Opinion
As wе shall explain in a moment, defendant Gary Wayne Stuckey was convicted of a variety of drug offenses.
In hopes of being reinstated on probation and avoiding prison, defendant asked the trial court to appoint a psychotherapist and a drug treatment counselor to help him present addiction treatment options at the sentencing hearing. The trial court denied defendant’s motions, stating that it did not need expert testimony to help make the sentencing choice in this case. At the conclusion of a sentencing hearing in which defense counsel and defendant himself vigorously argued that this case compelled reinstatement of probation, the trial court imposed the seven year eight month prison sentence to which defendant had agreed in an earlier plea bargain.
On appeal, defendant contends that Evidence Code section 730 requires the аppointment of experts at public expense whenever an indigent criminal defendant shows experts to be reasonably necessary. Even in the absence of statutory authorization, defendant claims that appointment of experts for indigent criminal defendants is required by the equal protection, due process, and right to effective assistance of counsel guarantees in the federal Constitution. Defendant further argues that such appointment of experts is also required by sections 7 and 15 in article I of the California Constitution. We disagree with all of this.
BACKGROUND
We dispense with reciting the circumstances of defendant’s underlying offenses because he does not assert any error occurring prior to his postconviction motions for appointment of defense experts. Defendant’s statutory and constitutional arguments focus solely on the trial court’s refusal to appoint experts for the sentencing hearing. We therefоre turn to the pertinent procedural history of the case.
Defendant’s Convictions and Violations of Probation
On February 2004, in case No. SF090601A, defendant entered a negotiated plea of guilty to possession of methamphetamine for sale (Health & Saf. Code, § 11378), transportation of methamphetamine (Health & Saf. Code, § 11379), resisting an officer (Pen. Code, § 148), and admitted a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (a)). Defendant entered his plea and admission in exchange for a court-indicated judgment of a state prison sentence of seven years eight months, with execution of sentence suspended, and a grant of probation with a year in county jail followed by a residential drug treatment program. In March 2004, the court imposed the agreed-upon prison term, suspended execution of sentence, and granted probation.
When defendant was found to be ineligible for the residential drug treatment program due to a prior cоnviction for lewd and lascivious act on a child age 14 to 15 (Pen. Code, § 288, subd. (c)), the trial court modified the condition to allow him to enter a Salvation Army program instead.
In June 2005, in case No. SF096230A, defendant entered a guilty plea to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), occurring on May 23, 2005, and the trial court ordered Proposition 36 probation.
In April 2006, a petition for violation of probation in case No. SF090601A alleged that defendant’s whereabouts were unknown. The trial court revoked probation and issued a bench warrant for his arrest.
In June 2007, defendant, then in custody, denied the probation violаtion allegations in both petitions.
According to an affidavit filed by the prosecution, defendant was charged in case No. SF099565A with possession of methamphetamine, occurring on March 10, 2006, and he was held to answer. In case Nos. SF090601A and SF096230A, the court found that defendant was in violation of probation.
Defense Request for Appointment of Experts
Prior to sentencing, privately retained defense counsel filed ex parte motions in case No. SF090601A for the appointment of two experts: a psychotherapist and a drug treatment evaluator. Defense counsel explained that he needed a drug treatment evaluator “to assist the defense in determining and procuring viable, post-incarceration structured rehabilitation options that can be considered in the disposition of this matter.” Defense counsel further stated that he could not effectively represent defendant without an expert in “addiction, abuse, and recovery” who could recommend effective treatment providers and facilities and who could determine the likelihood of defendant’s favorable response to such treatment. Defense counsel believed that the court had several sentencing options, including residential treatment as a condition of probation.
Defense counsel also requested the appointment of a psychotherapist to determine whether defendant should be reinstated on probation and whether he would respond in a favorable manner to mental health treatment as a condition of probation. Counsel stated that defendant committed the offenses due to a mental condition not amounting to a defense, elaborating in his statement in mitigation that the mental condition he believed defendant suffered from was addiction.
