State Dept. of State Hospitals v. J.W. CA5 ( 2021 )

Filed 3/8/21 State Dept. of State Hospitals v. J.W. CA5
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
STATE DEPARTMENT OF STATE
HOSPITALS, F081171
Plaintiff and Respondent, (Super. Ct. No. 19CRAD684671)
v.
OPINION
J.W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Fresno County. Mark E. Cullers,
Judge.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Cheryl L. Feiner, Assistant Attorney General,
Gregory D. Brown, Kevin L. Quade and Monique Seguy, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
Appellant, J.W., an individual admitted to Coalinga State Hospital for mental
health treatment under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code,
§ 6600 et seq.),1 appeals from the trial court’s order granting a petition by respondent,
State Department of State Hospitals (DSH), to renew for one year the involuntary
treatment of appellant with antipsychotic medications. The petition was made by DSH
on the grounds that appellant is either incompetent, that is, incapable of making rational
decisions about his own medical treatment, and/or that he is dangerous within the
meaning of section 5300. The trial court granted the petition on the ground of appellant’s
incompetence to make medical treatment decisions. In the instant appeal, appellant
claims the evidence was insufficient to support the trial court’s findings and argues a
variety of other errors also occurred (e.g., hearsay evidence, due process, and equal
protection). We conclude that the trial court’s order was adequately supported by
substantial evidence and the other grounds presented in appellant’s appeal were forfeited
by him because he did not raise them in the trial court. Accordingly, the order of the trial
court is affirmed.
FACTS AND PROCEDURAL HISTORY
The Petition
On January 22, 2019, DSH filed a petition for the renewal of an order to compel
involuntary mental health treatment of appellant with antipsychotic medication.2 The
petition stated that appellant was admitted to DSH at Coalinga in 2016 for treatment
under the SVPA and is currently being administered involuntary antipsychotic
1 Unless otherwise indicated, further statutory references are to the Welfare and Institutions
Code.
2 Pursuant to section 5008, subdivision (l), antipsychotic medication means any medication
customarily prescribed for treatment of symptoms of psychoses and other severe mental and
emotional disorders.
2.
medication pursuant to a prior court order dated March 19, 2018. The specific relief
sought in the petition was an order authorizing DSH to continue to involuntarily
administer appropriate antipsychotic medications to appellant, as deemed necessary by
DSH’s clinical staff, for an additional period of time not to exceed one year from the date
of the order. The petition was made on alternative grounds that appellant is either
incompetent and incapable of making decisions about his medical treatment, and/or that
he is dangerous to others within the meaning of section 5300. The petition was verified
by the staff psychiatrist for DSH at that time, Mina Beshara, M.D.
According to the petition, appellant is diagnosed with bipolar one mental disorder.
His symptoms are described in the petition as including tangential and circumstantial
thought processes, hyperverbal speech, and paranoid and grandiose delusions. Allegedly,
“[h]e is paranoid of staff, claims staff are threatening him and trying to sexually violate
him[,]” and further believes the staff are part of a Mexican gang and are going to hurt
him. His delusions allegedly also include that he owns a multimillion-dollar business
selling flowers at concerts, is the owner of a strip club, and has a fifth degree black belt in
Karate and engaged in cage fights in prison. Moreover, according to the petition,
appellant continues to demonstrate a lack of insight into his mental condition, insisting
that he has no serious mental illness, does not have bipolar one disorder, and needs no
antipsychotic medications. Specifically, the petition asserted that appellant believes he
only has PTSD and the sole reason he is doing better during his hospitalization is because
of a lack of recent stressors, and not because of the medications.
