortrial. should have been denied on that ground. Further, I see no good to be gained from sidestepping these principles in order to tinker with the discretionary rulings ofthetrial court or to pronounce new far-reaching constitutional mandates. Nonetheless,in light of the importance of a defendant’s claim that his constitutional rights may be infringed, I will amplify these points in greaterdetail. C. The Rarity of Review of Discovery Orders by Extraordinary Writ Myviewis really nothing more than what California courts have emphasized for a long time. Writ relief in discovery matters is strongly disfavored, because of the inherent likelihood that any purported error may be mootedorcuredbythe trial court without appellate court intervention, and becauseofthe availability of relief on direct appeal from the judgment. This is so for good reason. The delay occasioned by interim review of discovery orders is usually worse for the judicial system than the harm causedby the order. (Save- On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 5 (Save-On).) Further, no matter how tempting it may be for an appellate court to come up with a better exercise of discretion than thetrial court, it is not our job to peer over the trial court’sshoulder asit handles every procedural nuanceofa case, even if it touches upon a constitutional concern. The exceptions to this fundamentalprinciple are few, and none of them apply here. In criminal proceedings, it has been observed thatpretrial discovery orders “may, in certain instances, be reviewed by prohibition or mandate.” (People v. Municipal Court (Ahnemann) (1974) 12 Cal.3d 658, 661 [denying writ review of an order pertaining to admissibility of evidence]; italics added.) For example, writ review may be appropriate where the defendant has been deniedoutright a request for discovery. (E.g., Joe Z. v. Superior Court (1970) 3 Cal.3d 797, 800-801.) This line ofcasesis inapposite, of course, because the court’s order did not bar Maldonado from any discovery,let alone discovery that might lead to a defense against the charges. It merely set forth how and when discovery shouldbestbe provided to the prosecution in the contextofthis particular case, assuming the guarantee ofuse and derivative use immunity.” In the civil context as well, an appellate court rarely interjects itself into thetrial court proceedingsfor the purpose of reviewing a discovery ruling. “[T]he prerogative writs should only be used in discovery matters to review questionsof first impression that are of general importance to the trial courts and to the profession, and where general guidelines can be laid down for future cases.” (Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185-186, fn. 4.) Here, Maldonado’s petition substantially retreads old ground astothe ability of the prosecution to obtain discovery with respect to the defendant’s psychiatric defense, and the sufficiency of use and derivative use immunity to protectthe right against self-incrimination. To the extent the procedural contextin the case brings something new,it does not raise a question ofgeneral importanceto thetrial courts or the profession, but instead involves a narrow issue arising only in criminal cases in which a defendant has tendered a mental defense and the prosecution has sought an examination of the defendant under Evidence Codesection 730. Moreover, no general guideline can or should be laid downfor future cases, because the appropriate meansofprotecting the defendant’s right against self-incriminationis best resolved on a case by case basis by thetrial court, for reasons discussed post. In both criminal andcivil cases, writ review of discovery orders may be appropriate if the order compels discovery of information that is privileged from disclosure. (See, e.g., Sav-On, supra, 15 Cal.3d at p. 5.) At this point, however, 2 In Prudhomme v. Superior Court (1970) 2 Cal.3d 320, a writ ofprohibition was issued to restrain the trial court from enforcing an order compelling the defendant’s attorney to disclose to the prosecution the names, addresses, and expected testimony of witnesses the defense intendedto call at trial, because the record did not establish that the information could not possibly incriminate the defendant. Prudhomme is distinguishable from the matter before us, because in Prudhommethere wasan imminent disclosure of information, and there was no agreementthat the prosecution would not use the information to prove the defendant’s guilt. Moreover, our Supreme Court has disapproved Prudhommeinlight of the subsequentlegislative enactmentof reciprocal discovery laws. (Uzazaga v. Superior Court (1991) 54 Cal.3d 356, 370-371.) Maldonadohasnot made any statement subject to any privilege, andthetrial court has not decided whether any statement by Maldonadois orwill be outside the scope ofhis waiver. (See Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1043-1045 {claim of privilege againstself-incrimination must identify a particular question that would reasonablylead to a self-incriminating answer] (Warford).) Furthermore, although Maldonadosaysthetrial court’s order could lead to the disclosure of statements possibly protected by the privilege against self-incrimination, the mere disclosure ofthose statements (as opposed totheir useattrial) does not violate Maldonado’s constitutional privilege against self-incrimination. (Chavez, supra, 538 US.at pp. 767-773 [plurality opn. of Thomas, J.]; Spielbauer v. County ofSanta Clara (2009) 45 Cal.4th 704, 727 (Spielbauer).) Unlike the attorney-client privilege, where the veryfact of disclosure destroys the right protected by the privilege, the mere disclosure of any incriminating statements by Maldonadowill not destroy the constitutional right protected by the privilege against self-incrimination, particularly when disclosure is made with the understanding that those statements cannot be used in a criminaltrial. (See Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 308-310 (Fuller).)