Filed 7/17/19; Certified for Publication 8/14/19 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                                  DIVISION SIX


THE PEOPLE ex rel.                                 2d Crim. No. B292131
CALIFORNIA DEPARTMENT                           (Super. Ct. No. 16MH-0062)
OF STATE HOSPITALS,                              (San Luis Obispo County)

     Plaintiff and Respondent,

v.

S.M.,

     Defendant and Appellant,




       In 2014 S.M was adjudicated a Mentally Disordered
Offender (MDO) and committed for treatment to the Department
of State Hospitals (the Department). (See Pen. Code, § 2960 et
seq.)1 He appeals from an order that he “be involuntarily
administered antipsychotic medication by the Department . . . in
the dosage and for the frequency deemed necessary by the

       Unless otherwise stated, all statutory references are to
        1

the Penal Code.
Department,” not to exceed a period of one year. The order was
made because appellant lacks the capacity to refuse medical
treatment with antipsychotic drugs. (See In re Qawi (2004) 32
Cal.4th 1, 27 [in nonemergency situations, “an MDO can be
compelled to be treated with antipsychotic medication” only if “(1)
he is determined by a court to be incompetent to refuse medical
treatment; [or] (2) the MDO is determined by a court to be a
danger to others within the meaning of Welfare and Institutions
Code section 5300”].)
       The involuntary medication order is due to expire on July
20, 2019. It is a renewal of a prior order that expired in 2018. In
an unpublished opinion, we affirmed the prior order. (People v.
S.M. (April 19, 2018, B282195) [nonpub. opn.].)
       Appellant contends that (1) the Department lacked
standing to petition to renew the involuntary medication order;
(2) he was denied his statutory right to represent himself; (3)
because of a discovery violation, the expert testimony of
appellant’s current treating psychiatrist should have been
excluded; and (4) the trial court abused its discretion in
admitting the opinion of a non-testifying psychiatrist. We affirm.
                                   Facts
       Two psychiatrists testified for the Department: Drs.
Joshua Deane and Jonathan Funk. Dr. Deane is appellant’s
current treating psychiatrist. He concluded that appellant
suffers from schizophrenia characterized by paranoia, delusions,
and disorganization. Dr. Deane opined that appellant “cannot
even appreciate the fact that he is a very impaired individual. . . .
And he certainly does not see the impact of his mental illness o[n]
his life . . . [and] he is not able to appreciate the . . . benefit of
medication.” When asked if appellant had “the capacity to make




                                  2
decisions regarding administration of antipsychotic medication,”
Dr. Deane replied: “No, he does not. He is too disorganized,
illogical and cannot have a . . . basic understanding of the fact
that he has a mental illness . . . . Given the fact that he does not
even think that he has [a] mental illness, he certainly does not
see a need for medication treatment . . . .” Dr. Deane continued:
“[H]e suffers from schizophrenia. And the very nature of this
illness dictates that he needs medication treatment, and in
addition . . . he has been a violent individual. So for that reason
he needs to be medicated.”
       Dr. Funk was appellant’s treating psychiatrist for about
nine months in 2017-2018. Dr. Funk testified: Appellant has
schizophrenia, characterized by “delusions and thought disorder.”
He has “a history of refusing medications.” “[H]e does not believe
that he has a mental illness.” He is not “able to understand and
rationally evaluate and participate in the treatment decision.”
“[H]is appreciation of facts is impaired by his mental illness.”
There are “numerous episodes where [appellant] asserts things
that reality testing demonstrates are a product of his mental
illness.” Examples of his delusional thinking are that “he had
achieved . . . advanced degrees from Pepperdine University at age
four, and that he had been kidnapped and rescued at age 13.” He
lacks “the capacity to make decisions regarding administration of
antipsychotic medication.” He will not take his medication
“without an involuntary medication order.”
       Appellant testified that he was not mentally ill and did not
have delusions. He was being involuntarily medicated “as a
punishment to make you sluggish and want to sleep all the time.”
       Daniel Summersdrager, a registered nurse at Atascadero
State Hospital, was called as a witness on appellant’s behalf. He