Denial of Motions for Appointment of Experts
At sentencing, the court stated that it had reviewed defendant’s ex parte motions, the probation officer’s report, and defendant’s statement of probation
The trial court denied defendant’s motions. The trial court said: “I don’t think that it’s necessary at this stage of the game to appoint another substance evaluator. The [defendant was given an opportunity of probation once before over the objection of the People, the probation officer and everything else. And so I don’t think it’s necessary to hold another—have somebody else examine him and give us another opinion at this point. [JQ This is simply a garden variety and another one of many, many unfortunate cases that we see here all the time of people that use drugs. And the law hasn’t been able to figure out any better way to handle it other than the laws that exist.”
The court imposed the previously agreed upon sentence of seven years eight months in prison in case No. SF090601A. In case No. SF096230A, the court reinstated defendant on probation, converting the Proposition 36 probation to informal probation. The court granted the prosecutor’s motion to dismiss case Nos. SF099565A (possession of methamphetamine) and SM249829 (Pen. Code, § 273.5, a misdemeanor) in light of the prison sentence.
Defendant appeals.
DISCUSSION
I
Evidence Code Section 730’s Applicability to Sentencing
Hearings
Defendant presents several challenges to the trial court’s denial of his motions for appointment of experts under Evidence Code section 730. He contends the experts were necessary because the three and a half years since his last evaluation rendered the prior information stale. He argues that the probation report was inaccurate. He claims the court applied an erroneous legal standard under Evidence Code section 730. Finally, he asserts that the trial court failed to tailor its decision to this case. We conclude that none of these claims has merit.
Statutory Provision for Appointment of Experts upon Request of Indigent Defendants in Noncapital Cases
Upon court order, California provides indigent criminal defendants in noncapital cases with ancillary services at county expense. (Evid. Code, § 731, subd. (a); Gov. Code, § 29603 [“The sums required by law to be paid to the grand and trial jurors and witnesses in criminal cases tried in a superior or municipal court are county charges.”].)
2
A court may order the appointment of experts at public expense even when a defendant has privately retained counsel or is self-represented so long as the defendant shows both inability to pay for the experts and their necessity in presenting a defense at trial. (Evid. Code, § 730;
People
v.
Faxel
(1979)
Evidence Code section 730 sets forth the criteria for appointment of experts in noncapital cases. Approaching the issue of statutory interpretation, we are mindful of the California Supreme Court’s explanation that “[i]n construing a statute, our fundamental task is to ascertain the Legislature’s intent so as to effectuate the purpose of the statute. [Citation.] We begin with the language of the statute, giving the words their usual and ordinary meaning. [Citation.] The language must be construed ‘in the context of the statute as a whole and the overall statutory scheme, and we give “significance to every word, phrase, sentence, and part of an act in pursuance of the
Evidence Code section 730 provides, in relevant part: “When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required.” (Italics added.)
Given this language, we must determine what Evidence Code section 730 means when it provides for appointment of experts during “trial of an action.” Case law has long recognized that a “trial” in a criminal case ends when a verdict is returned and the jury is discharged. Thus, “ ‘[w]ith the assent of the jury to the verdict as recorded, ... the trial is closed’; and ‘after the verdict is received and the jury discharged, ... the control of the jury and of the court over such verdict is at an end.’ ”
(People v. Lee Yune Chong
(1892)
Mitchell v. United States
(1999)
The California Supreme Court has also similarly distinguished trials from sentencing. In holding that Proposition 8 (Cal. Const., art. I, § 28) did not apply to the appeal of a crime committed after its adoption,
People v. Smith
(1983)
Nonetheless, we note that courts have sometimes employed more than one meaning for the term “trial” in criminal actions. (Compare
People v. Stokes
(1907)
The possibility that “trial,” as used in Evidence Code section 730, may include sentencing proceedings renders the term ambiguous. (5) “When the words are susceptible to more than one reasonable interpretation, we consider a variety of extrinsic aids, including the statutory context . . . .”
(Levy v. Superior Court
(1995)
Examining Evidence Code section 730 in statutory context, we discern that the requirement that motions for appointment of experts be filed before or during “trial” excludes sentencing. “The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject must be harmonized to the extent possible.”
(Lungren
v.