* There is no imminent . . 4 need for us to interfere in Maldonado’s case. ; Roberts v. Superior Court (1973) 9 Cal.3d 330, 336, on whichthe majority relies to explain the needfor the availability of prerogative writs in discovery cases, confirms this distinction betweenself-incrimination claims and claims ofother privileges. The court in Roberts indicated that writ review should be available because a person seeking to exercise a privilege must otherwise either face contempt for disobeying the court’s order or succumbto the court’s order and disclose the privileged information, which “could lead to disruption of a confidential relationship.” (Roberts, supra, 9 Cal.3d at p- 336.) Roberts involved the psychotherapist-patient privilege, which,like the attorney- client privilege, is premised on protecting a relationship. (Id. at p. 333.) The privilege against self-incrimination does not. Roberts’ rationale does not apply here. Perhaps Warford, supra, 160 Cal.App.3d 1035, reflects this point. There, plaintiffs sought to compel nonparty deponents in California to answer questions and produce documentsin a civil action in Hawaii, over the deponents’ assertion of their Fifth Amendmentprivilege against self-incrimination. (Id. at pp. 1038-1039.) Thetrial court denied the bulk ofplaintiffs’ motion and their request for an in camera hearing. (Id. at p. 1039.) Notingthat there is usually no writ review of discovery orders, the appellate 7 There are, of course, instances in whichit is necessary to review orders violating the privilege against self-incrimination, but this is not one of them. Inthefirst place, Maldonado’spetition did not make a threshold showingthat the orderviolates his Fifth Amendmentrights. The Fifth Amendmentdoes not preclude the prosecution from obtaining psychiatric evidence for rebuttal purposes, since Maldonadoplacedhis mental condition at issue. (Buchanan, supra, 483 U.S. at pp. 423-424.) While he argued that his Fifth Amendment waiverdoes not arise until he presents psychiatric evidence at trial, the notion is contrary to federal precedent (see discussion of Stockwell, post) and immaterial in light of use and derivative use immunity. Furthermore, the cases cited by the majority opinion in regard to review of Fifth Amendmentissues do notapply here. In large part the maj ority opinion relies on cases affording writ review where — unlike here — it was not already agreed that the defendant would have use and derivative use immunity under the Fifth Amendmentforhis statements, and the need to protect the defendant’s constitutional rights was therefore at stake. Thosecases are plainly distinguishable. The remaining Fifth Amendmentcasescited by the majority opinion demonstrate precisely why writ review is not appropriate here, because they confirm that use and derivative use immunity isin itself sufficient to protect Fifth Amendment rights. (Bagleh v. Superior Court (2002) 100 Cal.App.4th 478, 501-503 [accused cannot invoke Fifth Amendment to refuse to submit to a mental examination by a prosecution expert in connection with a section 1368 hearing,in light of the judicial rule of immunity that, like use and derivative use immunity, adequately protects his Fifth Amendment rights]; People v. Superior Court (Kaufman) (1974) 12 Cal.3d 421, 427-429, 433; [trial court may compel a witness to answer questionsin deposition andat trial, over the witness’s court granted review in the case — not because there was a privilege or constitutional issue at stake — but because there was not going to be any final review of the underlying action in a California forum. (Jd. at p. 1041; see also Fuller, supra, 87 Cal.App.4th at p. 304 [accepting writ review of discovery order becauseit involved a matter offirst impression and importance,not specifically because it involved a refusal to answer a question on the groundofthe constitutional privilege against self-incrimination].) 