On the issue of the existence of violent behavior, the petition stated as follows:
“While [appellant] has not had an incident of dangerous behavior in the last year, but for
the Court’s current order, he would refuse prescribed medication. This would result in
his mental health decompensating to the point where he would be a risk of dangerous
behavior as indicated by his history of aggressive behavior. [Appellant] is a danger to
others when he is not taking his antipsychotic medications as demonstrated by the
3.
following events: [¶] a. On August 4, 2016, when [appellant] was informed that he
would be placed on one to one supervision with male staff due to sexually inappropriate
behavior, he threatened staff by stating ‘I’ll put him in a mother fuckin hospital.’ [¶]
b. On November 10, 2016, [appellant] stated ‘if a male staff is going to be my one to
one, I’m going to fuck you guys up,’ and ‘fuck you Mexicans, you can’t touch me, I’m
having chest pain.’ [¶] c. On November 13, 2015, [appellant] was placed in seclusion
for verbalizing thoughts of harming staff. While in seclusion, he was very agitated,
threatened staff, banged on the door, was not redirectable, and required five-point
restraints. [¶] d. [Appellant] has a history of assaultive behavior while in prison. In
May 2014, prison documents indicate that [appellant] assaulted a deputy by striking him
in the upper left thigh through the tray door with a clenched fist, which resulted in him
getting pepper sprayed.” Because of this demonstrated history of violence when he was
not taking the medication, the petition asserted that “[t]here are no less intrusive methods
of other alternatives to render him non-dangerous other than to administer involuntary
antipsychotic medications.”
Hearing in the Trial Court on Petition
After multiple continuances, the hearing on the petition was held on March 9,
2020. At the hearing, the parties stipulated to bifurcate the issues of (i) appellant’s
alleged incapacity to make rational decisions about his medical treatment and
(ii) appellant’s alleged dangerousness, and to proceed on the issue of “capacity” only.
DSH called as its primary witness, Dr. Nageswararao Vallabhaneni,3 who is an expert in
forensic psychiatry and was appellant’s treating psychiatrist at DSH from July 2019 to
the date of the hearing. Dr. Vallabhaneni testified that appellant was admitted to DSH
3 In some of the court documents in the record before us, Dr. Vallabhaneni is referred to by
his nickname of “Dr. Rao” for short.
4.
under Welfare and Institutions Code “[section] 6602”4 as a “sexually violent predator
probable cause,” and has been diagnosed with “pedophilia specified” and “bipolar one
disorder.” Dr. Vallabhaneni testified that the bipolar one disorder included objective
symptoms such as delusions that are both paranoid and grandiose. The paranoid
delusions suffered by appellant included that staff were trying to harm him or sexually
assault him. Additionally, Dr. Vallabhaneni testified that appellant has no insight into his
mental illness and, without a court order, would refuse his medication. Further, based on
appellant’s medical records and history, Dr. Vallabhaneni’s opinion was that appellant’s
mental condition would deteriorate if he did not continue to receive antipsychotic
medications.
Appellant testified on his own behalf at the hearing. His testimony was to the
effect that he believes his actual mental health issue is post-traumatic stress disorder
(PTSD) and not a mental condition requiring antipsychotic medications such as a bipolar
one. He asserted that he believes he has PTSD due to the trauma he suffered from one or
more incidents of sexual assault occurring while he was in prison in 1993-1994, and that
certain triggers will cause him to panic such as having to sleep in a dorm setting or being
on watch by a male sitter outside of his room. He stated that during the past three years
he was no longer subjected to being watched by “one-to-one” male sitters, and during
that entire three-year period of time he had no further incidents of aggression, paranoia or
4 Under section 6602, where a petition is filed for commitment of an individual to a state
hospital under the SVPA, a trial judge determines “whether there is probable cause to believe
that the individual named in the petition is likely to engage in sexually violent predatory criminal
behavior upon his or her release.” (§ 6602, subd. (a), italics added.) If probable cause is found,
the judge shall order that the person remain in custody in a secure facility until a trial on the
merits can be held to determine whether the individual is an SVP subject to commitment to DSH
for treatment. (Id.; see also §§ 6600, 6604.) After probable cause has been determined but
before the trial has been conducted, the individual may be placed at a state hospital for
hospitalization and treatment pending trial. (State Dept. of State Hospitals v. J.W. (2018)
31 Cal.App.5th 334, 341, 347–348 [relying on § 6602.5].) It is not clear from the record on
appeal in this case whether the trial has occurred.
