The 2010 amendment to Penal Code section 1054.3, subdivision (b) authorizes the prosecution to compel a mental examination of a defendant who pleads not guilty by reason of insanity (NGI). In November 2009, appellant pled guilty and NGI for crimes occurring in 2007. In January 2010, the prosecution sought to compel appellant to submit to a mental exam under amended section 1054.3, subdivision (b), which went into effect January 1st of that year. The trial court ruled the statute applied to a sanity determination after an NGI plea and ordered the exam. Appellant filed a petition for writ of mandate. The appellate court reviewed the statutory language which states, “unless otherwise specifically addressed by an existing provision of law,” if the defendant places his mental health at issue, the prosecution can request defendant be evaluated by a prosecution expert. The court found Penal Code section 1027, which outlines the procedures for examinations in NGI cases, does not “specifically address” mental health exams by a “prosecution-retained mental health expert.” And so, in NGI cases this is now available through section 1054.3. Applying this provision to NGI cases furthers the legislative intent of extending reciprocal discovery.
In determining whether section 1054.3, subdivision (b) is being given prospective or retroactive application, the sanity trial is separate from the trial of guilt. Appellant also argued that applying the amendment to his case constituted an improper retroactive application. Respondent conceded that the statute could only be applied prospectively, but argued that was being done here. The court agreed with respondent. Applying a statute that affects the conduct or procedure of a trial which has yet to occur is not deemed to be retroactive, even if the trial involves conduct that happened pre-enactment. That is the type of statute at issue here, and the sanity trial in this case has yet to occur.