Filed 2/28/14 P. v. Prideaux CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039263
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. Nos. CC771044, CC771713,
                                                                                     CC786276, CC937648)
         v.

SHERRY PRIDEAUX,

         Defendant and Appellant.



         This is an appeal from a trial court order authorizing the involuntary treatment of
Sherry Prideaux (appellant) with antipsychotic medications pursuant to Penal Code
section 1370, subdivision (a)(2)(B)(i)(I). Appellant contends that the trial court abused
its discretion in denying her request for a continuance of the hearing that was set to
determine her capacity to make decisions regarding the administration of medications
(hereafter capacity hearing); that her due process rights were violated by the trial court
when the court gave the Department of State Hospitals the authority to involuntarily
medicate her without the consent of her conservator; and finally that she was deprived of
the effective assistance of counsel by her counsel's failure to object to the unnecessary
capacity hearing and subsequent order. For reasons that follow, we affirm the trial court's
order.
                               Facts and Proceedings Below
       The facts underlying the various crimes with which appellant was charged are not
relevant to this appeal. We will, however, set forth in detail the procedural history of this
case and the circumstances surrounding appellant's capacity hearing and testimony
adduced at that hearing.
       On July 10, 2007, the Santa Clara County District Attorney charged appellant with
possession of a controlled substance (cocaine) (Health & Saf. Code, § 11350, subd. (a),
count one) and two misdemeanors—using or being under the influence of a controlled
substance (cocaine) (Health & Saf. Code, § 11550, subd. (a), count two) and possession
of controlled substance paraphernalia (Health & Saf. Code, § 11364, count three).
Subsequently, on November 9, 2007, appellant was charged again with one count of
being under the influence of a controlled substance (cocaine). (Health & Saf. Code, §
11550, subd. (a).) On March 17, 2009, the Santa Clara County District Attorney charged
appellant with possession of a controlled substance (cocaine) (Health & Saf. Code, §
11350, subd. (a), count one), possession of controlled substance paraphernalia (Health &
Saf. Code, § 11364, count two) and providing a false name to a peace officer (Pen. Code,
§ 148.9, count three).
       Thereafter, on September 15, 2009, the trial court struck the charge of providing a
false name to a peace officer; the court placed appellant on Proposition 36 probation. On
March 4, 2010, the court extended appellant's probation. However, on August 20, 2010,
the court revoked appellant's probation. On January 2, 2011, the court reinstated,
modified and extended appellant's probation through June 30, 2011. On September 11,
2012, the court found appellant had violated her probation by using drugs.1 At this
hearing, defense counsel declared a doubt as to appellant's competence to stand trial.
Accordingly, pursuant to Penal Code section 1368, the court suspended criminal


1
       Appellant had a positive drug test in February 2011.
                                              2
proceedings. On October 17, 2012, based on Dr. Berke's report, the court found that
appellant was not competent to stand trial and referred the matter to the South Bay
Conditional Release Program (CONREP) for a recommendation on appellant's
placement. On October 24, 2012, CONREP recommended that appellant be hospitalized
pursuant to Penal Code section 1370, subdivision (a)(2). On October 31, 2012, the court
appointed Dr. Hughey to evaluate appellant's capacity to make decisions regarding her
medications. On November 19, 2012, Dr. Hughey filed his report. Among other things,
Dr. Hughey concluded that appellant did not have the capacity to make decisions
regarding her antipsychotic medications. On November 20, 2012, the court set
December 7, 2012, for a capacity hearing. That hearing was continued to January 4,
2013. On January 4, 2013, after Dr. Hughey testified to his findings regarding appellant's
capacity to make decisions regarding her medications, the court found that appellant
lacked "the capacity to consent to the administration of antipsychotic medications . . . ."2
Accordingly, in a written order filed on January 4, 2013, the court ordered that appellant
be committed to the Department of State Hospitals for placement in a locked psychiatric
facility. Further, the court ordered that appellant "may be involuntary administered
antipsychotic medication by the Department of State Hospitals in the dosage and
frequency deemed necessary by the treatment staff when and as prescribed by
[appellant]'s treating psychiatrist of the Department of State Hospitals."
       Appellant filed a timely notice of appeal.