5.
delusions. He testified it was possible that, when he was out of control in the past, the
antipsychotic medications may have helped him to some degree. But the antipsychotic
medications were also causing serious side effects, which he reported to staff and they
lowered the dosage of one medication. He said he would continue to take his medication,
but he wanted to have a more accurate diagnosis made, which he believed would show he
only has PTSD and does not need antipsychotic medications. He asserted the DSH
doctors such as Dr. Vallabhaneni were not fully considering his past medical history, in
which he did not need involuntary medication. Further, appellant denied that he was
experiencing any delusions, testifying that he was in fact sexually assaulted in prison, he
did at one time own a multimillion-dollar flower business, and does have extensive
martial arts training.
At the conclusion of the testimony, closing arguments were made by counsel.
Afterwards, the trial court announced the following ruling from the bench: “This is a
very close case, but I will grant the order for involuntary medication for another year.”
The trial court explained: “I will find by clear and convincing evidence that [appellant],
although he is aware of his situation, I don’t believe he understands the benefits and risks
of his treatment, and he is not able to knowingly, intelligently and rationally evaluate and
participate in his treatment decision at this time. It is a very close decision by this Court.
[¶] I think [appellant] comport[ed] himself … pretty well here in this hearing, but the
Court is without sufficient evidence to back up some of the statements that he has made.
So therefore, it is ordered that [appellant] be involuntarily administered antipsychotic
medication by [DSH] in the dosage, and for the frequency deemed necessary by [DSH]
staff for a period of time not to exceed one year from the date of this order.”
On March 9, 2020, the trial court filed a formal written order granting DSH’s
petition to compel involuntary treatment of appellant with antipsychotic medication. The
order was granted on the ground that appellant “[l]acks capacity to refuse treatment.” On
March 17, 2020, appellant filed his notice of appeal from the trial court’s order.
6.
DISCUSSION
I. Standard of Review
We review a trial court’s order authorizing a state hospital to involuntarily
administer antipsychotic medication under the substantial evidence test. (People v.
Fisher (2009) 172 Cal.App.4th 1006, 1016; People v. O’Dell (2005) 126 Cal.App.4th
562, 570.) The order must be supported by evidence that the SVP5 or mentally
disordered offender (MDO) was either (a) incompetent or incapable of making decisions
about his medical treatment, or (b) dangerous within the meaning of section 5300. (In re
Calhoun (2004) 121 Cal.App.4th 1315, 1322.) A determination that an individual is
incompetent to refuse medical treatment must be supported by clear and convincing
evidence. (State Dept. of State Hospitals v. J.W., supra, 31 Cal.App.5th at p. 346.) “To
ensure the right to refuse medication is protected, a judicial determination of incapacity
based on clear and convincing evidence is required before involuntary medication is
permitted.” (Ibid.)
“[A]n appellate court must account for the clear and convincing standard of proof
when addressing a claim that the evidence does not support a finding made under this
standard. When reviewing a finding that a fact has been proved by clear and convincing
evidence, the question before the appellate court is whether the record as a whole
contains substantial evidence from which a reasonable fact finder could have found it
highly probable that the fact was true. In conducting its review, the court must view the
record in the light most favorable to the prevailing party below and give appropriate
deference to how the trier of fact may have evaluated the credibility of witnesses,
5 For purposes of such involuntary treatment, the same standard applies to individuals who
are transferred to a state hospital (i.e., DSH) based on a determination of probable cause of SVP
status under section 6602. (See State Dept. of State Hospitals v. J.W., supra, 31 Cal.App.5th at
pp. 338, 347–348.)
7.
resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011–1012.)
II. Overview of SVPA
The SVPA authorizes the involuntary civil commitment of a person who has
completed a prison sentence but is found to be a sexually violent predator (SVP). (State
Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 344.) Section 6600,
subdivision (a)(1) defines an SVP as “a person who has been convicted of a sexually
violent offense against one or more victims and who has a diagnosed mental disorder that
makes the person a danger to the health and safety of others in that it is likely that he or
she will engage in sexually violent criminal behavior.” The SVPA’s purposes are “ ‘to
protect the public from dangerous felony offenders with mental disorders and provide
mental health treatment for their disorders.’ ” (People v. McKee (2010) 47 Cal.4th 1172,
1203.)
