MALDONADO v. S.C. (PEOPLE)

Real Party's in Interest Petition for Review

Cal.June 28, 2010

In the Supreme Court of the State of California REYNALDO A. MALDONADO, Petitioner, Vv. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent, THE PEOPLE OF THE STATEOF CALIFORNIA, Real Party in Interest. Case No. SUPREME COURT FED sot Fn JUN 28 2010 Frocarioki¢ Ohvich Clark First Appellate District, Division Five, Case No. A126236 San Mateo County Superior Court, Case No. $C065313 The Honorable Mark R. Forcum, Judge PETITION FOR REVIEW EDMUND G. BROWN JR. Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General STAN HELFMAN Supervising Deputy Attorney General LAURENCEK. SULLIVAN Supervising Deputy Attorney General JEFFREY M. LAURENCE Deputy Attorney General State Bar No. 183595 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5897 Fax: (415) 703-1234 Email: Jeff.Laurence@doj.ca.gov Attorneys for Real Party in Interest TABLE OF CONTENTS Page Issues Presented .........cccecsccesssceeseeeeeeceeecenececereeveeeeeeecaeesieeeceseeesaeeseneeeeeetaeees 1 Statement of the Case and Facts ........ccccsessscccsssecssneeceeeeeeeseeeeecteneeteeeeeeeaas l Reasonsfor Granting ReVICW ......cccccssecccssecsesneeecteeeceeeeessaeeseesneeenseaeeeteaees 11 I. The Fifth Amendment does not compel the prophylactic measures adopted by the Court of Appeal...... 11 A. The Fifth Amendment’s self-incrimination clause prohibits use of compelled statements, NOt ACCESS CO THEM ....... eee see ssceeesenteeeenseeeeeeneeeeetaees 12 B. Use immunity and derivative use immunity fully protect a defendant against possible Fifth Amendmentviolations for statements that may exceed the scope of the WaiVer..........csccceeseeeeseeeenees 18 I. Extraordinary writ review is improper for resolving pretrial discovery matters because the defendant has an adequate remedy at 1aW......... ee ceseecceceeeseeeeeeeeeeneeeeteeeteneeenees 21 Conclusion uo... ceceeececeeeeeceeeeeseeeseecteceeneessueeesineeseeesesenaesenss Leacaeeeesneeeeeeaees 25 TABLE OF AUTHORITIES Page CASES Bagleh v. Superior Court (2002) 100 Cal.App.4th 478 ooo. eeccecesceeceeeeceeeneeeereeettreteees 9, 16, 18 Buchanan v. Kentucky (1987) 483 U.S. 402 occccccccccssccsessesseeecseesssesssresseeessesseseeeseessseeessas 6 Byrom v. State (Miss. 2003) 863 S0.2d 836 ......cccecccseseesceeeeneeesetseeseeeceeessseeaeeneteaees 15 Chavez v. Martinez (2003) 538 U.S. 760 wo.veeeeaeeeeeceesrecieeesseeeessesaaetesetiaes 8, 12, 22 Estelle v. Smith (1981) 451 U.S. 454cccccceccsccccessecceeeneessaeesseessssessseeeeessseensaees 17 Harris v. New York (1971) 401 US. 222iccecccenseceesscesseessreetsesensessneeesnsesseesaeeesaees 17 In re Lance W. (1985) 37 Cal.3d 873 ooo .ccceccceccssecsssecessecesssesseessetensessteesscsessseessesessaees 20 In re Spencer (1965) 63 Cal.2d 400occccccccsccccseesseeesseeesssecseessseessecssesenes 17, 18 Joe B. v. Superior Court (2002) 99 CalApp.4th 23 oo ccccccsccccseesseeeteeessecenesssstsesnsesseesteeeeaes 21 Kastigar v. United States (1972) 406 U.S. 441iccccccseccecssesecssneessseseeseeeeesesseseeseeenes passim Miranda v. Arizona (1966) 384 U.S. 436 .ccccccccccsccesseeccsseeessesseeseecsseessseecstesseeegs 5, 6,17 Mitchell v. State (Nev. 2008) 192 P.3d 721 oo. ccccccccccescecsseesseesssseseeeessaeecseessetesseeesgens 15 ra TABLE OF AUTHORITIES (continued) Page New Jersey v. Portash (1979) 440 U.S. 450 woe cceccccccesesseceeeeneeeseeeeeeeenaeesnerseesseeneeeneeeteenees 17 Oregon vy. Elstad (1985) 470 US. 298 ooo ccccceeecseeeseeeseeeeeneeeeneceeesneeseesessesenessieteeaae 17 People v. Jantz (2006) 137 Cal.App.4th 1283 oieeceeecccceseeeeeeereeeseeeeneeeneesstetenaees 16 People v. Jones (2003) 29 Cal.4th 1229oi ccccccessecnteesseecteccesneeseeeseaeenreeesiresneessaee 16 People v. Municipal Court (Ahnemann) (1974) 12 Cal3d 658 oo... ceecccecccceseeeeceeseeeeeneeeesaneeesiaeessneeeenesneeenseeevaas 23 People v. Pokovich (2006) 39 Cal4th 1240 oo. eecccceecceseeeeeseeeseneeeseneerseeeeneesnaeenaes 16, 18 People v. Wallace (2008) 44 Cal.4th 1032.cecceecceesreeseesnteesseeneeesereseeenessseenateres 23 People v. Weaver - (2001) 26 Cal4th 876... cececeeceesessereenetnerescneeeneerenesieesnesereetenss 18 People v. Williams (1988) 197 Cal.App.3d 1320 oo... eecceeseeceseseeeeseeeseeeseeeeeeeeees 17, 18 Save-On Drugs, Inc. vy. Superior Court (1975) 15 Cal.3d Lecce ecceccececeeeseeeeeeeecsaeesacneeeenseeesseeseseetieeesreeenaas 23 Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095 occeeccesneceeeeteteeeeeeseeeeneenestireneesaes 22 Sears v. State (1993) 262 Ga. 805 oececececceeneseceeeeesneeesaresaeeersneseatescseterecestenateseas 15 Serna v. Superior Court (1985) 40 Cal. 3d 239 oie eccccccccceceneecseeeeeteeeeecnreeseeeesseeeneesteetieteneas 21 ili TABLE OF AUTHORITIES (continued) Page Spielbauer v. County ofSanta Clara (2009) 45 Cal.4th 704... ceecccceeceescceeeereesereneeseesersseneetetesneetes 8, 12,22 State v. Briand (N.H. 1988) 547 A.2d 235 oo ieceeeete recent ene en etree terete enintneneeens 15 State v. Hickson . (Fla.1993) 630 S0.2d 172 ..occceececseesesseeceecseeeneceneeeneseneseseeseseneeeeaees 15 State v. Manning (Ohio Ct.App. 1991) 598 N.F.2d 25 ooo eeeeeeceeeeneeeeeneeneeeeeaeees 15 Story v. Superior Court (2003) 109 Cal.App.4th 1007 occ ccccceeeeseeceerreeseeeeseneesesaeeneeeeetees 23 United States v. Balsys (1998) 524 U.S. 666 ooccccccccccccsecsssesesenecsecsesceeeseeessesteeeeeseesneneteeeeeaties 8 United States v. Hall (Sth Cir. 1998) 152 F.3d 381 ooeccsceessencesseesereeseeeeneeeneeneesaes 14, 15 United States v. Martinez-Salazar (2000) 528 U.S. 304 wooccccccccccccscssecscseesessessesceeeseteeseactetsesaeeenaneaetirens 14 United States v. Stockwell (2d Cir. 1984) 743 F.2d 123 ooo. ceceeeceeeeeeneeteneeeesteesseeessnesnens 13, 14 United States v. Taylor (E.D. Tenn. 2008) 2008 WL 471686... cc eecceseeeeseneeenetetneeeneeeennes 14 United States v. Verdugo-Urquidez (1990) 494 U.S. 259 oii ecccenecececceeeeeteaeecteetneeseteeensnetenseeeeenees 8, 12, 22 Verdin v. Superior Court (2008) 43 Cal.4th 1096...cc ccccccsccesecseceeeseceseeecseeeeeieeesaeesnseens 2, 7,23 Woodsv. Superior Court (1994) 25 Cal.App.4th 178 0... ceccccsecsseeesetseeecsceeseeetsaneeesresneeereeees 16 IV TABLE OF AUTHORITIES (continued) Page STATUTES Evidence Code § TBO ecccccccccccccesseccsseecsensesseeeecsseeseesreecsneseseseeessneeseeeeeseesreeetaereeas 2,3,7 Penal Code § 187, SUbCIVISION (€) ....cceeecccccsecccseeesesecseecsseeeeeeneeecscseeseteeenseteneeeens ] ~— § 190.2, subdivision (a)(15) woo ccccccccscectseesseeeesseeeeesseeesssnneesesteaees 1 § 1OQ7 .eccccccecscsscssscsseccesesssececssvesseecesseecssscsecessessessesecsssesesesessessnaeess 15 § 1054.3 ooo iccccccccssccessseesseeseseecescessesesecsesseeeeessesstaeeeeennes 7, 11, 16, 18 § 1054.3, subdivision (b)(1)(B)............“veuvensauanannctecscesssesseaveceaseseers 19 § 1368 oc icccccccccssccesscesssscessseescesesceeesseseseseseeecseaeeesneeeseseseeeeseateeetaaeees 16 § 1369 occccccseceseesteeeesessreeecsecsseeescseeseeeesseceeessescaeeeteseceesesearessnaeees 16 CONSTITUTIONAL PROVISIONS California Constitution Article I, § 28, subdivision (d) ........cccccccsceresstesseesssssesseeeeeeesnseeees 20 United States Constitution Fifth Amendment..........ccceecscessecececeeeseeceecsaeeseaseneeeeeneetneeeeseees passim COURT RULES California Rules of Court Rulle 8.264(C)(2) ..ccceccccccccsscesssecsseeecssteessecseeseuseseeeseeeeesssesseeesseeseseesens 1 Rule 8.500(€) occ ccceccsceccseeceesseseeeeseeeeeseeseseeccsseeessaeeeeeeeeeeseenseeensaaeeeees 1 Federal Rules of Criminal Procedure Rule 12... ieece ccc ccsesssssesecesecececnsceccuveccccsecevssnscsvsetersesesevavsctnsseeesseceaneeees 13 Rule 12.2(D)(1) ..cccccccseessccsesceseecccneeesnsesseseseeeesecseeeeeseeesserecensesenaeeees 13 Rule 12.2(c)(1)(B) ...ccccccccccesccsseccssseessseeeessseecsaeseseeceesaesseeeeseessneeeees 13 Rule 12.2(C)A)(A) .o.cccscscccccsscseeesesecescsecseeesescseessesesesseeneesesnseessaeeees 13 OTHER AUTHORITIES Pardo, Disentangling the Fourth Amendment and the Self- Incrimination Clause (2005) 90 Iowa L.Rev. 1857 .....eceeeeeeeeeees 12 Real party in interest respectfully petitions for review of the published decision of the Court of Appeal for the First Appellate District, Division Five, in which the court granted in part and denied in part petitioner’s petition for writ of mandate. (Exh. A.) The Court of Appealfiled its modified decision on May 17, 2010. (Exh. B.)' Petitioner’s rehearing petition was denied. Wedid not seek rehearing. This review petition is timely. (Cal. Rules of Court, rule 8.500(e).) ISSUES PRESENTED 1. Whether the Fifth Amendmentrequires, as a prophylactic measure, the prosecution’s exclusion from an accused’s court-ordered psychiatric examination, and the nondisclosure of examination results, pending an in camera redaction hearing attended only by the defense. 2. Whethera pretrial writ lies to review protective orders relating to criminal discovery where appealis available for the review of alleged Fifth or Sixth Amendmentviolations. STATEMENT OF THE CASE AND FACTS On January 8, 2008, the San Mateo County District Attorney’s Office ~ filed an information charging petitioner with first degree murder, with a special circumstanceallegation that he committed the killing by means of lying in wait (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(15)). (Petn. Exh. 1 at pp. 1-2.) The prosecution does not seek the death penalty. (Petn. Exh. 1 at pp. 1-2.) In early 2008, petitioner notified the prosecution ofhis intent to introduce evidence of neurocognitive deficits he purportedly suffers as a ' The court ruled in its May 17, 2010, order that the modification changed the judgment, which extended the date of finality. (Exh. B; Cal. Rules of Court, rule 8.264(c)(2).) result of childhood brain trauma or congenital brain dysfunction. (Petn.at pp. 20-21.) This includes evidence from defense expert psychologist Jeffrey Kline, Ph.D., regarding petitioner’s mild retardation and neurocognitive deficits; from defense expert psychologist Robert Perez, Ph.D., regarding neuro-psychologicaltests producing similar findings; and from defense expert neurologist Peter Cassini, M.D., regarding petitioner’s neurocognitive deficits and MRIresults reflecting an old brain injury. (Petn. at pp. 20-21.) Petitioner has provided the prosecution with his statements to these defense psychiatric experts, as well as the experts’ reports. (Petn. Exh. 7 at pp. 51, 53.) On August 18, 2009, the prosecution moved pursuant to Evidence ~ Codesection 730 for an order compelling petitioner to submit to examinations by court-appointed experts, including a psychiatrist, a psychologist, and a neurologist. (See Petn. at p. 2; Petn. Exh. 2 at p. 1, Petn. Exh. 3 at p. 1.) Thetrial court granted the request. (Petn.at p. 2.) On August 28, 2009, relying on Verdin v. Superior Court (2008) 43 Cal.4th 1096, petitioner sought a writ of mandate and/or prohibition from the Court of Appeal to bar the examinations. (Cal. Court of Appeal Case No. A125920.) On September 4, 2009, the court denied the petition. This Court denied petitioner’s petition for review on September 23, 2009. (Cal. Supreme Court Case No. $176084.) * Subsequently, on August 12, 2008, the court declared a doubtas to petitioner’s competency, suspended criminal proceedings, and appointed two psychologists to evaluate petitioner. The court foundpetitioner- competent on March 18, 2009, and reinstated the criminal proceedings. The competencyevaluations and determination and notpart of the current proceedings. N o Meanwhile, on August 18 and 24, 2009, petitioner filed motions in the trial court seeking 25 protective measuresrelating to the court-ordered examinations. (Petn. Exhs. 2, 4; Petn. at pp. 3-8.) On September8, 2009, the court held a hearing on the parties’ in limine trial motions. (See Petn. at p. 22.; Petn. Exh. 7.) At that hearing, the court addressed the protective measures. It granted the following protections requested by petitioner: Appointing “objective evaluators who are notallied to one party or the other.” (Petn. Exh. 7 at p. 25.) Permitting petitioner to object to any proposed court expert. (Petn. Exh.7 at p. 27.) Permitting defense counsel and a defense expert to observe the examinations through a real time monitoring system. (Petn. Exh. Jatp. 29.) Providing defense counsel with the court experts’ reports, notes, and recordings, within 48 hours of their creation. (Petn. Exh. 7 at p. 30.) Providing defense counsel with reasonable notice of any court expert’s visit to petitioner. (Petn. Exh. 7 at p. 32.) Videotaping the mental health examinations, and recording the physical examinations in some manner. (Petn. Exh.7 at p. 36.) Precluding release of earlier competency evaluationsto court experts. (Petn. Exh. 7 at p. 39.) Requiring that any court expert be a neurologist or neuro- psychologist. (Petn. Exh. 7 at p. 42.) Thetrial court deferred ruling on petitioner’s request for a hearing outside the jury’s presence regarding the admissibility of any Evidence Code section 730 expert evidence proffered by the prosecution. (Petn. Exh.7 at p. 47; Petn. Exh. 4 at p. 3 [Request No. 22].) t a Thetrial court denied petitioner’s requests for five protective measures regarding access to the examinations and disclosure of examination results to the prosecution. (See Petn. at p. 15 [Request Nos.5, 6, 7, 8, 10].)° Specifically, petitioner sought to exclude the prosecution from witnessing the examinations or from obtaining anyresults of those examinations until the defense rested and the court conducted an in camera review of the examination results. Petitioner sought: 5) To prohibit any district attorney... or any oftheir respective staff... from being present during the conduct of any of the examinations of defendant by any of the 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 examinations and investigations 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 adducedas a result of the work of the 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 camera decision referred to in item 6 and only if the Court grants the prosecution permission to do so; * The court also deniedpetitioner’s proposed protective measures 24 and 24, pertaining to the prosecution’s involvementin selecting the court’s experts. (Petn. Exh. 4 at p. 3 [Request Nos. 24, 25].) The appellate court’s resolution of those measuresis not at issue in this review petition. [].-- [9 10) To require the experts appointed pursuant to Evidence Code section 730 to maintain confidentiality regarding their examinations and investigations of defendant with the exceptions [of providing information to the defendant as allowed by other protective measures] as well as the exception that said experts will provide the Court with copies of their notes, reports and recordings, immediately following the conclusion oftheir work. (See Petn. Exh. 2 at pp. 2-3 [Request Nos. 5, 6, 7, 8, and 10].) In denying these requests,the trial court reasoned: I think weall agree that nobodyelse needsto be in the room, however, in fairness, if I’m allowing the defense expert and yourself 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 through the realtime monitor process. (Petn. Exh. 7 at pp. 47-48.) 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 muchsenseto preclude you from attending the actual interview.” (Petn. Exh. 7 at pp. 52-53.) The court also reasonedthat, 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. (Petn. Exh. 7 at p. 54.) | In denying petitioner’s request to provide Miranda* warningsat the examinations, the court stated: [T]here is, from my perspective, no authority for the proposition that the [Miranda] right or admonition would need be given before a mental examination of experts, by experts, excuse me, * Mirandav. Arizona (1966) 384 U.S. 436. L n appointed by the Court. The results of which are potentially only admissible if the defendant puts his mental state at issue. Andthe [sic] following the case of Buchanan vs. Kentucky [(1987) 483 U.S. 402] an interview with a criminal defendant in that context specifically where the defendantis putting his mental state at issue the results of which are only admissible if the defendant puts them atissue at trial under Buchanan vs. Kentucky doesnot constitute a Fifth Amendmentviolation. (Petn. Exh. 7 at pp. 34-35; see also Petn. Exh. 2 at p. 4 [Request No. 13].)° Similarly, the court denied petitioner’s request to preclude the experts fromdiscussing the homicide case, stating, “It is the Court’s view that that case [Buchanan, supra, 483 U.S. 402] makesit clear that there is no Fifth Amendmentprivilege against self-incrimination if the defendant puts his mental state at issue by raising a diminished actuality defense.” (Petn. Exh.7 at p. 40; see also Petn. Exh. 4 at p. 2 [Request No. 18].) The court ultimately selected psychiatrist Jose Maldonado, M.D., neuro-psychologist Shelly Peery, Ph.D., and neurologist Jaime Lopez, M.D., for appointment. (Petn. Exh. 7 at pp. 57-63.) | Petitioner promptly filed a second petition for writ of mandate and/or prohibition writ and request for a stay. On September29, 2009, the Court of Appeal stayed only the court expert examinations pending consideration of the petition. On October 14, 2009, the Court of Appeal issued an alternative writ, directing the trial court to either vacate its order denying petitioner’s proposed protective measures, numbers 5, 6, 7, 8, and 10, and enter a new order granting those measures, or show cause why a peremptory writ should notissue. On October 20, 2009, the trial court reaffirmed its rulings. (Ret. Exh. 1 at pp. 33-35.) On October 29, 2009, the Court of Appeal stayedtrial ° Petitioner did not challenge the denial of his request for Miranda warnings at the outset of the examinations. (See Petn. at p. 15.) proceedings pending resolution of the petition. On May 13, 2010, a divided panel granted in part and deniedin part petitioner’s petition and issued a writ of mandate. The majority acknowledged that when a defendant places his mental state at issue by giving notice of intent to present a mental state defense, such as insanity or diminished actuality, the trial court may orderthe defendant to submit to a psychiatric examination by the court’s or the prosecution’s mental experts.