2
       Dr. Hughey testified that pursuant to his interview/evaluation of appellant on
November 8, 2012, and his review of the police records in the case as well as his review
of Dr. Berke's evaluation of appellant's competence to stand trial, he had concluded that
appellant suffers from schizophrenia and schizoaffective disorder. He opined that
appellant lacked the capacity to make medical decisions for herself. He explained that
not only was her judgment impaired, but she was not a "reliable historian"; in other words
she could not provide a reliable history of her illness and the medications she was taking
and why she was taking them. In relevant part, appellant testified that she would
"probably" continue to take her medications. We note for the record that appellant's
testimony was incomprehensible at times.
                                              3
                                         Discussion
Denial of Appellant's Continuance Motion
       At the January 4, 2012, capacity hearing defense counsel requested a continuance.
Counsel argued that based on her interaction with appellant she believed "a second
independent medical opinion by a defense potential expert" was warranted. Counsel
explained that she had been working with a doctor "as a potential expert" for several
weeks, but the doctor had been on vacation and was "unable to do a visit with Ms.
Prideaux." Further, counsel stated that she had been out of the office with the flu during
the same period. The trial court denied the request for a continuance; the court noted
"parenthetically that [appellant] was found not competent by stipulation of counsel on
October 17, 2012. The matter was subsequently set for a capacity hearing only. It was
well over - - well, nearly a month ago, been set the whole time for that purpose. So the
request to continue is denied."
       Appellant contends that the trial court's denial of her request for a continuance to
procure the services of an expert witness was an abuse of discretion and violated her
federal due process right to present a complete defense. Respectfully, we disagree.
       A continuance "shall be granted only upon a showing of good cause." (Pen. Code,
1050, subd. (e).) Further, a trial court has broad discretion in determining whether good
cause exists for a continuance. (People v. Riggs (2008) 44 Cal.4th 248, 296.) An
important factor for a trial court to consider in ruling on a motion for a continuance is
whether the continuance would be useful. (People v. Beeler (1995) 9 Cal.4th 953, 1003
(Beeler), abrogated on other grounds as recognized in People v. Pearson (2013) 56
Cal.4th 393, 462.) "[T]o demonstrate the usefulness of a continuance[,] a party must
show both the materiality of the evidence necessitating the continuance and that such
evidence could be obtained within a reasonable time." (Beeler, supra, 9 Cal.4th at p.
1003.) Appellant has the burden of establishing an abuse of judicial discretion. (Beeler,
supra, 9 Cal.4th at p. 1003; People v. Rhines (1982) 131 Cal.App.3d 498, 506.)
                                              4
       In reviewing claims of error based on a trial court's alleged failure to afford the
defendant an adequate opportunity to investigate a potential defense, appellate courts
have required reasonable assurances that the defense would have been a fruitful area for
investigation. For example, in Beeler, supra, 9 Cal.4th 953, defense counsel requested a
continuance during trial to investigate newly discovered evidence that the defendant
might have organic brain damage. The Supreme Court held it was not an abuse of
discretion to deny the continuance. (Id. at p. 1003.)
       Initially, the Beeler court noted that the defense had not shown unequivocally that
the potential defense likely had merit. Rather, defense counsel merely stated that the
brain damage evidence appeared relevant and suggested problems with the defendant's
mental state. Although the defense psychologists had testified that the defendant suffered
from events of memory loss or unawareness of what he was doing, they did not testify
they suspected any organic brain damage. Second, the Beeler court noted, there was no
adequate showing that the evidence, even if material, could be obtained within a
reasonable time. (Beeler, supra, 9 Cal.4th 953 at pp. 1003-1004, 1007.)
       In People v. Pride (1992) 3 Cal.4th 195 (Pride), the defense sought a continuance
of the penalty phase of the trial to determine whether it could present a psychiatric
defense. Defense counsel presented a letter from a defense psychiatrist stating that he
perceived hostile and paranoid tendencies in the defendant and suspected he was
withholding critical information about his childhood. (Id. at p. 254.)
       Similar to the Beeler court, the Supreme Court in Pride held the denial of a
continuance was not an abuse of discretion. (Pride, supra, 3 Cal.4th at p. 254.) The
court noted there was no assurance that an investigation would even be fruitful, since the
defense psychiatrist believed it might not be possible to establish the necessary rapport
with the defendant. (Id. at pp. 254-255.)
       Here, we are faced with circumstances similar to those in Beeler and Pride.
Counsel's request to the court was all the court had before it, and counsel's basis for
                                              5
requesting a continuance was at best equivocal. As noted, counsel told the court that she
was working with "a potential expert" (italics added) and she "believe[d]" that "a second
independent medical opinion by a defense potential expert" was warranted. Any need for
a continuance was entirely speculative. Given Dr. Hughey's report, which the court had
before it, indicating that appellant is "gravely disabled," psychotic and unable to
appreciate the different medications she was taking and the fact that appellant has been
subject to a conservatorship for many years,3 we have serious doubts as to whether the
additional time requested would have yielded meaningful evidence, other than to confirm
Dr. Hughey's conclusions. In sum, there are substantial reasons to doubt that any
witnesses would produce the evidence favorable to appellant that her counsel believed
was warranted. Counsel failed to establish on the record that a further continuance would
have been useful. Speculative need does not establish good cause for a continuance.
(Beeler, supra, 9 Cal.4th at p. 1004.)
       Accordingly, we hold that appellant has failed to show the trial court abused its
discretion when it denied her motion for a continuance.
       Finally, we reject appellant's claim that her federal due process rights were
violated by the trial court's denial of her continuance motion.