The Welfare and Institutions Code outlines the procedure for determining whether
a person is an SVP. (Reilly v. Superior Court (2013) 57 Cal.4th 641, 646.) Based on the
outcome of an evaluation process by mental health experts appointed by DSH, a petition
may be filed in the trial court for commitment of the person under the SVPA. (§ 6601,
subd. (d); Reilly, at p. 647.) After the petition for commitment is filed, the trial court
must hold a hearing to “determine whether there is probable cause to believe that the
individual named in the petition is likely to engage in sexually violent predatory criminal
behavior upon his or her release.” (§ 6602, subd. (a).) If the trial court finds that
probable cause exists, the court orders a trial to be conducted to determine whether the
person is an SVP under section 6600. (Reilly, at p. 648.) “Though civil in nature, this
trial contains a number of procedural safeguards commonly associated with criminal
trials, including the alleged SVP’s right to a jury trial (§ 6603, subd. (a)), to assistance of
counsel (ibid.), and to a unanimous jury finding that he or she is an SVP beyond a
reasonable doubt before he or she may be committed (§ 6604).” (Ibid.)
8.
After the determination of probable cause and prior to the completion of the trial,
the alleged SVP shall “ ‘remain in custody in a secure facility.’ (§ 6602, subd. (a).)”
(People v. DeCasas (2020) 54 Cal.App.5th 785, 802.)6 As we have clarified in a prior
appeal involving the same parties, a trial court has discretion to order an alleged SVP to
receive hospitalization and treatment at DSH, pending trial, after a finding of probable
cause has been made. (State Dept. of State Hospitals v. J.W., supra, 31 Cal.App.5th at
pp. 341, 347–348.) That was apparently the procedural posture of appellant’s initial
transfer in 2016 to DSH at Coalinga for mental health treatment in the present case.
Involuntary treatment of appellant with antipsychotic medications was thereafter ordered
by the trial court in 2017, and that order was renewed in 2018. (Id. at pp. 338–339.) The
present appeal challenges the subsequent order by the trial court, entered in 2020, to
renew or continue for an additional year such involuntary treatment of appellant with
antipsychotic medications.
III. Substantial Evidence Supported the Order for Involuntary Medication
Appellant challenges the trial court’s order on the ground that the evidence was
insufficient to support the decision to continue involuntary medication. We preface our
consideration of this question with a brief overview of the applicable legal principles for
ordering involuntary medication.
A competent adult has a common law and constitutional right to refuse medical
treatment, including the administration of antipsychotic drugs. (In re Qawi (2004)
32 Cal.4th 1, 14.) However, a patient committed to a state hospital for treatment under
certain statutory schemes may be forcibly treated with antipsychotic medication if a court
has determined that he or she is not competent to refuse such treatment. (Id. at pp. 9–10,
6 Although the SVPA does not specify the time within which a trial must be held after the
court makes a finding of probable cause, constitutional due process requires that such trial be
held within a meaningful time. (In re Butler (2020) 55 Cal.App.5th 614, 664; People v.
DeCasas, supra, 54 Cal.App.5th at p. 802.) It is unclear from the record on appeal in this case
whether appellant has had a trial to determine whether he is an SVP.
9.
27 [applying rule to MDO’s].) As summarized by the Court of Appeal in In re Calhoun,
supra, 121 Cal.App.4th 1315, an individual who is committed under the SVPA may be
compelled to take antipsychotic medication in a nonemergency situation only if a court
makes one of two findings: “(1) that the [SVP] is incompetent or incapable of making
decisions about his medical treatment; or (2) that the [SVP] is dangerous within the
meaning of … section 5300.’ ” (Id. at p. 1322, citing In re Qawi, at pp. 9–10; see also
State Dept. of State Hospitals v. J.W., supra, 31 Cal.App.5th at pp. 343–344.)