8 assertion of the Fifth Amendmentprivilege against self-incrimination, by granting the witness immunity against the use ofthe deposition answers in any criminal proceeding]; Fuller, supra, 87 Cal.App.4th at pp. 308-311 [trial court may fashion an order that “accommodates all of the competing interests” once a witness invokesthe right against self-incrimination, which might include granting immunity to the defendant and compelling discovery]; Gonzales v. Superior Court (1980) 117 Cal.App.3d 57, 69-72 [district attorney’s renewed motion to compel petitioners to answer interrogatories should be granted on condition that there be a protective order insulating petitioners from use of the information andits fruits in connection with any criminal prosecution against them]; People v. Superior Court (Taylor) (1975) 53 Cal.App.3d 996, 998, 1001 [record did not disclose any basis fortrial court refusing People’s request to compel discovery from defendant upon granting defendant immunity].) Whileit might have been necessary in these earlier cases to explore the sufficiency of use and derivative use immunity, that does not mean we mustentertain Maldonado’s petition in order to rehash the point. Cases that prove Maldonado is wrong on the merits should not entitle him to extraordinary writ review. Next, I consider the cases in which appellate courts have indulged in writ review where a discovery order deprived a party ofa fair opportunity to litigate a case or “the damage done by improperly allowing such discovery cannot readily be curedafterit has occurred.” (Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1493; €.g., Waicis v. Superior Court (1990) 226 Cal.App.3d 283, 286-287; Brown v. Superior Court (1949) 34 Cal.2d 559, 562) Here, permitting the prosecutor to hear Maldonado’s statements to the court-appointed experts, even if erroneous, wouldnot deprive Maldonadoof a defense, witness, or evidence. Nor wouldit put the prosecution at an advantage, because the prosecutor would not be permitted to use the statements except to the extent relevant to the rebuttal of Maldonado’s neurocognitive defense. Finally, I cannot find anyjustification for writ relief in this case based on the oft- cited criteria used to decide whether to grant writ review generally, even outside the context of discovery rulings. These criteria include whether: “(1) the issue tendered in the writ petition is of widespreadinterest [citation] or presents a significant and novel constitutional issue [citation]; (2) the trial court’s order deprivedpetitioner of an opportunity to presenta substantial portion of his causeof action [citations]; (3) conflicting trial court interpretations of the law require a resolution of the conflict [citation]; (4) the trial court’s orderis both clearly erroneous as a matter of law and substantially prejudices petitioner’s case [citations]; (5) the party seeking the writ lacks an adequate means, suchas a direct appeal, by whichto attain relief [citation]; and (6) the petitioner will suffer harm or prejudice in a manner that cannot be corrected on appeal [citations].” (Omaha Indemnity, supra, 209 Cal.App.3dat pp. 1273-1274.) For reasons already discussed, noneofthese criteria compels our interference with thetrial court’s handling ofthe parties’ discovery squabble. The majority opinion focuses on the sixth criteria in Omaha Indemnity, suggesting that Maldonadowill suffer harm or prejudice that cannot be corrected by direct appeal. Specifically, the majority believes that Maldonado’slegal remedyis inadequate because the guarantee of use and derivative use immunity no longer adequately protects Maldonado’s Fifth Amendmentright against self-incrimination. For reasons discussed next, the majority’s concern is misplaced. D. An Unnecessary New Rule Requiring a Daunting Procedure Maldonadoasserts, and the majority implies, that the only wayto protect a defendant’s constitutional right against self-incrimination is to make sure the People are barred not only from using, but even from hearing, any statementofthe defendantthatis incriminating and outside the scope of his waiver. We might think well of the majority’s desire to protect a defendant’s right againstself-incrimination. Thecritical point for purposes ofthe petition now before us, however,is that neither the relief Maldonado seeks nor the majority’s new rule is compelled by the right againstself-incrimination. Furthermore, the problem ofthe majority’s unnecessary intervention is compounded by the fact that the new procedureit ordainsis burdensome, time-consuming, and hampers a trial court’s ability to address the competing interests and changing concernsinherent in a criminal proceeding. 10 1, No Significant Constitutional Issue or Irreparable Harm Although Maldonadoasserts a constitutional issue based on his right againstself- incrimination, we do not bow our kneeto every petition that invokes a constitutional right. The question is whetherour intervention is necessary to protect a constitutional right or to resolve, immediately, a critical constitutional question. The relief Maldonado seeks(andthe relief the majority provides) is not necessary to protect Maldonado’s constitutional rights. The Fifth Amendmentprivilege against self-incrimination is violated at the time a self-incriminating statement is used against the defendant in a criminaltrial. (United States v. Verdugo-Urquidez (1990) 494 U.S. 259, 264; Spielbauer, supra, 45 Cal.4th at p. 727.) There is no violation ofthe constitutional right against self-incrimination if the defendant is merely compelled to make a statement that incriminates him;the violation occurs only if the statementis used against him attrial, or if at trial some evidenceis introducedthat derives from the statement. (See Kastigar, supra, 406 U.S.at p. 453.) To put it another way, there is no constitutional right against the mere disclosure ofa statement to the prosecution. To guard against the improperuse of a statementthat has been disclosed, the courts have adopted the prophylactic rule ofuse and derivative use immunity. In Chavez, supra, 538 U.S. 760,a plurality opinion of the United States Supreme Court confirmed that a defendant’s constitutionalright against self-incriminationis protected by the rule requiring use immunity and derivative use immunity before compelling the defendant’s statements. (/d. at pp. 770-771 [plurality opn. of Thomas,J.].) The court explained: “[There are] prophylactic rules designed to safeguard the core constitutional right protected by the Self-Incrimination Clause. [Citations.] Amongtheserules is an evidentiary privilege that protects witnesses from being forcedto give incriminating testimony, even in noncriminalcases, unless that testimony has been immunized from use and derivative use in a future criminal proceedingbefore it is compelled. [Citations.]” 