SHARP v. S.C. (PEOPLE)

Petitioner’s Petition for Review

Cal.February 18, 2011

$1906 46 COPY IN THE SUPREME COURTOF CALIFORNIA CALVIN LEONARD SHARP, Petitioner, V. Ct. App. 2/6 B222025 THE SUPERIOR COURT OF VENTURA Ventura County COUNTY, Super. Ct. No. 2008014330 Respondent, SUPREM RTTHE PEOPLE, ee Ms Real Party in Interest. : FEB 18 2911 Shp Sk Ba el ie EB pyle weilPA LPH TEED Loe re PETITION FOR REVIEW OF AN OPINION CERTIFIED FOR PUBLICATION Presenting issues related to those before this Court in case $183961 STEPHENP. LIPSON,Public Defender By Michael C. McMahon, Chief Deputy State Bar Certified Specialist — Appellate Law State Bar Certified Specialist — Criminal Law SBN 71909 800 S. Victoria Avenue, HOJ-207 Ventura, California 93009 (805) 477 - 7114 michael.mcmahon@ventura.org Attorney for Defendant and Appellant CALVIN LEONARD SHARP IN THE SUPREME COURT OF CALIFORNIA CALVIN LEONARD SHARP, Petitioner, V. Ct. App. 2/6 B222025 THE SUPERIOR COURT OF VENTURA Ventura County COUNTY, Respondent, THE PEOPLE, Real Party in Interest. Super. Ct. No. 2008014330 PETITION FOR REVIEW OF AN OPINION CERTIFIED FOR PUBLICATION Presenting issues related to those before this Court in case S183961 STEPHENP. LIPSON,Public Defender By Michael C. McMahon, Chief Deputy State Bar Certified Specialist — Appellate Law State Bar Certified Specialist — Criminal Law SBN 71909 800 S. Victoria Avenue, HOJ-207 Ventura, California 93009 (805) 477 - 7114 michael.mcmahon@ventura.org Attorney for Defendant and Appellant CALVIN LEONARD SHARP TABLE OF CONTENTS Table of Contents Table of Authorities Petition for Review of an Opinion Certified for Publication The Nature of Review Petitioner’s Contentions 1. Penal Codesection 1054.3, as amended effective January 1, 2010, doesnotalter the existing provisions of law regarding court-ordered examinations of criminal defendants in proceedingsrelatedto sanity. 2. Penal Code section 1027, subdivision (d), does not violate the separation-of- powers doctrine by imposing Judicial Branch control over Executive Branch spending. 3. The scope of the implied Fifth and Sixth Amendment waivers inherentin the entry of an NGRI pleais determined bythe law in effect at the time of the waiver, and cannotbe retrospectively broadened by legislation enacted after the plea was entered. 4, The court abusedits discretion by ordering an examination of the defendant by Dr. Mohandieafter the prosecution withheld discovery and delayedthetrial until after the operative date of the amendment. . The Necessity for Review . Introduction . Additional Facts and Conclusions. The Prayer Discussion Page: ili 10 I. Becausethe selection and appointmentof expertsto examine a defendant upon pleaof not guilty by reason of insanity is “specifically addressed”by the existing provisions of Penal Codesection 1027, section 1054.3 subdivision (b) does not apply. . ; ; . . 10 II. Section 1027, and section 1054.3, subdivision(b), are notstatutes in pari materia, because thelatter expressly does not apply whenits otherwise applicable procedures are specifically addressed by an existing provision of law. . 12 Ill. The fee restrictions established by section 1027, subdivision (d), do not violate the separation-of-powers doctrine, and the court abusedits discretion by ordering petitioner to submit to examination by Dr. Mohandie, because the prosecution hasalready paid him $32,000 in unauthorized fees. . . ; ; ; . ; 12 IV. The court abusedits discretion because Dr. Mohandie was a central figure in a discovery violation in this same case and the order gives the offending party a “windfall”for their misconduct... ; ; ; . ; 14 V. While it may be unfairto the state to permit a defendant to use psychiatric testimony without allowingthe state some meansto rebut that testimony, section 1027is sufficient to protect the rights of the People. The United State Supreme Court has never ruled that the prosecution hasa right to an examination by a prosecution-retained expert, or to use in evidence statements the defendant made aboutthe crimes with which he was charged. . . . , . 16 Conclusion . . , ; . . ; ; 17 Certificate of Word Count . ; . ; 18 Court of Appeal Decision of February 4, 2010. ; . . attached Declaration of Service . . . . . . . End il TABLE OF AUTHORITIES Constitutions: U. S. Constitution Fifth Amendment Sixth Amendment . Separation-of-powers doctrine Cases: Brydonjack v. State Bar (1929) 208 Cal. 439 Buchanan v. Kentucky (1987) 483 U.S. 402 Cacho v. Boudreau (2007) 40 Cal.4th 341 Estelle v. Smith (1981) 451 U.S. 454 . Maldonado v. Superior Court (8183961) People v. Engram (2010) 50 Cal.4th 1131 People v. Lines (1975) 13 Cal.3d 500 People v. McPeters (1992) 2 Cal.4th 1148 Powell v. Texas (1989) 492 U.S. 680 Sharp v. Superior Court (2011) 191 Cal.App.4th 1280 . United States v. Wade (1967) 388 U.S. 218 ; Verdin v. Superior Court (2008) 43 Cal.4th 1096 Statutes and Rules: Health & Safety Code, § 11362.5 . Pen.Code ; Pen. Code, § 187(a) | Pen. Code, § 205 Pen. Code, § 290. Pen. Code, § 597, subd.(a) . Pen. Code, § 664 Pen. Code, § 1016 Pen. Code, § 1027 Pen. Code, § 1027, subd.(d) Pen. Code, § 1054.1. Pen. Code, § 1054.3. Pen, Code, § 1054.3, subd.(b) Pen. Code, § 1054.3, subd.(b)(1)_. Pen. Code, § 1054.3, subd.(b)(2)_. Pen. Code, § 1054.5. Pen. Code, § 1054.7. ili 14, 15 17 16 1 7,14 passim ‘ — ~ “ I m a R o o I N O _ passim 3, 6, 12, 13 14 passim 1, 10, 12 4,10 10, 11 14 14 Pen. Code, § 3003.5 . . Pen. Code, Title 6, Chap. 4, § 1026 Welf. & Inst. Code, § 602 . iv IN THE SUPREME COURT OF CALIFORNIA CALVIN LEONARD SHARP, Petitioner, V. THE SUPERIOR COURT OF VENTURA COUNTY, Respondent, THE PEOPLE, Real Party in Interest. S Ct. App. 2/6 B222025 Ventura County Super. Ct. No. 2008014330 PETITION FOR REVIEW OF AN OPINION CERTIFIED FOR PUBLICATION Presenting issues related to those before this Court in case S183961 TO CHIEF JUSTICE TANI CANTIL-SAKAUYE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: On March 18, 2010, this court granted review of an order summarily denying petitioner’s application for issuance of a writ of mandate andtransferred the matter back to Court of Appeal with directions to issue an order to show cause. ($180075.) The Court of Appeal has now filed an opinion, whichit has certified for publication. (Sharp v. Superior Court (2011) 191 Cal.App.4th 1280; copy attached.) The case remains worthy of review for the same reasonsit did a yearago. Although the Legislature recently amended California’s criminal discovery law to authorize an order directing a defendant to submit to a psychiatric evaluation by an expert retained by the prosecution, such an order remains barred wherethe psychiatric evaluation processis “specifically addressed by an existing provision of law.” (Pen. Code, §1054.3, subd. (b).) The Court of Appealerred in concluding that the Legislature intended to amend California’s scheme for the determination of sanity, which is specifically addressed by other existing provisions of the Penal Code that have worked well for decades. This court should again grant review tosettle important questions of law of immediate statewide importance arising from this recent amendment to California’s criminal discovery scheme, which becameoperative on January 1, 2010. No other published opinion interprets the amendment and the case presents other important issues related to the compensation of such experts and the retrospective application of the amendment. This court hasrelated issues before it in Maldonado v. Superior Court (S183961) which is now fully briefed. However, Maldonadowill notprovide a vehicle to resolve the issues presented here. THE NATURE OF REVIEW Review should be granted to determine whether the Court of Appeal erred: ¢ by concludingthat a recent amendmentto Penal Codesection 1054.3 applies to the assessmentof a defendant’s sanity following the entry of a plea of not guilty by reason ofinsanity, despite the fact that procedures for such an assessmentare specifically addressed by an existing provision of law; and, e by concluding that the scope of defendant’s partial waiver of Fifth Amendment rights can be expandedretrospectively by legislation enactedafter the entry ofhis plea; and, e by failing to find no abuse ofdiscretion despite the fact the prosecution’s discovery violation delayed the trial until the operative date of the very amendment they now seekto exploit. PETITIONER’S CONTENTIONS 1, Penal Code section 1054.3, as amendedeffective January 1, 2010, does not alter the existing provisions of law regarding court-ordered examinations of criminal defendants in proceedingsrelatedto sanity. 2. Penal Code section 1027, subdivision (d), does not violate the separation-of- powers doctrine by imposing Judicial Branch control over Executive Branch spending. 3. The scope of the implied Fifth and Sixth Amendmentwaiversinherent in the entry of an NGRI plea is determined by the law in effect at the time of the waiver, and cannot be retrospectively broadened bylegislation enacted after the plea was entered.! 4. The court abused its discretion by ordering an examination of the defendant by Dr. Mohandie after the prosecution withheld discovery and delayedthetrial until after the operative date of the amendment. THE NECESSITY FOR REVIEW Review is necessary and important becausethe issues involve the construction of new legislation. the Legislature recently amendedthe criminal discovery statutes to provide: “Unless otherwise specifically addressed by an existing provision of law, whenever a defendantin a criminalaction . . . places in issue his or her mentalstate at any phase of the criminal action .. . through the proposed testimony of any mental health expert, upon timely request by the prosecution, the court may order that the defendant .. . submit to examination by a prosecution-retained mental health expert.” | Both the timing andscope ofsuch waivers are the subject of extensivebriefing in Maldondo, supra. (§ 1054.3, subd. (b)(1), emphasis added.) Introduction In Verdin v. Superior Court (2008) 43 Cal.4th 1096 (Verdin), this court stayed and then reviewed anorderdirecting a criminal defendant to grant access for purposes of a mental examination,not to a court-appointed mental health expert, but to an expert retained by the prosecution. The court held that “the trial court’s order granting the prosecution accessto petitioner for purposes of having a prosecution expert conduct a mental examination is a form of discovery that is not authorized by the criminal discovery statutes or any otherstatute, noris it mandated by the United States Constitution. (/d., at p. 1116.) Verdin presented no issue involving proceedings following pleaof “not guilty by reason of insanity.” The court expressed “no opinion” regarding cases “that involve a plea of not guilty by reason