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 II ………

If the defendant's statements may be used for impeachment, he suffers that consequence only if he voluntarily testifies in his own behalf at trial, and, in doing so, makes statements at odds with what he told the competency examiners--an indication that he has lied in one instance or the other. A rule forbidding impeachment, on the other hand, gives the defendant an unfair advantage--he may testify falsely, secure in the knowledge that the fact-finder will not learn of contrary statements he has made in the past. In my view, it does not thwart the legitimate purposes of a competency examination for counsel to advise his client that, while his statements cannot be used to prove his guilt, they may come back to haunt him if he testifies at trial and changes his story. In effect, such advice promotes the proper purposes of both the competency examination and the trial--to discover the truth.

Finally, the majority suggests that, under the Sixth Amendment, allowing use of a competency examinee's statements for impeachment might compromise the current California practice which allows the defendant's counsel to be excluded from the examination itself. I am not persuaded. In the first place, as the majority acknowledges, federal decisions are split about whether voluntary statements obtained in direct violation of the Sixth Amendment may be used for impeachment. More fundamentally, I seriously question whether the Sixth Amendment right to counsel includes the unqualified right to the personal presence of counsel at a proceeding, such as a competency examination, that is not concerned with obtaining evidence of the defendant's guilt.

Decades ago this court held that, where the defendant's Sixth Amendment right to counsel had attached, and the defendant was represented by counsel, statements obtained at a psychiatric examination in counsel's unwaived absence could be admitted at the guilt trial only if counsel was notified of the examination in advance, the defendant placed his mental condition in issue at trial, and the statements were used solely to support the psychiatrist's expert opinion. (In re Spencer (1965) 63 Cal.2d 400, 409-412; see also In re Cowans (1970) 2 Cal.3d 733, 737-738; People v. Morse (1969) 70 Cal.2d 711, 738.) But none of our decisions on this subject involved the use of such statements exclusively to impeach the defendant's own trial testimony.

Moreover, the high court's more recent decision in Estelle strongly suggested that, while the defendant has a Sixth Amendment right to his counsel's help and guidance in connection with a court-ordered psychiatric examination, he is not entitled to counsel's personal presence at the examination itself. In Estelle, after Benjamin Ernest Smith was indicted for murder, and while he was confined in jail, he was examined for trial competency by a court-appointed psychiatrist. Smith's appointed counsel were not present at the examination; indeed, it was not clear counsel had received notice of the psychiatrist's appointment, and counsel were not advised until afterward that the examination had occurred. (Estelle, supra, 451 U.S. 454, 457-459 & fn. 5, 471, fn. 15.) Later, at Smith's sentencing trial, the psychiatrist testified that Smith would commit violent criminal acts in the future if given the opportunity to do so.

In its Sixth Amendment discussion, Estelle held that Smith's right to counsel had been violated insofar as â€