11 (Ibid. The import for our purposesis that use and derivative use immunity is sufficient to protect a defendant’s Fifth Amendmentright against self-incrimination. (See Kastigar, supra, 406 U.S.at p. 462 [federal government may compeltestimony from a witness, over his objection on Fifth Amendmentgrounds, by conferring immunity from use and derivative use].) What Maldonadoseeks, and what the majority in this case provides, ventures beyondthe prophylactic rule of use and derivative use immunity, and compelsthetrial court to keep the prosecution from even knowing Maldonado’s potentially protected statements until the court has decided, after an in camera hearing, whether the statements fall within Maldonado’s waiver. This additional procedure is not constitutionally required. Maldonado’s justification for this new prophylactic rule, which the majority opinion seemsto accept, is that Maldonado mightsay something in the mental examinations which,although not used directly by the prosecutor, may benefit the prosecutor by leading to other evidence or perhaps a new case theory. This is problematic, the majority suggests, because it could be difficult for a defendantto prove that the prosecutor’s evidenceor theory derived from a misuse of an incriminating statement Maldonado madeduring the examination. Althoughthe majority urges that courts have acknowledgedtherisk ofprosecutors misusing compelled statements and the difficulty of a defendant’s proving misuse, these cases do not convince methat the majority’s new procedure mustbe applied, or even that Maldonado’s petition presents a novel orsignificant constitutional issue. In my view, they suggest the opposite. ° In Chavez, an individualfiled an action under 42 U.S.C. § 1983 against a police officer who interrogated him and obtained incriminating statements without advising him of his Miranda rights. No criminal case wasinstituted against the individual, and the statements were not used against him in a criminal proceeding. (Chavez, supra, 538 U.S. at pp. 764-765.) A plurality of the court ruled that the officer had qualified immunity from liability because his alleged violation of the Miranda prophylactic rule did not in itself violate the individual’s constitutional rights. (Chavez, at p. 766.) 12 In People v. Superior Court (Mitchell) (1993) 5 Cal.4th 1229, the prosecution soughtdiscovery in regard to the defendant’s penalty phase evidence, before completion of the guilt phase. Our Supreme Court recognized that advance disclosure ofthe defendant’s intended penalty phase evidence might jeopardize his guilt phase defense and potentially violate his privilege against self-incrimination. The court observed that any such problem could be resolved by deferring prosecution discovery of the defense penalty phase evidence pending the guilt and special circumstances determinations. (Jd. at p. 1237.) However, the court did not hold that every trial court faced with the situation must delay the prosecutor’s receipt of penalty phase evidence until after the guilt phase. It merely held that the trial court had discretion to delay the prosecutor’s receipt of the evidence, leavingit to the trial court to determineifthe prosecutor’s discovery is “premature or constitutionally prohibited.” (/d. at p. 1239.) I would agreethe trial court should be left free to exercise its discretion. A similar respectfor trial court discretion was observed by a panelofthis appellate district in Warford, supra, 160 Cal.App.3d 1035. There, the court rejected the appellants’ argumentthat an in camera hearing should be conducted to evaluate the deponents’ assertion of the Fifth Amendmentprivilege against self-incrimination: “We see no reason to mandate that hearings to determinethe right to a Fifth Amendment privilege invariably be held in camera ratherthan in open court. As this course will be more appropriate in somecases that it will in others, we think it wiser to leave room for trial court discretion.” (Jd. at p. 1048.) In the same vein,the court in Fuller, supra, 87 Cal.App.4th 299,ruled that granting use and derivative use immunity to civil defendants would be one waya trial court could exerciseits discretion in balancing the competing interests of a party seeking discovery and the defendants’ right against self-incrimination. (Id. at pp. 307-310.) Anothercasecited by the majority opinion is Garciav. Superior Court (2007) 42 Cal.4th 63. There, our Supreme Court heldthat the trial court had discretion to allow the defendantto file an affidavit in support of a Pitchess motion under