ofinsanity,” noting that such cases are governed by the existing provisions of section 1027. (/d., at p. 1107, fn. 4.) After noting that the opinion did not purport to resolve “complicated” and “complex”constitutional questions, the court observed that the Legislature remained free to establish sucha rule of discovery within constitutionallimits. (/d., at p. 1116, fn 9.) The Legislature chose to do so by amending the criminal discovery statutes, specifically, section 1054.3, which specifies the information to be disclosed by the defendant to the prosecution. Effective January 1, 2010,that section was amendedby adding a new subdivision (b), which states: “(b) (1) Unless otherwise specifically addressed by an existing provision oflaw, whenever a defendantin a criminal action or a minorin a juvenile proceeding brought 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 mental health expert’s fees for examination and testimonyat a criminaltrial or juvenile court proceeding. (B) The prosecuting attorney shall submita 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 criminalaction 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, thetrial court must make a threshold determination that the proposed tests bear somereasonablerelation to the mental state placed in issue by the defendant in a criminal action or a minorin a juvenile proceeding. For the purposesof this subdivision, the term “tests” shall include any and all assessment techniques suchas clinical interview or a mental status examination. (2) The purpose ofthis 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 notthe intentof 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 admission of the results of these tests into evidence. (Emphasis added.) Petitioner contendsthat the limitation “Unless otherwise specifically addressed by an existing provision oflaw,” refers to existing provisions of law, such as Title 6, Chap. 4, §1026, et seq. of the Penal Code, which addresses examinationsinto the sanity of the defendant following a plea ofnot guilty by reasonofinsanity. As a responseto the court’s holding in Verdin, the amendment wasnot intended to amendorrepealby implication the state’s schemeforlitigation ofthe issue of sanity. Subdivision (d) of section 1027 requires judicial approval of fees payable to expert witnesses called by the prosecution. It states that, “Nothing containedin this section shall be deemedor construedto prevent any party to any criminal action from producing any other expert evidence with respect to the mentalstatus of the defendant; where expert witnesses are called by the district attorney in such action, they shall only be entitled to such witnessfees as may be allowedby the court.” In the instant case, the court ordered an examination by a prosecution- retained expert whohasalready been paid $32,000.00 bythe District Attorney, without any judicial determination that such fees would be allowed by the court. Becausethis fact was knownto the court, an order for an examination of the defendant by this witness was an abuseof discretion, assuming it was authorized at all. The prosecution and the trial court contendthat this statute violates the separation-of-powers doctrine. Finally, the petition in the Court of Appeal raised questions regarding the right to counsel and the problem offorcing the defendantto “stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s rightto a fair trial.” (United States v. Wade (1967) 388 U.S. 218, 226.) Based uponthe plain meaning of the amendedstatute, it does not change existing provisions of law regardingsanity. Additional facts and conclusions Because the Court of Appeal opinion remains factually inadequateafter an extensive modification, petitioner also presents the following facts and conclusions: e The District Attorney of Ventura County, acting in the nameofthe People,is prosecuting yourpetitioner Calvin Leonard Sharp for the August 12, 2007, special circumstances murder(§ 187(a)) of Sev’n Molina with a meat cleaver. The indictment also alleges the attempted premeditated murders (§ 664/187(a)) of Molina’s mother, Sandra Ruiz, and a neighbor, Diana Cox, and the offenses of aggravated mayhem (§ 205) against the two surviving victims. In Count 6, the indictmentalleges cruelty to an animal, in violation of section 597, subdivision (a). e On March 17, 2009, the court accepted pleas ofguilty to all of the offenses charged in the indictment (Exhibit A, pp. 1-3) coupled with a plea ofnot guilty by reason of insanity (NGRI) to all of the same counts.? Pursuantto section 1027, the 2 The Penal Code does notauthorize or require such conflicting pleas. “A defendant whodoes not plead guilty may enter one or more ofthe otherpleas.”(§ 1016, emphasis added.) It appearsthat the trial court and counsel thoughtthat these were the appropriate pleasto initiate a trial limited to sanity, while admitting the commission ofthe offenses charged. However, simple pleas ofNGRI would have sufficed. (/bid.) It is a distinction that makes no difference, however, asit puts this defendantin the sameposition as he would be followinga verdict ofguilty. court selected and appointed qualified experts (Drs. Susan Ferrant and Christina Griffin) to examine the defendant regarding his mentalstate of sanity or insanity. (Exhibit G, at p. 88.) On March 24, 2009,the court appointed a third expert, Dr. Jablonski-Kaye, and vacated the appointmentof Dr. Griffin. (/bid.) On June 25, 2009, the court appointed a fourth expert, Dr. Randy Wood, who was designated and appointed by stipulation from the prosecution and defense. (Exhibit G, at p. 92.) The prosecution considered requesting the appointment of Dr. Kris Mohandie, but “declined to make that motion,” so that Dr. Mohandie would notbe limited to accepting “ONLY court ordered fees,”etc.) (Exhibit D,at p. 29; and §1027, subd.(d).) This petition for review seeks appellate review of an order pronounced on January 25, 2010, compelling petitioner Sharp to submit to custodial testimonial examination by a prosecution psychiatrist, Dr. Kris Mohandie. Although Dr. Mohandie wasinvolvedin the case since the day ofarrest, the prosecution stipulated that they werein violation of the rules of discovery because they did not provide the defense with his report 30 days beforetrial. (Exhibit D, at pp. 44-45; Exhibit F, at p. 77.) On November6, 2009, the court ordered Dr. Mohandie to providehis report, personal notes, correspondence, andtesting materials to the defense on or before December 1, 2009. (Exhibit G, p. 112.) Such an order requires a findingthat the prosecution has not complied with its duty to supply such reportsat least 30 dayspriortotrial. Therationale behind the order on review is memorialized in the minutes of January 21, 2010. (Exhibit G, at pp. 113-117.) The trial court ostensibly made the order based upon a very recent amendmentto Penal Codesection 1054.3. If the order is not authorized by section 1054.3, the court has no inherentauthority to order discovery in the form of a compelled psychiatric examination untethered to a statutory or constitutional base. Amongother things, this petition contends that section 1054.3, as amended, does not apply to court-ordered examinations into the sanity of the defendant. This petition also challenges the order based upon other California law grounds and constitutional objections. The order on review is not directly appealable and petitioner has no plain and speedy remedyat law. Petitioner has supplied the court with an adequate record for appellate review, by lodging all of the pertinent records with the clerk of the Court of Appeal. Testimony about the examination has yet to be admittedattrial. The questionsraised by this petition are matters of great public interest and will inevitably recurin other cases involving sanity. Once such an examis ordered, the time for review on the merits is quite limited. For the guidance of courts in future cases presenting similar issues, this court should grant review and resolve the controversy. The Prayer The petition for review should be granted. Respectfully submitted, STEPHEN P. LIPSON,Public Defender By: Michael C. McMahon Chief Deputy Public Defender Attorneys for Calvin Leonard Sharp Discussion I. Becausethe selection and appointmentof experts to examine a defendant upon a plea of not guilty by reason ofinsanity is “specifically addressed” by the existing provisions of Penal Codesection 1027, section 1054.3 subdivision (b) does not apply. Section 1054.3, subdivision (b)(1), as amended effective January 1, 2010, States: “ Unless otherwise specifically addressed by an existing provision oflaw, whenevera defendantin a criminal action or a minorin a juvenile proceeding brought pursuantto a petition alleging the juvenile to be within Section 602 of the Welfare and Institutions Code places in issuehis or her mental state at any phase ofthe criminalaction or juvenile proceeding through the proposed testimony of any mental health expert, upon timely request by the prosecution, the court may orderthat the defendantor juvenile submit to examination by a prosecution-retained mental health expert.” (Emphasis added.) Becausethe selection and appointment of experts to examine a defendant upona plea of notguilty by reason ofinsanity is “specifically addressed” by the existing provisions of Penal Code section 1027, section 1054.3 subdivision (b) does not apply. This conclusionis consistent with the stated purpose of the amendment. Subdivision (b) contains an express statementofthe legislative intent underlying the amendment. Subdivision (b)(2) states that, “The purpose ofthis subdivisionis to respond to Verdin v. Superior Court 43 Cal.4th 1096, which held that only the Legislature may authorize a court to order the appointmentof a prosecution mental health expert when a defendanthas placed his or her mentalstate at issue in a criminal case or juvenile proceeding pursuant to Section 602 of the Welfare andInstitutions Code.” 10 Verdin v. Superior Court (2008) 43 Cal.4th 1096, presented no issue involving proceedings following a plea of “not guilty by reason ofinsanity.” The court expressed “no opinion”regarding cases“that involve a plea of not guilty by reason of insanity,” noting that such cases are governed by theexisting provisions of section 1027. (/d., at p. 1107, fn. 4.) Subdivision (b)(2) goes onto saythat, “Other than authorizing the court to order testing by prosecution-retained mental health experts in responseto 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 admission of the results of thesetests into evidence.” Petitioner’s research discloses no California judicial opinion discussing the statutory languageat issue here, that is: “Unless otherwise specifically addressed by an existing provision of law.” The Court of Appeal also found