° Whena defendant presents psychiatric evidence on his mental condition at trial... he has no Fifth Amendment privilege against prosecution rebuttal psychiatric evidence on that issue, even if based on defendant’s ownself-incriminating statements. [Citation.] Were the rule otherwise, the defendant's silence might “‘deprive the State of the only effective meansit has of controverting his proof on an issue that he interjected into the case’” [citation], and defendants “could, with impunity, present mental defenses ... , secure in the assurance they could not be rebutted by expert testimony based on an actual psychiatric examination. Obviously, this would permit and, indeed, encourage spurious mental illness defenses”[citations]. (Maj. Opn.at p. 15, first ellipses added.) The court further noted, “Thetrial court’s authority to order Maldonadoto submit to a psychiatric examination is not contested in this writ proceeding. We assumeherethe validity of that order. It is clear, and Maldonadodoesnot dispute, that the prosecution may use the results of the examinations in rebuttal to his trial evidence of his mental condition.” (Maj. Opn.at p. 17.) ° Although the challengedorder in this case directed the defendantto submit to examination by the court’s experts pursuant to Evidence Code section 730 and Verdin, supra, 43 Cal.4th at pages 1106-1114, the majority noted that the Legislature has now amended Penal Codesection 1054.3 to permit the court to order the defendant to submit to examination by the prosecution’s experts. (Maj. Opn.at p. 16.) The central issue addressed by the majority was “when, and under what circumstances, are the examination results to be disclosed to the prosecution.” (Maj. Opn. at p. 17.) The majority properly held that the prosecution wasentitled to receive the results of the court ordered psychiatric examination before trial. (Maj. Opn.at p. 20 [“We conclude that pretrial disclosure of the examination results is necessary to permit the prosecution to prepare its rebuttal case so that it can subject Maldonado’s psychiatric evidenceto the truth-revealing process of adversarial testing, and to avoid significant mid-trial delays in proceedings.”].) However, the majority concludedthat additional prophylactic measures were constitutionally compelled before the expert evaluation could be turned over to the prosecution. The majority noted that a defendant can only be compelled to provide statements for a mental evaluation consistent with the scope of his waiver in introducing his own mental defense. The majority contemplated the possibility that the defendant might be asked questions by the court- appointed experts that could potentially exceed the scope of his waiver. (Maj. Opn.at pp. 19-25.) The majority appeared to acknowledge that the Fifth Amendmentis not violated by mere disclosure of compelled statements, but rather only by use of those statementsat trial. (Maj. Opn. at pp. 30-31 [discussing United States v. Verdugo-Urquidez (1990) 494 U.S. 259, 264, United States v. Balsys (1998) 524 U.S. 666, 671, 691-698, and Chavez v. Martinez (2003) 538 U.S. 760, 767-773 (plur. opn. of Thomas, J.)]; see also Spielbauerv. County ofSanta Clara (2009) 45 Cal.4th 704, 727.) It also recognized that until the defendant actually puts on his defense, his statements to the court- appointed alienists are protected under Kastigar v. United States (1972) 406 U.S. 441, 453, which provides use and derivative use immunity for material that exceeds the scope of any future waiver. (Maj. Opn.at pp. 33-34;cf. Bagleh v. Superior Court (2002) 100 Cal.App.4th 478.) The majority, however, believed that “a simple bar against derivative use is not alone a failsafe protective measure.” (Maj. Opn. at p. 35.) The majority concluded that the only wayto fully protect the defendant’s Fifth Amendmentright wasto bar the prosecution from observing the mental examinations conducted by the court-appointed experts and to interpose an in camera hearing from which the prosecution is excluded,prior to the release of any results of those examinations. At the in camera hearing, the trial court must evaluateall the materials to determineif any ofthe defendant’s statements exceed the scope of waiver and redact such statements before the materials can be disclosed to the prosecution. (Maj. Opn.at pp. 36-38.) The appellate judgment provides: The alternative writ is discharged and the petitionis granted in part and denied in part consistent with the views expressed in this opinion. A peremptory writ of mandate shall issue directing the trial court to vacate its September 8, 2009 order with respect to request numbers 5, 6, 7, 8 and 10 and enter a new order consistent with the views expressed in this opinion. The order shall providethat: 1) Prosecuting attorneys and their agents shall be barred from observing the examinations of Maldonado in realtime. All persons present at the examinations, including the examiners, shall be barred from disclosing any statements made by Maldonado during the course of the examination until expressly authorized to do so bythe trial court. 2) Within a specified amountof time after the conclusion of each examination (to be determinedbythetrial 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 the trial court must conductan initial in camera review ofthe motion to determine whether the motion has merit. 3) In ruling on the motion,the trial court shall determineif Maldonado’s statements to the examiners, in whole or in part, remain subject to Fifth Amendmentprivilege, redact any statements it finds to be privileged, and may then order the balance of the results of the examinations, including any notes and recordings, disclosed to the prosecution. The court must also consider whetherdisclosure should be conditioned or limited in any fashion in order to preserve any valid assertion of privilege, or to preclude derivative use. The previously issued stay shall remain in effect until the remittitur issues. (Modification of Maj. Opn at pp. 1-2,filed May 17, 2010.) Justice Needham disagreed with the majority’s analysis and conclusion. He explained: In the matter before us, the prosecutor agreed that evidence obtained from the examinations of Maldonado would be used 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 use of the evidence, so there was never any dangerthat the timing and method of disclosing the examination results would violate Maldonado’s Fifth Amendmentrights either. Indeed, it was clear (at least until this court’s decision today) that a guarantee of use immunityand derivative use immunity protects the privilege against self-incrimination, since such immunity byitself “remove[s] the dangers against which the privilege protects.” (Kastigar v. United States (1972) 406 U.S. 441, 449 (Kastigar).) To the extent Maldonado could not convincethe trial court to impose additional safeguardsin its discretion, he has an adequate remedy at law. His petition for extraordinary relief therefore failed to allege circumstances justifying our review, and his petition should have been denied. The majority opinion, however, embraces Maldonado’s petition as an opportunity to usher in a new era of Fifth Amendment law. Eschewing California and federal precedents, it suggests that use and derivative use immunity is no longer good enough. Overlooking petitioner’s acknowledgementthat a 10 trial court might, in its discretion, properly employa variety of approaches to adequately protect a defendant’s rights, this court stripsall trial courts in this state of discretion to tailor Fifth Amendmentprotections to the circumstancesof the case, and forces them instead to don a one-size-fits-all procedure that will likely fit very few. I respectfully but strongly dissent. (Dis. Opn.at p. 1.) REASONS FOR GRANTINGREVIEW I, THE FIFTH AMENDMENTDOES NOT COMPEL THE PROPHYLACTIC MEASURES ADOPTED BY THE COURT OF APPEAL Reviewis required of Court of Appeal’s novel and sweeping decision to categorically bar the participation of the prosecution from proceedings whenthe accused’s mentalstate is at issue and the court has ordered an examination by a court-appointed or prosecution-retained expert. Not only does that new procedure lack constitutional justification, it conflicts with the procedure delineated in newly enacted section 1054.3. The procedureis unlikely to achieve the goals identified by the court below,and at the same time creates an unintendedtrap for the prosecution. The appellate court rested its in camera procedure on twointerrelated justifications. First, it concluded that a defendant’s Fifth Amendmentrights require protection from the mere disclosure to the prosecution of compelled statements. Second,it concluded that providing use and derivative use immunity, as delineated in Kastigar v. United States, supra, 406 U.S. 441, is insufficient to protect a defendant’s Fifth Amendmentrights because Kastigar does not prevent disclosure. Both conclusionsare incorrect. I] A. The Fifth Amendment’s Self-Incrimination Clause Prohibits Use of Compelled Statements, Not Access to Them The Fifth Amendmentprovides that no person “shall be compelled in any criminal case to be a witness against himself.” “The privilege against self-incrimination guaranteed by the Fifth Amendmentis a fundamental trial right of criminal defendants.” (United States v. Verdugo-Urquidez (1990) 494 U.S. 259, 264.) “Although conduct by law enforcementofficials prior to trial may ultimately impairthat right, a constitutional violation occurs only attrial.” (Ibid., italics added; see also Chavez v. Martinez (2003) 538 U.S. 760, 767 (plur. opn. of Thomas, J.) [“Statements compelled by police interrogations may not be used against a defendantattrial .. . but it is not until their use in a criminal case that a violation of the Self-Incrimination Clause occurs”’]; Kastigar v. United States (1972) 406 U.S. 441, 453 [holding that “immunity from use and derivative use is coextensive with the scope of the privilege againstself- incrimination, and therefore is sufficient to compel testimony over a claim of the privilege’”’].) “The text of the Self-Incrimination Clause simply cannot support the .. . view that the mere use of compulsive questioning, without more, violates the Constitution.” (Chavez v. Martinez, supra, 538 U.S. at p. 767 (plur. opn. of Thomas,J.); see also Pardo, Disentangling the Fourth Amendmentand the Self-Incrimination Clause (2005) 90 lowa L.Rev. 1857, 1872 [“The Fifth Amendmentprohibits only the use or derivative use of compelled, incriminating testimonial communications during a criminal prosecution. Therefore, there is no remedy if statements are compelled out of court but the suspect is not prosecuted”].) California case law likewise recognizes this use versus access distinction. This Court recently explained in Spielbauer v. County ofSanta Clara (2009) 45 Cal.4th 704, 727: p s i ) The state and federal self-incrimination clauses say one cannot be made an involuntary witness against himself, or herself, in a criminal proceeding. Thus, they do not prohibitofficially 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 not itself violated until statements obtained by compulsion are used in criminal proceedings against the person from whom the statements were obtained. Consistently with this access/use distinction, federal courts under Federal Rules of Criminal Procedure, rule 12, afford prosecutors access to the results from compelled psychiatric examinations, but prevent the prosecution from using the results until after the defendant presents mental health issuesat trial. Rule 12.2(b)(1) provides,“[i]f a defendant intends to introduce expert evidencerelating to a mental disease or defect or any other mental condition of the defendant bearing on . . . the issue of guilt. . . the defendant must... notify an attorney for the governmentin writing ofthis intention.” Under rule 12.2(c)(1)(B), “[i]f the defendant provides notice — under Rule 12.2(b) the court may, upon the government’s motion, order the defendant to be examined under procedures ordered by the court.” Under rule 12.2(c)(4)(A), fruits of the compelled examination may be used “fon an issue regarding mental condition on which the defendant . . . has introduced evidence of incompetencyor evidence requiring notice under Rule 12.2(a) or (b)(1).” The federal courts recognize that the prosecution may obtain the results prior to trial, even if it cannot introduce the results until after the defense ultimately proffers psychiatric evidenceat trial. For example, in United States v. Stockwell (2d Cir. 1984) 743 F.2d 123, the defendantraised an insanity defense to robbery charges. Prior to trial, a government psychiatric expert examined the defendant, and the prosecutor heard a tape recording of that examination. (/d.at p. 124-125.) The Second Circuit rejected the defendant’s claim that “the method by whichthe prosecutor informedherself of the results of the psychiatric examination violated Rule 12.2(c) and his Fifth Amendmentright against self-incrimination.” (Id. at p. 126.) The court explained: [While 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 cannotbesaid to constitute a per se violation of 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 examination is put, and notprimarily on the method by which the prosecutor learns of the results of the examinationfrom the psychiatrist. As Stockwell concedes, the prosecutor has to obtain information aboutthe results of the psychiatric examination in some manner. As Jong as the prosecutor restricts his or her use ofthe defendant’s statements to the issue ofinsanity, there is no violation ofthe Rule orofthe defendant’s constitutionalrights. (United States v. Stockwell, supra, 743 F.2d at p. 127, italics added.) Likewise, in United States v. Hall (5th Cir. 1998) 152 F.3d 381’, the trial court required the capital defendant to submit to a psychiatric examination in responseto his indication that he would present psychiatric evidence in mitigation of punishment. The defendant argued that, “in order to adequately safeguard his Fifth Amendmentprivilege against self- incrimination, the district court could not order a government psychiatric examination unless it sealed the results of the examination until the penalty phase oftrial.” (Ud. at pp. 398-399.) The Fifth Circuit rejected this ’ Superseded by statute as recognized in United States v. Taylor (E.D. Tenn. 2008) 2008 WL 471686 at *10, and overruled on other grounds in United States v. Martinez-Salazar (2000) 528 U.S. 304, 310-311. 14 argument, explaining that, despite any policy determinationsa trial court might make in favor of such a rule, “we nonetheless conclude that such a rule is not constitutionally mandated.” (d. at p. 399.) “Wetherefore reject Hall’s contention that the district court violated his Fifth Amendment privilege against self-incrimination . . . by declining to order the results of the examination sealed until the sentencing hearing.” (/d. at p. 400.) | State courts have reached similar results. (See Byrom v. State (Miss. 2003) 863 So.2d 836, 850 [Wefind noerror in the decision of the trial judge in the case at bar to require disclosure of the reports prior to the sentencing phase.”]; Sears v. State (1993) 262 Ga. 805, 807 [“There was no error in the denial of the defendant’s request for a psychiatric evaluation after the guilt phase is completed but before the sentencing phase begins (rather than a pre-trial evaluation)”]; see also State v. Hickson (Fla.1993) 630 So.2d 172, 176 [concluding that if the defendant “decides to rely on the battered-spouse syndrome, and wishesto present the testimony of an expert who has examinedher, she must submit to an examinationbythestate's expert, whose testimony may be used to rebut her expert's testimony”]; State v. Briand (N.H. 1988) 547 A.2d 235, 240 [holding “that a criminal defendant waives her rightto resist the State's request that she submit to court-ordered psychiatric examination when she (1) submits to psychiatric examination by defense experts; and (2) evinces the intention to rely on that testimonyat trial”]; State v. Manning (Ohio Ct.App. 1991) 598 N.E.2d 25, 28; cf. Mitchell v. State (Nev. 2008) 192 P.3d 721.) In analogous contexts, California courts have foundthatit is constitutionally permissible to require discovery of psychiatric expert evidence. Where a defendant pleads not guilty by reason of insanity, a court may order the defendant to submit to a psychiatric examination by a prosecution expert withoutinfringing his constitutional rights, provided that limitations on use of the examination are in place. (See Pen. Code, § 1027; 15 People v. Jantz (2006) 137 Cal.App.4th 1283, 1295 [‘‘a defendant waives the 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 mental health experts.”’].) A defendant may be compelled to submit to a psychiatric examination by a © prosecution expert when the defendantraises a question regarding his _ competencyto standtrial, with the limitation that the prosecution may not use the results of the competency evaluation during thetrial, nor any fruits derived from that evaluation. (See Pen. Code, §§ 1368, 1369; Bagleh v. Superior Court, supra, 100 Cal.App.4th at pp. 498-499 [“an accused who places his or her competencyat issue and offers psychiatric evidence in support of the lack of competency cannot on the basis of the Fifth Amendmentrefuse to submit to a court-ordered examination by a prosecution expert and prevent the jury that will determine whether he or she is competent from learning of the refusal”]; cf. People v. Pokovich (2006) 39 Cal.4th 1240, 1252-1253 [recognizing use limitation, not discovery limitation, on evidence from competency examinations, but finding no basis for claim that competency evaluations require compelled statements].) A defendant also may be required to produce certain psychiatric expert evidence as part of his discovery obligations under Penal Code section 1054.3. (See Woods v. Superior Court (1994) 25 Cal.App.4th 178, 183, 187 [finding no Fifth Amendmentviolation where the defendant was required to disclose results of standardized tests by defense expert psychologist].) Similarly, a capital defendant may be compelled to turn over psychiatric evidence that he intends to rely on during the penalty phase. (See People v. Jones (2003) 29 Cal.4th 1229, 1264 [holding that no Fifth Amendment violation occurred wherethe trial court required the defendant to disclose statements he made to a psychiatric expert listed as a 16 potential penalty phase witness, even though disclosure was ordered prior to the penalty phase].) The court below,in issuing its alternative writ, pointed to Estelle ve Smith (1981) 451 U.S. 454 (Smith), In re Spencer (1965) 63 Cal.2d 400 (Spencer), and People v. Williams (1988) 197 Cal.App.3d 1320, but those decisions do not support its ruling. They simply reflect that before the defense introduces psychiatric evidence, the prosecution maynot introduce evidence from a compelled psychiatric examination. Again, this is a limitation on use, not access. | The appellate court also sought support for its new in camera procedure by pointing to the fact that the Supreme Court has created prophylactic rules guarding the Fifth Amendment. Notably, the court cited to Miranda v. Arizona, supra, 384 U.S. 436, as one such prophylactic measure. This analogy is flawed. Under Miranda,a custodial suspectis told he need not speak, and any Miranda violation results normally in exclusionattrial, not nondisclosure of the statement to the prosecutor. (See generally Oregon v. Elstad (1985) 470 U.S. 298, 306.) Indeed, the prosecution may use an un-Mirandized statement for impeachment, (Harris v. New York (1971) 401 U.S. 222, 224.) Even when a confessionis deemedinvoluntary, the remedyis to bar the use of that statementattrial for any purpose and to excludethe tainted fruits of the involuntary statement. (See generally New Jersey v. Portash (1979) 440 U.S. 450, 458- 459.) The inappropriateness of the majority’s prophylactic rule is patent when considered in the Miranda context. Unlike the United States Supreme Court, the Court of Appeal below considers a bar against future use at trial to be an insufficient protection for the Fifth Amendment. The majority’s prophylactic rule has no constitutional basis. 