seal, with a redacted copyto the city attorney,if the trial court found that was the only feasible way to protect 13 information protected by the attorney-client privilege or work product doctrine. The court then proceededto set forth a mandatory procedure of in camera review (similar to the procedure ordained by the majority in this case) to be followed whenever defense counsel wishes to file a Pitchess affidavit under seal. (Id. at p. 73.) The court expressly limited its opinion, however,to the protection of attorney-client and workproduct information. (Id. at p. 74, fn. 9.) This is a critical point, which distinguishes Garcia from the matter at hand. As the Garcia court noted in justifying the in camera review procedure: “ ‘mere disclosure ofclient confidences and attorney work product to third parties, in itself, would violate these privileges.’ ” (/d. at p. 77,italics added.) Here, by contrast, mere disclosure of information for whichthere is a privilege against self- incrimination does not violate the defendant’s constitutionalright. Moreto the point are three opinions from the Second, Fifth, and Eighth Circuit Courts of Appeal, all of which reject the constitutional necessity of the majority’s type of prophylactic measure to protect a defendant’s right againstself-incrimination. (United States v. Stockwell (2d Cir. 1984) 743 F.2d 123 (Stockwell); U.S. v. Hall (5th Cir. 1998) _ 152 F.3d 381, 399; US. v. Allen (8th Cir. 2001) 247 F.3d 741, judg. vacated and cause remanded on other grounds, (2002) 536 U.S. 953 (Allen).) For example, in Stockwell, supra, 743 F.2d 123, the defendant contended the prosecutor should not have been permitted to listen to a tape recording of Stockwell’s interviews with a psychiatrist during his psychiatric examination (on the issue of sanity). (/d. at p. 126.) The court disagreed, ruling as follows: “[W]hile we do not wish to encourage the practice of requiring defendants to submit to a psychiatric examination in the prosecutor’s presence(either in person or through the use of a tape recording), such a procedure cannotbe said to constitute a per se violation of [Federal] Rule 12.2(c) and the defendant’s Fifth Amendmentrights. The question whether Rule 12.2(c) and the defendant’s right against self-incrimination have been violated in a particular case hinges on the use to which the material obtained in the examinationis put, and not primarily on the method by which the prosecutorlearnsofthe results of the examination from the psychiatrist. As Stockwell concedes, the prosecutor hasto obtain information about the 14 results of the psychiatric examination in some manner. Aslong asthe prosecutorrestricts his or her use of the defendant’s statements to the issue of insanity, there is no violation of the Rule or ofthe defendant’s constitutionalrights.” (Id. at p. 127,italics added.) In Allen, supra, 247 F.3d 741, the trial court ordered the defendantto undergo a psychiatric examination by a government-selected psychiatrist, and permitted one assistant prosecutor to begin evaluating the results of the examination before the sentencing phase, under an ordernot to divulgeanyofthe results to the prosecution team until after completion of the guilt phase. (/d. at p. 773.) The court held thatthis disclosure to a “taint” prosecutor adequately protected the defendant, under a scheme in whichthe defendant would have the burden ofproducing someevidenceoftaint and the government would have the ultimate burden ofpersuading the court that the evidence is nottainted. (/d. at p. 773; citing Hall, supra, 152 F.3d 381, 399.) The court in Allen stated: “Additional prophylactic safeguards beyondthis evidentiary framework, such as the sealing of exam results until after the completion ofthe guilt phase .. . may avoid laterlitigation but are not constitutionally required. [Citation.] We therefore decline to adopt any suchrigid prophylactic rule in the nameofthe Constitution and leave the matter to the discretion ofdistrict courts, subject only to our review for abuse of discretion, which we do notfind presentin this case.” (Allen, at p. 774,italics added.) Also instructive are California and federalcivil cases ruling that the trial court may compel a witness to answer deposition questions, over the witness’s assertion of the Fifth Amendmentprivilege against self-incrimination, by granting the witness immunity against the use of the deposition answers in any criminal proceeding. (See, e.g., Kastigar, supra, 406 U.S.at p. 462; Kaufman, supra, 12 Cal.3d at pp. 427-429.) These cases confirm that providing use immunity and derivative use immunity is sufficient to protect a party’s right against self-incrimination. If there is some inherent difficulty in a defendant’s ability to prove that the prosecutorintroduced evidence derived from a defendant’s statements,it is a necessary and acceptable result of the balancingofinterests at stake. Maldonado’spetition therefore does not raise a constitutional issue worthy of extraordinary writ review. 