PEOPLE v. POKOVICH

Filed 8/31/06

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S127176

v. )

) Ct.App. 3 C043253

CHARLES G. POKOVICH, )

) Shasta County

Defendant and Appellant. ) Super. Ct. No. 02F2465

_______________________________________ )

Continue from Part I ………

Having considered and weighed the competing interests, we conclude that the impairment of the mental competency evaluation process if impeachment is permitted outweighs the speculative risk to the truth-seeking function of the criminal trial if impeachment is denied.[1] Accordingly, we conclude that the Fifth Amendment's privilege against self-incrimination prohibits the prosecution from using at trial, for the purpose of impeachment, statements a defendant has made during a court-ordered mental competency examination.[2]

We have considered, but rejected as impractical, an alternate route to essentially the same result. Instead of simply disallowing impeachment at trial with a defendant's statements during a competency examination, we could require trial courts to advise the defendant, before the competency examination, of the right to counsel and the right to remain silent. (See Estelle, supra, 451 U.S. at p. 468.) If the defendant invoked those rights, the court could nevertheless order the competency examination to proceed, but any statements the defendant made during the examination could then be used only for the purpose of determining competency. (Ibid.; see fn. 2, ante.) Acting on the advice of counsel, defendants would, we confidently predict, routinely invoke their rights, and thus the end result would be the same--the defendant's statements during the competency examination would be inadmissible for impeachment at trial. Because we see no advantage in these additional procedural steps, we adopt the more direct approach. Moreover, we are reluctant to place our trial courts in the awkward position of advising defendants of their rights to counsel and to remain silent, and then, after the defendants invoke those rights, ordering the defendants to participate in the evaluation and informing them they cannot remain silent.

Our resolution of the issue before us fully protects both a defendant's Fifth Amendment privilege against self-incrimination and a defendant's Sixth Amendment right to counsel because the use immunity recognized here adequately safeguards those rights. (Baqleh v. Superior Court, supra, 100 Cal.App.4th at pp. 502-503.) Accordingly, we need not resolve here the difficult question whether counsel would have a right to be present at a court-ordered competency examination if a defendant's statements during such an examination could later be used against him. Nor need we determine here whether statements obtained in violation of the right to counsel may be used to impeach a testifying defendant. (See United States v. Ortega (9th Cir. 2000) 203 F.3d 675 [statements may be used to impeach]; United States v. Brown (2d Cir. 1983) 699 F.2d 585 [statements may not be used to impeach]; People v. Brown (1996) 42 Cal.App.4th 461 [statements may be used to impeach]; People v. Harper (1991) 228 Cal.App.3d 843 [statements may not be used to impeach].)

The use of statements that defendant made during his mental competency evaluation to impeach his testimony at trial violated defendant's constitutional right not to incriminate himself. Whether that error prejudiced defendant is explored below.

III

Under Chapman v. California (1967) 386 U.S. 18, 24, a violation of a criminal defendant's federal constitutional rights requires reversal of the judgment unless the reviewing court determines â€