17 B. Use Immunity and Derivative Use Immunity Fully Protect a Defendant Against Possible Fifth Amendment Violations for Statements that May Exceed the Scope of the Waiver The court below erred in finding that “a simple bar against derivative use is not alone a failsafe protective measure.” (Maj. Opn. at p.35.) The United States Supreme Court held in Kastigar that use and derivative use immunity was coextensive with andfully satisfied the Fifth Amendment. (Kastigar v. United States, supra, 406 U.S. at p. 453 [“We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony overa claim ofthe privilege.”].) No one disputesthat, to the extent the petitioner’s statements to the court-appointed experts proveto exceed the scope of his waiver in proffering his mental defense, those statements will remain protected by judicially imposed use and derivative use immunity. (See People v. Williams (1988) 197 Cal.App.3d 1320, 1324; In re Spencer (1965) 63 Cal.2d 400, 412; see also People v. Weaver (2001) 26 Cal.4th 876, 959-961; Bagleh v. Superior Court, supra, 100 Cal.App.4th at pp. 498-499; see generally People v. Pokovich, supra, 39 Cal.4th at pp. 1252-1253 [discussing immunity].) Such immunity is sufficient to safeguard the defendant’s Fifth Amendmentrights. The fundamental concern driving the appellate court’s analysis 1s its concern regarding “the possibility that some of Maldonado’s statements in the context of a compelled examination maystill be subject to a claim of privilege” (Maj. Opn.at 30), owing to the fact that the scope of Maldonado’s waiver is dependent upon the nature of the actual defense he presents. (See Maj. Opn.at pp. 25-30.) However, the procedures imposed bythe court are contrary to the statutory framework created by the Legislature and dolittle to address the concerns identified. First, newly modified section 1054.3 sets out 18 appropriate procedures for requiring a defendant to submit to a mental examination by the prosecution’s experts, and those procedures do not contemplate the type of in camera hearing imposedbythe appellate court. Section 1054.3, subdivision (b)(1)(B) provides in relevantpart: The prosecuting attorney shall submit list of tests proposedto be administered by the prosecution expert to the defendant in a criminal action or a minorin a juvenile proceeding. At the request of the defendant in a criminal action or a minorin a juvenile proceeding, a hearing shall be held to consider any objections raised to the proposed tests before any test is administered. Before ordering that the defendant submit to the examination, the trial court must make a threshold determination that the proposed tests bear some reasonable relation to the mental state placed in issue by the defendantin a criminal action or a minor in a juvenile proceeding. For the purposesof this subdivision, the term “tests” shall include any and all assessment techniques such asa clinical interview or a mental status examination. The statute provides for a threshold determinationof reasonable relevance and a hearing to address the defendant’s objections before any test is administered. The statute does not mandate barring the prosecution from the evaluation, nor contemplate a subsequent in camera hearing excluding the prosecution, as crafted by the Court of Appeal. . Second, holding a pretrial, in camera hearingis the least efficient and effective means of evaluating and resolving a claim that the defendant’s statements to the court-appointed or prosecution-retained expert exceed the scope of the defendant’s waiver. The scope of the examinationis necessarily tailored to the proposed mental defense identified by the defendantbefore trial. However, at the time of the in camera hearing, any possible Fifth Amendmentviolationis still inchoate, because the true breadth of the defendant’s waiverisstill nascent and undefined. The actual form of the defendant’s mental defense and the concomitant scopeofhis waiveris not fully realized until the defendant puts on his defenseattrial. 19 At that point, the trial court will haveto revisit the question of the actual scope of the waiver, rendering the earlier in camera hearing duplicative at best and pernicious at worst. For example, assumethe defendant ultimately decides not to put on the mental defense. The prosecutor is then precluded from introducing any evidence from his examination, and the in camera hearing required by the Court of Appeal would have been an empty exercise. In that situation, the defendantstill remains fully protected by the use and derivative use immunity that attaches to his statements to the experts and necessarily expands to cover any statements not subject to waiver. On the other hand, assume the defense puts on a more expansive mental defense than anticipated by the trial court. The prosecution may well be entitled to present additional information obtained by its experts. Having been barred from the in camera hearing, however, the prosecution would not be aware of what information was redacted and, thus, would be unfairly precluded from presenting relevant and available rebuttal evidence. Because the nonstatutory in camera procedure created below has a clear potential to exclude relevant evidence when suchexclusionis not otherwise constitutionally compelled, it runs afoul of Article I, section 28, subdivision (d) of the California Constitution. (dn re Lance W. (1985) 37 Cal.3d 873, 879, 890.) The use of an in camera hearing procedure excluding the prosecutor, during which the court and the defense identify and redact potentially protected statements from the examination materials, also creates a serious trap for the prosecutor. Because the prosecutoris not privy to what information has been excised, he or she may inadvertently elicit such information from the examiner by asking an innocuous question. The prosecutor may also be penalized if the expert volunteers improper information, having not been forewarned by the prosecutor which information had been deemed inadmissible at the in camera hearing. Burdening the prosecutor with this risk of error is unwarranted when the defendant’s Fifth Amendmentrights are fully protected by the availability of use and derivative use immunity, which are best applied in light of the scope of the actual waiver as determined once the defendant presents his defense. The Court of Appeal’s justification for its novel procedure potentially applies to any pretrial order that an accused submit to a court-appointed or prosecution-retained examiner’s mental evaluation. Consequently, the opinion below effectively requires every trial court to follow the one-size- fits-all procedures set out therein. That hearing procedureis neither constitutionally compelled nor consistent with the statutory scheme enacted by the Legislature. The defendant’s rights are already fully protected by the availability of use and derivative use immunity. This Court should grant review to identify the applicable Fifth Amendmentprotections for a defendant who1s ordered to submit to a psychiatric evaluation by a prosecution-retained or court- appointed expert and to preclude the application of the majority’s unwarranted and constitutionally suspect pretrial procedure. II. EXTRAORDINARY WRIT REVIEW IS IMPROPER:FOR RESOLVING PRETRIAL DISCOVERY MATTERS BECAUSE THE DEFENDANT HAS AN ADEQUATE REMEDYAT LAW Review is also warranted in this case because extraordinary writ review is improperto resolve challengesto pretrial discovery procedures, such as the oneat issue here. “Tn criminal as well as civil proceedings review ofinterlocutory rulings oftrial courts by extraordinary writ generally is available only if there is no adequate remedy by appeal.” (Serna v. Superior Court (1985) 40 Cal.3d 239, 263; Joe B. v. Superior Court (2002) 99 Cal.App.4th 23, 27.) Here, as detailed above, petitioner has an adequate remedy already available. Petitioner’s petition sought to foreclose a possible future violation of his Fifth Amendmentright due to a compelled interview with court- appointed psychological experts. However, as detailed above, the compelled disclosure is predicated on petitioner’s waiver through his stated intent to present a mental defenseat trial. To the extent there exists the possibility that his actual waiver may differ from the scopeofhis pretrial tender of the mental defense, the need for relief is merely speculative, and will remain so until trial. More importantly, to the extent such a possibility should materialize, petitioner is already protected by the use and derivative use immunity that attaches to compelled disclosures beyond the scope of his waiver. As explained, the defendant’s Fifth Amendmentrights are not violated by disclosure,but rather by use at trial. (United States v. Verdugo-Urquidez, supra, 494 U.S. at p. 264; Chavez v. Martinez, supra, 538 U.S. at pp. 767- 773; Spielbauer v. County ofSanta Clara, supra, 45 Cal.4th at p. 727.) Because the Kastigar protections prohibit such improperuseat trial, there is no need for pretrial writ review to evaluate speculative future claims. Indeed, after petitioner presents its mental defense, he will be in a better position to seek from thetrial court limitations on the materials the prosecution may use on rebuttal in light of the true scope of the mental defense presented. (See Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1100 [“In reality, perhaps the most fundamental reason for denying writ relief is the caseis still with thetrial court and there is a good likelihood purported error will be either mooted or cured by the time ofjudgment.”’].) Moreover, appeal is not merely an adequate remedy, it is the superior remedy because the scope and nature of anyalleged violation cannot be N a t O knownuntil the defendant presents his defense at trial and the prosecution presents the challenged material in rebuttal. (See, e.g., People v. Wallace (2008) 44 Cal.4th 1032, 1087 [resolving on appeal claim thattrial court’s rulings violated Verdin v. Superior Court, supra, 43 Cal.4th 1096].) Not only does petitioner have an adequate remedy on appeal, writ review for discovery matters is particularly disfavored. As Justice Needhamnotesin his dissent, “The delay occasioned by interim review of discovery orders is usually worse for the judicial system than the harm caused by the order. (Save-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 5 (Save-On ).)” (Dis. Opn.at p. 5.) The court justified pretrial writ review with cases involving the possible breach ofa statutory privilege, such as the attorney-client privilege, or psychotherapist-patient privilege. (Maj. Opn. at pp. 8-9; see generally Story v, Superior Court (2003) 109 Cal.App.4th 1007, 1013 (“Writ review of discovery orders is appropriate where the order may underminea privilege, ‘because appellate remedies are not adequate once the privileged information has been disclosed.’ [Citation.]”].) The majority’s reliance on statutory privilege cases 1s misplaced. Statutory privileges are protected from discovery because the release of such information,by itself, undermines the relationship between the parties that the privilege is designed to foster and protect. (See Story v. Superior Court, supra, 109 Cal.App.4th at p. 1013 [noting psychotherapist patient privilege was created with “the view ‘that an environmentof confidentiality of treatment is vitally important to the successful operation of psychotherapy.’”’].) For such statutory privileges, the harm arises directly from the act of disclosure. By contrast, for the Fifth Amendment, the harm arises not from disclosure, but from use. Indeed, while statutory privileges are essentially inviolate unless waived, the Fifth Amendment privilege may be overcome by a grant of use immunity pursuantto Kastigar. The threshold question has been resolved as to whether the defendant has placed his mentalstate at issue thereby subjecting himself to court ordered evaluations. Pretrial writ review is inappropriate because no -violation of the Fifth Amendment occurs with mere disclosure, only with improperuseat trial. Review is therefore necessary to establish that pretrial writ review is an inappropriate vehicle for evaluating, imposing, or modifying pretrial protective procedures regarding access to the defendant’s statements to court-appointed or prosecution-retained examinersin cases like the present one. CONCLUSION Accordingly, real party in interest respectfully requests that the petition for review be granted. Dated: June 25, 2010 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General STAN HELFMAN Supervising Deputy Attorney General LAURENCEK, SULLIVAN Supervising Deputy Attorney General Lo “yCy a Jfjp / / /JEFFREY M. LAURENCE Deputy Attorney General Attorneysfor Real Party in Interest SF2009202503 20295347.doc i ) A CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEWusesa 13 point Times New Roman font and contains 7,210 words. Dated: June 25, 2010 EDMUNDG. BROWN JR. Attorney General of California i Ca / / 4 — JEF Y M. LAURENCE Deputy Attorney General Attorneysfor Real Party in Interest EXHIBIT A Filed 5/13/10 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 COURT OF SAN A126236 MATEO COUNTY, R dent: (San Mateo County espondent, Super. Ct. No. SC065313A) 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 intent to 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’s efforts to overturn that order through writ of mandate and/or prohibition were rejected in both this court and in the California Supreme Court. (Maldonado v. Superior Court (Sept. 4, 2009, A125920) [nonpub. order]; Maldonado v. ' All further code referencesare to the Penal Code unless otherwise indicated. Superior Court (Sept. 23, 2009, $176084) [nonpub. order].) Maldonado also concurrently filed motionsin the trial court seeking certain protective ordersrelating to the court-ordered examinations. On September9, 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 mental health evidenceattrial, and then only after an in camera hearing at whichthetrial court would determine which materials should be disclosed. He further objected to prosecution participation in selection of the appointed experts. Maldonado again seeks a writ of mandate/prohibition challenging denial of seven of his requested protective orders. Weissued an 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 whya peremptory writ of mandate should not issue. Thetrial court declined to modify its order. We then stayed proceedings, ordered briefing, and scheduled the matter for 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 the trial court to delay disclosure of those portions of the examination reports containing statements by Maldonado until he has an opportunity to challenge disclosure of materials potentially still subject to privilege, despite the fact that he has placed his mental state in issue. We hold that Maldonado mustbe given 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. Wereject Maldonado’s contention that disclosure of the examination results and supporting data must be deferred until defense | evidence on his mental state is adduced attrial. 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 evidence to meaningful adversarial testing at trial. We find no errorin the trial court’s consideration of prosecution recommendationsin the court’s appointment of experts to examine petitioner. I. BACKGROUND Petitioner Reynaldo A. Maldonado is charged with the murder of Quetzalcoatl Alba. (§ 187, subd. (a).) The special circumstance that the murder was committed while petitioner was lying in waitis alleged.” (§ 190.2, subd. (a)(15)) Defense counsel retained the services ofthree mental health 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 of its reciprocal discovery obligations, the defense provided the prosecution with mental health evidence resulting fromthis investigation, including statements made by Maldonadoto the examiners. The prosecution then askedthe trial 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. Wedenied the ‘petition and the Supreme Court denied review. (Maldonado v. Superior Court, supra, A125920; Maldonado v. Superior Court, supra, 8176084.) 