15 Furthermore, as mentioned ante, the danger that Maldonado might make an incriminating statementandbe unable to provethe prosecutor’s derivative useis slight, based on the record before us. The statements Maldonado may makewill be in the context of examinations by court-appointed experts designed to determine whether he suffers from the neurocognitive deficits he asserts. These experts are neutral professionals charged with ascertaining Maldonado’s medical or mental condition, not with gleaning admissions on behalf of the governmentto convict him of a crime. The possibility of compelled, self-incriminating statements outside the scope of Maldonado’ waiver seemsratherslim, thus reducing the needforthe relief he requests and the prophylactic procedure the majority imposes.° It is, of course, the petitioner’s burden to establish his extraordinary need for the extraordinary writ he seeks. Because,in light of the record in this case, Maldonadohasnotestablished a need to modify the trial court’s orderto protect his constitutionalprivilege against self- incrimination, and has not demonstrated that he will suffer irreparable harm in permitting the matter to proceed withoutour intervention, he has given us nobasis for accepting review ofhis petition, let alone issuing a writ ofmandate. 6 In addition, the majority’s new rule may not significantly affect a defendant’s ability to establish derivative use. If Maldonado makes incriminating statements in response to inquiries abouthis neurocognitive condition, and those statements fall within the scope of his waiver, the prosecution would beentitled to know aboutthose statements. The majority’s procedure doesnot protect against the prosecutor then using those statements for some untoward purpose. Nor does it enhance Maldonado’s ability to show derivative use in that instance. Only as to statements Maldonado may utter that are outside the scopeofhis waiver — in essence, nonresponsive to the court-appointed examiners’ questions — will Maldonado not have to worry about the potential for derivative use. The possibility of these nonresponsive statementsis slight and, if they were made, any improper use of them wouldlikely be more obvious andthus more readily proven by the defense. This does not mean thatthe majority opinion leaves Maldonado without sufficient protection of his constitutional rights. He is already adequately protectedby therule precluding use and derivative use ofhis statements. The majority’s new rule is merely icing on a cakealreadyfrosted. 16 2. A Daunting Procedure that Unduly Interferes with Trial Court Discretion Trial courts are better able to address the various and evolving developments in a criminal proceeding than weare able to foresee them. In the instant context, whether mental examinationscreate a risk of self-incriminating statements outside the scope of a defendant’s waiverwill depend largely on the nature of the case, the defendant’s mental defense, and other matters that are best evaluated by the court involved in those proceedings. Once weestablish a new rule in the name of a constitutional right, however, that rule arguably must beappliedin every trial court, in every case, as to every defendant, regardless ofslight nuancesin the circumstances of the proceedings. The effect of our intrusion into thetrial court’s handling of discovery in this case, therefore, may preventtrial courts in other cases from adopting other procedures that adequately protect the defendant’s constitutional rights but are better suited to the circumstances of those cases. For this additional reason, we should not exercise our discretion to grant Maldonadoextraordinary relief. Althoughit mayfirst appear that the majority opinion’s new rule simply delays the criminal proceedings momentarily to give the defense a chance to object to self- | incriminating statements, real-world practice will tell a different story. Initially, the trial court mustset a deadline for the defense to seek protection for statements it does not want disclosed to the prosecutor. We have no way ofknowing how manystatements the defense might select out of the three examinations ordered in Maldonado’s case, but the defense in this and othercases will have incentive to seek protection for as manyofthe defendant’s statements as possible, out of concern (warranted ornot) that the failure to do so might waiveorlimit his right to object to the use of the statementattrial. Next, for each one of these statements, the trial court must determine in camera what statements should not be disclosed, applying a two-step analysis. First, the court must decide if the statementis subject to the privilege againstself-incrimination, in thatit is incriminatory, personalto the defendant, obtained by compulsion,andtestimonial or communicative in nature. (Izazaga v. Superior Court, supra, 54 Cal.3d 356, 366.) Second, the court must decide if the statement falls within the scope of the waiver 17 attendant to the defendant’s assertion of a defense, in this case Maldonado’s contention of neurocognitive deficits he purportedly suffers as a result of childhood brain trauma or congenital brain dysfunction. (See Buchanan, supra, 483 U.S. at pp. 422-423.) It may not beeasy for the trial court to determine if a statement by the defendant falls within the scope of his waiver, at an in camera hearing, upon a sealed record. Usually pertinent in such an inquiry is whether any of the examining experts — here a psychiatrist, a psychologist, and a neurologist — relied on the statement in reaching his or her conclusions. Depending on thecase,it may also be important to ascertain whether any expert the defense