Defendant seeking mental health diversion cannot be compelled to submit to a mental health examination

Sua v. Superior Court of San Diego County (Cal. Ct. App., July 16, 2026, No. D087742) 2026 WL 2056609.

Facts and Procedural Posture

Miguel Sua and Alexander Guthrie, defendants in separate felony cases, sought pretrial mental health diversion under Penal Code section 1001.36. The prosecution moved under Penal Code section 1054.3(b)(1) to compel each defendant to submit to a mental examination by a prosecution expert. The superior court granted the motions, and the defendants petitioned for writ relief.

Issue

Does Penal Code section 1054.3(b)(1) authorize a court to compel a defendant seeking pretrial mental health diversion to undergo a prosecution mental examination?

Criminal Defendant’s Discovery Obligations

“(D)iscovery in criminal cases shall be reciprocal in nature, as prescribed by the Legislature or by the people through the initiative process.” (Cal. Const., art. I, § 30, subd. (c).) It also added sections 1054 et seq. to the Penal Code to “establish[ ] the procedures for, and limitations on, discovery in criminal cases.” (Verdin, at pp. 1102–1103, 77 Cal.Rptr.3d 287, 183 P.3d 1250.)

The Supreme Court held that a compelled mental examination is a form of pretrial discovery not expressly authorized by section 1054.3. (Verdin, at pp. 1103–1109, 77 Cal.Rptr.3d 287, 183 P.3d 1250.) Therefore, subdivision (e) of section 1054, which states that “ ‘no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States,’ ” prevented the court from either enforcing the common law rule that existed before Proposition 115 was approved or creating a new, similar rule. The court invited the Legislature to “establish such a rule within constitutional limits.”

Assembly Bill No. 1516 amended section 1054.3.

Following the passage of Assembly Bill 1516, the provisions of section 1054.3 as originally enacted were preserved intact in subdivision (a) of the current statute and the amendments were placed in subdivision (b). As section 1054.3(b)(1) relates to adult criminal defendants, it states with language at issue emphasized: “Unless otherwise specifically addressed by an existing provision of law, whenever a defendant in a criminal action … places in issue his or her mental state at any phase of the criminal action … through the proposed testimony of any mental health expert, upon timely request by the prosecution, the court may order that the defendant … submit to examination by a prosecution-retained mental health expert.” The Legislature also added that the “prosecution shall bear the costs of any such mental health expert’s fees for examination and testimony at a criminal trial” and set out a procedure by which a defendant could challenge the tests the prosecution sought to have its expert administer. (§ 1054.3(b)(1)(A)–(B).) Finally, legislators expressly stated that the sole purpose of these amendments was to respond to Verdin. (§ 1054.3(b)(2).)

Holding

Section 1054.3(b)(1) authorizes compelled prosecution mental examinations only when a defendant intends to present expert testimony on a mental state defense at trial. A mental health diversion hearing is a pretrial, statutorily created alternative to prosecution, not a trial.

Reasoning

The court emphasized that section 1001.36 contains no authority to compel a prosecution mental examination for diversion purposes. It also read section 1054.3(b)(1) in context: the statute concerns criminal discovery tied to trial, particularly when a defendant places mental state at issue through expert testimony. The court relied on the statute’s plain language, the broader discovery scheme, and legislative history showing the provision was enacted in response to cases involving mental state defenses at trial.

The prosecution’s broader reading—that diversion is a “phase of the criminal action” where mental state is at issue—failed because diversion eligibility concerns treatment and statutory suitability, not adjudication of guilt or mens rea. The diversion hearing is informal and may proceed on offers of proof, reliable hearsay, and argument; it does not resolve the elements of the charged offense.

Disposition

The Court of Appeal ordered peremptory writs of mandate directing the superior court to vacate the orders compelling the defendants to submit to prosecution mental health examinations and to enter new orders denying the prosecution’s motions.

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