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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE ex rel. CALIFORNIA DEPARTMENT OF STATE HOSPITALS,

Plaintiff and Respondent,

v.

S.M.,

Defendant and Appellant, 2d Crim. No. B292131 (Super. Ct. No. 16MH

- 0062) (San Luis Obispo County)

In 2014 S.M was adjudicated a Mentally Disor dered 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

t he dosage and for the frequency deemed necessary by the

1 Unless otherwise stated, all statutory references are to the Penal Code.2

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 w ithin 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 In an unpublished opinion, we affirmed the prior order. ( Peopl e 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 vi olation, 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 appell ant “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 appell ant had “the capacity to make3

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 dic t ates 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

s chizophrenia, 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 dec ision.” “[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 med ication “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.”
Dan iel Summersd rager, a registered nurse at Atascadero State Hospital, was called as a witness on appellant’s behalf. He4

provided no relevant evidence as to appellant’s capacity to refuse treatment with antipsychotic drugs. Standing Appellant contends that the Departmen t 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 Distr ict 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 . . . .” Appell ant 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)[; 297 2, 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

co mmitment or recommitment. The L egislature intended that the Department be responsible f or 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 Departme nt 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 deci de only actual controversies between5

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 antipsychot ic 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 imagi ne 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,

a ppellant 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 kidnap pers,” 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 denyi ng 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 t o be “a very intelligent person” with “some6

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

- re presentation, 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 puni tive 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

- representatio n7

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 h ealth 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 tha t 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 Dan iel 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 to8

refuse medical treatment with antipsycho tic 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 wa iver 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] an alysis 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 “proceeding s 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 bee n 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 rig ht does not9

necessarily defy “‘analysis by “harmless

- error” standard s.’ ” ( 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 psychiatri st. 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

asser ts, “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 pa rty challenging a trial c ourt’ 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 no t 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 an d 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 had10

prepared a report “[b]ecause he’s recently been assigned as [a ppellant’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] test imony 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 not es, 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 rath er 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 ambu sh’ 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 eve nts. .

. . Instead, . . .11

appellants’ attorneys ‘simply objected and failed to seek leave to
conduct further discover y . . . .’ . . . [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 s aid: ‘ 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

pr ejudicial, 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, th e 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 his12

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 t hat “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.] [¶] A n 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 opin ion, 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 conte nts of another expert’ s report, . . . Campos cannot be read for such a broad prohibition. Campos

. . . [was] concerned with preventing the introduction of multiple13

opinions, insulated from cross

- examination, into evidence. Since
this concern does not ari se 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 c ontends 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 hi story 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 psychiat rist’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 appellan t’ 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 w ith 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
favorabl e to appellant would have been reached in the absence of this evidence. [Citation s .]” ( Campos

, supra , 32 Cal.App.4th at pp. 308

- 309.)14 Disposition
The order that appellant be involuntarily administered antipsychotic medication is affirmed.

YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.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 Responden tFiled 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 DEPARTMENT OF STATE HOSPITALS,

Plaintiff and Respondent,

v.

S.M.,

Defendant and Ap pellant

. 2d Crim. No. B292131 (Super. Ct. No. 16MH

- 0062) (San Luis Obispo County)

ORDER CERTIFYING OPINION FOR PUBLICATION [NO CHANGE IN JUDGMENT]

The opinion in the above

- entitled matter filed on July 17,
2019, was not certified for publ ication 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.