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 of requests involves Maldonado’s efforts to restrict the prosecution’s access to the examinationsandto the expert reports. As relevanthere, he asked the court to allow defense counsel and a defense expert to observe the - examinations and to obtain reports, notes and recordings of the examinations within 24 hours oftheir creation, but to restrict the prosecution’s access to that same information. The specific requests in issue were: * The prosecution is not seeking the death penalty. “5) To prohibit anydistrict attorney, attorney general, U.S.attorney, or special prosecutor, or any of their respective staff, or any of their law enforcement agents, including but not limited to Daly City Police, San Mateo County Sheriff's Office, from -being present during the conduct of any of the examinations of defendant by any of the Evidence Code section 730 Court-appointed experts; 6) To prohibit access by anyofficials referred to under item 5 to any of the reports, notes and/or recordings of the examinations andinvestigations by any of the experts appointed by the Court pursuant to Evidence Codesection 730 until after the close of the defense caseat 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 of the 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 havethe 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 camera decision 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 examinations and investigations of defendant with the exceptions [of providing information to the defendantas allowed by other protective measures] as well as the exception that said experts will provide the Court with copies of their notes, reports and recordings, immediately following the conclusion of their work.” (Italics omitted.) In a supplemental motion, Maldonado challenged 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 appointmentpursuant to Evidence Code section 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 room itself. The prosecution also argued that both the defense and prosecution should have access to the experts andto reports, notes and recordings of the examinations promptly after their creation, and that the admissibility of evidence resulting from the examinations should be determined before juryselection. With respect to 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, thetrial court granted certain of Maldonado’srequests in part, and denied the remainder, including request numbers5, 6, 7,8, 10, 24 and 25. The court ruled that both the defense and prosecution could observe the examinations from a separate room by simultaneous video monitoring as proposed by the prosecution. The court denied the request to preclude prosecution accessto reports, notes and recordings of the examinations until after close of the defense case and in camera review,as well as the request to delay determination of the 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 mightbe candidates for appointment by the court. The court then appointed as experts three individuals whose names and resumes had been provided to 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 numbers5, 6, 7, 8, 10, 24 and 25 on Fifth and Sixth Amendment grounds. He soughta stay oftrial court proceedings pending resolution of the writ petition. We stayed the court-ordered examinations, but notthetrial, 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 appears to this court that respondent superiorcourt erred in 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 of petitioner’s request numbers 5, 6, 7, 8 and 10 appears to violate petitioner’s Fifth Amendmentrights. (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 respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.’];Buchanan v. Kentucky (1987) 483 U.S. 402, 422-423 [elaborating on the foregoing statement from Estelle v. Smith, supra, as follows: ‘This statement logically 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: “Although it appears the Fifth Amendmentissues asserted 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) vacate its September8, 2009 order with respect to request numbers5, 6, 7, 8 and 10 and enter a new and different 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 informedusthat the trial court had declined tovacate its order and opted to show cause why a peremptory writ should not issue. We were advisedthat, “Respondent court’s choice was madein light of the People’s request to follow that course of action and the recent arrest (October 12, 2009) of the codefendantin this case, Mr. Erick Morales, who had been wanted since June of 2001, and whose capture will necessarilydelay petitioner’s trial (petitioner wasarrested on October 15, 2007).” On October 29, we stayed the trial and all further proceedings concerning the court-ordered examinations pending further order of this court, and set a briefing schedule.*? Our order specified that the “issues to be addressedin this proceeding are limited to the claimsraised in the petition herein, regardless of whether those claims were found meritoriousin the court’s October 14, 2009 order granting the alternative writ. II. DISCUSSION Maldonadoseeks a writ requiring thetrial court to grant protective orders delaying the disclosure of any of the results of the examinations unless and until he presents his own expert evidenceattrial, requiring in camera review bythe court prior to disclosure, and barring any prosecution involvementin the selection of the court-appointed experts. Wefirst consider whether these matters are appropriately considered on writ review. > Maldonadoarguesthat we must disregard the factual assertions in the People’s return because the return wasnot verified. We need not decide whether the return needed to be verified, because we concludethat no additional facts 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 ground that petitioner possesses other adequate remedies at law, making writ relief inappropriate.” A. Propriety of Writ Review Writ relief by mandamuswill lie “to compelexercise ofjurisdiction or to correct an abuseofdiscretion, but it cannot control the exercise of discretion.” (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Writs, § 92, p..624.) “The conditions limiting issuance of the writ of mandamusin criminalcases are similarto those in civil cases. (See generally 8 [Witkin,] Cal. Proc[edure] (4th [edJ), 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 rests is that in the great majority of cases the delay due to interim review of discovery ordersis likely to result in greater harm to the judicial process by reason of protracted delay than is the enforcementof a possibly improper discovery order. [Citation.]” (Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 5 (Sav-On Drugs).) _ Extraordinary review of a discovery order will be granted, however, when a ruling “threatens immediate harm, such asloss 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 order is appropriate if the order allegedly violates a privilege of the 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 claims of attorney- client or work product privilege (San Diego Professional Assn. v. Superior Court (1962) 58 Cal.2d 194, 198-199; Mitchell v. 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 ordered attorney 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, 1014-1015, 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 provided on tax returns]; Sav-On Drugs, at pp. 6-7 [same]), the California constitutional right to privacy (Britt v. Superior Court (1978) 20 Cal.3d 844, 851-852),’ and the state and federal constitutional right to freedom of association (Bodenheimerv. Superior Court (1980) 108 Cal.App.3d 885, 887-888). Reviewing courts have also regularly entertained writ petitions challenging, as here, criminal discovery orders allegedly violating a defendant’s Fifth Amendment privilege against self-incrimination and therelated Sixth Amendmentright to the assistance of counsel when being questioned by the prosecution. (See Verdin v. Superior > See also Suezaki v. Superior Court (1962) 58 Cal.2d 166, 169-170; D. I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 727; Hiott v. Superior Court (1993) 16 Cal.App.4th 712, 714-715, 716; Soltani-Rastegar v. Superior Court (1989) 208 Cal.App.3d 424, 425; Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1490, 1493; Willis v. Superior Court (1980) 112 Cal.App.3d 277, 289; American Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal.App.3d 579, 588-590; Sandersv. Superior Court (1973) 34 Cal.App.3d 270, 272-275; Atchison, Topeka & 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 of Alameda v. Superior Court (1987) 194 Cal.App.3d 254, 256-257; Smith v. Superior Court (1981) 118 Cal.App.3d 136, 138 & fn. 1; Huelter v. Superior Court (1978) 87 Cal.App.3d 544, 545-546. ’ See also Moskowitz v. Superior Court (1982) 137 Cal.App.3d 313, 315; Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 521-524; Morales v. Superior Court (1979) 99 Cal.App.3d 283, 286-287. Court (2008) 43 Cal.4th 1096, 1100, 1102 (Verdin), Prudhommev. Superior Court (1970) 2 Cal.3d 320, 322°. Centeno v. 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 was challenged 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 waschallenged as violating Sixth Amendmentright to assistance of counsel].) Courts have similarly entertained writ petitions challenging civil discovery orders that implicate the discovery targets’ Fifth Amendmentprivileges. (See People v. . Superior Court (Kaufman) (1974) 12 Cal.3d 421, 424 [writ review of discovery order in civil action brought by the People]; Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 302-303 (Fuller) [writ review of civil 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 Prudhommeonthe issue of the propriety of writ review. The dissent argues Prudhommeis distinguishable on the ground the defendant there was not assured use immunity for the information he was ordered to disclose before trial. ([bid.) Wediscussthe relevance of use 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 of psychiatric tests before requiring defendant to submit to the tests (on the issueof mental retardation as bar to 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 which they invokedtheir Fifth Amendmentprivilege, and giving trial court guidance on how and whento rule 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 ground disclosure should be delayed until after defendant presents his own psychiatric evidenceattrial].) The dissent cites Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1038 (Warford), also involving review ofa civil discovery order that allegedly violated a deponent’s FifthAmendmentrights, as an exception that proves the rule that writ review is generally inappropriate for claims of Fifth 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 not believe 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 wasa direct appeal from a proceeding initiated by the deponents in a California court tochallenge the Hawaii discovery order. (Warford, at p. 1038-1039.) It was in that context that the court observed that “[A] party normally may not appeal from a discovery order. [Citations.]. . .. However, we think an exception to the general rule exists where,as here, no final 11 review of the underlying action will take place in a California forum.” (Jd. at pp. 1040— 1041.) In arguing for a morelimited scope of writ review here,the dissent seeks to distinguish the multitude of cases that have provided writ review of discovery orders in criminal and civil cases on the ground that Fifth Amendmentprivileges are infringed, even though the parties might have also raised those claims in a direct appeal from 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 attrial) does not violate Maldonado’s constitutional privilege against self-incrimination.” (Dis. opn., post, pp. 7, 11-12.) The dissent further contendsthat, in the event the trial court subsequently determines any of Maldonado’s statements in the examination exceedthe scope of his waiverofthe privilege, ' Maldonado’s constitutional rights will be sufficiently protected by the prohibition against derivative use of such statements. (Dis. opn., post, p. 7.) Whether use immunityalone is a sufficient safeguard in the context of compelleddisclosure of potentially incriminating information depends, amongother things, on the balance between the defendant’s right and competing concemsofthe 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 relevance of psychiatric tests before requiring defendant to submit to the tests despite immunity against improperuseoftest results at trial].) | As wediscuss in detail post, even though the Fifth Amendmentexpressly addresses only compulsion “to be a witness against himself”at a criminal trial, 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 of the statementsattrial. “The need for the availability of the prerogative writs in discovery cases where an | orderofthetrial court granting discoveryallegedly 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. The first 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 possibility of a jail sentence and additional delay in the principal litigation during review of the contempt order.” (Roberts, supra, 9 Cal.3d at p. 336.) The dissent argues the Roberts rationale does not support writ review here because “[a]t this point{] . .. Maldonado has not madeany statement subject to any privilege, and the trial court has not decided whether any statement by Maldonadois or will 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 of his statements during the examination pursuantto the trial court order (which allows the prosecution to monitor the examinationin real time) before. ~ any waiverhas occurred (i.e., by Maldonado’s introduction of psychiatric 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 Maldonado andfall outside the scope of his waiver. In sum, we follow the well-established practice of granting writ review of discovery orders that allegedly violate an established privilege. 13 B. Compelled Psychiatric Examinations’ of Criminal Defendants The prosecution cannot constitutionally use the results’ of a court-ordered psychiatric examination of a defendantattrial unless the defendant has put his mental condition in issueat thetrial and has a meaningful opportunity to consult with his counsel before deciding whether to 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 examination violates the Fifth Amendmentright against self- incrimination because the defendant’s statements to the examiner werecompelled, incriminating, testimonial, and personalto the defendant. (Smith, at pp. 464-469; see Izazaga, supra, 54 Cal.3d at 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 conditionattrial].) Use of such statements violates the Sixth Amendment right to counsel (at least where the examination occursafter the initiation of adversary proceedings) because the defendantis entitled to the assistance of informed counsel(i.e., informed of the scope and nature of the examination and the uses to which it might be ' put) in deciding whether to submit to the examination. (Smith, at pp. 470-471; cf. Buchanan, at pp. 424-425 [no Sixth Amendmentviolation where defense counsel requested examination, knowing the results could be used against the defendantifhe put his mental condition in issue at trial].) * In this opinion, for purposesof simplicity, we use “psychiatric examination” as shorthand for any examination of a defendant’s mental condition or mental health by a mental 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 experts who examined Maldonado andtwoofthe three experts appointed by the court to examine him werenotpsychiatrists, but psychologists, neuropsychologists, and neurologists. 10 When wereferto the “results” of the examinations, we include a defendant’s statements to the examiners, the raw data andresults of any testing, and the reports and notes of the examiners. 14 Whena defendantpresents psychiatric evidence on his mental condition attrial, however, he has no Fifth Amendment privilege against prosecution rebuttal psychiatric evidence on that issue, even if based on defendant’s own self-incriminating statements. (Buchanan, supra, 483 U.S.at pp. 422-423.) Were the rule otherwise, the defendant’s silence might “ ‘deprive the State of the only effective meansit has of controverting his proof on an issue thathe interjected into the case’ ” (id. at p. 422, quoting Smith, supra, 451 US.at p. 465), and defendants “could, with impunity, present mental defenses . . , secure in the assurance they could not be 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.4that p. 1116). Similarly, a defendant’s Sixth Amendmentrights are protected if he.hasthe opportunity to consult with counsel before submitting to a psychiatric examination and counsel knowsat that time that the results of the examination might be used against the defendantif he 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 counsel if safeguards are observed: “Before submitting to an examination by court-appointed psychiatrists a defendant must be represented by counsel or intelligently and knowingly have waivedthatright. Defendant’s counsel mustbe informed as to the appointment of such psychiatrists. [Citation.] If, after submitting to an examination, a defendant does not specifically place his mental condition into issue at the guilt trial, then the court-appointed psychiatrist should not be permitted to testify at the guilt trial. If defendant does specifically place his mental condition into issue at the guilt trial, then the court-appointed psychiatrist should be permitted to testify at the guilt | trial, but the court should instruct the 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 and that such evidencemay be considered only for the 15 limited purpose of showing the information upon which the 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 at trial can lawfully be compelled under state and federal law to submit to a psychiatric examination by a prosecution expert for purposes of obtaining rebuttal evidence. (McPeters, supra, 2 Cal.4th at p. 1190, citing Buchanan, supra, 483 U.S. 402; seealso People v. Danis (1973) 31 Cal.App.3d 782, 786 [psychiatrist appointed by court on prosecutor’s motion].) After the passage of Proposition 115, however, the Supreme Court ruledthat criminaldiscovery waslimited by statute and no statute then on the books authorized a compelled psychiatric examination of a defendant by a prosecution expert. (Verdin, supra, 43 Cal.4th at pp. 1106-11 14.)In responseto Verdin, the Legislature recently amended the criminal discovery statutes to provide: “Unless otherwise specifically addressed by an existing provision of law, whenever a defendant in a criminal action... places in issue his or her mental state at any phase of the criminal action... through the proposed testimony of any mental health expert, upon timely request by the prosecution,the court may orderthat the defendant . . . submit to examination by a prosecution-retained mental health expert.” (§ 1054.3, subd. (b)(1).)"° That amendmenttookeffect on January 1, 2010. 