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People ex rel. State Department of State Hospitals v. S.M.

California Court of Appeals, Second District, Sixth Division

September 25, 2019

S.M., Defendant and Appellant,

          Superior Court County No. 16MH-0062 of San Luis Obispo Jesse J. Marino, Judge.

          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.


          YEGAN, J.

         The Mentally Disordered Offender (MDO) Act (Pen. Code, § 2960 et seq.)[1] “permits the government to civilly commit for mental health treatment certain classes of state prisoners during and after parole.” (In re Qawi (2004) 32 Cal.4th 1, 23.) In 2014 S.M. was adjudicated an MDO and committed for treatment to the Department of State Hospitals (the Department). 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 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. 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.” (Id. at p. 27.)

         The involuntary medication order 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 In an unpublished opinion, we affirmed the prior order.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.


         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 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 provided no relevant evidence as to appellant’s capacity to refuse treatment with antipsychotic drugs.


         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. 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 ...

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