                                 3
provided no relevant evidence as to appellant’s capacity to refuse
treatment with antipsychotic drugs.
                              Standing
       Appellant contends that the Department lacked “standing
to file and prosecute the petition” to renew the prior order
authorizing it to involuntarily administer antipsychotic
medication. (Capitalization and bold omitted.) Appellant claims
that the petition should have been filed by the District Attorney:
“The MDO law does not permit [the Department] to circumvent
the process of referring a recommendation for treatment issues to
the district attorney, and to jump in the saddle and file a petition
with its own team of lawyers . . . .”
       Appellant argues that the District Attorney is the proper
person to file and litigate the petition because “[t]he District
Attorney is specified as the attorney who litigates MDO
commitments and recommitments (Pen. Code, §§ 2966, subd. (b);
2970, subd. (b)[; 2972, subd. (b)]) . . . .” But the order appealed
from does not involve appellant’s commitment or recommitment
as an MDO. It involves his medical treatment during his
commitment or recommitment. The Legislature intended that
the Department be responsible for such treatment. Section 2972,
subdivision (f) provides: “Any commitment under this article
places an affirmative obligation on the treatment facility to
provide treatment for the underlying causes of the person’s
mental disorder.”
       Since the Department is vested with responsibility for
appellant’s treatment, it has standing to petition for an order
authorizing it to involuntarily medicate appellant as part of his
treatment. “The purpose of a standing requirement is to ensure
that the courts will decide only actual controversies between




                                 4
parties with a sufficient interest in the subject matter of the
dispute to press their case with vigor. [Citations.]” (Common
Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 439.) That
purpose is satisfied here. The California Code of Regulations
recognizes the Department’s standing. It provides that “[t]he
state hospital shall request a court hearing as required by law” to
determine whether the legal standard has been met to
involuntarily administer antipsychotic medication to an MDO.
(Cal. Code Regs., tit. 9, § 4210, subd. (q).)
                    Right to Self-representation
       Appellant argues that the trial court erroneously denied his
motion for self-representation. Appellant said: “I would like to
represent myself. I imagine I will have the same problem with
new counsel. They would be unwilling to call witnesses I
require.” His appointed counsel declared, “He mentioned one
witness at the hospital. . . . I didn’t think it was worth
subpoenaing him. I didn’t think he was helpful.”
       At the hearing on the motion for self-representation,
appellant denied that he was suffering from a mental illness.
However, he appeared to be delusional. He told the court that in
October 1979 he “and the LAPD SWAT team” killed “three
kidnappers,” the event “was reported to the country by Walter
Cronkite on the Saturday Evening News,” and “President Carter
called [him] the next day and talked about the kidnapping.” At
the time of the alleged kidnapping, appellant was 13 years old.
       In denying appellant’s motion for self-representation, the
trial court explained, “I do believe that you suffer from delusions,
and I believe those and your mental illness will impair you from
representing yourself.” On the other hand, the court found
appellant to be “a very intelligent person” with “some




                                 5
understanding of the law.” The court further found that
appellant understood “what’s being charged, what this petition
means and what the effects of that petition would be.”
       After denying the motion for self-representation, the trial
court granted appellant’s Marsden motion and appointed new
counsel (Jean Matulis) to represent him. (People v. Marsden
(1970) 2 Cal.3d 118.) Ms. Matulis represents appellant in this
appeal.
       “[B]ecause MDO proceedings are not punitive in nature
they are considered civil proceedings, and therefore there is
no constitutional right to self-representation. However, as the
MDO commitment statutes give defendants the right to
appointed counsel, a defendant also could refuse counsel and
represent him- or herself. The right only being statutory, any
denial of a request to represent oneself is governed by due
process principles and the decision is reviewed for an abuse of
discretion.” (People v. Williams (2003) 110 Cal.App.4th 1577,
1588 (Williams); see also id. at p. 1591 [“The statute expressly
gives the right to counsel to defendants in MDO proceedings and
surely they have by implication the right to refuse appointed
counsel and represent themselves”].) “Because the right to
counsel in MDO proceedings is a statutory, not constitutional
right, we will reverse [for an abuse of discretion] only if it is more
probable than not that [appellant] would have received a better
result had he been allowed to represent himself. [Citation.]” (Id.
at pp. 1592-1593.)
       The Department concedes that “appellant has a statutory
right to counsel, and thus a statutory right to self-
representation.” The Department asserts, “This Court should
review the trial court’s denial of appellant’s self-representation