intendsto call plansto rely on the statement, or whether an expert in any ofthese fields — including one the prosecutor might intend to offer — would rely on the statement in reachingorrejecting the conclusion of the examining experts. (See Woods v. Superior Court (1994) 25 Cal.App.4th 178 [trial court properly ordered disclosure of defendant’s responses to standardized tests administered by a psychologist identified as a defense expert, where the psychologist relied on the response forhis conclusions, he referred to the responsesin his report, and the report was providedto the People]; see generally Brown v. United States (1958) 356 U.S. 148, 154-155 [the breadth of the defendant’s waiverofthe privilege against self-incrimination is determined by the scope of relevant cross-examination]; People v. Jantz (2006) 137 Cal.-App.4th 1283, 1295 [defendant waivesprivilege against self-incrimination in sanity trials to extent necessary to permit meaningful sanity examinations by defense and prosecution experts]; People v. Mazoros (1977) 76 Cal.App.3d 32, 44-45 [prosecution entitled to review same information defense expert relied on to form his opinion of defendant’s mental condition].) Deciding the scope of the defendant’s waiver may indeed posea particularly knotty problem. First, it will probably take sometime, becausethetrial court may not be able to makeits in camera determination until the examiners have completedtheir reports and provided them to the court. Second,the issue may notbe resolved merely by reviewing the experts’ reports: although statementsfall within the scope of the waiverif an expert relied upon them, statements are not necessarily outside the scope of the waiver 18 merely becausethey are not specifically mentioned in the expert’s report. Determination of the issue, therefore, may require some degree of attorney argument and perhapsfurther expert opinion. Third, the prosecutoris left at quite a disadvantagein this debate. During the trial court’s in camera review of the defendant’s statements and the expert’s reports, it is unclear how the prosecutor may meaningfully weighin on the issue of the scope of the waiver without knowing what the defendantsaid. The prosecutor’s ignorance of the defendant’s statements has ramifications for trial as well. With the record of the in camera proceedingsealed, and the prosecutor unaware of the statements omitted or redacted from the reports, it will be difficult for the prosecutor to prepare for cross-examination of the court-appointed experts and any experts called by the defendant. The defendant, the defense attorneys,the defense experts, the court, and the court-appointed experts will all know what the defendant said; the prosecutor will not. Furthermore, given the majority opinion in this case,this court may continue to be drawn backinto the fray at each step of the procedure,as to each ofthe statements the defendant seeksto shield from disclosure, in every case in which the defendant asserts a mental defense and the prosecution requests an examination. Having concluded that the trial court’s decision to permit the prosecutorto attend remotely the defendant’s examination is subject to writ review, it may well be arguedthatthetrial court’s ensuing rulings on the amountoftime the defense has to movefor protection, whetherthe defendant’s statements are subject to the privilege against self-incrimination,the scope of the defendant’s waiver, andthe application of the waiver to each ofthe statements the defense seeks to withhold from the prosecution mayalso be subject to writ review. The majority’s new prophylactic procedurewill plainly delaythe trial for the defendant, the People, the witnesses, and the victim. Andall of this time, effort, expense, and delay will occur on the mere speculation that the defendant might say something outside the scope of his waiverthat the prosecutor will hear — but not be able to use 19 anyway dueto the trial court’s subsequent determination that the evidence cannot be used at trial.’ The majority opinion points outthat trial courts are familiar with in camera review,so its new procedure should not be “daunting.” However, the daunting nature of the procedure stems not from trial court judges being ignorant of in camera proceedings, but from the fact that the proceedings take time and present difficult questions that may never need to be answered. The fact that trial courts are familiar with the in camera review process does not makeit a good idea; nor does it provide any legitimate excuse to foist the procedure upon them in the absence of any demonstrated constitutional reason to do so. There are, of course, other instances in which courts have approved a procedure that limits the ability of a party to present informed arguments during in camera proceedings. My pointis simply that Maldonado hasnot established any justification for imposing such a process here. Similarly, while there are times when we mustinsist upon an expensive time-consuming process in order to protect the constitutional rights of an accused, neither the law northe record in this case suggeststhis is such a time. To besure, in somecases the procedure established by the majority opinion may be a good wayfor the trial court to exerciseits discretion. In other cases, another procedure maybebetter — or at least