Reported / Citable
Background
A criminal defendant sought pretrial mental-health diversion under Penal Code section 1001.36. The prosecution asked to have its retained expert personally examine him, and the trial court refused. The district attorney then petitioned the Court of Appeal for extraordinary relief, arguing that criminal discovery statutes supplied authority for a compelled examination.
The Court’s Holding
The Fifth District denied the petition in a published opinion. Penal Code section 1054.3 permits a prosecution examination when a defendant places mental condition at issue at trial, but a diversion hearing is not a trial and section 1001.36 does not authorize the requested compelled examination. Prosecutors may critique defense expert reports, present their own evidence, or ask the court to appoint a neutral expert under Evidence Code section 730.
Key Takeaways
- Prosecutors cannot compel their own mental-health examination of a defendant seeking pretrial diversion.
- The ruling turns on the governing legal standard and the specific evidentiary record, not labels alone.
- Practitioners should preserve a clear, fact-linked record for review and remedy.
Why It Matters
The ruling sets a clear boundary in diversion practice: seeking treatment-oriented diversion does not automatically expose a defendant to a compelled interview by a prosecution-retained expert. Both sides should build the record through reports, critique, and—when needed—a neutral court appointment.