March 14, 2010 By Wallin & Klarich

In response to Verdin v. Superior Court (2008) 43 Cal.4th 1096, which has held that when the defendant raises a “diminished actuality” defense and places his mental state at issue, the court could not order him to submit a mental health examination to the prosecution. The California legislature amended Penal Code 1054.3, subdivision (b), authorizing the prosecution to submit a defendant to examination by a prosecution-retained mental health expert.

The discovery statute applies with equal force to both adult defendants in a criminal action and minors in a juvenile proceeding. The prosecution will bear the cost of any such mental health expert’s fees for examination and testimony at a criminal trial or juvenile court proceeding. It is required to submit a list of tests proposed by the prosecution expert to be administered to the defendant.

If a defense attorney raises objections to the proposed tests before they are administered, the court will hold a hearing considering the merits of such objections. The court must also make a threshold determination that the proposed tests bear some reasonable relation to the mental state placed in issue by the defendant. For the purposes of newly enacted subdivision, the term “tests” includes any and all assessment techniques such as a clinical interview or a mental status examination.

If you are thinking of using a defense based on your mental state, it is important that you talk to an experienced California criminal defense San Diego attorney. At Wallin & Klarich, our attorneys have over 30 years of experience in handling all types of criminal matters. We will guide you through the process of your case and fully inform you of any defenses you may have. We will tell you the risks and rewards of every option you have. Call us today at (888) 280-6839 or visit us on our website at We will be there when you call.

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