'T Proposition 115 (an initiative measureentitled “Crime Victims Justice Reform Act” adding Cal. Const., Art. I, § 30, subd. (c) and § 1054 et seq.) was adopted by voters on June 5, 1990. ° 2 The Court did not reach the question of whether Evidence Code section 730 authorized such an order. (Verdin, supra, 43 Cal.4th at pp. 1109-1110.) Inthis case, the trial court relied on Evidence Codesection 730asauthority for its order. As noted, we denied a writ seeking immediate review of the order and the Supreme Court denied review. The propriety of ordering Maldonado to submit to an examination underthis statute is not before us in this writ proceeding, although, as we discuss, it may now be a moot question. ' The full subdivision provides: “(1) Unless otherwise specifically addressed by an existing provision of law, whenevera defendantin a criminal action or a minorin a juvenile proceeding brought 16 Thetrial court’s authority to order Maldonadoto submit to a psychiatric examination is not contested in this writ proceeding. We assumeherethevalidity of that order. It is clear, and Maldonado doesnot dispute, that the prosecution may usethe results of the examinationsin rebuttalto his trial evidence of his mental condition. The questions we consider are: (1) when, and under what circumstances, are the examination results, to be disclosed to the prosecution, and (2) whether the prosecution may properly haveanyrole 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 Amendmentright against ‘self-incriminatton, the results of his compelled examinations should not be disclosed to pursuantto a petition alleging the juvenile to be within Section 602 of the Welfare and Institutions Codeplaces in issue his or her mental state at any phase of the criminalaction or juvenile proceeding through the proposed testimony of any mental health expert, upon timely request by the prosecution, the court may order that the defendantor juvenile submit to examination by a prosecution-retained mental health expert. “(A) The prosecution shall bear the cost of any such mentalhealth expert’s fees for examination and testimonyat a criminaltrial or juvenile court proceeding. “(B) The prosecuting attorney shall submit a list of tests proposed to be administered by the prosecution expert to the defendantin a criminal action or a minor in a juvenile proceeding. At the request of the defendantin a criminal action or a minorin a juvenile proceeding, a hearing shall be held to consider any objectionsraised to the proposedtests before any test is administered. Before ordering that the defendant submit to the examination,the trial court must make a threshold determination that the proposed tests bear some reasonablerelation to the mental state placed in issue by the defendant in 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 subdivision is to respond to Verdin v. Superior Court 43 Cal.4th 1096, which held that only the Legislature may authorize a court to order the appointment of a prosecution mental health expert when a defendant has placed his or her mental state at issue in a criminal case or juvenile proceeding pursuant to Section 602 of the Welfare and Institutions Code. Other than authorizing the court to order testing by prosecution-retained mental health experts in response to Verdin v. Superior Court, supra, it is not the intent of the Legislature to disturb, in any way, the remaining body of case law governing the procedural or substantive law that controls the administration of these tests or the admissionoftheresults ofthese tests into evidence.” (§ 1054.3, subd.(b).) 17 the prosecution at all 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 ofthe examinations will be revealed to the prosecutor only if he ultimately makes the choice to tender the issue of his mental condition attrial. | The prosecutor arguedin thetrial court that he required the information before trial in order to adequately framethe issues for the jury. He also contendedthat, in the _ particular circumstances ofthe case, there waslittle risk that Maldonado would make statements during the examination that had not already been disclosedto the prosecution. The trial 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 allowing the 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 through the realtime 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 attending the actual interview.” The court also reasonedthat, 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 any tactical advantage from being present at the examinations. In granting immediate and concurrent disclosure of the examination results 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 defendantof 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 sooneror didn’t '* At oral argument, Maldonado’s counsel appeared to concedethat earlier disclosure, at the close of the prosecution’scase in chief, would be appropriate. 18 know aboutit or did know aboutit. That in this particular case the order is unnecessary and the issue has in fact been waived by the defense for a very good reason, thatit’s really not anything that’s going to make any difference under the peculiar facts of this 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 of this case such an order is unnecessary, moot and waived.” | Weconcludethat the trial court erred in permitting the prosecution to contemporaneously observe the examinations over defense objection, andthat the record beforeus 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 argumentthat disclosure of examination results must be delayed until he actually presents his own psychiatric evidenceattrial (or, alternatively, until the prosecutorrests its case-in-chief). In order to preserve the truth-ascertainment function ofthe trial, the prosecution must have accessto the results before trial (subject to a bar against direct or derivative use and after any necessary redaction) so it has adequate time to prepare its rebuttal on the mental health issues. However, a minor delay in pretrial disclosure to allow Maldonado to seek the redaction of allegedly privileged statements before pretrial disclosure to the prosecution is necessary to protect Maldonado’s constitutional rights 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 immunity aloneare necessarily sufficient safeguards of Maldonado’s constitutional rights. Wetherefore hold that disclosure of the complete examination results to the prosecution must be deferred until after Maldonado has had an in camera opportunity to seckredaction of any statements which may be outside the scope ofhis 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 evidenceattrial and thereby explicitly 19 waiveshis Fifth Amendmentright. We concludethat pretrial disclosure of the examination results is necessary to permit the prosecution to prepareits 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 Amendmentright against self- incrimination. (Williams v. Florida (1970) 399 U.S. 78, 82-83 (Williams).) At issue in Williams was a notice-of-alibi rule that required defendants to give pretrial notice if they intended to claim analibi, to identify the place they claimedto beat the time of the charged crime, and to provide the names and addressesof alibi witnesses they intended to call. (/d. at p. 79.) The court first explained that defendants affected by the rule are not “compelled” to disclose this information because the obligation arises only if they choose to present an alibi defense. Whenever a defendant presents witnesses, the Court explained, “he mustreveal their identity and submit them to cross-examination which in itself may prove incriminating or which mayfurnish 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 of the privilege against compelled self-incrimination.” (/d. at pp. 83-84.) This reasoning, of course, applies equally to a defendant who is compelled to undergo a prosecution psychiatric examination oncehe chooses to present psychiatric evidence of his own on his mental condition at trial. Maldonadohas given notice of his intent to do so. Regarding the timing of the disclosure, the Williams Court explained that the pretrial discovery rule “in no way affected [the defendant’s] crucial decisiontocall alibi witnesses or added to the legitimate pressures leadingto that course of action. At most, the rule only compelled [him] to accelerate the timing of his disclosure, forcing him to divulge at an earlier date information that [he] from the beginning plannedto divulge at trial. Nothing in the Fifth Amendmentprivilege entitles a defendant as a matter of constitutional right to await the end of the State’s case before announcingthe nature of 20 his defense, any morethan it entitles him to await the jury’s verdict on the State’s case- in-chief before deciding whetheror not to 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 alibi or prevents him from abandoning the defense; these matters are left to his unfettered choice.” (Id. 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 thenames and addressesofall witnesses defendantsintendto call at trial. (Ud. at’pp. 365— . 367.) Citing Williams, supra, 399 U.S. 78, the Court held the rule merely accelerated the timing of a disclosure the defendants planned to make in any event and thusdid not compel disclosure in violation of the Fifth Amendment. (Ud. at pp. 366-367.) The Court also upheld thestatutory 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 ordered to turn over a defense investigator’s notesifthe - defendantcalled the investigator as a witness. (United States v. Nobles (1975) 422 US. 225, 240-241 (Nobles).) Izazaga explains: “In Nobles the court stated, ‘The Sixth Amendmentdoesnot confer the right to present testimony free from the legitimate demandsofthe adversarial system; one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth.’ ([Nobles,] at p. 241.) Prosecutorial discovery of the statements of intended defense witnessesis a ‘legitimate demand’ofthe criminal justice system aimed at avoiding testimonial ‘half-truths’ by promoting what then-Justice Traynor referred to as ‘the orderly ascertainment of the truth.’ (Jones [v. Superior Court (1962)] 58 Cal.2d 56, 60.)” Uzazaga,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). “The limited and conditional discovery authorized by the new discovery chapteris constitutionally acceptable under the reasoning of Nobles, supra, 422 U.S. 225, regardless of the timing of the discovery.” (/d. at p. 380.) 21 Two California Court of Appeal decisions support application of these principles to pretrial disclosure of the results of a court-ordered psychiatric examination, even though such results may include 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 Centeno v. Superior Court, the defendantraised the issue of his mental retardation as a bar to imposition of the 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 defendant presented his own psychiatric evidence at the mental _ retardation hearing. (Id. at p. 40.) “A midhearing postponementofproceedings in order to permit testing and examination of defendant by a prosecution expert would be extremely inefficient, induce unwarranted delay in the proceedings, be unfair to the prosecution, and serve no legitimate interest of defendant.” (bid.) In Woods, the court held a defendant who announcesanintentto raise a mental defenseattrial may be required to disclose the test results of his experts before trial, even though they include defendant’s statements. (Woods, supra, 25 Cal.App.4th 178, 181-182, 186.) “A defendant whois required to makea pretrial disclosure of the alibi witnesses he intends to call at trial [as in Williams, supra, 399 U.S. 78,] is forall practical purposesin the same shoesas one presenting a mental defense who must turn over his expert’s test results before trial: nothing requires the defendantto rely on the defense; no different pressures distinguish the pretrial decision to use the defense from those that are brought to bearat trial; and nothing penalizes the defendant if he abandonsthe defenseattrial.” (Ud. at p. 187.) While the court “sympathize[d]” with the defendant’s argumentthat “the 'S Izazaga distinguished Brooks v. Tennessee (1972) 406 U.S. 605,which struck down state court rule that required defendants to testify first in the defense case or not testify at all, on the groundthatit dealt “with the special componentofthe Fifth Amendmentprotecting an accused’s choice of whetheror notto testify.” (Izazaga, 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 though notall reasonably anticipated witnesses are actually called to the stand,” the court held that pretrial disclosure wasjustified to further “the statutory objectives of ascertaining the truth, saving timein trial, avoiding the necessity of postponements and protecting against undue delay. (§ 1054, subds.(a), (), (d).) This is especially true in cases of ‘psychological character evidence’ . . . . {Citations.] “No precise legal rules dictate the proper basis for an expert’s journey into a patient’s mind to make judgments abouthis behavior.’ [Citation.] When delving into 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,’ guessworkat trial, incomplete cross- examination or delay to conduct the necessary discovery.” (Jd. at pp. 187-188.) Weagree. The only meaningful wayto rebut a defendant’s anticipated psychiatric evidence on his own mental condition is to subject the defendant to a psychiatric examination by independentor prosecution experts, and the only way to subject the defense evidence to meaningful adversarial testing is to provide the results of the examinationsbeforetrial so the prosecution has an adequate opportunity to prepare for trial. | Maldonadorefers us to rule 12.2 of the Federal Rules of Criminal Procedure and a case applying that rule (U.S. v. Johnson (N.D.Iowa 2005) 362 F.Supp.2d 1043), which - require that the results of a court-ordered examination be kept under seal unless and until the defendant introduces his own psychiatric evidenceat trial. This sealing requirement, however, only applies in capital cases and only when the defendantintends to introduce psychiatric evidenceon the issue of penalty 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 juryreturnsa verdict of guilty and the defendantreaffirmshis intent to introduce psychiatric evidence at the penalty trial. (/bid.) The sealing procedure was adopted by several federal district courts even before it was mandated bytherule, 23 and in those-cases was justified as necessary to protect the defendant’s constitutional rights, apparently by ensuring that the statements were not misused by the prosecution duringthe guilt phase ofthetrial in violation of a bar on 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 U.S. 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 (Sth Cir. 1998) 152 F.3d 381, 399-400 (Hall) [holding defense opportunityto demonstrate misuse of examinationresults 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 evidence in 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 penalty phase, even though the defendant would not formally waive his Fifth Amendmentrights as to the statements unless and until he — actually presented psychiatric evidence of his own during that phase of the trial. That is, these courts allowedpretrial disclosure of the results of the examination beforethe start of the trial in which the defendant intended to present his own psychiatric evidence, a procedure analogoustopretrial disclosure in this case. As the Fifth Circuit has acknowledged, the risk of misuse wasstill present: “Given that the governmentpresents its case-in-chief during the guilt phase prior to the defendant, weperceive no functional distinction between therisk 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 prior to Hall’s introduction of psychiatric evidence during the penalty phase.” (Hall, supra, 152 F.3dat p. 400, fn. omitted.) 24 Maldonado hascited no case delaying disclosure of a court-ordered psychiatric examination over the prosecution’s objection until the defendant actually presented his own psychiatric evidenceattrial. To the extent that petitioner asks us to impose a prophylactic rule mandating delayed disclosure, we decline to do so. We conclude such . delayis 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 examinationsuntil the court conducts an in camera review ofthe materials. Although Maldonadodoesnot propose substantive standardsforthe trial court’s in camera review ofthe material, his implication is that some information he may disclose during the examinations should not be provided to the prosecution at all, even if he does present his own psychiatric evidenceattrial. In denying petitioner’s requests the trial court concluded that “given the very specific facts of this case,” i.e., the prosecution having already received Maldonado’s statements to the police and to the defense experts, “it’s not necessary to engage in any protective measures that [defense counsel] has asserted are appropriate.” Recognizing that 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 a// statements made by Maldonadoin the course of the examinations are subject to disclosure, the scope ofhis waiverof the Fifth Amendmentprivilege is not unlimited. The court cannot abdicate its responsibility to rule on particularized privilege objections on the assumption that Maldonado had already madeailofthe self-incriminating disclosures he would make in the case. a. Statements Outside the Scope of Privilege Waiver Although a defendant waives his Fifth Amendmentright against self-incrimination by voluntarily providing testimony in his own defense, he does so only on the issues covered by his affirmative evidence. “[T]he breadth of his waiver is 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 “determines the area ofdisclosure and therefore of inquiry”]; People v. Loker (2008) 44 Cal.4th 691, 709 [“scope of proper rebuttal is determined by the breadth and generality of the direct evidence”); ibid. [“we have firmly rejected the notion that ‘any evidence introduced by defendantofhis “good character” will open thedoor to any and all “bad character” evidence the prosecution can dredge up’ ” in penalty phase ofcapital trial].) In Powell v. Texas, the Court applied this principle to the context of a court- ordered psychiatric examination conducted to rebut psychiatric evidence the defense __ _ planned to presentat trial. (Powell v. Texas (1989) 492 U.S. 680, 685, fn. 3 (Powell),) The Court heldthat 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 dangerousnessat the penalty phase. (/bid. [finding violation of Sixth Amendmentright 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 ontheissue of his defense of insanity could not be used against him in the guilt phase because the defendant “did not put his mental state 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 testimonyin sanity trials to the extent necessary to permit useful sanity examinations by defense and prosecution mental health experts”}.) A moredifficult issue is defining the extent of the privilege waiver onthe specific issues raised by the asserted defense. If a defense expert testifies to an opinionthatis based in part on statements madeby 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 [prosecution entitled to review same 26 information defense expert relied on to form his opinion of defendant’s mental condition].) But what if prosecution experts assert theneed to interview the defendanton matters not previously subjected to inquiry by defense experts in order to form 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 on these issues in discussing the extent of a waiver of attorney-client privilege effected by the presentation of psychiatric evidence in a criminal trial. Pursuantto the reciprocal discoverystatute, the defendant gave notice that he intendedto call a psychologist as a witnessin the guilt phaseofhis capital trial, and produced a redacted version ofthe expert’s report that deleted his statements about the crime. (dd. at p. 1263-1264.) The court of appeal held that the statements need not be disclosed before the defense expert took the stand because the report “does not demonstrate any referenceto or reliance on petitioner’s statement regarding the offense. Therefore, nothing contained in the report can be construed as necessitating disclosure of petitioner’s statement in order to understand the balance ofthe report... . [§] .. . [W]e do not conclude that revelation ofa patient’s mentalhealth history or the results of diagnostic testing necessarily incorporate - directly or inferentially petitioner’s statements regarding the crime.” (Jd. at p. 1270.) The court noted that once the defense expert testified it might become apparent that the withheld statements were relevant to 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 taken in Rodriguezfinds support in decisions from other jurisdictions. That is, other courts have rejected the conclusion that the presentation of defense psychiatric testimony automatically effects a waiverasto 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 had not testified about the crime ortalked 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 waivehis rightto 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 answer questions pertaining to his conduct during commission of the charged crime in a court-ordered psychiatric, examination, but has left open the question of whether he could be compelled to testify about his thoughts during the commission of the 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 on his sanity or other mental condition relevant to 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 hisown psychiatrists will not be permitted overthe - State’s objectionto testify to the history of the event given to them. See State v. Whitlow, 45N.