none. Whenbroad application of a statute is intended, the section often begins, “Notwithstanding any other provision of law,....” For example, section 3003.5, a statute setting forth restrictions on wherecertain sex offenders subject to the lifetime registration requirementof section 290 mayreside, includes that language. Health & Safety Code, section 11362.5, does as well, to provide physicians immunityfor recommending marijuanato a patient for medical purposes. The new amendmentto section 1054.3 could havestated that it applied “notwithstanding any other provision of law.” Buthere, the Legislature included specific limiting language to leave unchangedall situations specifically addressed by an existing provision of law. Effect must be given to that unusuallimitation. / / 11 II. Section 1027, and section 1054.3, subdivision (b), are not statutesin pari materia, because thelatter expressly does not apply when its otherwise applicable procedures are specifically addressed by an existing provision of law. Because the amendmentdoesnot purport to modify or repeal the procedures spelled out in section 1027, the doctrine of construing statutes in pari materia does not apply. Section 1027 could have been amended to allow for the appointmentofa qualified mental health expert selected andpaid bythe prosecution. Clearly, the | Legislature chose not to do so, and amendmentsby implication are disfavored. (Cacho v. Boudreau (2007) 40 Cal.4th 341, 352.) Section 1054.3, subdivision (b), was merely written to respond to the situation presented in Verdin: when a defendant presents a mental defenseat the guilt or penalty phase of a criminal trial, and no “existing provision oflaw”allowsfor the appointmentof an expert to review andrespondto the testimony of a defense expert. Il. Thefee restrictions established by section 1027, subdivision (d), do not violate the separation-of-powers doctrine, and the court abusedits discretion by ordering petitioner to submit to examination by Dr. Mohandie, because the prosecution has already paid him $32,000 in unauthorizedfees. Section 1027, subdivision (d), provides that, “Nothing contained in this section shall be deemedor construedto prevent anyparty to any criminal action from producing any other expert evidence with respect to the mentalstatus ofthe defendant; where expert witnesses are called by the district attorney in such action, they shall only be entitled to such witnessfees as may be allowed by the court.” (Emphasis added.) 12 The order for an examination of the defendant by Dr. Mohandieconstitutes an abuseof discretion because the prosecution is paying him fees of more than $32,000. (Exhibit F, at page 76: 15-16.) Subdivision (d) prohibits the district attorney from tainting the search forthe truth by paying their retained experts on sanity more than the fees allowed by the court. The fee restrictions provided in this subdivision are not limited to fees paid to experts appointed by the court, but applies to all expert witnesses called by the district attorney on the question ofsanity. The prosecution is well awareofthe fee restrictions because they declined to move for the appointment of Dr. Mohandie so that Mohandie would notbelimited to accepting “ONLYcourt ordered fees, etc.) (Exhibit D, at p. 29; and §1027, subd. (d).) This was a blatant attemptto violate the fee restrictions, which appliesto all experts called by the district attorney on theissue ofsanity. Ashe previously asserted in this court (Answerto Petition for Review in 5180075, at pp. 6-8), andin his briefing on the order to show cause,the district attorney arguesthat the fee restrictions established by section 1027, subdivision (d), violate the separation-of-powers doctrineif the restrictions apply to all experts called by the prosecution. Sharp disagrees, and the Court of Appeal simply failed to resolve this importantissue. “The powerofthe legislature to regulate criminal and civil proceedings and appeals is undisputed.” (People v. Engram (2010) 50 Cal.4th 1131, 1147, quoting Brydonjack v. State Bar (1929) 208 Cal. 439.) Thetrial court erred in concluding that compliance with the plain meaningofthe fee-restriction statute would “raise separation of powersissues.” (RT, 2/10/2010 at p. 30,lines 6-9.)3 / / 3 Dr. Mohandie’s pre-examination reports on the defendant’s sanity were admitted into evidence bystipulation on January 12, 2010. (Ex. G,pp. 111-112) 13 IV. The court abusedits discretion because Dr. Mohandie wasa centralfigure in a discovery violation in this same case and the ordergives the offendingparty a “windfall” for their misconduct. The Court of Appealopinionstates that, “The record includes a court order requiring Dr. Mohandieto file a report, but there is nothing in the recordestablishing discovery abuse, or showing other conduct that would be material to the exercise of the trial court’s discretion in making the January 25, 2010, order.” This grossly misstates the record. Obviously, the court’s only authority to order Dr. Mohandieto file a report is based upon finding “that a party [the prosecution] has not complied with section 1054.1” by failing, without good cause, to furnish the defense with a copy ofthe report at least 30 dayspriorto trial as required by section 1054.7. Absenta finding of unilateral discovery abuse, the court lacksjurisdiction to order Dr. Mohandie to do anything. On this, the law is clear. (See § 1054.5.) Here, Dr. Mohandie’s violation of the discovery statutes by refusing to furnish his report in a timely mannerdelayedthetrial until the operative date of the discovery amendmentthe prosecution nowseeksto exploit. The defense asked in limine to exclude any testimony on sanity from Dr. Mohandie becauseof the discovery violation. Instead, the trial court rewarded the prosecution’s violation by ordering the defendant to submit to an examination by the same scofflaw whorefusedto write an expert report despite numerous demandsthat he do so. This was an abuseof discretion, and the showing madein support of the motion wasinsufficient. The motion was untimely and the People are guilty of laches because theyoriginally requested the court to appoint Dr. Wood,rather than Dr. Mohandie. Underthefacts ofthis case, the court abusedits discretion because the motion was made mid-trial and will force an unreasonably long delay, and additional expenseto the defense. 14 For Fifth Amendmentreasons, California has excluded statements of a defendantto a psychiatrist appointed by the court. (See, People v. Lines (1975) 13 Cal.3d 500, 516 [“reappointment” for section 1027 examination]). “The accused is guaranteedthat he need not stand alone againstthe State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s rightto a fair trial.” (citation omitted.) United States v. Wade (1967) 388 U.S. 218, 226.) In United States v. Wade, the Supreme Court determinedthat a defendant had a Sixth Amendmentrightto assistance of counsel at a police lineup conductedto elicit identification evidence. The court noted that the presence of counsel wasrequired “to protect Wade’s mostbasic right as a criminal defendant — his rightto fair trial at which the witnesses against him might be meaningfully cross-examined.” The Court observedthat a lineup wasan inherently suggestive procedure and that a defendant would be unable to perceive the suggestive or distorting influences and reconstruct them attrial. The mentally impaired defendantis in custody on this case. The proposed “examination”is, effectively, a custodial interrogation by a highly-paid, highly-trained memberofthe prosecution team. Nevertheless, nothing in the amendedstatute orthe order on review imposesthe type of “constitutional limits” envisioned by this court in Verdin. (Verdin, at p. 1116,fn. 9.) / / 15 V. While it may be unfairto the state to permit a defendantto use psychiatric testimony without allowing the state some meansto rebutthat testimony,section 1027is sufficient to protect the rights of the People. The United State Supreme Court has neverruled that the prosecution has a right to an examination bya prosecution-retained expert, or to use in evidence statements the defendant made about the crimes with which he was charged. In Estelle v. Smith (1981) 451 U.S. 454 (Smith), the United States Supreme Court held that the penalty phase admissionoftestimony from a psychiatrist who examined the defendant to determine his competenceto stand trial violated his Fifth Amendmentprivilege against compelledself-incrimination because he was not advised prior to the psychiatric examination that he had a right to remain silent and that any statement he made could be used against him at sentencing proceedings. (/d., at 461-69.) In Smith, the court did not decide any issues regarding prosecution examinationsin sanity trials, but noted that some Circuit courts had done so and, in dicta, suggested that the State mightbe entitled to someeffective meansof controverting defense evidence on anissuethat the defense has interjected into the case. (/d., at p. 465.) In California, section 1027 providesan effective means of controverting defense evidence through the appointment of independent experts. Smith does not controlhere. In Buchanan v. Kentucky (1987) 483 U.S. 402, the Court held that if a defendantrequests a psychiatric examination in order to prove a mental-status defense, he waivesthe right to raise a Fifth Amendmentchallengeto the prosecution’s use of evidence obtained through that examination to rebut the defense. (/d., at pp. 422-423; see also Powell v. Texas (1989) 492 U.S. 680, 683-84.) Buchanan doesnotcontrol here. California’s existing statutory provisionsforthelitigation of sanity adequately protect the rights of the prosecution. Nothing in section 1054.3 purports to modify or amendthe existing provisionsof law regarding sanity. 