Echavarria v. Superior Court of L.A. Cty.

Opinion

KINGSLEY, J.

Defendant stands charged with murder. After the appointment of psychiatrists, a hearing was held under section 1368 of the Penal Code, resulting in a finding that defendant is presently incompetent to stand trial and she is presently committed to a state hospital until she regains capacity. Thereafter, her counsel sought an order for the appointment of confidential psychiatrists to enable that counsel to determine whether, when and if defendant is returned for trial, counsel should enter a plea of not guilty by reason of insanity, rely on a defense of diminished capacity, or some other plea.

1

The request was denied, and this petition followed. We issued our alternative writ, a return has been filed, and the matter argued. We issue a peremptory writ.

In its return respondent court relies on two grounds: (1) that the trial court lacks jurisdiction to grant the relief requested by virtue of section 1370 of the Penal Code; and (2) that the application is premature and should await defendant’s return for trial. We reject both grounds.

I

Section 1370 provides, in pertinent part, as follows: “If the defendant is found mentally incompetent,

the trial or judgment

shall be suspended until he becomes mentally competent. . . .” (Italics added.) We see nothing in that provision to bar the court from entertaining and

[470]

acting on a request for the relief here sought.

2

Inevitably, discovery proceedings, of all varieties, must precede a trial; even an appeal from a judgment does not prevent the carrying on of discovery proceedings. (Code Civ. Proc., § 2017 subd. (b); see

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v.

Superior Court

(1945) 26 Cal.2d 386, 395 [159 P.2d 944];