3
        The record contains a letter dated January 2, 2008, from the Santa Clara County
Department of Aging and Adult Services, Officer of the Public
Administrator/Guardian/Conservator to Judge Manley that shows that appellant "ha[d]
been permanently conserved and ha[d] been placed in different mental health facilities
since 2000." The letter goes on to note that appellant had lived in the community, but has
been in and out of jail at least three times as well as in a psychiatric hospital. "The
caretakers reported that she has been restless, in and out of the home even at night. She
spends her time mainly on the street. She is incontinent of urine and bowel requiring
total assistance from staff in cleaning her room. Even without the influence of drugs, it
has been noted that Ms. Prideaux continues to be delusional and has impaired insight and
judgment. She continues to require staff's supervision and assistance in tending to her
Activities of daily Living including taking her medications."
                                             6
       "The matter of continuance is traditionally within the discretion of the trial judge,
and it is not every denial of a request for more time that violates due process . . . ."
(Ungar v. Sarafite (1964) 376 U.S. 575, 589.) "There are no mechanical tests for
deciding when a denial of a continuance is so arbitrary as to violate due process. The
answer must be found in the circumstances present in every case, particularly in the
reasons presented to the trial judge at the time the request is denied. [Citations.]" (Id. at
pp. 589-590.) In this case, appellant did not show that her "potential" expert would say
something material and helpful to the defense. Accordingly, "[g]iven the deference
necessarily due a state trial judge in regard to the denial or granting of continuances," the
court's ruling does not support a claim of error under the federal Constitution. (See
Ungar v. Sarafite, supra, 376 U.S. at p. 591.)
Alleged Violation of Appellant's Due Process Rights
       After concluding that appellant lacked the capacity to consent to the
administration of her antipsychotic medications, as noted, the court ordered that she be
involuntarily administered antipsychotic medication by the Department of State Hospitals
as prescribed by her treating psychiatrist. Appellant contends that the court's order
vesting authority in her doctors and the state hospital improperly divested her public
guardian/LPS conservator4 from making her medical decisions thereby violating her due