16 Similarly, nothing in People v. McPeters (1992) 2 Cal.4th 1148, authorizes an examination by a prosecution-retained expert on the issue of sanity. In that case, the court was concerned aboutan “unfair tactical advantage to defendants, who could, with impunity, present mental defensesat the penalty phase, secure in the assurance they could not be rebutted by expert testimony based on an actual psychiatric examination.” (Jd, at p. 1190) Here, the existing provisions of section 1027 ensure that defense evidence may be rebutted by expert testimony based upon multiple psychiatric examinations. The Court of Appeal did not adequately address the complex constitutional issues presented by thepetition. Conclusion Thepetition raises importantissues of law of immediate statewide importance and the court should grant review. Dated: February 15, 2011. Respectfully Submitted, STEPHENP. LIPSON,Public Defender By Michael C. McMahon,Chief Deputy _ State Bar Certified Specialist - Appellate Law State Bar Certified Specialist — Criminal Law SBN 71909 Attorney for Petitioner 17 CERTIFICATE OF WORD COUNT The undersigned herebycertifies that by utilization of MSWord 2007 Word Count feature there are less than 6000 words in Times New Roman13 pt. font in this document, excluding Declaration of Service. Dated this 15"" day February, 2011. Jeane Renick Legal MgmtAsst.III 18 ® e ® @ LexisNexis’ Page | LEXSEE 2011 CAL. APP. LEXIS 43 CALVIN LEONARD SHARP,Petitioner, v. THE SUPERIOR COURT OF VENTURA COUNTY,Respondent; THE PEOPLE, Real Party in Interest. No. B222025 COURT OF APPEAL OF CALIFORNIA, SECOND APPEL- LATE DISTRICT, DIVISION SIX 191 Cal. App. 4th 1280; 2011 Cal. App. LEXIS 43 January 18, 2011, Filed NOTICE: As modified Feb. 2, 2011. SUBSEQUENT HISTORY:Modified and rehearing denied by Sharp v. Superior Court, 2011 Cal. App. LEXIS 125 (Cal. App. 2d Dist., Feb. 2, 2011) PRIOR HISTORY: [**1] Superior Court of Ventura County, No. 2008014330, Kevin G. DeNoce, Judge. SUMMARY: CALIFORNIA OFFICIAL REPORTS SUMMARY Defendant was indicted for murder in the course of burglary and mayhem, two counts of attempted murderresulting in the infliction of great bodily injury, and other offenses. He pleaded not guilty to the of- fenses and not guilty by reason of insanity (NGRI). Thetrial court granted the People's motion for a mental examination by a pros- ecution-retained expert pursuant to Pen. Code, § 1054.3, subd. (b)(1). (Superior Court of Ventura County, No. 2008014330, Kevin G. DeNoce, Judge.) The Court of Appeal denied defendant's petition for a writ of mandate directing the trial court to vacate its order granting the People's motion for a mental examination by a prosecution-retained expert. The court held that Pen. Code, § 1054.3, subd. (b), applies to determinations of sanity under Pen. Code, § 1027. Accordingly, § 1054.3, subd. (b)(1), authorizes a trial court to order a mental examination by a retained prose- cution expert of a defendant who pleads NGRI. Although defendant's waiver of con- stitutional rights was only to the extent ne- Page 2 191 Cal. App. 4th 1280, *; 2011 Cal. App. LEXIS 43, ** cessary to permit useful mental examina- tions, § 1054.3, subd. (b), and the trial - court's order expressly and implicitly in- cluded reasonable safeguards. Section 1034.3, subd. (b), relates to the procedures to be followed in the conduct of a sanity trial. Its application in defendant's case was prospective and permissible. The record before the court was insufficient for it to make any determination regarding the pro- priety of witness fees that had or might be paid to a mental health expert retained by the prosecution, much less a determination of whetherthe trial court abused its discre- tion in that regard. (Opinion by Perren, J., with Gilbert, P. J., and Coffee, J., concur- ring.) [*1281] HEADNOTES CALIFORNIA OFFICIAL REPORTS HEADNOTES (1) Criminal Law § 162--Plea--Not Guilty by Reason of Insani- ty--Discovery--Examination by Prosecu- tion-retained Mental Health Expert.--The trial court's authority to order a mental health examination by an expert retained by the prosecution is not specifically addressed by Pen. Code, § 1027. Accordingly, Pen. Code, § 1054.3, subd. (b), authorizesa trial court to order a defendant who pleads not guilty by reason of insanity (NGRI) to submit to a psychiatric examination by a prosecution-retained expert. Thus, the trial court did not err in the case of a defendant who pleaded not guilty to the offenses and NGRI in granting the People's motion for a mental examination by a _prosecu- tion-retained expert pursuant to § 1054.3, subd. (b)(1). [Erwin et al, Cal. Criminal Defense Practice (2010) ch. 86, § 86.02.] (2) Criminal Law § 162--Plea--Not Guilty by Reason of Insani- ty--Discovery--Examination by Prosecu- tion-retained Mental Health Ex- pert.--Pen. Code, § 1054.3, subd. (b), au- thorizes a trial court to order a defendantto submit to examination by a prosecu- tion-retained mental health expert whenever a defendantplaces in issue his or her mental state at any phase of the criminal action. Pen. Code, § 1027, provides for the ap- pointment of mental health experts to con- duct mental examinations of a defendant whopleads not guilty by reason of insanity (NGRI), describes the content of written reports by the appointed experts, and obli- gates the experts if summonedto testify at the sanity trial. Section 1027 does not per- mit, prohibit, or expressly consider the matter of mental health examinations by a prosecution-retained mental health expert. But, § 1027 does permit the introduction of other evidence of a defendant's mentalsta- tus, indicating that the procedures expressly provided in § /027 are not intended to be the exclusive source of evidence in a sanity determination ($ 1027, subd. (d)). Applica- tion of Pen. Code, § 1054.3, subd. (b), to cases in which an NGRI plea has been en- tered advancesthe intent of § 1054.3, subd. (b), and is fully consistent with the lan- guage and purpose ofPen. Code, § 1027. (3) Statutes § 21--Construction--Legislative In- tent--Language--Ambiguity.--Under the rules governing statutory interpretation, the fundamental objective is to ascertain and effectuate legislative intent. If the words of Page 3 191 Cal. App. 4th 1280, *; 2011 Cal. App. LEXIS 43, ** a statute given their usual and ordinary meaning are clear and unambiguous, there is no further need for interpretation. If the statutory language is ambiguous, courts must adopt a construction of those words that best harmonizes the statute internally and with other related statutes. In so doing, courts consider the objective of the statute, its legislative history, public policy, and the entire statutory scheme. [*1282] (4) Criminal Law § 162--Plea--Not Guilty by Reason of Insani- ty--Discovery--Examination by Prosecu- tion-retained Mental Health Expert.--The Legislature enacted Pen. Code, § 1054.3, subd. (b), to provide express statutory au- thorization for court-ordered mental ex- aminations by prosecution experts. The statute states that the purpose of § 1054.3, subd. (b), is to respond to Verdin v. Supe- rior Court, which held that only the Legis- lature may authorize a court to order the appointment of a prosecution mental health expert when a defendant places his or her mentalstate at issue. The legislative history of § 1054.3, subd. (6), further indicates that the Legislature intended to restore the reci- procity principle of the criminal discovery law regarding compelled mental examina- tions. Application of § 1054.3, subd. (b), to cases involving pleas of not guilty by rea- son of insanity (NGRI) furthers the legisla- tive purpose of extending reciprocity to the prosecution in the area of mental examina- tions. To exclude defendants who plead NGRI from the reciprocity created by § 1054.3, subd. (b), would unnecessarily limit the intent of the statute, as well as the pur- pose of Prop. 115. (5) Criminal Law § 162--Plea--Not Guilty by Reason of Insanity--Court-appointed Experts.--The object of a procedure focus- ing on court-appointed experts is to remove the possible bias which may influence the employmentof experts by the parties to the action. The appointed experts are agents of the court, not of the parties or their attor- neys. Pen. Code, $ 1027, however, does not purport to cover the entire range of actions that may be necessary to assure that the de- termination of sanity will advance the truth-seeking function ofa trial. The statute acknowledges that experts appointed pur- suant to its terms are not to be the exclusive source of testimony regarding a defendant's mental condition, and contemplates that the parties will retain their own experts and call those experts as witnesses. Section 1027 is not part of the criminal discovery law and predates Prop. 115 by several decades. The criminal discovery law exists alongside § 1027, and § 1027, subd. (d), strongly sug- gests that evidence obtained under the au- thority of the California discovery law is admissible in sanity trials. Allowing the parties to utilize their own experts to argue the sanity of a defendant conforms to the adversarial truth-finding process of the criminal justice system, and the goal of the discovery law. It permits the prosecution experts to challenge the defense expert's professional qualifications and reputation, as well as his or her perceptions and tho- roughnessofpreparation. (6) Criminal Law § 162--Plea--Not Guilty by Reason of Insanity--Mental Examina- tions--Waiver of Constitutional Rights.--A defendant who pleads not guilty by reason of insanity waiveshis or her Fifth and Sixth Amendment rights to the extent Page 4 191 Cal. App.4th 1280,*; 2011 Cal. App. LEXIS 43, ** deemed necessary to permit useful sanity examinations by defense and prosecution mental health [*1283] experts. A plea of insanity is a tactical voluntary decision made by a defendant with the advice of counsel, and mental examinations flowing from the plea are not deemed to be com- pelled. (7) Criminal Law § 207--Trial--Proceedings on Issue of In- sanity--Discovery--Examination by Prosecution-retained Mental Health Ex- pert--Procedure.--Pen. Code, § 1054.3, subd. (b), requires the People to submit a list of tests proposed to be administered by the prosecution expert to the defendant in a criminal action. At the request of the de- fendant in a criminal action, a hearing shall be held to consider any objections raised to the proposed tests before any test is admi- nistered. Before ordering that the defendant submit to the examination, the trial court must make a threshold determination that the proposed tests bear some reasonable re- lation to the mental state placed in issue by the defendant in a criminal action or a mi- norin a juvenile proceeding. (8) Statutes § 4--Prospective Operation and Effect--Penal Laws.--It is presumed that criminal statutes apply prospectively. (9) Statutes § 5--Retroactive Operation and Effect--Penal Laws.--A statute is re- trospective if it defines conduct occurring prior to its effective date as criminal, in- creases the punishment for such conduct, or eliminates a defense to a criminal charge based on the conduct. Conversely, applica- tion of a statute affecting the conduct of a trial that has not yet occurred is not deemed to be retroactive, even if the trial pertains to conduct that occurred prior to the statute's enactment. The effect of such statutes is actually prospective in nature since they re- late to the procedure to be followed in the future. (10) Criminal Law § 162--Plea--Not Guilty by Reason of Insanity--Separate Hearings--Burdenof Proof.--There is only one trial in a case involving a defense that the defendant is not guilty by reason ofin- sanity. The fact that the sanity phase of the trial is conducted in a separate proceeding and that the defendant bears the burden of proof does not convert it into a separate criminal action. (11) Criminal Law § 199--Trial--Commencement--Jury Selec- tion.