Maldonado

A criminal defendant who tenders his or her mental state as a guilt or penalty issue waives the Fifth Amendment privilege against self-incrimination, and the Sixth Amendment right to counsel, “ ‘to the extent *1117 necessary to permit a proper examination of that condition.’ ” (People v. Carpenter (1997) 15 Cal.4th 312, 412 [ 63 Cal.Rptr.2d 1 , 935 P.2d 708 ] (Carpenter); see Buchanan v. Kentucky (1987) 483 U.S. 402, 422-423 [ 97 L.Ed.2d 336 , 107 S.Ct. 2906 ] (Buchanan).) In order to afford the prosecution a fair opportunity to rebut mental-state evidence proffered by the defense, a recent amendment to California’s criminal-case reciprocal discovery statute (Pen. Code, § 1054.3) 1 specifically provides that when the defendant “places in issue his or her mental state at any phase of the criminal action,” the prosecution may seek and obtain a court order “that the defendant .. . submit to examination by a prosecution-retained mental health expert.” (Id., subd. (b)(1) (section 1054.3(b)(1).) Here we must decide what general limits, if any, may properly be imposed on prosecutorial access to court-ordered examinations and their results, both before and after the defendant…

The court’s opinion today holds that neither the Fifth Amendment nor the Sixth Amendment requires trial courts, as a general rule, to impose protective measures when the prosecution seeks to have the defendant examined by the prosecution’s proposed expert to rebut a defendant’s asserted mental health defense. I agree that such protections are not required in this case.

*1143 However, the court’s opinion leaves the window open for trial courts to impose protections as necessary to avoid misuse of such examinations in a particular case. (Maj. opn., ante, at p. 1141, fn. 21.)

In this case, the trial court found no need for protections beyond the general prohibition that the prosecution may not make direct or derivative use of the fruits of the examination. Here, the prosecution already has access to police interviews in which defendant recounted his version of the crime, and defendant does not raise particular concerns about the nature of the tests or the practices of the expert that would suggest an ulterior motive by the prosecutor. Nor is there any specific indication that defendant is unable to avoid making prejudicial or incriminating statements unrelated to his mental health…

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman, Brent W. Wilner, Laurence K. Sullivan and Jeffrey M. Laurence, Deputy Attorneys General, for Real Party in Interest.

A criminal defendant who tenders his or her mental state as a guilt or penalty issue waives the Fifth Amendment privilege against self-incrimination, and the Sixth Amendment right to counsel, "`to the extent necessary to permit a proper examination of that condition.'" ( People v. Carpenter (1997) 15 Cal.4th 312, 412 [ 63 Cal.Rptr.2d 1 , 935 P.2d 708 ] ( Carpenter ); see Buchanan v. Kentucky (1987) 483 U.S. 402, 422-423 [ 97 L.Ed.2d 336 , 107 S.Ct. 2906 ] ( Buchanan ).) In order to afford the prosecution a fair opportunity to rebut mental-state evidence proffered by the defense, a recent amendment to California's criminal-case reciprocal discovery statute (Pen. Code, § 1054.3) [1] specifically provides that when the defendant "places in issue his or her mental state at any phase of the criminal action," the prosecution may seek and obtain a court order "that the defendant. . .…