4
        LPS conservator stands for Lanterman-Petris-Short Act conservator. " 'The LPS
Act is a comprehensive scheme designed to address a variety of circumstances in which a
member of the general population may need to be evaluated or treated for different
lengths of time. (§ 5150 [short-term emergency evaluation]; § 5250 [intensive 14–day
treatment]; § 5300 [180–day commitment for the imminently dangerous]; § 5260
[extended commitment for the suicidal]; § 5350 [30–day temporary conservatorship or
one-year conservatorship for the gravely disabled].) . . . [¶] A stated purpose of the LPS
Act is to provide "prompt evaluation and treatment of persons [from the general
population] with serious mental disorders." (§ 5001, subd. (b).) . . . To achieve this
purpose, a number of LPS Act provisions allow a person to be removed from the general
population in order to be civilly committed based on a probable cause determination
made by a mental health or law enforcement professional, and then to challenge the civil
commitment within a reasonable time afterwards.' [Citation.]" (In re Conservatorship of
                                               7
process rights. Appellant argues that the record had sufficient evidence of her
conservatorship to alert the court and counsel that an order vesting authority to consent to
medication in her doctors at the state hospital was unnecessary and contrary to the intent
of the Lanterman-Petris-Short Act. Defense counsel did not raise this argument below.
       " ' "No procedural principle is more familiar . . . than that a constitutional right," or
a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure
to make timely assertion of the right before a tribunal having jurisdiction to determine it."
[Citation.]' [Citation.]" (People v. Saunders (1993) 5 Cal.4th 580, 590.)
       Appellant argues that the issue of whether the court had authority to divest the
public guardian of the right to consent to medication and vest that authority solely in the
doctors at the Department of State Hospitals is a question of law, requiring no reference
to the particular facts of the case. Respectfully, we disagree with appellant that this issue
requires no reference to the facts of this case.
       As noted ante, there is some reference in the record to appellant being the subject
of a conservatorship. However, the court's orders regarding that conservatorship are
unknown. We cannot presume that appellant is subject to an involuntary medication
order. (See In re Qawi (2004) 32 Cal.4th 1, 18-19 [the long term LPS Act conservatee
possesses the right to refuse antipsychotic medication absent a determination of
incompetence and the LPS conservatee can be compelled by their conservator to accept
medical treatment only if such treatment is authorized in the court order creating the
conservatorship or in a subsequent court order].) Since we have no way of knowing what


Amanda B. (2007) 149 Cal.App.4th 342. 344, fn. 1.) A conservatorship under the LPS
Act is governed by Welfare and Institutions Code section 5000 et seq. As relevant here
Welfare and Institutions Code section 5358 subdivision (b) provides "A conservator shall
also have the right, if specified in the court order, to require his or her conservatee to
receive treatment related specifically to remedying or preventing the recurrence of the
conservatee being gravely disabled, or to require his or her conservatee to receive routine
medical treatment unrelated to remedying or preventing the recurrence of the
consevatee's being gravely disabled. . . ."
                                               8
LPS Act orders are in place in this case, we have no way to tell if the trial court's order
vesting the authority to medicate appellant in appellant's doctors at the state hospital
divested appellant's conservator of any rights regarding compelling appellant to take her
antipsychotic medications.5 Simply put, the record is not sufficiently developed to
resolve the determinative issue.
       Alternatively, appellant argues that trial counsel provided ineffective assistance of
counsel in failing to object to the court's order.
       Effectively, appellant concedes that this was a civil commitment proceeding, but
argues that she was still entitled to the effective assistance of counsel at the hearing. We
will assume for the sake of argument that appellant is correct. (See e.g. People v. Medina
(2009) 171 Cal.App.4th 805, 819 [assuming the constitutional right to effective assistance
of counsel in a SVP case]; People v. Crosswhite (2002) 101 Cal.App.4th 494, 503
[assuming a right to effective assistance of counsel in NGI extension proceedings];
People v. Leonard (2000) 78 Cal.App.4th 776, 784 [assuming the right to effective
assistance of counsel in SVP proceedings]; People v. Williams (1999) 77 Cal.App.4th
436, 461 [assuming the right to the effective assistance of counsel in MDO cases].)
       The test for ineffective assistance of counsel emanates from decisions of both the
United States and California Supreme Courts. We consider " 'whether counsel's
representation fell below an objective standard of reasonableness under prevailing
professional norms and whether the defendant suffered prejudice to a reasonable
probability, that is, a probability sufficient to undermine confidence in the outcome.' "
(People v. Carter (2005) 36 Cal.4th 1114, 1189 (Carter), citing Strickland v. Washington
(1984) 466 U.S. 668, 694; People v. Ledesma (1987) 43 Cal.3d 171, 217.) As a
reviewing court we presume that counsel was competent and that his or her conduct was
the basis of sound tactical decisions. (Carter, supra, 36 Cal.4th at p. 1189.)