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 opinionasto insanity [or other mental condition], they would be precluded from testifying to that opinion. [{]...[§] ... Suppose defendant’s psychiatrists testify that ordinary questioning plus a physical examination were sufficient and thatthey did not need his accountof the alleged criminal event in order to reach their opinion that he was insane whenthe victim waskilled. In this rare situation the defense psychiatrists should be allowedto 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 allowedto testify that defendant’s refusal to answer questions about the nature of his participation in the alleged crime prevented themfrom performing their function. [Citations.].. . [I]n view of the rule set forth herein limiting the probative force of the doctor’s testimony to 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 A.2d 641, 645, 658, fn. 19.) The New Jersey Court clearly indicated that, as a general matter, an expert needs to question a defendant about the charged offense in order to form an opinion about the defendant’s mental conditionat the time of the offense. (/d. at pp. 12-13.) A thorough discussion of the issue appears in U.S. v. Johnson, a federal district court opinion that reviews the Oklahoma, Oregon and NewJersey cases mentioned above. (U.S. v. Johnson (N.D.lowa 2005) 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 waiverofthe Fifth Amendmentright against self-incrimination necessarily includes a waiverofthe right to refuse to answeroffense- specific questions. [Citation.]” (Ud. at p. 1161.) When the evidencerelates to a post- offense mentalcondition or-a long-standing mental condition that may have nospecific impact on the thinking or conductof the defendantat the time ofthe offense, on the other hand, the court must “determine the need that defense or government experts have for offense-specific questions, before the government’s experts are allowedto ask offense- ‘specific questions, the defendant is required to answer such questions, or the prosecution 16 Johnsonalso discusses three California cases, but concludes“it is not clear from these or other California cases under what circumstances questions about the defendant’s _ conduct during orin relation to the charged offenses would be ‘necessary to permit a proper examination of[the defendant’s asserted mental] condition.’ Centeno[, supra,| 117 Cal.App.4th at [p.] 40.” Wohnson, supra, 383 F.Supp.2d at pp. 1158-1159, parallel citations omitted, first brackets in original.) 29 is allowedto 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 should either be compelled to answerthe prosecution’s experts’ questions or her mental condition defense, if not stricken in its entirety, should be impeached with herfailure to answer the 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 revealedin 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 beyond the scope of the defense examination, is nevertheless necessary to render a reliable and informed opinion on the mental condition issue raised by the defendant. | b. Use Limitations of Petitioner’s Statements The People argue that, because thetrial court’s order confirmsthat the prosecution can only make use of the examination results at trial if Maldonadoactually presents his own psychiatric evidence, prophylacticly barring disclosure of the examinationresults is not required by the Fifth Amendment. The contention is 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 cases that distinguish betweenthe core constitutional “right”—a prohibition against the use of a compelled self- incriminatory statement against a defendantin a criminal case—and prophylactic rules '7 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 not litigated in the trial court. 30 imposed by the Court as a meansofprotecting 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 Amendmentguarantee against unreasonable searches and seizures, which occurs when the search and seizure occurs, a violation of the Fifth Amendment guarantee against self-incrimination occursat the time that a defendant’s compelledself-incriminating statements are used against him in a criminal case, rather than at the time that the statements are compelled. (Jbid.) 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 conclusionthat a violation of the constitutional right against self-incrimination occurs only if one has been compelled to be a witness against himself in a criminal case.” (d. at p. 770 [plur. opn. of Thomas,J.].) The nature of the constitutional “right” was dispositive because the federal civil rights statute provides a private civil remedy only for violation of a constitutional right. (Ud. 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 theserules is an evidentiary privilege that protects witnesses from being forced to give incriminating testimony, even in noncriminalcases, unless that testimony has been immunized from use and derivative use in a future criminal proceeding beforeitis compelled. See Kastigar, supra, [406 U.S.] at [p.] 453; 31 {citation].” (Id. at p. 770-771.) Similarly, the concurring opinionofJustice Souter identified the core right of the Self-Incrimination Clause as courtroom use ofa criminal defendant’s compelled self-incriminating testimony, but acknowledged “ ‘extensions’ of the bare guarantee” in the Court’s Fifth Amendmentholdings of Kastigar 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, nothing in theplurality or concurring opinions suggest that the prophylactic rules lack constitutional force or are less than binding on the lower courts. (See also id., at p. 791 (conc. & dis. opn. of Kennedy, J.) [“the Self-Incrimination Clauseis a substantive constraint on the conduct of the government, not merely an evidentiary rule governing the work of the courts”]; Dickersonv. 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 bind thestate 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 maynot refuse to answer a public employer’s job-related questionsthat elicit potentially incriminating information, which the Court noted could _ not legally be used against him attrial, even if the employee has not been granted express use immunity. (id. at pp. 709-710.) Rejecting the employee’s Fifth Amendmentclaim, the Court wrote that the state andfederal guarantees against self-incrimination “do not prohibit officially compelled admissions of wrongdoing as such. Theyonly forbid the criminal use of such statements against the declarant. Constitutionally based prophylactic rules, such as a prior-immunity requirement in somecases, have arisen to protectthe 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.).)” (Ud. 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 Amendment guarantees, such as the rule that an individual may not be compelled to answer incriminating questions even in a civil proceeding absent an express grant of immunity. (Spielbauer, supra, 45 Cal.4th at p. 714.) The Court simply identified a limited exceptionto thatrule in the ‘narrow context of the job-related inquiry of a public employer: “The Constitution cannot mean that a public employee may refuse with impunity to accountforhis or her performance on the public payroll, and may delay the progress of an employer’s inquiry, unless anduntil he or she obtains a formal and legally binding guarantee thatany 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 of the Self- Incrimination Clause and prophylactic measures designed to protect that core right,it does not follow that a trial court may ignore a defendant’s assertion of the constitutional privilege and summarily deny prophylactic safeguards whenproperly invoked. c. Derivative Use InKastigar, 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 caseis prohibited. '8 Moreover, 18 See also Federal Rules of Criminal Procedure, rule 12.2, which authorizesthe court to order a defendant to submit to a psychiatric examination if the 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, “No statement 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, andno other fruits 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., 33 the prosecution bears the “affirmative duty to prove that evidenceit proposes to use [in a criminal case] is derived from a legitimate source wholly independent of the compelled testimony.” (/d. at p. 460.) Here, the People concedethat the prosecution is not allowed to “use” Maldonado’s statements during the court-ordered examinations unless and until 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 andthe 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 Courtheld thata pretrial Pitchess declaration, which disclosed defense theories of the case, should be redacted before being disclosed to 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 madesolely to preserve the option of calling the witness . .. even through notall reasonably anticipated witnesses are actually called to the stand”].) In Mitchell, the Court found meritin the defendant’s argument“that advance disclosure of his intended penalty phase evidence may jeopardize his guilt phase defense, potentially violating his privilege against self- incrimination and infringing onhis right to 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 defendantraises at trial, and (2) only if the defendant“has introduced evidence”attrial. '° The Attorney General concededatoral 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 constitutionalrights were adequately protected “under a scheme wherein the defendant has the burden of producing some evidenceoftaint, and the governmenthas the ultimate burden of persuadingthe court that the evidence isnot 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 prosecutorto begin evaluating the results of the government’s psychiatric examination prior tothe 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 whichthe appellate court found“legally and constitutionally sufficient.” (U.S. v. Allen, supra, at p. 773 & fn.11.) . Evencases cited by the People acknowledgetheserisks. (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 because it “might raise a significant question as to whether[the prosecution] had improperly used information obtained in the psychiatric examination to develop evidence going beyondtheissue of insanity”); Hall, supra, 152 F.3d at p. 399 [acknowledging that sealing the results of a psychiatric examination “advances interests ofjudicial economy by avoidinglitigation over whetherparticular pieces of evidence that the government seeks to admit prior to the defendant’s offering psychiatric evidence were derived from the governmentpsychiatric examination,” but holding such a measureis not constitutionally required].) | These cases demonstrate that a simple bar against derivative use is not alonea fail- safe protective measure, and that courts may consider and implementotherprotective measures if required. Wedo not believe that giving a defendantat least the opportunity 35 to invoke the court’s protection at a time when protective measures wouldstill be meaningful “usher[s] in a new era of Fifth Amendmentlaw,”as the dissent suggests. (Dis. opn., post, p. 1.) 3. Protective Measures in this Case Again, the question is not whether the results of Maldonado’s examinationswill be disclosed to the prosecution, but when and howthat disclosure will take place. Delaying disclosure of the examination results until and unless Maldonadoactually introduces his own psychiatric evidenceat trial, or even, as Maldonado nowsuggests, until the close of the prosecution’s case-in-chief, would compromise the legitimate interests in “avoiding the necessity of a disruptedtrial” (Williams, supra, 399 U.S.at p. 86 [citing this interest and holding defendant can be compelled to disclose alibi before he actually waives privilege by presenting alibi evidenceattrial]), “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 cannot be infringed by pretrial discovery obligations unless discovery is reciprocal]), protecting the “ ‘integrity of the judicial system and public confidence in 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 of procedure that govern the orderly presentation of facts and arguments”and allow the adversary system to function (Taylorv. Illinois (1988) 484U.S. 400, 410-411 [citing this interest and holdingthere is no absolute bar against precluding defense witnesses as discovery sanction despite Sixth Amendment]). Postponing disclosure would unreasonably interfere with the prosecution’s ability to prepare its cross-examination and rebuttal evidence and would likely require a recessofthetrial, thereby burdening jurors and disrupting their receipt and consideration of evidence. . Weare not convinced that a minor pretrial delay of disclosure to permit an opportunity for in camera review of the examination results, on the other hand, would 36 create a “daunting” burdenfor the prosecution orfor the court, as our dissenting colleague suggests. (Dis. opn., post, p. 10.) Thetrial judge must, in any event, resolve at somepoint the admissibility of any statements of the defendant the prosecution seeks to introduce, whether for impeachmentor otherwise. Use of an in camera procedure in the first instance to ensure that confidential or privileged information is not irrevocably compromised is 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 precautionsto protect unwarrantedintrusionsinto the confidentiality of psychotherapist-patient communications, including routinely permitting such disclosure to be madeexparte in -his chambers, even wherethe patient has placed his mental state in issue].) We can also foresee potentially far greater burdens and disruptionsto the trial process should trial judge, for example, later determine that the prosecution has been privy to constitutionally privileged defense information, and is then required to consider disqualification in order to ensure that the defendantreceivesa 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 realttme. The prosecution will not be prejudiced by sucha restriction, because they may not in any event directly participate in the examinations,and since there will be remote video monitoring, and presumably recording, of the sessions. Since the defense will be permitted to contemporaneously observe the examinations, there is no reason that petitioner cannot promptly identify any arguably objectionable material and present those objectionsto 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 opinionsor conclusionsof the appointed experts. Oncethe court has considered and ruled upon the defense objections, and subject to any redactions that may be required, the prosecution 20 Pitchess v. Superior Court (1974) 11 Cal.3d 531. 37 will then beentitled to pretrial access to the balance ofthe examinationresults, including any video or audio recordings. Wefind that Maldonado’s Sixth Amendmentobjections are obviated or adequately addressed by the ability of the defense to monitor the examinations, and to interpose timely objections to disclosure of statements which Maldonado maymake.Itis only Fifth Amendment issues which webelievethetrial court must then address and resolve if properly raised. We also emphasize that we do not suggest that prophylactic orders prohibiting or restricting prosecution access to petitioner’s statementsare, 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 Maldonado argues that any involvement of the prosecution in the selection of experts to examine him pursuant to Evidence Codesection 730 conflicts with the legislative intent of the statute, which is to appoint disinterested experts to assist the court and jury in making factual determinations. Thetrial court, in rejecting thisobjection, explained that the prosecution’s assistance in identifying mental health experts who had the necessary language skills to interview Maldonado in Spanish was “not in any way prejudicial to the defendant. It’s going to be clear that when I make these appointments they’re appointments madeby the Court... .” The issue appears,for all practical purposes, to now be moot. Newly-amended ‘section 1054.3 is in effect, and the trial court on remand will have the authority to order _ Maldonadoto submit to examination by prosecution-selected experts. We have assumed the court’s authority to make appointments under Evidence Codesection730 in these circumstances, but the court may decideto revise its prior order and expressly provide for a prosecution psychiatric examination. 