--Trial may be deemed to commence whenjury selection begins for purposes of a particular statute or public policy. (12) Criminal Law § 162--Plea--Not Guilty by Reason’ of Insani- ty--Prosecution's Expert Wit- nesses--Fees.--Pen. Code, § 1027, subd. (da), provides that nothing contained in this section shall be deemed or construed to prevent any party to any criminal action from producing [*1284] any other expert evidence with respect to the mental status of the defendant; where expert witnesses are called by the district attorney in such action, they shall only be entitled to such witness fees as may be allowed by the court. The language ofthe statute gives the trial court discretion to determine the pro- priety of the prosecution's expert witness fees. Nothing in § 1027, subd. (d), estab- lishes any particular monetary "fee cap." Page 5 191 Cal. App. 4th 1280, *; 2011 Cal. App. LEXIS 43, ** The statute provides only that an expert witness who is called by the district attor- ney at trial is limited to fees allowed by the court. COUNSEL: Stephen P. Lipson, Public Defender, and Michael C. McMahon,Chief Deputy Public Defender, for Petitioner. No appearance for Respondent. Gregory D. Totten, District Attorney, and Lisa O. Lyytikainen, Deputy District At- torney, for Real Party in Interest. JUDGES: Opinion by Perren, J., with Gil- bert, P. J., and Coffee, J., concurring. OPINION BY:Perren OPINION PERREN, J.--In Verdin v. Superior Court (2008) 43 Cal.4th 1096 [77 Cal. Rptr. 3d 287, 183 P.3d 1250] (Verdin), our Supreme Court held that the prosecution had no right to compel a mental examina- tion of a defendant by a retained prosecu- tion expert because such an examination is a form of discovery that is not authorized by statute or mandated by the Constitution. Here, we hold that a 2010 amendment to the California discovery law authorizes such a mental examination of a defendant whopleads not guilty by reason of insanity (NGRI). (Pen. Code, ' § 1054.3, subd. (b); see also $ 1027.) 1 All statutory references are to the Penal Code unless otherwisestated. Calvin Leonard Sharp petitions this court for a writ of mandate directing the superior court to vacate its order of January 25, 2010, granting the People's motion for a mental examination by a_ prosecu- tion-retained [**2] expert. The People's motion was granted by the trial court pur- suant to section 1054.3, subdivision (b), a provision in the California discovery law which became effective on January 1, 2010 (section 1054.3(b)). » We issued an alterna- tive writ and real party in interest filed a return. 2 Section 1054.3(b) provides in its entirety: "(1) Unless otherwise spe- cifically addressed by an existing provision of law, whenever a defen- dant in a criminal action or a minor in a juvenile proceeding brought pur- suant to a petition alleging the juve- nile to be within Section 602 of the Welfare and Institutions Code places in issue his or her mental state at any phase of the criminal action or juve- nile proceeding through the proposed testimony of any mental health expert, upon timely request by the prosecu- tion, the court may order that the de- fendant or juvenile submit to exami- nation by a prosecution-retained mental health expert. "(A) The prosecution shall bear the cost of any such mental health expert's fees for examination and testimony at a crim- inal trial or juvenile court proceeding. "(B) The prosecuting attorney shall submit a list of tests proposed to be administered by the prosecution ex- pert to the [**3] defendant in a criminal action or a minor in a juve- nile proceeding. At the request of the defendant in a criminal action or a minor in a juvenile proceeding, a hearing shall be held to consider any Page 6 191 Cal. App. 4th 1280, *; 2011 Cal. App. LEXIS 43, ** objections raised to the proposedtests before any test is administered. Be- fore ordering that the defendant sub- mit to the examination, the trial court must make a threshold determination that the proposed tests bear somerea- sonable relation to the mental state placed in issue by the defendantin a criminal action or a minor in a juve- nile proceeding. For the purposes of this subdivision, the term 'tests' shall include any and all assessment tech- niques such as a clinical interview or a mental status examination. "(2) The purpose of this subdivision is to respond to Verdin v. Superior Courtf, supra,] 43 Cal.4th 1096, which held that only the Legislature may author- ize 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 In- stitutions Code. Other than authoriz- ing the court to order testing by pros- ecution-retained mental health experts in response [**4] to Verdin v. Supe- rior 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 substan- tive law that controls the administra- tion of these tests or the admission of the results of these tests into evi- dence." [*1285] Sharp contends that section 1054.3(b) does not apply to a determination of sanity, and that the trial court has no other authori- ty to compel a mental examination by a prosecution-retained expert in a case where the defendant pleads NGRI. (¢ 1027.) Sharp also claims section 1054.3(b) was impro- perly applied retrospectively, the trial court violated his constitutional rights under the Fifth and Sixth Amendments and the due process clause, and the court abused its discretion. We conclude that section 1054.3(b) applies to determinations of san- ity under section 1027 and that Sharp's oth- er contentions have no merit. Accordingly, we denythe writ. FACTS AND PROCEDURAL HISTORY In April 2008, Sharp was indicted for murder in the course of burglary and may- hem, two counts of attempted murder re- sulting in the infliction of great bodily in- jury, and other offenses. The offenses oc- - curred in August 2007. In March 2009, Sharp [**5] pleaded not guilty to the offenses and NGRI. Pur- suant to section 1027, the trial court ap- pointed two mental health experts, Drs. Su- san Ferrant and Christina Griffin, to ex- amine Sharp for the purpose of evaluating his sanity. Shortly thereafter, the court ap- pointed Dr. Denise Jablonski-Kaye to re- place Dr. Griffin. In June 2009, the court appointed Dr. Randy Wood pursuanttosti- pulation by the prosecution and defense. [*1286] In November 2009, Sharp withdrew his not guilty plea to the offenses, but the NGRI plea remained. > He waivedhis right to a jury trial on the issue ofsanity. 3 A defendant who pleads NGRI thereby admits commission of the of- fenses. ($ 1016.) In January 2010, the People filed a mo- tion to compel Sharp to submit to a mental Page 7 191 Cal. App. 4th 1280,*; 2011 Cal. App. LEXIS 43, ** examination by Dr. Kris Mohandie, a men- tal health expert previously retained by the prosecution. The motion requested permis- sion to administer certain enumerated tests and procedures, namely "The MMPI-2, the Structured Interview of Reported Symp- toms and a clinical interview." On January 25, 2010, the trial court granted the People's motion (January 25, 2010, order). The court ruled that section 1054.3(b) applied to a determination of san- ity after a plea of [**6] NGRI. The court also concluded that the People's motion was timely and did not violate Sharp's constitu- tionalrights. Sharp filed a petition for writ of mandate challenging the January 25, 2010, order which we denied without a hearing. Sharp filed a petition for review with the California Supreme Court. The Supreme Court granted review and transferred the case to this court with instructions to vacate our order denying Sharp's petition and di- rect the superior court to show cause why the writ should not be granted. DISCUSSION Construction and Application of Section 1054.3(b) Section 1054.3(b) provides in part that "[ulnless 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 order that the defendant ... submit to examination by a prosecution-retained mental health expert." (Italics added.) The central issue on this appeal is whether the subject of court-ordered mental examina- tions by prosecution experts is "otherwise specifically addressed [**7] by" section 1027 which establishes a procedure for the appointment of mental health expertsin in- Sanity cases. (1) We conclude that the trial court's authority to order a mental health examina- tion by an expert retained by the prosecu- tion is not "specifically addressed" by sec- tion 1027. Accordingly, section 1054.3(b) authorizes a trial court to order a defendant who pleads NGRI to submit to a psychiatric examination by a prosecution-retained ex- pert. [*1287] (2) Section 1054.3(b) authorizes a trial court to order a defendant to "submit to examination by a_ prosecution-retained mental health expert" whenever a defendant "places in issue his or her mental state at any phase of the criminal action." (¢ 1054.3, subd. (b)(1).) Section 1027 provides for the appointment of mental health ex- perts to conduct mental examinations of a defendant who pleads NGRI, describes the content of written reports by the appointed experts, and obligates the experts if sum- monedto testify at the sanity trial. ‘ Section 1027 does not permit, prohibit, or expressly consider the matter of mental health ex- aminations by a "prosecution-retained mental health expert." But, section 1027 does permit the introduction of other evi- dence of [**8] a defendant's mentalstatus, indicating that the procedures expressly provided in section 1027 are not intended to be the exclusive source of evidence in a sanity determination. (§ 1027, subd. (d).) As we shall [*1288] explain, application of section 1054.3(b) to cases in which an NGRI plea has been entered advances the Page 8 19] Cal. App. 4th 1280, *; 2011 Cal. App. LEXIS 43, ** intent of section 1054.3(b), and is fully consistent with the language and purpose of section 1027. 