Deukmejian
(1988)
Evidence Code section 731 addresses payment for the experts appointed pursuant to Evidence Code section 730. Subdivision (a) of section 731 states that “[i]n all criminal
actions
and juvenile court proceedings, the compensation fixed under Section 730 shall be a charge against the county in which such
action
or proceeding is pending and shall be paid out of the treasury of such county on order of the court.” (Italics added.) Section 731 thus refers to the totality of the criminal case as an “action.” Section 730 also uses “action” to refer to a criminal case in the trial court. But section 730 indicates that motions for appointment of experts are available during only a portion of the case by limiting the time for appointment motions to
“the trial of
an action.” (Italics added.) Were we to allow motions for appointments оf experts to be made during the entirety of a criminal action, we would render the limiting phrase “before or during the trial of’
{ibid.)
nugatory and mere surplusage. This we cannot do.
(Smith v. Superior Court, supra,
The delineation of when trial ends becomes clear when considering the meaning of “trial” in the context of Penal Code provisions addressing the scope of trial and remedy for errors occurring during that portion of a criminal action. Penal Code section 1093 sets forth the presumptive sequence of events at trial, noting that trial begins with the filing of a complaint and proceeds through instruction of the jury. 3 Section 1093 does not include sentencing within its specifications for order of trial proceedings.
In determining the demarcation between the trial and nontrial portion of an action for purposes of Evidence Code section 730, we also consider a number of other factors, including the ostensible objects to be achieved by the statute and the problems intended to be remedied. “Using these extrinsic aids, we ‘select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ ”
(People v. Sinohui
(2002)
The most prominent role in informing the court of defendant’s history and available sentencing options in pronouncing judgmеnt is played by the probation department. The probation department is not an agent of either party but rather reports to the court itself. (Pen. Code, § 1203, subd. (b)(1),
We therefore hold that where Evidence Code section 730 authorizes the appointment of an expert “at any time before or during the trial of an action,” to “testify as an expert at the trial of the action,” the “trial” does not include sentencing proceedings that necessarily occur after a determination of guilt.
In this case, defendant requested the appointment of experts after he was convicted. That he may have been convicted by plea makes no difference because his request for experts pursuant to Evidence Code section 730 was not made before or during trial.
We decline to extend the statutory authorization for appointment of experts to requests made after trial. If experts are to become statutorily authorized for purposes of sentencing, it is a matter for the Legislature to so provide.
(Osborn
v.
Hertz Corp.
(1988)
Because experts could not have been appointed under Evidence Code section 730 at the time when defendant made his request, the possibility that the trial court misunderstood the “reasonably necessary” standard in denying his motions is irrelevant.
(Estate of Beard
(1999)
Likewise, we reject defendant’s claim that the trial court failed to tailor its decision to defendant’s case because the contention is irrelevant to the argument heading under which defendant places it, i.e., error in failing to appoint experts as he requested. In any event, the record shows that the trial court was well aware of defendant’s individual circumstances, having indicated its familiarity with his substantial history of offenses and probation violations as well as addiction treatment options available for defendants when placed on probation.
In sum, we conclude that defendant had no statutory right to the appointment of a psychotherapist and a drug treatment counselor for purposes of sentencing. Evidence Code section 730 limits the trial court to appointing experts for the defense when requested before or during trial for purposes of formulating a defense or testifying on a contested fact at trial. Finding no statutory support for defendant’s claim, we next examine whether the federal and state Constitutions require the appointment of experts in the circumstances of this case.
II
Constitutional Entitlement to Appointment of Experts in Noncapital Cases
Defendant contends the trial court’s denial of appointment of defense experts for the sentencing hearing violated his federal constitutional rights to due process, equal protection, and effective assistance of counsel. He further asserts that the due process and right to counsel clauses in the California Constitution provide additional support for his claim of the right to appointment of defense experts. (Cal. Const., art. I, §§ 7, 15.) We disagree. Nothing in the federal or state Constitutions requires a trial court to appoint experts to serve as surrogate advocates echoing the arguments of defense
A. Due Process
The United States Supreme Court first declared the right of indigent criminal defendants to appointment of experts at public expense in
Ake v. Oklahoma
(1985)
The ability to preрare a defense to criminal charges is the touchstone of the right to appointment of defense experts. A trial court must appoint an expert for a defendant when necessary to address what is “likely to be a significant factor
at trial.” (Ake, supra,
The trial court’s discretion in sentencing, however, is not unfettered. When the initial sentencing court imposes a state prison sentence but stays execution of the sentencing pending completion of probation, on a subsequent violation of probation the court does not have discretion to change the previously indicated sentence.