38 Wein any event agree that the prosecution’s limited role in identifying qualified bilingual mental health experts for possible appointmentby thetrial court does not render the examination process biased or adversarial such thatit is inconsistent with Evidence Codesection 730. Maldonado has not 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 factthat the prosecution assisted the - court in identifying candidates for the court’s own selection doesnot call into question the neutrality of the process. The trial court properly denied Maldonado’s requests that the prosecution be barred from any involvement in the selection of court-appointed experts. III. DISPOSITION AND ORDER Thetrial court is directed to modify its orders to provide that: 1) Prosecuting attorneys and their agents shall be barred from observing the examinations of Maldonadoin realtime. All persons present at the examinations, including the examiners, shall be barred from disclosing any statements made by Maldonado during the 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 determined bythetrial court), Maldonado mayassert any privilege objections to disclosure of his statements, or any portion thereof, made during the course ofthe examinations. The motion maybefiled under seal and the trial 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 wholeorin part, remain subject to Fifth Amendment privilege, redact any statementsit finds to be privileged, and may then order the 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 of privilege, 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 expressed in this opinion. Bruiniers, J. I concur: Jones, P. J. 40 NEEDHAM,J.,DISSENTING. In the matter before us, the prosecutor agreed that evidence obtained from the / examinations of Maldonado would be used 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 use of the evidence, so there was never any dangerthat the timing and methodof disclosing the examination results would violate Maldonado’s Fifth Amendmentrights either. Indeed,it was clear (at least until this court’s decision today)that a guarantee of use immunity andderivative use immunity protects the privilege against self-incrimination, since such immunity by itself “remove[s] the dangers against which the privilege protects.” (Kastigar v. United States (1972) 406 U.S. 441, 449 (Kastigar).) To the extent Maldonado could not convincethetrial court to impose additional safeguards in its discretion, he has an adequate remedy at law. His petition for extraordinary relief therefore failed to allege circumstancesjustifying our review, and his petition should have been denied. The majority opinion, however, embraces Maldonado’s petition as an opportunity to usher in a new era of Fifth Amendment law. Eschewing California and federal precedents, it suggests that use and derivative use immunity is no longer good enough. Overlooking petitioner’s acknowledgementthata trial court might, in its discretion, properly employ a variety of approaches to adequately protect a defendant’srights, this court strips all trial courts in this state of discretion to tailor Fifth Amendment protections tothe circumstances of the 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 mandate directing the trial court to grant his motion for a protective order in a discovery dispute. His motion did not challenge the prosecution’s right to compelhis 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, becausehis entitlement to it was never in dispute. Rather, Maldonado requested over two dozen limitations on how the examinations should proceedin 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 whichthe trial 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 evidence until 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. While the trial court found that the foregoing additional safeguards were unnecessary underthe facts of the case, the majority opinion eviscerates the trial court’s exercise of its 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 the trial 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 mandates of the federal Constitution, the majority opinion implies that this burdensomeprocedure 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 fundamental principle that has enabled both thetrial 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. Writrelief is granted only in the discretion of the appellate court, in extraordinary cases, when compelled by equitable principles. Gee 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 applying for 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 the rule, reviewing courts wouldin innumerable cases be converted from appellate courts to nisi prius tribunals’ . . . [and] [TI[{] would be trapped in an appellate gridlock.” (Jd. at pp. 1272-1273.) Furthermore, an error by the trial court may be curedatthe trial level, review on a direct appeal from the judgment mayprovide 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 relief is the case is 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,the trial court must remain vested with the discretion necessary to apply the law andfine tune its rulingsin light of the parties’ interests and the evolving circumstances of the 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 showing that the trial court’s handling of the parties’ discovery dispute has caused or will cause Maldonado any harm. Thereis, as of this moment, not one incriminating statement Maldonado has uttered that is poised to fall into the hands of the prosecution. Nor does the record suggest any peculiar likelihood that he is going to makea self-incriminating statement that would be outside the scope of his “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 statement he thinksis constitutionally protected, and the prosecutor heard it, Maldonado could seek an order from the trial 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 Maldonado utters in the examinations except for the limited and express purposeofrebutting the defense Maldonadohimself 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 USS. at p.462.) Maldonado’s petition thereforeestablished heis not constitutionally entitled to the relief he seeks. Furthermore — as if the foregoing were not enough — Maldonadoalso has the adequate legal remedy ofa direct appeal from any adverse judgment. By direct appeal, he could challenge the trial court’s denial of his motion for a protective order, which is the subject of his current petition. He could also challenge any adverseruling the court might makein deciding whether to preclude the use of statements or derivative evidence at trial. If, indeed, thetrial court erred in any of these respects and Maldonado was prejudiced thereby, he would be granted appropriate relief. These matters are best viewed in an appealafter 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 but not prejudicial].) To me, the conclusion is inescapable: based ontheallegations ofhis petition, Maldonadofails to establish that he lacks an adequate legal remedy, andhis writ petition ' By waiver, I simply mean the ramification of Maldonado’s notice that he may assert a neurocognitive defense, to the extent it entitles the prosecution to conduct discovery in regard to that defense in order to preparefortrial. should have been denied on that ground. Further, I see no goodto be gained from sidestepping these principles in order to tinker with the discretionary rulingsofthetrial court or to pronounce newfar-reaching constitutional mandates. Nonetheless,in light of the importance of a defendant’s claim thathis constitutional rights may beinfringed,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 mooted or cured bythe 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 ordersis usually worse for the judicial system than the harm caused bythe 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 the trial court, it is not our job to peer over the trial court’s shoulder asit handles every procedural nuanceofa case, evenif 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 orderpertaining to admissibility of evidence]; italics added.) For example, writ review may be appropriate where the defendant has been denied outright a request for discovery. (E.g., Joe Z. v. Superior Court (1970) 3 Cal.3d 797, 800-801.) This line of cases is 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 should best be provided to the prosecution in the contextof this particular case, assuming the-guarantee of use and derivative use immunity.” In the civil context as well, an appellate court rarely interjects itself into thetrial court proceedings for the purpose of reviewing a discovery ruling. “[T]he prerogative writs should only be used in discovery matters to review questions offirst impression that - are of general importanceto thetrial 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 groundas to the ability of the prosecution to obtain discovery with respectto. the defendant’s psychiatric defense, and the sufficiency of use and derivative use _ immunity to protect the right againstself-incrimination. To the extent the procedural context in thecase brings something new,it does not raise a question of general importanceto the trial 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 down for future cases, because the appropriate meansofprotecting the defendant’s right against self-inctiminationis best resolved on a case by case basis bythe trial court, for reasons discussed post. | In both criminal and civil cases, writ review of discovery orders may be appropriate if the order compels discovery of information thatis privileged from disclosure. (See, e.g., Sav-On, supra, 15 Cal.3d at p. 5.) At this point, however, In Prudhommev. Superior Court (1970) 2 Cal.3d 320, a writ of prohibition 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 intended tocall at trial, because the record did not establish that the information could not possibly incriminate the defendant. Prudhommeisdistinguishable from the matter before us, because in Prudhomme there was an imminent disclosure of information, and there was no agreementthat the prosecution would notuse the information to prove the defendant’s guilt. Moreover, our Supreme Court has disapproved Prudhommein light of the subsequentlegislative enactmentof reciprocal discovery laws. (zazaga v. Superior Court (1991) 54 Cal.3d 356, 370-371.) 6 Maldonadohasnot made any statement subject to any privilege, and thetrial court has not decided whether any statement by Maldonadoisor will be outside the scopeofhis waiver. (See Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1043-1045 [claim of privilege against self-incrimination must identify a particular question that would reasonably lead 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 of those statements (as opposedtotheir useat trial) does not violate Maldonado’s constitutional privilege against self-incrimination. (Chavez, supra, 538 U.S.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 very fact of disclosure destroys the right protected by the privilege, the mere disclosure of any incriminating statements by Maldonado will not destroy the constitutional right protected by the privilege against self-incrimination, particularly when disclosure is made with the understanding that those statements cannotbe usedin a criminaltrial. (See Fullerv. Superior Court (2001) 87 Cal.App.4th 299, 308-310 (Fuller).)* There is no imminent need forusto interfere in Maldonado’scase.* 3 Roberts v. Superior Court (1973) 9 Cal.3d 330, 336, on which the majorityrelies to explain the needforthe availability of prerogative writs in discovery cases, confirms this distinction between self-incrimination claims and claimsofother 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 orderor succumbto the court’s order and disclose the privileged information, which “could lead to disruption of a confidential relationship.” (Roberts, supra, 9 Cal.3dat p. 336.) Roberts involved the psychotherapist-patient privilege, which,like the attorney- client privilege, is premised on protecting a relationship. (/d. 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 documents in 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 of plaintiffs’ motion and their request for an in camera hearing. (Id.at p. 1039.) Noting that there is usually no writ review of discovery orders, the appellate _ There are, of course, instances in which it is necessary to review orders violating the privilege against self-incrimination, but this is not one of them. In the first place, Maldonado’s petition did not make a threshold showingthat the order violates his Fifth Amendmentrights. The Fifth Amendment doesnot preclude the prosecution from | obtaining psychiatric evidence for rebuttal purposes, since Maldonado placed his mental condition at issue. (Buchanan, supra, 483 US. at pp. 423-424.) While he arguedthathis Fifth Amendment waiver doesnot arise until he presents psychiatric evidenceattrial, the notion is contrary to federal precedent (see discussion of Stockwell, post) and immaterial in light of use and derivativeuse immunity. Furthermore,the cases cited by the majority opinion in regard to review of Fifth Amendmentissuesdo not apply here. In large part the majority 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 needto protect the defendants constitutional rights was thereforeat stake. Thosecasesare plainly distinguishable. The remaining Fifth Amendmentcases cited by the majority opinion demonstrate precisely whywrit review is not appropriate here, because they confirm that use and derivative use immunity is in itself sufficient to protect Fifth Amendmentrights. (Bagleh v. Superior Court (2002) 100 Cal.App.4th 478, 501-503 [accused cannot invoke Fifth Amendmentto refuse to submit to a mental examination by a prosecution expert in connection with a section 1368 hearing,in light of the judicial tule 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 questions in 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. (/d. at p. 1041; see also Fuller, supra, 87 Cal.App.4th at p. 304 [accepting writ review of discovery order becauseit involved a matteroffirst impression and importance,not specifically because it involved a refusal to answer a question on the groundofthe constitutional privilege against self-incrimination].) assertion of the Fifth Amendment privilege against self-incrimination, by granting the witness immunity against the use of the deposition answers in any criminal proceeding]; Fuller, supra, 87 Cal.App.4th at pp. 308-311 [trial court may fashion an orderthat “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 compelpetitioners to answerinterrogatories should - be granted on conditionthat 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 for trial court refusing People’s request to compel discovery from - defendant upon granting defendant immunity].) While it might havebeen necessary in these earlier cases to explore the sufficiency of use and derivative use immunity, that does not mean we mustentertain Maldonado’spetition in orderto rehash the point. Cases that prove Maldonadois wrongon the merits should notentitle 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 of a fair opportunity to litigate a case or “the damage done by improperly allowing such discovery cannotreadily be curedafter it has occurred.”(Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1493; e.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, would not deprive Maldonado ofa defense, witness, or evidence. Nor wouldit put the prosecution at an advantage, because the prosecutor would not be permitted to use thestatements except to theextent relevantto the rebuttal of Maldonado’s neurocognitive defense. Finally, I cannot find any justification for writ relief in this case based ontheoft- cited criteria used to decide whetherto 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 widespread interest [citation] or presents a significant and novel constitutional issue [citation]; (2) the trial court’s order deprivedpetitioner of an opportunity to present a substantial portion of his cause ofaction [citations]; (3) conflictingtrial court interpretations of the law require a resolution ofthe conflict [citation]; (4) the trial court’s order is 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, such as 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.3d at pp. 1273-1274.) For reasons already discussed, none ofthese criteria compels our interference with the trial court’s handling ofthe parties’ discovery squabble. The majority opinion focuses on the sixth criteria in Omaha Indemnity, suggesting that Maldonado will suffer harm or prejudice that cannot be corrected by direct appeal. Specifically, the majority believes that Maldonado’s legal remedy is 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 way to protect a defendant’s constitutional right against self-incrimination is to make sure the People are barred not only fromusing, but even from hearing, any statement of the defendantthatis incriminating and outside the scope of his waiver. We might think well of the majority’s desire to protect a defendant’s right against self-incrimination. Thecritical point for purposesofthe petition now before us, however,is that neither the relief Maldonado seeks nor the majority’s new rule is compelledby the right against self-incrimination. Furthermore, the problem of the majority’s unnecessary intervention is compounded by the fact that the new procedureit ordains is burdensome, time-consuming, and hampers a trial court’s ability to address the competing interests and changing concerns inherent in a criminal proceeding. 10 1. No Significant Constitutional Issue or Irreparable Harm Although Maldonadoasserts a constitutional issue based onhis right againstself- incrimination, we do not bow our knee to every petition that invokesa constitutional right. The question is whether our intervention is necessary to protect a constitutional right or to resolve, immediately,a critical constitutional question. Therelief 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 defendantin a criminal trial. (United | States v. Verdugo-Urquidez (1990) 494 U.S. 259, 264; Spielbauer, supra, 45 Cal.4th at p. 727.) Thereis no violation of the constitutional right against self-incrimination if the defendant is merely compelled to make a statement that incriminates him; the violation occurs only if the statement is used against him attrial, or if at trial some evidenceis introduced that 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 of a statementto the prosecution. To guard against the improper use of a statement that has been disclosed, the courts have adopted the prophylactic rule of use 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 constitutional right against self-incrimination is 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.] Amongtheserulesis an evidentiary privilege that protects witnesses from being forced to give incriminating testimony, even in noncriminalcases, unless that testimony has been immunized from use and derivative use in a future criminal proceeding before it is compelled. [Citations.]” 