Is a prosecutor's comment that the People have no right to have their own mental health examination, and the insinuation that appellant had refused to consent, denied due process?

Appellant contends that the prosecutor's comment, that the People had no right to have the defendant examined and the insinuation that appellant had refused to consent, denied due process. To the extent that this is a claim that the prosecutor's line of questions was misconduct, we agree. What the witness thought about who ordered the examinations by Drs. Bittle and Kaldor was irrelevant, as

[23 Cal.4th 600]

was the witness's understanding of the law. His expertise was in the field of psychiatry. As a forensic expert, he dealt with psychiatric questions that arise in judicial and administrative proceedings, but that did not qualify him as an expert who may offer an opinion on the law. While the prosecutor did not directly state that he had no right to have the examination performed, the questions and the answers he elicited conveyed that impression and thereby conveyed an erroneous impression of the law. When a defense of insanity has been offered, the defendant waives the Fifth and Sixth Amendment rights to the extent necessary to permit the prosecution to obtain an examination of the defendant's condition. The defendant may preserve his rights by refusing to cooperate, but comment on that refusal is permissible. (People v. McPeters (1992) 2 Cal.4th 1148, 1190, 9 Cal.Rptr.2d 834, 832 P.2d 146.)

[23 Cal.4th 600]

Thus, the prosecutor could have requested that the defendant submit to an examination.

To the extent that this is a claim that the court erred in admitting irrelevant evidence, we also agree.