4 Section 1027 providesin its enti- rety: "(a) When a defendant pleads not guilty by reason of insanity the court must select and appoint two, and may select and appoint three, psy- chiatrists, or licensed psychologists who have a doctoral degree in psy- chology and at least five years of postgraduate experience in the diag- nosis and treatment of emotional and mental disorders, to examine the de- fendant and investigate his mental status. It is the duty of the psychiatr- ists or psychologists so selected and appointed to make the examination and investigation, and to testify, Whenever summoned, in any pro- ceeding in which the sanity of the de- fendant is in question. The psychiatr- ists or psychologists so appointed by the court shall be allowed, in addition to their actual traveling expenses, [**9] such fees as in the discretion of the court seems just and reasonable, having regard to the services rendered by the witnesses. The fees allowed shall be paid by the county wherethe indictment was found or in which the defendant was held for trial. —"(b) Any report on the examination and investigation made pursuant to subdi- vision (a) shall include, but not beli- mited to, the psychological history of the defendant, the facts surrounding the commission of the acts forming the basis for the present charge used by the psychiatrist or psychologist in making his examination of the defen- dant, and the present psychological or psychiatric symptoms of the defen- dant, if any. '"(c) This section does not presume that a psychiatrist or psychologist can determine whether a defendant was sane or insane at the time of the alleged offense. This sec- tion does not limit a court's discretion to admit or exclude, pursuant to the Evidence Code, psychiatric or psy- chological evidence about the defen- dant's state of mind or mental or emo- tional condition at the time of the al- leged offense. "(d) Nothing con- tained in this section shall be deemed or construed to prevent any party to any criminal action from producing any [**10] other expert evidence with respect to the mental status ofthe defendant; where expert witnesses are called by the district attorney in such action, they shall only be entitled to such witness fees as may be allowed by the court. "(e) Any psychiatrist or psychologist so appointed by the court may be called by either party to the action or by the court itself and whenso called shall be subject to all legal objections as to competency and bias and as to qualifications as an ex- pert. When called by the court, or by either party, to the action, the court may examine the psychiatrist, or psy- chologist as deemed necessary, but either party shall have the sameright to object to the questions asked by the court and the evidence adduced as though the psychiatrist or psycholo- gist were a witness for the adverse party. When the psychiatrist or psy- chologist is called and examined by the court the parties may Page 9 191 Cal. App. 4th 1280, *; 2011 Cal. App. LEXIS 43, ** cross-examine him in the order di- rected by the court. When called by either party to the action the adverse party may examine him the sameas in the case of any other witness called by such party." (3) The rules governing statutory inter- pretation are well established. The funda- mental objective is [**11] to ascertain and effectuate legislative intent. (People v. Tre- vino (2001) 26 Cal.4th 237, 240 [109 Cal. Rptr. 2d 567, 27 P.3d 283].) \f the words of a statute given their usual and ordinary meaning are clear and unambiguous, there is no further need for interpretation. (Id. at p. 241; People v. Woodhead (1987) 43 Cal.3d 1002, 1007 [239 Cal. Rptr. 656, 741 P.2d 154].) If the statutory language is am- biguous, courts must adopt a construction of those words that best harmonizes the statute internally and with otherrelated sta- tutes. (People vy. Ferrer (2010) 184 Cal.App.4th 873, 880 [108 Cal. Rptr. 3d 908].) In so doing, courts consider the ob- jective of the statute, its legislative history, public policy, and the entire -statutory scheme. (People v. Beaver (2010) 186 Cal.App.4th 107, 117 [111 Cal. Rptr. 3d 726].) The phrase "[u]nless otherwise specifi- cally addressed by an existing provision of law" in section 1054.3(b) is ambiguous. The verb "addressed" is vague and impre- cise and commonly used only in informal conversation. "Address" means no more than to "direct the efforts or turn the atten- tion” to something. (Webster's 3d New In- ternat. Dict. (1981) p. 24.) In addition, use of the word "addressed" is a rarity in legislative enactments. A phrase such as "except as otherwise pro- vided by law" is common, but both [**12] the parties and our independent research have failed to discover any otherstatute that uses the word "addressed"in place of "pro- vided." Modifying the word "addressed" with "specifically" may narrow its ambit but does not remove the ambiguity. The term "specifically addressed" becomesrea- sonably clear and precise only if we interp- ret the term as having the same meaning as "specifically provided." Therefore, we con- strue the section 1054.3(b) phrase as having the same legal effect as "[uJnless otherwise specifically provided by an existing provi- sion of law." This interpretation of the section 1054.3(b) phrase compels the conclusion that the statute applies to cases where a de- fendant pleads NGRI. The subject ofcertain mental examinations is "specifically pro- vided" in section 1027, but the subject of court-ordered examinations by prosecution experts is not mentioned at all. Moreover, section 1027 includes no express limitation on mental examinations and expressly pro- vides for the admission of mental health evidence other than the testimony and re- ports of appointed experts. (§ 1027, subd. (d).) Our construction is supported by the history of section 1054.3(b) and the funda- mental purpose [**13] of California's criminal discovery law. The discovery [*1289] law underwent major changes in 1990 whenthe electorate approved Proposi- tion 115, The Crime Victims Justice Reform Act. (§ 1054 et seg.) As relevant here, Proposition 115 enacted a statutory scheme "to reopen the two-way street of reciprocal discovery." (Jzazaga v. Superior Court (1991) 54 Cal.3d 356, 372 [285 Cal. Rptr. 231, 815 P.2d 304].) "In order to ac- Page 10 191 Cal. App. 4th 1280, *; 2011 Cal. App. LEXIS 43, ** complish this goal, the voters intended to remove the roadblock to prosecutorial dis- covery created by our interpretations of the state constitutional privilege against self-incrimination as developed in [certain prior] cases." (/bid.) As stated in Proposi- tion 115, the People "find that it is neces- sary to reform the law as developed in nu- merous California Supreme Court decisions and as set forth in the statutes ofthisstate. These decisions and statutes have unneces- sarily expanded the rights of accused crim- inals far beyond that which is required by the United States Constitution, thereby un- necessarily adding to the costs of criminal cases, and diverting the judicial process from its function as a quest for truth." (Bal- lot Pamp., Primary Elec. (June 5, 1990) text of Prop. 115, § 1, subd. (b), p. 33.) In Verdin, the Supreme Court [**14] considered "whether a trial court may order .. a criminal defendant, to grant access for purposes of a mental examination, not to a court-appointed mental health expert, but to an expert retained by the prosecution." (Verdin, supra, 43 Cal.4th at p. 1100.) Ver- din concludedthat a trial court cannot issue such an order. (bid.) The Supreme Court's holding rested on three elements. First, the court reasoned that a mental examination constitutes "discov- ery,” within the meaning of the section 1054 criminal discovery statute. (Verdin, supra, 43 Cal.4th at p. 1105.) Second, the court observed that, under section 1054, subdivision (e), " 'no discovery shall occur in criminal cases except as provided bythis chapter, other express statutory provisions, or as mandated by the Constitution of the United States.’ " (43 Cal.4th at pp. 1103, 1105.) Third, nothing in California's crimi- nal discovery law, any other statute, or the United States Constitution authorizes a compelled mental examination of a criminal defendant by an expert retained by the prosecution. (43 Cal.4th at p. 1116.) Verdin disapproved several earlier cases holding that a trial court may order a de- fendant who has placed his mental state at issue to undergo a [**15] mental exami- nation conducted by an expert retained by the prosecution. (Verdin v. Superior Court, supra, 43 Cal.4th at pp. 1106-1107, citing People v. McPeters (1992) 2 Cal.4th 1148 [9 Cal. Rptr. 2d 834, 832 P.2d 146]; People v. Danis (1973) 31 Cal.App.3d 782 [107 Cal. Rptr. 675]; People v. Carpenter (1997) 15 Cal.4th 312 [63 Cal. Rptr. 2d 1, 935 P.2d 708].) Verdin acknowledged that the purpose of Proposition 115 was to restore reciprocity in discovery by limiting certain rights of accused criminals, but stated that the court was bound by section 1054, sub- division (e) which prevents the courts from creating a [*1290] nonstatutory discov- ery rule to permit a court to compela psy- chiatric examination by a prosecu- tion-retained mental health expert. (Verdin, at pp. 1107, 1116.) The court, however, commented that the "Legislature remains free, of course, to establish such a rule within constitutional limits." (Jd. at p. 1116, Jn. 9.) (4) In 2010, the Legislature enacted sec- tion 1054.3(b) to provide express statutory authorization for court-ordered mental ex- aminations by prosecution experts. The statute states that "[t]he purpose of this subdivision is to respond to [Verdin], which held that only the Legislature may authorize a court to order the appointment of a pros- ecution mental health expert ..." when a de- fendant [**16] places his or her mental state at issue. ($ 1054.3(b)(2).) Page il 191 Cal. App. 4th 1280, *; 2011 Cal. App. LEXIS 43, ** The legislative history of section 1054.3(b) further indicates that the Legis- lature intended to restore the reciprocity principle of the criminal discovery law re- garding compelled mental examinations. " ‘It is imperative when defendants claim a mental defense that they are subject to a mental health examination by a prosecution expert. This right of the prosecution to ex- amine the defendant abovetheir consent has been recognized in case law for over 35 years. However, recently the California Su- preme Court overturned the prosecution's entitlement to a court order because Propo- sition 115 failed to include such a discovery right. AB 1516 restores this right by ensur- ing that the merits of the defendant's claim be independently verified and guarantees that prosecutor can properly ensure justice for victims.' " (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1516 (2009-2010 Reg. Sess.) as amended Apr. 20, 2009,p. 3.) Application of section 1054.3(b) to cas- es involving pleas of NGRI furthers the legislative purpose of extending reciprocity to the prosecution in the area of mental examinations. To exclude defendants who plead NGRI from the reciprocity [**17] created by section 1054.3(b) would unne- cessarily limit the intent of the statute, as well as the purpose of Proposition 115. In addition, our construction of section 1054.3(b) is consistent with the purposes of section 1027. Section 1027, subdivision (a) provides: "When a defendant pleads not guilty by reason of insanity the court must select and appoint two, and may select and appoint three, psychiatrists, or licensed psychologists ... to examine the defendant and investigate his mental status. It is the duty of