                                  6
motion for abuse of discretion and apply the Watson harmless
error standard of review.” (People v. Watson (1956) 46 Cal.2d
818, 836.)
       In People v. Johnson (2012) 53 Cal.4th 519, 530, our
Supreme Court held that, when a criminal defendant with
mental health issues seeks to exercise his federal constitutional
right to represent himself, “the standard that trial courts . . .
should apply is simply whether the defendant suffers from a
severe mental illness to the point where he or she cannot carry
out the basic tasks needed to present the defense without the
help of counsel.” It has not been determined whether this
standard applies when an MDO seeks to exercise his statutory
right to represent himself.
       We need not decide whether the trial court abused its
discretion in denying appellant’s motion to represent himself. If
the court had abused its discretion, it is not reasonably probable
that appellant would have received a better result had he been
allowed to represent himself. Appellant told the court that he
wanted to represent himself because his appointed counsel was
“unwilling to call witnesses I require.” During the Marsden
hearing after the trial court had denied his motion for self-
representation, appellant said that he wanted to call two
witnesses - Dr. Funk and Daniel Summersdrager. Both
witnesses testified at the hearing on the Department’s petition.
Appellant does not claim that counsel’s performance was
deficient. Nor does he claim that he would have provided
different or additional evidence or advanced a new theory had he
been permitted to represent himself. No mental health
professional disputed the opinions of Drs. Deane and Funk that,
because of his mental illness, appellant lacked the capacity to




                                7
refuse medical treatment with antipsychotic drugs. Appellant
“presented no evidence, other than his own self-serving denial
that he suffered from a mental illness, to counter these opinions.”
(Williams, supra, 110 Cal.App.4th at p. 1593.) Appellant does not
suggest anything that counsel could have done differently to
show that he had the capacity to refuse medication.
       Appellant asserts that “the erroneous denial of [his] request
to represent himself is a structural error, requiring reversal.” He
relies on People v. Blackburn (2015) 61 Cal.4th 1113 (Blackburn).
There, our Supreme Court held that, before conducting a bench
trial to extend an MDO commitment, the trial court generally
“must advise the MDO defendant personally of his or her right to
a jury trial and . . . must obtain a personal waiver of that right
from the defendant.” (Id. at p. 1116.) The court further held: “In
an MDO commitment proceeding, as in a criminal trial, the ‘jury
guarantee’ is a basic protection ‘whose precise effects are
unmeasurable’ and whose denial ‘def[ies] analysis by “harmless-
error” standards.’ [Citation.] Accordingly, the total deprivation
of a jury trial without a valid waiver in an MDO commitment
proceeding requires automatic reversal.” (Id. at p. 1135.) The
court noted that MDO commitment “proceedings threaten the
possibility of lasting stigma and a significant deprivation of
liberty.” (Id. at p. 1134.)
       Blackburn is distinguishable. Appellant was not deprived
of his statutory right to a jury trial in an MDO commitment
proceeding. He had already been lawfully committed. He
allegedly was deprived of his statutory right to represent himself
in a proceeding to determine whether, during his commitment,
the Department could involuntarily medicate him with
antipsychotic drugs. The deprivation of this right does not




                                 8
necessarily defy “‘analysis by “harmless-error” standards.’”
(Blackburn, supra, 61 Cal.4th at p. 1135.) Thus, the trial court’s
alleged error is not structural.
                       Alleged Discovery Violation
       Dr. Deane is appellant’s current treating psychiatrist.
Appellant maintains that he was denied his due process right to
cross-examine Dr. Deane regarding his testimony as an expert
(not as a treating psychiatrist) because the Department had
failed to provide discovery of Dr. Deane’s notes. Appellant
asserts, “Deane’s testimony as an ‘expert’ should have been
excluded.”
       “‘Broadly speaking, an appellate court applies the abuse of
discretion standard of review to any ruling by a trial court on the
admissibility of evidence. [Citations.]’ [Citation.] A party
challenging a trial court’s evidentiary rulings must demonstrate
both an abuse of discretion and a consequent miscarriage of
justice. [Citation.]” (Kim v. The True Church Members of Holy
Hill Community Church (2015) 236 Cal.App.4th 1435, 1449
(Kim).)
       Appellant’s counsel told the court, “I haven’t been given
anything in terms of [Dr. Deane’s] notes, which I specifically
requested. . . . [I]f [Dr. Deane testifies, his testimony] should be
limited to [his] role as percipient witness[], because I have not
received any discovery that would justify [him] being called as
[an] expert[].” The Department’s counsel responded: “Dr. Deane
actually has been a treating psychiatrist for the past two weeks
approximately. . . . He said he has a personal knowledge and he
doesn’t have to bring anything because he actually sat down with
[appellant], and he’s going to just testify on those matters.” The
Department’s counsel did not “think” that Dr. Deane had