(People v. Medina
(2001)
Here, the court did not abuse its broad discretion in determining that it was not necessary at the time of sentencing in 2007 to appoint another substance abuse evaluator. In 2004, defendant had been previously sentenced to seven years eight months, execution of sentence suspended. At that time, the court stated that it was giving defendant one “last chance” to succeed in resolving his addiction problem. Defendant was unsuccessful. He had a pending case for possession of methamphetamine for which he had been held to answer (case No. SF099565A). At sentencing on December 10, 2007, defendant admitted that he relapsed when his grandfather died. There was no factfinding required by an expert for the court to know that defendant was addicted and unlikely to succeed on probation and that his case was not an unusual one requiring reinstatement on probation to serve the interests of justice (Pen. Code, § 1203, subd. (e)).
Partisan experts for the defense may be necessary to counter the testimony of partisan exрerts retained by the prosecution to render an expert opinion at sentencing. This is so because, as Justice Cardozo observed, “a defendant may be at an unfair disadvantage, if he is unable because of poverty to parry by his own witnesses the thrusts of those against him.”
(Reilly
v.
Berry
(1929)
In sum, the trial court’s denial of defendant’s motions did not render the sentencing hearing fundamentally unfair. Counsel for both sides argued with vigor, and the trial court made a reasoned decision. Forcing the trial court to listen to expert testimony regarding sentencing choices with which it was already familiar would not have made the sentencing hearing fairer. Accordingly, the trial court did not violate defendant’s due process rights under the federal and state Constitutions in denying the appointment of defense expert witnesses for the sentencing hearing.
B. Effective Assistance of Counsel
Although the United States Supreme Court in
Ake
based the entitlement to defense experts only on the constitutional right to due process
(Ake, supra,
Even though the right to effective assistance of counsel encompasses entitlement to defense experts, the rights are not coterminous. The California Supreme Court has explained that there is a right to an expert when necessary to respond to the prosecution’s expert witnesses, or to establish an affirmative defense.
(Corenevsky, supra,
The remainder of defendant’s cited decisions relate to capital cases in which the penalty phase admits, and may even require, expert testimony. (E.g.,
Ake, supra,
470 U.S. at pp. 86-87 [expert necessary during penalty phase on question of future dangerousness];
People v. Blair
(2005)
The common thread in these cases is the recognition that a defendant may need experts to present affirmative defenses or to negate prosecution expert witnesses in order to have a fair trial on the issue of guilt. On
Defendant’s right to have counsel argue for a favorable sentencing choice does not include the right to have expert witnesses bolster his attorney’s argument. As the Indiana Supreme Court has explained in a case involving the question of right to appointment of experts, “If the requested services could be performed by counsel, an expert need not be provided.”
{Scott v. State
(Ind. 1992)
C. Equal Protection
The ability of nonindigent criminal defendants to retain experts unavailable to indigent defendants does not by itself establish an equal protection violation. According to the United States Supreme Court, equal protection “ ‘does not require absolute equality or precisely equal advantages.’ ”
(Ross
v.
Moffitt
(1974)
In this case, defendant’s apparent penury ultimately made no difference in the outcome of his attempt to introduce expert testimony on alternatives to prison for drug-addicted defendants. Even a nonindigent defendant has no right to introduce a defense expеrt as to sentencing choice when the trial
Here, the trial court determined that the previously suspended prison sentence should finally be imposed. No expert testimony was necessary or even helpful to the trial court in exercising this judgment because, as the trial court explained, “[W]e are in this impossible conflict trying to help people on the one hand, and at the same time trying to control this drug to prevent other people from getting into it. Now, unfortunately, [defendant] is one of these people that is contributing to the problem. I know that he’s probably just a victim of it in the sense that he’s an addict, he’s using. But he is also continuing to promote the whole problem, because he continues to use. He chiрs a little bit on the side, he’s selling a little bit, he’s using a little bit. He keeps the whole thing going, [f] So what we do—I did in this case, against the strong objections of the People of the State of California, as represented by the District Attorney, and the probation department [was grant defendant] probation here . . . .” But defendant’s probation violations and subsequent drug offense caused the court to conclude, “I’ve given him chance after chance after chance, and so have other judges. He was convicted of another [violation of Health and Safety Code section] 11377, as you know, after he committed this offense in which he was given probation, and the Court gave him Proposition 36 treatment, which was the right thing to do, I will agree. But here he is again, [f] And so no more. This is the end of the line. So the Court is going to pronounce judgment . . . .” To reach this conclusion, no expert testimony was necessary or even helpful to the trial court in determining that the interests of justice required imposition of a prison term.