Here, the order in question was made on the ground of incompetency. A judicial
determination of competency to refuse medical treatment involves consideration of three
primary factors: (1) whether the patient is aware of his or her situation and acknowledges
the existence of his or her condition; (2) whether he or she is able to understand the
benefits and risks of, and alternatives to, treatment; and (3) whether he or she is able to
understand and intelligently evaluate the information required to be given to patients
whose informed consent is sought, and to participate in the treatment decision by rational
thought processes. (Riese v. St. Mary’s Hospital & Medical Center (1987)
209 Cal.App.3d 1303, 1322–1323.) A trial court’s finding of lack of competence to
refuse medical treatment must be based on clear and convincing evidence. (State Dept. of
State Hospitals v. J.W., supra, 31 Cal.App.5th at p. 343.) As we have noted, when
reviewing a challenge to the sufficiency of evidence where a clear and convincing
evidence standard applied in the trial court, “the question before the appellate court is
whether the record as a whole contains substantial evidence from which a reasonable fact
finder could have found it highly probable that the fact was true.” (Conservatorship of
O.B., supra, 9 Cal.5th at p. 1011.)
Based on our review of the record, we conclude that a reasonable trier of fact
could have found it highly probable that appellant lacked mental capacity to refuse
antipsychotic medication. Our conclusion largely relies on Dr. Vallabhaneni’s testimony
at the hearing. As appellant’s treating psychiatrist at DSH since July 2019,
10.
Dr. Vallabhaneni had extensive firsthand observation of appellant’s mental health
condition. Dr. Vallabhaneni also reviewed appellant’s medical history and concurred
with the diagnosis of the prior treating psychiatrist, Dr. Beshara, that appellant has
bipolar one disorder, in addition to pedophilia. Appellant’s symptoms indicating bipolar
one disorder, according to Dr. Vallabhaneni, included delusions “both paranoid and
grandiose,” along with unusual thought processes that were described as “circumstantial
and tangential,” and speech that was “hyperverbal.” As evidence of paranoid delusions,
Dr. Vallabhaneni testified to the fact that appellant has been convinced that staff,
including hospital staff, were trying to cause physical harm and to sexually abuse him.
Thus, appellant was manifesting paranoid delusions about the staff at the hospital. When
such assertions of abuse were independently investigated, they were not substantiated. It
was also noted at the hearing that Dr. Beshara, the psychiatrist who originally executed
the subject petition, referred in the petition to appellant’s claims of owning a
multimillion-dollar flower business and strip club, and of engaging in martial arts cage
fights in prison, as further evidence of grandiose delusions that would tend to support the
bipolar one diagnosis. Although Dr. Vallabhaneni did not have an opportunity to
investigate whether appellant’s descriptive accounts of exploits such as his alleged
multimillion-dollar flower business were factually accurate, nevertheless, in light of
appellant’s extensive prison history, Dr. Vallabhaneni was “not really convinced”
appellant was running a business on a consistent basis.
According to Dr. Vallabhaneni, the effective treatment of bipolar one disorder
requires antipsychotic medication. Appellant has clearly shown significant improvement
while on such medication. Appellant’s medical history reflects that his symptoms
deteriorate when he is not on the medication, and he relapses or decompensates.
Dr. Vallabhaneni testified that appellant is not aware of his bipolar one condition and
does not understand or appreciate that he is exhibiting symptoms consistent with bipolar
one disorder. Moreover, not only does appellant have no insight into his mental illness,
11.
he has told Dr. Vallabhaneni that he does not believe he has a serious mental illness.
Dr. Vallabhaneni’s assessment is that appellant does not recognize that his condition has
improved when on antipsychotics and does not understand the risks and benefits of taking
or not taking antipsychotics. Although appellant typically directs all discussion of his
condition to the subject of PTSD, in doing so he is unwilling to discuss treatment even
for potential PTSD, much less for bipolar one disorder. Dr. Vallabhaneni’s opinion was
that appellant probably does not suffer from PTSD, but even if some form of PTSD
symptoms existed, the bipolar one disorder would still have to be treated with
medication.