                                 9
prepared a report “[b]ecause he’s recently been assigned as
[appellant’s treating] psychiatrist.”
       The trial court offered to grant a continuance of the hearing
so that appellant could discover Dr. Deane’s notes: “[I]f you want
a continuance, I would grant a continuance. I’m not going to
limit or prevent [his] testimony today.” “I would like to hear his
opinion as a psychiatrist and as the treating psychiatrist.”
       Appellant did not ask for a continuance. Instead, his
counsel said, “Okay. . . . [I]f it appears that [Dr. Deane is]
testifying from notes, I’m going to want to see those during the
proceeding, . . . I’m taking [his] word[] if [he is] not going to be
using notes . . . .” The Department’s attorney responded, “I have
no objection to that, your honor.” The court stated: “Okay. If
there are relevant notes, we’ll take a look at that.”
       The Department claims that appellant waived his discovery
objection because, “[d]espite knowing that [the Department’s]
expert[] would be permitted to offer expert opinion testimony,
appellant still elected to proceed rather than to continue the
hearing.” We agree. A similar situation occurred in Kim, supra,
236 Cal.App.4th 1435: “Appellants . . . argue that the court’s
decision to admit evidence relating [to events that occurred in
May 2013] amounted to a ‘trial by ambush’ because appellants
did not learn of the May 2013 events until July 2013, two weeks
before a scheduled July 2013 trial date. According to appellants,
they ‘were forced to proceed to trial, without any discovery or
depositions [relating to the May 2013 events].’ However,
appellants waived their ability to argue they suffered prejudice
because the record does not contain evidence they requested
additional discovery or asked the court for additional time to
conduct discovery about the recent events. . . . Instead, . . .




                                10
appellants’ attorneys ‘simply objected and failed to seek leave to
conduct further discovery . . . .’ . . . [C]ounsel’s tactical decision
against seeking permission to conduct additional discovery
relating to [the] May 2013 events waived any objection in that
regard. [Citation.]” (Id. at p. 1450.)
       Moreover, because appellant did not accept the trial court’s
offer to grant a continuance, he cannot establish prejudice. In
People v. Pinholster (1992) 1 Cal.4th 865, the defendant claimed
that he had been prejudiced by the late disclosure of a
prosecution witness. In rejecting the claim, our Supreme Court
reasoned: “The court gave defendant ample time to investigate
once the witness and his proposed testimony were disclosed. The
court said: ‘I’ll give you as much time as you want. You name it,
you’ve got it. Investigate it fully, research it fully.’ The defense
requested no continuance. It is defendant’s burden to show that
the failure to timely comply with any discovery order is
prejudicial, and that a continuance would not have cured the
harm. [Citation.]” (Id. at p. 941, disapproved on another ground
in People v. Williams (2010) 49 Cal.4th 405, 459.) Appellant has
not carried his burden. We reject his conclusionary claim that
“[a] continuance would not have remedied the problem because a
continuance would not have altered the denial of necessary
discovery.”
        Admission of Opinion of Non-testifying Psychiatrist
       Appellant argues that, during the direct examination of Dr.
Deane, the trial court abused its discretion in admitting the
opinion of a non-testifying psychiatrist. While answering a
question asking him to “elaborate” on appellant’s “history of
refusing medications,” Dr. Deane testified, “I noticed that on
January 6th, 2016, . . . his treating psychiatrist changed his