the psychiatrists or psychologists so selected and appointed to make the exami- nation and investigation, and to testify, whenever summoned, in any proceeding in which the sanity of the defendant is in question." Section 1027 also provides de- tails regarding the minimal qualifications of appointed experts, the basic scope of the examination, the duty to testify, and the preparation and disclosure of reports by the appointed experts. [*1291] (5) The object of a procedure focusing on court-appointed experts is to remove the possible bias which mayinfluence the em- ployment of experts by the parties to the action. (People v. Carskaddon (1932) 123 Cal.App. 177, 180 [11 P.2d 38].) The ap- pointed experts are [**18] agents of the court, not of the parties or their attorneys. (People v. Lines (1975) 13 Cal.3d 500, 515 [119 Cal. Rptr. 225, 531 P.2d 793].) Section 1027, however, does not purport to cover the entire range of actions that may be necessary to assure that the determina- tion of sanity will advance the truth-seeking function ofa trial. The statute acknowledg- es that experts appointed pursuant to its terms are not to be the exclusive source of testimony regarding a defendant's mental condition, and contemplates that the parties will retain their own experts and call those experts as witnesses. Section 1027, subdivi- sion (d) provides: "Nothing contained in this section shall be deemed or construed to prevent any party to any criminal action from producing any other expert evidence with respect to the mental status of the de- fendant... ." Moreover, section 1027 is not part of the criminal discovery law and predates Propo- sition 115 by several decades. The criminal discovery law exists alongside section 1027 Page 12 191 Cal. App. 4th 1280, *; 2011 Cal. App. LEXIS 43, ** and, as we havestated, section 1027, subdi- vision (d) strongly suggests that evidence obtained under the authority of the Califor- nia discovery law is admissible in sanity trials. Allowing the parties to utilize their own experts to [**19] argue the sanity of a defendant conforms to the adversarial truth-finding process of the criminal justice system, and the goal of the discovery law.It permits the prosecution experts to "chal- lenge the defense expert's professional qua- lifications and reputation, as well as his perceptions and thoroughness of prepara- tion.” (Verdin, supra, 43 Cal.4th at pp. 1115-1116.) Verdin expressly left open the question whether section 1027 itself could be inter- preted to enable a court to order that a de- fendant submit to a mental examination by a prosecution-retained expert. Verdin states that the court was expressing "no opinion on whether a statutory basis for a post-Proposition 115 rule might exist in cases ... that involve a plea of not guilty by reason of insanity." (Verdin, supra, 43 Cal.4th at p. 1107, fn. 4.) It is evident that section 1027 contemplates that the defense and prosecution will retain their own mental health experts to testify at a sanity trial. It appears unlikely, however, that the Legis- lature intended the parties to be able to re- tain experts but allow the defense to deny prosecution experts equal access to the de- fendant. Other cases have broadenedthe right of the prosecution [**20] to compel mental examinations in somewhat similar situa- tions. In Centeno v. Superior Court (2004) 117 Cal.App.4th 30, 40 [11 Cal. Rptr. 3d 533], a defendant invoked the [*1292] mental retardation procedure set forth in section 1376 which permits the court to make "orders reasonably necessary to en- sure the production of evidence sufficient to determine whether or not the defendant is mentally retarded, including, but not limited to, the appointment of, and examination of the defendant by, qualified experts." (§ 1376, subd. (b)(2).) After a defense-retained expert opined that the defendant was men- tally retarded, the prosecution requested and obtained an order compelling the defendant to submit to examination by a prosecution expert. (Centeno, supra, at pp. 36-37.) The Court of Appeal concluded that the statute permitted such a compelled examination despite no express authority apart from language permitting the "appointment of, and examination of the defendant by, quali- fied experts." (§ 1376, subd. (b)(2).) The court stated that such statutory authority was necessary to ensure a defendant's claim of mental retardation was appropriately tested. (Centeno, at p. 40.) Verdin rejected elements of Centeno, but agreed [**21] that section 1376, subdivision (b)(2) pro- vided " 'express statutory! " authority to compel a mental examination by a prosecu- tion expert. (Verdin, supra, 43 Cal.4th atp. 1105.) Similarly, Bagleh v. Superior Court (2002) 100 Cal.App.4th 478, 489-490 [122 Cal. Rptr. 2d 673], held that section 1369 provided the trial court with authority to compel the defendant to submit to an ex- amination by prosecution-retained experts in a competency proceeding. Bagleh ac- knowledged that section 1369 expressly provides only for appointed experts, but emphasized that expert testimony at a competencytrial is not limited to testimony by experts appointed by the court. (/00 Cal.App.4th at pp. 486, 489-490, see § 1369, subd. (a).) "Considering that a party Page 13 191 Cal. App. 4th 1280, *; 2011 Cal. App. LEXIS 43, ** that wished to dispute the opinion of a court-appointed expert would be unable to do so effectively without the use of its own expert, the absence of an express statutory restriction on the use of such experts rend- ers it highly implausible that the Legislature intended any such restriction. The Legisla- ture must be deemed to have contemplated that the prosecution's 'case ...' would consist primarily of the testimony of one or more retained experts, ordinarily the most credi- ble and persuasive [**22] 'evidence' as to that issue. [Citation.] ... It is hard to imagine that the Legislature intended the parties to be able to retain such experts but to permit the defense to deny the prosecution's ex- perts access to the individual whose com- petence is at issue, so that they could not credibly dispute the opinions of defense experts given full access to that person. The failure of section 1369 to explicitly author- ize equal access cannot easily be construed as reflecting an intention to enable a defen- dant to deny it, because that would unfairly obstruct the truth-finding process." (Bagleh, at p. 490.) The reasoning of Bagleh and Centenois relevant to section 1027. Although the ex- press language of sections 1376 and 1369 is limited to the appointmentof experts by the court, the Bagleh and Centeno courts both interpreted the [*1293] applicable sta- tutes to give prosecution experts equal access to a defendant whohasplaced his or her mental state at issue. In the instant case, Sharp would have us interpret similar lan- guage in section 1027 as having "specifi- cally addressed" the entire subject of mental examinations in a manner that would pre- vent the court from ordering a defendant to submit to an [**23] examination by a prosecution expert. The Bagleh and Cente- no cases provide a reasoned basis for our rejection of that position. No Violation ofConstitutional Rights Sharp contends the January 25, 2010, order violates his constitutional rights in several ways. Weconclude that his conten- tions lack merit. (6) First, Sharp contends that compel- ling him to submit to a mental examination by a prosecution-retained expert violates his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel. It is established that a de- fendant who pleads NGRI waiveshis or her Fifth and Sixth Amendmentrights to the ex- tent deemed necessary to permit useful san- ity examinations by defense and prosecu- tion mental health experts. (People v. McPeters, supra, 2 Cal.4th at p. 1190; People v. Jantz (2006) 137 Cal.App.4th 1283, 1295 [40 Cal. Rptr. 3d 875]; see also Estelle v. Smith (1981) 451 U.S. 454, 464-466 [68 L. Ed. 2d 359, 101 S. Ct. 1866].) A plea of insanity is a tactical vo- luntary decision made by a defendant with the advice of counsel, and mental examina- tions flowing from the plea are not deemed to be compelled. (People v. Poggi (1988) 45 Cal.3d 306, 329-330 [246 Cal. Rptr. 886, 753 P.2d 1082].) Sharp concedes his plea of NGRI waived his rights as to mental examinations by [**24] court-appointed experts, but argues the waiver does not extend to the later court-ordered examination by Dr. Mohandie. Sharp cites no authority to sup- port the constitutional significance of this distinction and offers no relevant argument beyond the assertion that the Mohandie Page 14 191 Cal. App. 4th 1280, *; 2011 Cal. App. LEXIS 43, ** examination was not contemplated or an- ticipated at the timeofhisplea. Second, Sharp contendsthat the January 25, 2010, order violates his Fifth and Sixth Amendment rights because it "contains no prophylactic measures or safeguards" to protect his legitimate self-incrimination in- terest. We agree that Sharp's waiver of con- stitutional rights is only to the extent ne- cessary to permit useful mental examina- tions, but conclude that section 1054.3(b) and the January 25, 2010, order expressly and implicitly include reasonable safe- guards. (7) Section 1054.3(b) requires the People to "submit a list of tests proposed to be administered by the prosecution expert to the defendant in a [*1294] criminal action .... At the request of the defendant in a criminal action ... , a hearing shall be held to consider any objections raised to the proposed tests before any test is adminis- tered. Before ordering that the defendant submit to the [**25] examination,thetrial court must make a threshold determination that the proposed tests bear some reasona- ble relation to the mental state placedin is- sue by the defendant ina criminal action or a minor in a juvenile proceeding." The People's motion and the trial court did just that. The tests and procedures Dr. Mohan- die intended to administer were included in the motion, and the trial court conducted a hearing to consider defense objections. The motion and hearing directly contradict Sharp's assertion. Third, Sharp contends that section 1054.3(b) violates his due process rights by creating a discovery right for the prosecu- tion without providing for a reciprocal de- fense right. Sharp analogizes a mental ex- amination regarding the sanity of a defen- dant pleading NGRI to a mental examina- tion of a prosecution witness by the de- fense. Sharp's analogy and argument are without any merit. The sole purpose ofsec- tion 1054.3(b) is to restore discovery reci- procity. Statute Applied Prospectively Sharp contends that the January 25, 2010, order is an improper retrospective application of a statute that operates pros- pectively only. (8) It is presumed that criminal statutes apply prospectively. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287 [279 Cal. Rptr. 592, 807 P.2d 434].) [**26] Section 1054.3(b) includes no contrary language or other indication to rebut that presumption, and the People concedethe statute does not apply retroactively. The People, however, argue that application of section 1054.3(b) in this case is a "prospective" application. Weagree with the People. (9) A statute is retrospective if it defines conduct occurring prior to its effective date as criminal, increases the punishment for such conduct, or eliminates a defense to a criminal charge based on the conduct. (Ta- pia v. Superior Court, supra, 53 Cal.3d at p. 288.) Conversely, application of a statute affecting the conduct of "trials which have yet to take place" is not deemedto bere- troactive, even if the trial pertains to con- duct that occurred prior to the statute's enactment. (/bid.) " '[T]he effect of such statutes is actually prospective in nature since they relate to the procedure to be fol- lowed in the future.’ " (/bid.; see also People v. Sandoval (2007) 41 Cal.4th 825, 845 [62 Cal. Rptr. 3d 588, 161 P.3d 1146].) Page 15 191 Cal. App. 4th 1280, *; 2011 Cal. App. LEXIS 43, ** Section 1054.3(b) permits the trial court to order an additional mental examination in addition to examinations pursuantto sec- tion 1027 and, [*1295] thereby,relates to the procedures to be followed in the con- duct of a sanity trial. [**27] When utilized in the conduct of "trials which have yet to take place," application of section 1054.3(b) is deemed to be prospective. (Tapia v. Su- perior Court, supra, 53 Cal.3d at p. 288.) In this case, Sharp's sanity trial had not commenced on the January 1, 2010, effec- tive date of section 1054.3(b) and, there- fore, its application in this case is prospec- tive and permissible. (10) Sharp argues that the guilt and san- ity phases of his case are part of the same unitary criminal proceeding, and that the guilt phase of trial commenced on October 27, 2009, prior to the effective date of sec- tion 1054.3(b). (People v. Hernandez (2000) 22 Cal.4th 512, 523 [93 Cal.Rptr.2d 509, 994 P.2d 354].) We agree that there is only onetrial in a case involving an NGRI defense. The fact that the sanity phase of the trial "is conducted in a separate pro- ceeding and that the defendant bears the burden of proof does not convert it into a separate criminal ... action." (/d. at p. 524.) We do not agree, however, that thetrial commenced on October 27, 2009, or at any other time prior to the effective date of sec- tion 1054.3(b). The trial court called the case for the guilt phase trial on October 27, 2009. The process of jury selection and otherpretrial preparation began but, on November 6, 2009, Sharp withdrew his not guilty plea to the offenses before the jury was empanelled and, therefore, the guilt phase of the pro- ceeding was terminated without trial. The case was continued to January 11, 2010, to conduct pretrial proceedings for the sanity trial. (11) Sharp's argument that trial com- menced when the case was called for trial on the guilt phase is unpersuasive. Trial may be deemed to commence when jury selection begins for purposesofa particular statute or public policy. (See People vy. Granderson (1998) 67 Cal.App.4th 703, 705, 711-712 [79 Cal.Rptr.2d 268] [inter- preting trial as including jury selection for purposes of § 1043, subd. (b)(2)].) The only reasonable date for the commencement of trial under the circumstances of this case would be when the jury is empanelled and jeopardy attaches. (See Jackson v. Superior Court (1937) 10 Cal.2d 350, 356 [74 P.2d 243], People v. Rogers (1995) 37 Cal.App.4th 1053, 1057, fn. 3 [44 Cal.Rptr.2d 107]; People v. Gephart (1979) 93 Cal.App.3d 989, 998 [156 Cal.Rptr. 489].) The effect of Sharp's change of plea wasto eliminate the necessity of a guilt tri- al, not to constitute the trial. Although part of a single unitary proceeding, the guilt and sanity phases of an NGRI case are con- ducted in separate hearings and concern en- tirely different issues. No purpose would be served byartificially treating the trial to have commenced when Sharp changed his plea merely because jury selection was in progressat that time. Sharp also argues that section 1054.3(b) is being applied retrospectively in this case becauseit creates a new obligation and im- poses a new duty and [*1296] "disabili- ty" on defendants who plead [**28] NGRI. We disagree. Based on his plea, Sharp had the obligation and duty to submit to mental examinations as set forth in sec- tion 1027 and to accept the consequences of testimony from these and other mental Page 16 191 Cal. App. 4th 1280, *; 2011 Cal. App. LEXIS 43, ** health experts at trial. Sharp may be con- cerned that the testimony by Dr. Mohandie will be adverse to his interests, but it will not increase the punishment for Sharp's conduct, or eliminate a defense to a crimi- nal charge based on the conduct. (Tapia v. Superior Court, supra, 53 Cal.3d atp. 288.) In a related argument, Sharp claims he justifiably relied to his detriment on the law in existence in 2009. It is not entirely clear whether he intends this argumentto pertain to the issue ofretroactivity or as support for some fairness proposition that is not re- vealed by his argument. In either case, Sharp cites no authority which supportshis position. Moreover, his argument regarding de- trimental reliance is unpersuasive. He as- serts that he made a "tactical" decision to provide full discovery to the prosecution in 2009 or earlier, changed his plea to guilty as to the offenses and thereby gave up his right to a jury trial and to any contentions that could have been madein pretrial mo- tions. [**29] These assertions, however, do not show prejudice. Sharp does not ex- plain how his decisions prior to 2010 would have been significantly different if he knew that he could be ordered to submit to a mental examination by a prosecution ex- pert. Also, Sharp was aware of Verdin, its invitation for the Legislature to act, and the fact that the law regarding court-ordered mental examinations was to some degree unsettled. (See People v. Richardson (2008) 43 Cal.4th 959, 998 [77 Cal. Rptr. 3d 163, 183 P.3d 1146].) No Abuse ofDiscretion Sharp contends the trial court abusedits discretion by ordering him to submit to an examination by Dr. Mohandie. Sharp ar- gues that the amount of fees paid or to be paid to Dr. Mohandie exceeded the "fee cap" established by section 1027, subdivi- sion (a), and, for this reason, the trial court should have denied the prosecution's mo- tion. We disagree. (12) Section 1027, subdivision (d) pro- vides: “Nothing contained in this section shall be deemedor construed to prevent any party to any criminal action from producing any other expert evidence with respect to the mental status of the defendant; where expert witnesses are called by the district attorney in such action, they shall only be entitled to such witness [**30] fees as may be allowed by the court." (Italics added.) The language of the statute gives thetrial court discretion to determine the propriety of the prosecution's expert witness fees. The record before us is insufficient for us to make any [*1297] determination regard- ing the propriety of witness fees that have been or may be paid to Dr. Mohandie, much less a determination of whether the court abused its discretion in that regard. In his briefs, Sharp asserts that the People have already paid Mohandie $ 32,000 but the appellate record is otherwise silent on the subject. Also, nothing in section 1027, sub- division (d) establishes any particular mon- etary "fee cap." The statute provides only that an expert witness whois "called by the district attorney" at trial is limited to fees "allowed bythe court." Sharp also argues that the court abused its discretion in making the January 25, 2010, order because Dr. Mohandie was in- volved in a prior discovery dispute. Sharp argues that Dr. Mohandie and the prosecu- tion failed to comply with discovery rules with respect to submission of a written re- Page 17 191 Cal. App. 4th 1280, *; 2011 Cal. App. LEXIS 43, ** port. The record includes a court order re- quiring Dr. Mohandie to file a report, but there is nothing in the record [**31] estab- lishing discovery abuse, or showing other conduct that would be material to the exer- cise of the trial court's discretion in making the January 25, 2010, order. The writ is denied. Gilbert, P. J., and Coffee, J., concurred. DECLARATION OF SERVICE Case Name: Calvin Sharp,Petitioner,v. The Superior Court of Ventura County, Respondent; The People, Real Party in Interest. Case No.: S from Ct. App. 2/6 B222025 [Superior Court No. 2008014330] On February 15, 2011, I, Jeane Renick, declare: I am over the age of 18 years and not a party to the within action or proceeding. I am employedin the Office of the Ventura County Public Defender. My business address is 800 South Victoria Avenue, Ventura, California 93009. On this date, I personally served the following namedpersonsat the places indicated herein, with a full, true and correct copy of the attached document: Petition for Review of an Opinion Certified for Publication: Gregory Totten, District Attorney Hon. Kevin G. DeNoce, Judge AND Hall of Justice, 3" Floor Michael Planet, Exec. Officer, Superior Court Attn: Lisa Lyytekainen, STDDA 800 S. Victoria Avenue, 2nd Flr HOJ 800 South Victoria Avenue Ventura, CA 93009 Ventura, CA 93009 (Trial Judge) (Counsel for The People) Tam “readily familiar” with the County of Ventura’s practice of collection and processing correspondence for mailing. Under that practice outgoing correspondence would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at Ventura, California, in the ordinary course of business. I am awarethat on motionofthe party served, service is presumedinvalid if postal cancellation date or postage meter date is more than one business day after date of deposit for mailing affidavit. On this date, I served the attached Petition for Review of an Opinion Certified for Publication by placingin the U. S. Mail, a full, true, and correct copy thereof in an envelope addressed to the persons named belowat the addressesset out below,by sealing and depositing said envelope in the Ventura County U.S. Mail collection center in the ordinary course of business: Calif. Ct. of Appeal, Clerk’s Office, gnd Dist., Div. 6, 200 E. Santa Clara St., Ventura, CA 93001; Hon. Kamala Harris, Atty. General, 300 S. SpringSt. 5" Plr/N Twr, Los Angeles, CA 90013 I declare under penalty of perjury underthe laws of the State of California the foregoingis true and correct and that this declaration was executed on the above date at San Buenaventura, California. STEPHENP. LIPSON,Public Defender By: Jeane Renick Legal MgmtAsst. 19