As to his willingness to take medications, appellant told Dr. Vallabhaneni that,
apart from the court order, he was only willing to take medication on an as needed or
“PRN” basis. However, Dr. Vallabhaneni informed the trial court that, medically
speaking, bipolar cannot appropriately be treated in that way. The antipsychotic
medication must be taken regularly, with certain levels remaining in the bloodstream, to
work effectively. Furthermore, Dr. Vallabhaneni stated there was a history of appellant
refusing to take medication offered for his symptoms, which were refused by him in the
past even while he was manifesting aggressive and uncontrollable behavior.
We recognize that appellant’s testimony at the hearing offered a very different
portrayal of his condition and of the causes of his past symptoms, but we are required to
view the entire record in the light most favorable to the prevailing party and “give
appropriate deference to how the trier of fact may have evaluated the credibility of
witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the
evidence.” (Conservatorship of O.B., supra, 9 Cal.5th at pp. 1011–1012.) Here, it is
clear the trial court resolved the conflict in the evidence presented at the hearing by
crediting the psychiatrist’s testimony over that of appellant. The trial court expressly
found “by clear and convincing evidence” that even though appellant is generally “aware
of his situation” and able to “comport[] himself” well at the hearing, he does not
12.
“understand[] the benefits and risks of his treatment, and he is not able to knowingly,
intelligently and rationally evaluate and participate in his treatment decision at this time.”
The trial court indicated it was not persuaded by the assertions made by appellant at the
hearing because of insufficient evidence to corroborate some of the statements that he
made.
In light of the entire record, we hold the evidence was sufficient for the trial court
to have reasonably concluded it was highly probable that appellant was incompetent to
make his own medical treatment decisions. Accordingly, appellant’s substantial evidence
challenge to the trial court’s order falls short and is rejected.
IV. Purported Evidentiary Errors Were Forfeited or Nonprejudicial
Appellant contends the trial court erroneously admitted hearsay testimony when
appellant’s current treating psychiatrist, Dr. Vallabhaneni, testified regarding appellant’s
prior treatment or medical history that was apparently derived from the statements of
appellant’s former treating psychiatrist, Dr. Beshara. Appellant argues the admission of
such testimony violated the recent Supreme Court decision in People v. Sanchez (2016)
63 Cal.4th 665 (Sanchez).
In Sanchez, supra, 63 Cal.4th 665, the California Supreme Court considered,
among other issues, the propriety of an expert witness relating case-specific hearsay to
the jury under the rules of evidence. Sanchez held that an expert witness may not “relate
as true case-specific facts asserted in hearsay statements, unless they are independently
proven by competent evidence or covered by a hearsay exception.” (Id. at p. 686.) Case-
specific facts are “those relating to the particular events and participants alleged to have
been involved in the case being tried.” (Id. at p. 676.) The court’s decision in Sanchez
sought to restore the traditional rule that an expert generally may not supply case-specific
facts about which he has no personal knowledge, unless independently proven or
properly admitted under a hearsay exception. (Id. at pp. 676, 685.) At the same time,
Sanchez recognized that “[a]ny expert may still rely on hearsay in forming an opinion,
13.
and may tell the jury in general terms that he did so.” (Id. at p. 685; see Evid. Code,
§§ 801, 802.) However, the court emphasized “[t]here is a distinction to be made
between allowing an expert to describe the type or source of the matter relied upon as
opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a
statutory exception.” (Sanchez, at p. 686.) “What an expert cannot do is relate as true
case-specific facts asserted in hearsay statements, unless they are independently proven
by competent evidence or are covered by a hearsay exception.” (Ibid.)
In asserting a Sanchez hearsay error, appellant points to certain testimony of
Dr. Vallabhaneni together with a series of objections and explanations by counsel at the
hearing. Dr. Vallabhaneni testified concerning the diagnosis that was made by the prior
treating psychiatrist, Dr. Beshara, and he expressly concurred in that diagnosis of bipolar
one disorder. A relevance objection was raised by appellant’s counsel to matters relating
to the earlier diagnosis that dated back to the time of the previous court hearing, to which
DSH’s counsel responded such evidence “demonstrates a continuum of care and
continuum of diagnosis, which is within his necessity to review as part of his treatment.”
