Arrested for DUI? Find Out What Everyone Should Know Before Talking to the Judge, Hiring an Attorney, Pleading Guilty or Going to Trial. 

Redlands                  909-798-1500

San Bernardino       909-888-7992

 "My name is David and when I got my 3rd DUI I hired Pat Silva to fight for me and he did! He got my 3rd DUI dropped, all I had to do was plead no contest to a few moving violations. I had a bac of .17 and he still got it dropped that's why I call him the specialist! "    ONLINE REVIEWS

THE PEOPLE, Plaintiff and Respondent,
KENNETH ANDREW PORTER, Defendant and Appellant.


Court of Appeals of California, Third Appellate District, ButteOctober 1, 2009
Not to be Published


Defendant Kenneth Porter pled guilty to driving under the influence of alcohol (DUI) and admitted he had four prior DUI convictions. The negotiated plea agreement provided that he would be referred for an evaluation to determine whether he was eligible for Forest Court, a probation program for defendants with mental illness. He agreed that his plea was not conditioned upon his acceptance into the program and that, if he were deemed unsuitable for the program, he could be sentenced to a maximum of four years in prison.

Eric Gowins and another member of the Forest Court eligibility team interviewed defendant in jail. Gowins reported the following: Defendant suffered from attention deficit hyperactivity disorder (ADHD), was dependent on alcohol, received Social Security benefits for a mood disorder, had no mental health services for the last three years, and was not currently taking medication. Since 1992, defendant had 11 misdemeanor convictions and 3 felony convictions. He was aggressive, hostile, and uncooperative with law enforcement in past contacts and in the present offense. The team concluded defendant did not have a chronic and persistent mental illness that met the criteria for the Forest Program.

After receiving the report, defense counsel asked whether the court would be amenable to appointing a psychiatrist for a second opinion. Counsel suggested the court "might be inclined to obtain a little bit more information about [defendant] before a serious consideration for Forest Court is denied to him."

The court declined to appoint an independent psychiatrist or psychologist, but continued the sentencing hearing so defendant could obtain a second opinion if he wanted one at his own expense. Defendant did not do so.

At sentencing, the court observed: Due to defendant's prior felony convictions, he was ineligible for probation absent unusual circumstances, which were not present in this case. (Pen. Code, § 1203, subd. (e)(4).) In light of his many prior DUI convictions, defendant was a danger to society. Thus, even if the probation restriction did not exist, probation would be denied.

In accordance with the terms of the plea agreement, defendant was sentenced to three years in prison. On appeal, he contends the trial court abused its discretion in refusing his request to appoint a psychiatrist to conduct a second evaluation and assist defendant in preparing for the sentencing hearing. We shall affirm the judgment.


A trial court's denial of an indigent defendant's request for the assistance of experts and investigators at public expense is reviewed for abuse of discretion. (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 321; People v. Hurley (1979) 95 Cal.App.3d 895, 898-899.)

In support of his argument that the trial court abused its discretion in denying the request in this case, defendant relies on legal authority dealing with (1) the Sixth Amendment right to the assistance of counsel in preparation of a defense, which includes court-appointed ancillary defense services (Corenevsky v. Superior Court, supra, 36 Cal.3d at pp. 318-320; People v. Worthy (1980) 109 Cal.App.3d 514, 519-520; People v. Faxel (1979) 91 Cal.App.3d 327, 330), and (2) the right to court-appointed expert witnesses before or during the trial of an action (Evid. Code, § 730). Asserting that a sentencing hearing is a critical stage of the proceedings during which a defendant is entitled to the assistance of counsel (In re Perez (1966) 65 Cal.2d 224, 229-230), defendant concludes this means he was entitled to a court-appointed psychiatrist to evaluate whether he should be sent to the Forest Court program. We disagree.

Defendant's reliance on Evidence Code section 730 is misplaced. As explained in People v. Stuckey (2009) 175 Cal.App.4th 898, the statute "provides for appointment of ancillary service at public expense for indigent criminal defendants in noncapital cases only for purposes of defense at trial on the issue of guilt." ( p. 908.) This "does not include sentencing proceedings that necessarily occur after a determination of guilt." (Id. at p. 913.)

As for defendant's reliance on federal constitutional law, he "failed to argue in the trial court that the denial of a . . . mental health expert amounted to a violation of his federal constitutional rights. His constitutional claim is, therefore, forfeited." (People v. Panah (2005) 35 Cal.4th 395, 436.)

And the entitlement to defense experts is not coterminous with the right to counsel. (People v. Stuckey, supra, 175 Cal.App.4th at p. 918.) "[T]he test for constitutional entitlement to appointment of defense experts focuses on whether a defendant requires assistance on an issue relating to guilt. Except for the penalty phase of capital cases, entitlement to defense experts is a right to prepare a defense to the criminal charges." (Id. at p. 915.) Although a defendant may need experts to present affirmative defenses or to negate prosecution experts in order to have a fair trial on the issue of guilt (id. at p. 918), there are no issues of guilt at a sentencing hearing. Sentencing decisions do not focus on contested issues of fact and are addressed to the trial court's discretion. (Id. at p. 916.)

Defendant has failed to show the court abused its discretion in determining it did not need a second opinion concerning defendant's mental illness. He does not establish that an expert psychiatric opinion he suffered from a mental illness would require the court to disregard the Forest Court evaluation team's decision that he was not an appropriate candidate for the program. Indeed, defendant provides no information about the Forest Court program, its admission criteria, or the court's authority to override the evaluation team's decision. In addition, he fails to demonstrate that the court abused its discretion in implicitly concluding that a second opinion would be pointless because defendant was ineligible for probation because a grant of probation would be contrary to the interests of justice due to the seriousness of the offense. (Pen. Code, § 1203, subd. (e)(4).)

At sentencing, defendant conceded the dangerousness of drinking and driving; yet, because of his uncontrollable alcohol addiction, defendant continued to drive while intoxicated and had numerous DUI convictions. The court observed: "I can't let you out on the road. I can't give you that opportunity." In other words, evidence of defendant's purported mental illness was not relevant because, regardless of the extent of his illness, the interests of justice required that he serve a prison term.

Thus, his "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 expert as to sentencing choice when the trial court expresses no need for guidance. A defendant is entitled only to present testimony of `persons who can give relevant information to the hearing officer.' [Citations.]" (People v. Stuckey, supra, 175 Cal.App.4th at pp. 919-920.)

In sum, defendant's claim of error fails.


The judgment is affirmed.

We concur:



Patrick J. Silva - Attorney at Law

A Professional Law Corporation