5
       The record indicates that appellant's conservator is Christina Remigio.
                                               9
Accordingly, the burden is on appellant to demonstrate that her attorney was inadequate
under the constitutional standard. (Strickland v. Washington, supra, 466 U.S. at p. 687.)
       Appellant's first hurdle is less a substantive one than a principle of appellate
practice. "If the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged, an appellate claim of ineffective assistance of counsel must be
rejected unless counsel was asked for an explanation and failed to provide one, or there
simply could be no satisfactory explanation." (Carter, supra, 36 Cal.4th at p. 1189.)
Otherwise, the claim may be raised only by a petition for writ of habeas corpus. (People
v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Actions taken or not taken by
counsel are "typically motivated by considerations not reflected in the record. It is for
this reason that writ review of claims of ineffective assistance of counsel is the preferred
review procedure. Evidence of the reasons for counsel's tactics, and evidence of the
standard of legal practice in the community as to a specific tactic, can be presented by
declarations or other evidence filed with the writ petition." (In re Arturo A. (1992) 8
Cal.App.4th 229, 243; see also People v. Mendoza Tello, supra, at pp. 266-267.) An
ineffective assistance claim may be reviewed on direct appeal only where "there simply
could be no satisfactory explanation" for counsel's action or inaction. (In re Dennis H.
(2001) 88 Cal.App.4th 94, 98, fn. 1.)
       Appellant argues that there could be no tactical reason for permitting the court to
convene an unnecessary hearing to divest the conservator of her statutory right to consent
to medication for appellant. Again, respectfully, we disagree.
       In relevant part, Penal Code section 1370, subdivision (a)(1)(F)(2) provides, "Prior
to making the order directing that the defendant be confined in a state hospital or other
treatment facility or placed on outpatient status, the court shall proceed as follows: . . .
[¶] (B) The court shall hear and determine whether the defendant lacks capacity to make
decisions regarding the administration of antipsychotic medication, and shall proceed as
follows: [¶] (i) The court shall hear and determine whether any of the following is true:
                                              10
[¶] (I) The defendant lacks capacity to make decisions regarding antipsychotic
medication, the defendant's mental disorder requires medical treatment with antipsychotic
medication, and, if the defendant's mental disorder is not treated with antipsychotic
medication, it is probable that serious harm to the physical or mental health of the patient
will result. Probability of serious harm to the physical or mental health of the defendant
requires evidence that the defendant is presently suffering adverse effects to his or her
physical or mental health, or the defendant has previously suffered these effects as a
result of a mental disorder and his or her condition is substantially deteriorating. The fact
that a defendant has a diagnosis of a mental disorder does not alone establish probability
of serious harm to the physical or mental health of the defendant. . . . [¶] (ii) If the court
finds any of the conditions described in clause (i) to be true, the court shall issue an order
authorizing the treatment facility to involuntarily administer antipsychotic medication to
the defendant when and as prescribed by the defendant's treating psychiatrist." (Italics
added.) "Ordinarily, the term 'shall' is interpreted as mandatory and not permissive.
Indeed, 'the presumption [is] that the word "shall" in a statute is ordinarily deemed
mandatory and "may" permissive.' [Citation.]" (People v. Standish (2006) 38 Cal.4th
858, 869.)
       We must assume that counsel was aware of the foregoing and that once the court
determined that appellant was mentally incompetent to stand trial and CONREP
recommended a hospital placement, the court was mandated by Penal Code section 1370
to hold a hearing on whether appellant lacked the capacity to make decisions regarding
the administration of her antipsychotic medication; and once the court concluded that she
did, the court was mandated to issue the order authorizing the treatment facility to
involuntarily administer antipsychotic medication to appellant. Any objection by counsel
to the convening of a capacity hearing and the resulting order would have been futile. A




                                             11
failure to make a futile or non-meritorious motion does not constitute ineffective
assistance. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.)6
       Appellant has failed to overcome the presumption that under the circumstances,
the challenged omission could be considered sound strategy on counsel's part. (People v.
Duncan (1991) 53 Cal.3d 955, 966.)
       In sum, we reject appellant's ineffective assistance of counsel claim.
                                        Disposition
       The trial court's commitment order dated January 4, 2013, is affirmed.




                                          ________________________________
                                          ELIA, Acting P. J.




WE CONCUR:




________________________________
MIHARA, J.




________________________________
GROVER, J.



6
         Appellant provides no legal authority and we have found none to support her
argument that a "LPS conservatorship takes precedence over other statutes, unless and
until it terminates and is not renewed."
                                            12