The trial court overruled the relevance objection. Dr. Vallabhaneni then testified that
appellant had a history of refusing medication. When Dr. Vallabhaneni was asked if
appellant has ever been “off antipsychotic medication while at Coalinga,” appellant’s
counsel objected based on the “timeframe” of the question, to which DSH’s counsel
replied, “it goes to treatment of this patient.” At the court’s suggestion, the question was
rephrased to ask whether appellant “decompensates” when he is not on his antipsychotic
medication, and in the middle of Dr. Vallabhaneni’s answer, appellant’s counsel objected
that Dr. Vallabhaneni was “going into specific facts.” In responding to that objection,
DSH’s counsel appeared to treat it as merely a further objection based on the relevance of
“treatment discussions.” The objection was apparently overruled. Dr. Vallabhaneni
proceeded to answer, testifying that since he has been treating appellant, there has been
no indication appellant has refused to take his medications, but Dr. Vallabhaneni added
14.
that according to Dr. Beshara, appellant’s symptoms deteriorate when not on medication.
Appellant’s counsel stated, “same objection,” and the trial court overruled it.
DSH argues the purported evidentiary error was forfeited on appeal because
appellant never made a specific hearsay objection based on Sanchez in the trial court. We
agree. Although an objection that Dr. Vallabhaneni was getting into “specific facts” was
made at one point, it appears from the entire exchange that the primary concern expressed
by appellant’s counsel was that the medical testimony be relevant and current. No
hearsay objection was ever articulated in the trial court. It is well established that a
reviewing court will generally not consider a challenge to the admissibility of evidence
unless there was a specific and timely objection in the trial court on the same ground
sought to be urged on appeal. (People v. Gomez (2018) 6 Cal.5th 243, 286.) An
objection must fairly inform the trial court, as well as the party offering the evidence, of
the specific reason or reasons the objecting party believes the evidence should be
excluded, so the party offering the evidence can respond appropriately and the court can
make a fully informed ruling. (People v. Zamudio (2008) 43 Cal.4th 327, 354.)
“ ‘ “Specificity is required both to enable the court to make an informed ruling on the
motion or objection and to enable the party proffering the evidence to cure the defect in
the evidence.” ’ ” (People v. Nelson (2012) 209 Cal.App.4th 698, 711.) Accordingly,
“[t]he failure to raise a specific objection to the admission of evidence results in forfeiture
of appellate review.” (Ibid.) That is precisely the situation here. We conclude that
appellant’s failure to raise the Sanchez-based hearsay objection with adequate clarity and
specificity in the trial court resulted in a forfeiture of that evidentiary issue on appeal.
As a fallback position, appellant suggests that if the issue was forfeited based on
failure to properly object, then we should nonetheless reverse the trial court’s order based
on ineffective assistance of counsel. We reject that contention. A party’s burden of
showing ineffective assistance of counsel has been characterized as “ ‘difficult to carry’ ”
on appeal for various reasons, including that a reviewing court will not reverse on that
15.
ground absent affirmative evidence that counsel had no rational tactical purpose for its
failure to object. (People v. Mickel (2016) 2 Cal.5th 181, 198.) Here, our review
suggests a likely tactical reason: a hearsay objection may have led to DSH curing the
problem by introducing the past medical records under a hearsay exception. In other
words, the records may have contained information about appellant that counsel did not
want the court to consider. Furthermore, as pointed out by DSH, hearsay exceptions
under Evidence Code sections 1271 (business records hearsay exception) and 1280
(public employee records recording act, condition, or event as hearsay exception) would
undoubtedly have applied under the circumstances presented, which would have cured
the purported hearsay error even if a proper objection had been made. (See People v.
Nelson, supra, 209 Cal.App.4th at p. 710 [“ ‘Hospital … records, if properly
authenticated, fall within the umbrella of the business record exception’ ”].) For similar
reasons, counsel’s failure to object has not been shown to be prejudicial. (See Mickel, at
p. 198.) Based on the foregoing analysis, we reject appellant’s contention that its failure
to raise a hearsay objection at the hearing constituted ineffective assistance of counsel.