Regardless of drug addiction treatment options or the extent of defendant’s addiction during his prior offenses and violations of probation, the trial court had discretion to determine that defendant’s history and pattern of addiction relapse warranted imposition of the prison term to which he had agreed in an earlier plea bargain. The trial court’s statements at sentencing indicate that the result would have been no different if defendant had been able privately to retain and offer the testimony of a psychotherapist and drug treatment counselor. The trial court committed no equal protection violation in denying defendant’s motions for appointment of experts because, regardless of indigency, the court had no need to hear about treatment options on reinstatement of probation when the interests of justice clearly required a prison commitment.
The judgment is affirmed.
Nicholson, J., and Cantil-Sakauye, J., concurred.
Appellant’s petition for review by the Supreme Court was denied October 28, 2009, S175731.
Notes
Although defendant in this case requested only the appointment of experts, ancillary services can also include investigators, law clerks, and other persons who are necessary to aid counsel in formulating a defense.
(Corenevsky v. Superior Court
(1984)
Indigent criminal defendants previously convicted of murder who are currently charged with second degree murder “may request the court for funds for the specific payment of investigators, experts, and others for the preparation ... of the defense” under the same statute that authorizes ancillary services for dеfendants in capital cases. (Pen. Code, § 987.9, subd. (a); see id., § 190.05, subd. (a).) Ancillary services in these second degree murder prosecutions are to be paid by the state and are an exception to the rule that counties bear the cost of defense experts and investigators in noncapital cases. (Evid. Code, § 731; Pen. Code, § 987.9, subd. (c).)
Penal Code section 1093 provides: “The jury having been impaneled and sworn, unless waived, the trial shall proceed in the following order, unless otherwise directed by the court: 50 (a) If the accusatory pleading be for a felony, the clerk shall read it, and state the plea of the defendant to the jury . ... 51] (b) The district attorney ... may make an opening statement in support of the charge. Whether or not the district attorney . . . makes an opening statement, the defendant or his or her counsel may then make an opening statement, or may reserve the making of an оpening statement until after introduction of the evidence in support of the charge. 50 (c) The district attorney . . . shall then offer the evidence in support of the charge. The defendant or his or her counsel may then offer his or her evidence in support of the defense. [1] (d) The parties may then respectively offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case. 50 (e) When the evidence is concluded, unless the case is submitted on either side, or on both sides, without argument, the district attorney, or other counsel for the people, and counsel for the defendant, may argue the case to the court and jury; the district attorney, or other counsel for the people, opening the argument and having the right to close. 50 (f) The judge may then charge the jury, and shall do so on any points of lаw pertinent to the issue .... Upon the jury retiring for deliberation, the court shall advise the jury of the availability of a written copy of the jury instructions. The court may, at its discretion, provide the jury with a copy of the written instructions given. However, if the jury requests the court to supply a copy of the written instructions, the court shall supply the jury with a copy.”
Sentencing hearings in which the trial court selects the most appropriate disposition in noncapital cases stand in contrast to the penalty phase of a capital case in which a jury is called to decide whether a defendant should receive the death penalty.
Ake
therefore recognized that the defendant in that capital case was not only entitled to appointment of a psychiatrist to tender an insanity defense but also to assist with the penalty phase issue of future dangerousness.
(Ake, supra,
470 U.S. at pp. 86-87.) As the United States Supreme Court elsewhere recognized, “ ‘the imposition of death by public authority is . . . profoundly different from all other penalties ....’”
(Eddings
v.
Oklahoma
(1982)