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. 

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 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 

 

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 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an unpublished opinion, we affirmed the prior order.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 
3

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 
4

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 
5

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 
6

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 selfrepresentation.” The Department asserts, “This Court should 

review the trial court’s denial of appellant’s self-representation 
7

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 selfrepresentation, 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 
8

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 “harmlesserror” 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 
9

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 
10

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, . . . 
11

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 
12

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 
13

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.)
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 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

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)

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 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.