1] (Ibid:)° The import for our purposesis that use and derivative use immunity is sufficient _to protect a defendant’s Fifth Amendment right against self-incrimination. (See Kastigar, supra, 406 U.S.at p. 462 [federal government may compeltestimony from a witness, over his objection on Fifth Amendment grounds, 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 compels thetrial _ 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 might say 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 casetheory. This is problematic, the majority suggests, becauseit could be difficult for a defendant to prove that the prosecutor’s evidence or theory derived from a misuse of an incriminating statement Maldonado made during the examination. Although the majority urges that courts have acknowledgedthe risk of prosecutors misusing compelled statements and the difficulty of a defendant’s proving misuse, these cases do not convince methat the majority’s new procedure must be applied, or even that Maldonado’s petition presents a novel or significant constitutional issue. In my view, they suggest the opposite. 5 In Chavez, an individual filed 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.4th1229, the prosecution sought discovery in regard to the defendant’s penalty phase evidence, before completion “of the guilt phase.. Our Supreme Court recognized that advance disclosure of the 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 pendingthe 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 heldthat the trial court had discretion to delay the prosecutor’s receipt of the | evidence, leavingit to the trial court to determine if the prosecutor’s discovery is “premature or constitutionally prohibited.” (/d. at p. 1239.) I would agreethetrial court should beleft free to exerciseits discretion. | A similar respect fortrial 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 conductedto 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 rather than in open court. As this course will be more appropriate in somecasesthat it will in others, we think it wiser to leave room for trial court discretion.” (Id. at p. 1048.) In the samevein,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 exercise its discretion in balancing the competing interests of a partyseeking discovery and the defendants’ right against self-incrimination. (Id. at pp. 307-310.) | Another casecited by the majority opinion is Garcia v. Superior Court (2007) 42 ~ Cal.4th 63. There, our Supreme Court held that the trial court had discretion to allow the defendant to 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 proceeded to 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 counselwishesto 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 6procedure: “ ‘mere disclosure of client confidences and attorney work productto third parties, in itself, would violate these privileges.’ ” (Id. 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 constitutional right. 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 against self-incrimination. (United States v. Stockwell (2d Cir. 1984) 743 F.2d 123 (Stockwell); U.S. v. Hall (Sth Cir. 1998) 152 F.3d 381, 399; U.S. v. Allen (8th Cir. 2001) 247 F.3d 741, judg. vacated and cause remanded on other grounds, (2002) 536 US. 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). (Id. at p. 126.) The court disagreed, ruling as follows: “[W]hile we do not wish to encouragethe 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 notprimarily on the method by which the prosecutorlearnsof the results of the examination from the psychiatrist. As Stockwell concedes, the prosecutor has to obtain information about the 14 results of the psychiatric examination in some manner. Aslong as the 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 constitutional rights.” (Id. at p. 127, italics added.) In Allen, supra, 247 F.3d 741, thetrial court ordered the defendant to 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, underan ordernot to divulge any ofthe results to the prosecution team until after completion of the guilt phase. (/d. at p. 773.) The court held that this disclosure to a “taint” prosecutor adequately protected the defendant, under a scheme in which the defendant would have the burden of producing some evidenceoftaint and the government would havethe ultimate burden of persuading the court that the evidenceis nottainted. (Id. 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 of the guilt phase... may avoid later litigation but are not constitutionally required. {Citation.] We therefore decline to adopt any such rigid prophylactic rule in the name of the Constitution and leave the matter to the discretion ofdistrict courts, subject only to our review for abuse of discretion, which we do notfind present in this case.” (Allen, at p. 774, italics added.) Also instructive are California and federal civil cases ruling that thetrial 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 sufficientto protect a party’s right against self-incrimination. If there is some inherentdifficulty in a defendant’s ability to prove that the prosecutor introduced evidence derived froma defendant’s statements,it is a necessary and acceptable result of the balancing ofinterests 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 statement and be unable to prove the prosecutor’s derivative use is 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 ofMaldonado’s waiver seemsratherslim, thus reducing the needfor the 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, Maldonadohasnot established a need to modify the trial court’s order to protect his constitutional privilege againstself- incrimination, and has not demonstrated that he will suffer irreparable harm in permitting the matter to proceed without our intervention, he has given us no basis for accepting review ofhispetition, let alone issuing a writ of mandate. 6 In addition, the majority’s new rule maynotsignificantly affect a defendant’s ability to establish derivative use. If Maldonado makesincriminating statements in responseto inquiries about his neurocognitive condition, and those statements fall within the scope of his waiver, the prosecution would be entitled to know aboutthose statements. The majority’s procedure does not protect against the prosecutor then using those statements for some untoward purpose. Nor does it enhance Maldonado’sability to show derivative use in that instance. Only as to statements Maldonado mayutter that are outside the scope of his 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 would likely be more obvious and thus more readily proven by the defense. This does not mean that the majority opinion leaves Maldonado without sufficient protection of his constitutional rights. He is already adequately protected by the rule precluding use and derivative use of his statements. The majority’s new rule is merely icing on a cake alreadyfrosted. 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 waiver will 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 nameofa constitutional right, however, that rule arguably must be applied in every trial court, in every case, as to every defendant, regardless ofslight nuancesin the circumstancesof the proceedings. The effect of our intrusion into the trial court’s handling of discovery in this case, therefore, maypreventtrial 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 Maldonado extraordinaryrelief. Althoughit may first appear that the majority opinion’s new rule simply delays the criminal proceedings momentarily to give the defense a chance to objectto self- incriminating statements, real-world practice will tell a different story. Initially, the trial court must set a deadline for the defense to seek protection for statements it does not want disclosed to the prosecutor. We have no way of knowing how manystatements the defense might select out of the three examinations ordered in Maldonado’scase, but the defense in this and other cases will have incentive to seek protection for as many of the 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 oneof these statements, the trial court must determine in camera what statements should not be disclosed, applying a two-stepanalysis. First, the court must decide if the statementis subject to the privilege against self-incrimination,in thatit is incriminatory, personal to the defendant, obtained by compulsion, and testimonial or communicative in nature. (Izazaga v. Superior Court, supra, 54 Cal.3d 356, 366.) Second, the court must decideif the statementfalls within the scope of the waiver 17 attendantto 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 notbe easyforthe trial court to determineif 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 statementin reaching his or her conclusions. Depending on thecase, it may also be importantto ascertain whether any expert the defense intendsto call plans to rely on the statement, or whether an expert in any of these fields — including one the prosecutor might intend to offer — would rely on the statement in reaching or rejecting 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 for his conclusions,he referred to the responses in 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 scopeofthe defendant’s waiver mayindeed posea particularly knotty problem. First, it will probably take some time, becausethetrial court may not be able to makeits in camera determination until the examiners have completed their reports and provided them to the court. Second, the issue may not be resolved merely by reviewing the experts’ reports: although statements fall 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 notspecifically mentioned in the expert’s report. Determination ofthe issue, therefore, may require some degree ofattorney argument and perhaps further _ expert opinion. Third, the prosecutoris left at quite a disadvantage in this debate. Duringthetrial court’s in camera review of the defendant’s statements and the expert’s reports, it is unclear how the prosecutor may meaningfully weigh in 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 proceeding sealed, and the prosecutor unawareof 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 back into the fray at each step of the procedure, as to each of the statements the | defendantseeks to shield from disclosure, in every case in which the defendantasserts a mental defense and the prosecution requests an examination. Having concludedthat the trial court’s decision to permit the prosecutor to attend remotely the defendant’s examination is subject to writ review, it may well be argued that the trial court’s ensuing rulings on the amount of time the defense has to move for protection, whetherthe - defendant’s statements are subject to the privilege against self-incrimination, the scope of the defendant’s waiver, and the application of the waiver to each of the statements the defense seeks to withhold from the prosecution mayalso be subject to writ review. The majority’s new prophylactic procedure will plainly delay thetrial for the defendant, the People, the witnesses, and the victim. And all ofthis time, effort, expense,- and delay will occur on the mere speculation that the defendant might say something outside the scope of his waiver that the prosecutor will hear— but not be able to use 19 anyway due to the trial court’s subsequent determination that the evidence cannot be used at trial.’ The majority opinion points out thattrial courts are familiar with in camera review, so its new procedure should not be “daunting.” However, the daunting nature of - the procedure stemsnot from trial court judges being ignorantofin camera proceedings, but from the fact that the proceedingstake time and presentdifficult questions that may never need to be answered. The fact thattrial courts are familiar with the in camera review process does not make it a good idea; nor does it provide any legitimate excuseto foist the procedure upon them in the absence of any demonstrated constitutional reason to do so. Thereare, of course, other instances in which courts have approved a procedure , that limits the ability of a party to present informed argumentsduring in camera proceedings. Mypoint is simply that Maldonadohasnotestablished anyjustification for imposing such a process here. Similarly, while there are times when we must insist upon an expensive time-consumingprocessin order to protect the constitutional rights of an accused,neither the law northe record in this case suggests this is such a time. To be sure, in some cases the procedure established by the majority opinion may be a good wayforthetrial court to exercise its discretion. In other cases, another procedure may bebetter — or at least acceptable — such as the oneaffirmedin Allen, supra, 247 F.3d 741. There may even becases in which the court neednotorder anything beyondthe constitutionally required guarantee of use and derivative use immunity. Indeed, Maldonado’s counsel at oral argument acknowledgedthat there may 7 The time spent on the majority opinion’s procedure will not always beoffset by a savings in the time that would otherwise be spent on determining whether the defendant’s statements can be used attrial, or whether the prosecutor is making derivative use of those statements. Ruling on theissue at 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 of the waiver due to a change in legal theoryor a decision not to call the expert who considered it relevant to his opinion. Moreover,it is quite likely that the defense will seek to shield far more statements than the prosecutor would intendto use attrial. 20 be various meansby which trial court could meet the demandsofthe Fifth Amendment. In view ofthe reality that every criminal proceeding is different, with its own nuances and changing circumstancesthatthe trial court is far better equipped to address than we are to predict, the common sense approachis to permit thetrial court to exerciseits 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 demonstratedno reasonfor us to do so at this juncture in this case. In conclusion, Maldonadohas notestablished that he will suffer incurable harm, or will lack any adequate legal remedy, if we do not grant him therelief he seeks. The absenceof any constitutionally mandated need to providehim his requestedrelief or to impose the rule and procedure set forth in the majority opinion, and the potential for imposing a burdensomeand often unnecessary procedure upontrial courts in other cases, confirms that our issuance of extraordinary writ relief is inappropriate. Maldonado’s petition should be denied. I dissent. NEEDHAM,J. 21 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. . EXHIBIT B 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 COURT OF SAN A126236 MATEO COUNTY, (San Mateo County Respondent; Super. Ct. No. SC065313A) THE PEOPLE, Real Party in Interest. THE COURT: Theopinionfiled May 13, 2010, is modified on the court’s own motionasfollows: On pages 39 and40 ofthe majority opinion,all text within Section III (Disposition and Order) shall be deleted and replaced with the followingtext: “The alternative writ is discharged and the petitionis granted in part and denied in part consistent with the views expressed in this opinion. A peremptory writ of mandate shall issue directing the trial court to vacate its September 8, 2009 order with respect to request numbers5, 6, 7, 8 and 10 and enter a new order consistent with the views . expressed in this opinion. The order shall provide that: 1) Prosecuting attorneys and their agents shall be barred from observingthe examinations of Maldonadoin realtime. All persons present at the examinations, including the examiners,shall be barred from disclosing any statements made by Maldonado during the 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 determinedbythetrial court), Maldonado mayassert anyprivilege objections to disclosure of his statements, or any portion thereof, made during the course of the examinations. The motion maybefiled underseal andthe trial 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 statementsit finds to be privileged, and may then order the 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 anyvalid 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, DECLARATION OF SERVICEBY U.S. MAIL Case Name: Maldonadov. Superior Court of San Mateo; People of the State of California No.: I declare: I am employed in the Office of the Attorney General, whichis the office of a memberof the California State Bar, at which member's direction this service is made. I am 18 yearsof age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondencefor mailing with the United _ States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney Generalis deposited with the United States Postal Service that same day in the ordinary course ofbusiness. On June 28, 2010, I served the attached PETITION FOR REVIEWbyplacing a true copy thereof enclosed in a sealed-envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Paul F. DeMeester Attorney at Law 1227 Arguello Street Redwood City, CA 94063 (2 copies) The Honorable James P. Fox District Attorney San Mateo County District Attorney's Office 400 County Center, Third Floor Redwood City, CA 94063 County-of San Mateo Main Courthouse-Hall of Justice Superior Court of California 400 County Center Redwood City, CA 94063-1655 Attention: Executive Director First District Appellate Project 730 Harrison St., Room 201 San Francisco, CA 94107 Alfred Giannini Office of District Attorney 400 County Center Redwood City, CA 94063 Court of Appeal of the State of California First Appellate District Division Five 350 McAllister Street San Francisco, CA 94102 I declare underpenalty of perjury under the laws ofthe State of California the foregoingis true and correct andthat this declaration was executed on June 28, 2010, at San Francisco, California. J. Wong Declarant SF2009202503 20298408 .doc SJ Wey Signature (