                                 11
diagnosis from delusional disorder to schizophrenia. Because she
at that time witnessed the disorganization, odd behaviors, which
merit[] the change of diagnosis.” Appellant’s counsel objected on
the ground that “testifying doctors are not allowed to testify to
the opinions of other doctors that are not present.” Dr. Deane
said that the rationale for the change of diagnosis is in
appellant’s medical records and is “relevant [to] my daily work
with him.” The trial court overruled the objection. It reasoned:
“This is the kind of information that is relied upon regularly by
doctors to assess patients, make their own diagnosis.”
       In claiming that the trial court erred, appellant relies on
the following excerpt from this court’s opinion in People v.
Campos (1995) 32 Cal.App.4th 304, 307-308 (Campos):
“Psychiatrists, like other expert witnesses, are entitled to rely
upon reliable hearsay, including the statements of . . . other
treating professionals, in forming their opinion concerning a
patient’s mental state. [Citations.] On direct examination, the
expert witness may state the reasons for his or her opinion, and
testify that reports prepared by other experts were a basis for
that opinion. [Citation.] [¶] An expert witness may not, on direct
examination, reveal the content of reports prepared or opinions
expressed by nontestifying experts. ‘“‘The reason for this is
obvious. The opportunity of cross-examining the other doctors as
to the basis for their opinion, etc., is denied the party as to whom
the testimony is adverse.’”’ [Citations.]” (Italics added.)
       “While the italicized language [in the above excerpt from
Campos] would suggest that no expert could ever refer during
direct examination to the contents of another expert’s report, . . .
Campos cannot be read for such a broad prohibition. Campos . . .
[was] concerned with preventing the introduction of multiple




                                12
opinions, insulated from cross-examination, into evidence. Since
this concern does not arise unless the expert is relying on other
expert opinions, the reasoning of [Campos] is confined to that
situation.” (People v. Bordelon (2008) 162 Cal.App.4th 1311,
1326; accord, People v. Miller (2014) 231 Cal.App.4th 1301, 1313,
fn. 8.)
        The Department contends that Campos is inapplicable
because Dr. Deane did not indicate that he was relying on the
opinion of the prior treating psychiatrist: “Dr. Deane testified as
to appellant’s behaviors and change in diagnosis in 2016 in the
context of appellant’s history of refusing medication . . . .” But
Dr. Deane said, “[T]he rationale for [the] . . . change of diagnosis
is complete[ly] germane, relevant with my daily work with
[appellant].” It therefore appears that he was relying on the
prior treating psychiatrist’s opinion. The trial court understood
this to be the case because it said, “This is the kind of information
that is relied upon regularly by doctors to assess patients, make
their own diagnosis.”
        Even if the trial court erred in overruling appellant’s
objection, the reference to the January 6, 2016 change of
diagnosis and rationale for the change was “not prejudicial. The[]
reference[] consumed only a small portion of [his] . . . testimony.
The remainder of [his] . . . expert testimony [together with Dr.
Funk’s testimony] easily supports the [trial court’s]
determination that appellant [lacked the capacity to refuse
medication with antipsychotic drugs]. There was no miscarriage
of justice. It is not reasonably probable that a result more
favorable to appellant would have been reached in the absence of
this evidence. [Citations.]” (Campos, supra, 32 Cal.App.4th at
pp. 308-309.)




                                 13
                           Disposition
      The order that appellant be involuntarily administered
antipsychotic medication is affirmed.




                                               YEGAN, J.

We concur:


             GILBERT, P. J.


             PERREN, J.




                               14
                    Jesse J. Marino, Judge

           Superior Court County of San Luis Obispo

                ______________________________

      Jean Matulis, under appointment by the Court of Appeal
for Defendant and Appellant.

      Xavier Becerra, Attorney General, Cheryl Feiner, Acting
Snr. Assistant Attorney General, Leslie P. McElroy, Supervising
Deputy Attorney General, Cristina M. Matsushima, Mary R.
Conklin, Deputy Attorneys General, for Plaintiff and Respondent
Filed 8/14/19
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


THE PEOPLE ex rel. STATE                2d Crim. No. B292131
DEPARTMENT OF STATE                  (Super. Ct. No. 16MH-0062)
HOSPITALS,                            (San Luis Obispo County)

     Plaintiff and Respondent,
                                       ORDER CERTIFYING
v.                                 OPINION FOR PUBLICATION
                                   [NO CHANGE IN JUDGMENT]
S.M.,

     Defendant and Appellant.




        The opinion in the above-entitled matter filed on July 17,
2019, was not certified for publication in the Official Reports. For
good cause, it now appears that the opinion should be published
in the Official Reports and it is so ordered.
        There is no change in judgment.


                                      ________________________
                                      GILBERT, P. J.