acceptable ~ such as the one affirmed in Allen, supra, 247 F.3d 741. There may even be cases in which the court need not order anything beyondthe constitutionally required guarantee of use and derivative use immunity. Indeed, Maldonado’s counselat oral argument acknowledgedthat there may 7 The time spent on the majority opinion’s procedure will not alwaysbe offset by a savings in the time that would otherwise be spent on determining whether the defendant’s statements can beusedattrial, or whether the prosecutoris making derivative use of those statements. Ruling ontheissueat the discovery stage will not necessarily dispose of the issue: some statements, permitted to be discovered by the prosecutor, may be deemedlater by the defense to have becomeoutside the scope ofthe waiver due to a change in legal theory or a decision notto call the expert who consideredit relevant to his opinion. Moreover,it is quite likely that the defense will seek to shield far more statements than the prosecutor would intendto useattrial. 20 be various means by which a trial court could meet the demandsofthe Fifth Amendment. In view of the reality that every criminal proceeding is different, with its own nuances and changing circumstancesthatthetrial court is far better equipped to address than we are to predict, the commonsense approach is to permit thetrial court to exercise its discretion in deciding what, if any, prophylactic measures should be required in addition to the standard rule precluding use immunity and derivative use immunity. Thereis plainly no need to impose one hard-and-fast procedure in every single case, and Maldonado has demonstrated noreasonforus to do so at this juncturein this case. In conclusion, Maldonadohasnotestablished that he will suffer incurable harm, or will lack any adequate legal remedy, if we do notgrant him the relief he seeks. The absence of any constitutionally mandated need to provide him his requested relief or to imposethe rule and procedure set forth in the maj ority opinion, and the potential for imposing a burdensomeand often unnecessary procedure upontrial courts in other cases, confirms that our issuance ofextraordinary writ relief is inappropriate. Maldonado’s petition should be denied. 21 I dissent. NEEDHAM,J. Maldonado v. Superior Court (4126236) 22 Superior Court of San Mateo County, No. SC065313A, Mark R. Forcum,Judge. Paul F. DeMeester for Petitioner. Edmund G. Brown,Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Stan Helfman, Supervising Deputy Attorney General, Brent W. Wilner, Deputy Attorney General, for Real Party in Interest. APPENDIX 2 - COURT OF APPEAL MAY17,2010 MODIFICATION Filed 5/17/10 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE REYNALDO A. MALDONADO, Petitioner, Vv. THE SUPERIOR COURTOF SAN A126236 MATEO COUNTY, . (San Mateo County Respondent; Super. Ct. No. SC065313A) THE PEOPLE, Real Party in Interest. THE COURT: The opinion filed May 13, 2010, is modified on the court’s own motion as follows: On pages 39 and 40 of the majority opinion, all text within Section III (Disposition and Order) shall be deleted and replaced with the following text: “The alternative writ is discharged and the petition is granted in part and deniedin part consistent with the views expressedin this opinion. A peremptory writ of mandate shall issue directing the trial court to vacateits September8, 2009 order with respect to request numbers5, 6, 7, 8 and 10 and enter a new orderconsistent with the views expressed in this opinion. The ordershall providethat: 1) Prosecuting attorneys andtheir agents shall be barred from observing the examinations of Maldonadoin realtime. All personspresent at the examinations, including the examiners, shall be barred from disclosing any statements made by Maldonado duringthe course of the examination until expressly authorized to do so by the trial court. 2) Within a specified amountoftime after the conclusion of each examination (to be determinedby thetrial court), Maldonado may assert any privilege objections to disclosure ofhis statements, or any portion thereof, made during the courseofthe examinations. The motion maybefiled under seal and thetrial court must conduct an initial in camera review of the motion to determine whether the motion has merit. 3) In ruling on the motion,thetrial court shall determine if Maldonado’s statements to the examiners, in whole orin part, remain subject to Fifth Amendment privilege, redact any statements it finds to be privileged, and may then orderthe balance of the results of the examinations, including any notes and recordings, disclosed to the prosecution. The court must also consider whether disclosure should be conditioned or limited in any fashion in order to preserve any valid assertion ofprivilege, or to preclude derivative use. The previously issued stay shall remain in effect until the remittitur issues.” This modification changes the judgment. Dated PJ. APPENDIX 3 - COURT OF APPEAL JUNE3, 2010 DENIAL OF PETITION FOR REHEARING COURTOF APPEAL, FIRST APPELLATE DISTRICT 350 MCALLISTER STREET SAN FRANCISCO, CA 94102 DIVISION 5 REYNALDO A. MALDONADO, Petitioner, Vv. THE SUPERIORCOURT OF SAN.MATEO.COUNTY,,. Respondent; THE PEOPLE, Real Party in Interest. A126236 San Mateo County No. SC065313 BY THE COURT: Thepetition for rehearing is denied. oOrins PJ.