Finally, as an additional evidentiary issue, appellant suggests the trial court
improperly restricted Dr. Vallabhaneni from answering some of the questions relating to
whether appellant may have been suffering from PTSD. We reject this argument because
no prejudicial error has been affirmatively demonstrated. Contrary to appellant’s
characterization, Dr. Vallabhaneni gave considerable testimony in response to numerous
questions posed by both parties’ counsel about PTSD. The trial court did sustain
objections in a few instances where questions by appellant’s counsel were asked and
answered, or where appellant’s counsel apparently mischaracterized Dr. Vallabhaneni’s
earlier testimony or presupposed that a diagnosis of PTSD was required under the given
circumstances. In our review of this matter, we acknowledge that Dr. Vallabhaneni’s
testimony on the issue of PTSD was at times, somewhat obscure. As best as we can
glean from the entirety of Dr. Vallabhaneni’s testimony at the hearing, it appears he was
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not denying that PTSD could be based on sexual assault, but he simply did not think it
could have resulted or occurred in appellant’s case from a single event or from the
particular circumstances described by appellant. Thus, he did not believe appellant had
PTSD and he remained steadfast in his opinion that appellant’s symptoms indicated
bipolar one disorder.7 In any event, Dr. Vallabhaneni later clarified at the hearing that
even if appellant did have PTSD, the bipolar one condition would still need to be treated
with medication.
Bringing our discussion on this evidentiary matter to a close, we conclude that
appellant’s assertion of error relating to the PTSD testimony to be perfunctory at best and
not adequately supported by cogent legal discussion and case authority within appellant’s
brief. By itself, such a deficiency gives us good reason to disregard this line of argument.
(Bank of America, N.A. v. Roberts (2013) 217 Cal.App.4th 1386, 1399; Tilbury
Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482; People v.
Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [“argument raised in such perfunctory
fashion is waived”].) Moreover, as alluded to above, appellant has not adequately
demonstrated how this purported error was prejudicial, especially in light of the entirety
of Dr. Vallabhaneni’s testimony at the hearing on the issue of PTSD. (See Yield
Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556–557 [a judgment
or order of trial court is presumed correct, and thus an appellant’s burden is to
affirmatively demonstrate not only the existence of error, but also that such error was
prejudicial].) Appellant has not met his fundamental burden on this discrete evidentiary
issue, and thus his appeal on such ground falls short.
7 It was apparently in this context that the trial court told appellant’s counsel that if he
wanted an expert opinion confirming appellant was in fact experiencing PTSD, he would need to
bring in another or different expert, since Dr. Vallabhaneni had specifically concluded otherwise
under the circumstances.
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For all the reasons discussed hereinabove, we conclude that appellant’s claim of
hearsay error was forfeited due to his failure to properly object in the trial court, and that
appellant has failed to demonstrate other reversible evidentiary error was committed by
the trial court.
V. Purported Due Process Error Was Forfeited
Appellant argues that a prisoner or an SVP may not be involuntarily medicated
consistent with federal due process standards unless, in addition to a determination of
incapacity to make medical decisions and/or dangerousness, it is also established that the
involuntary medication is in the individual’s own medical interests. (See Washington v.
Harper (1990) 494 U.S. 210, 227.) We conclude the contention is forfeited on appeal
because it was never raised in the trial court. (People v. Saunders (1993) 5 Cal.4th 580,
589–590.) 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.
(Id. at p. 590.) Here, appellant could have—but did not—raise this issue in the trial court
by either objecting or requesting an express finding of fact on the issue of whether
treatment with antipsychotic medications was in his medical interest. Therefore, the
matter has clearly been forfeited by appellant’s failure to raise it or object in the trial
court.
Additionally, we presume in favor of the judgment every finding of fact necessary
to support it, if warranted by the evidence. (Conservatorship of George H. (2008)
169 Cal.App.4th 157, 165.) Here, an implied finding that treatment with antipsychotic
medication was in appellant’s medical interest would be warranted from the substance of
Dr. Vallabhaneni’s testimony that (i) appellant is diagnosed with bipolar one disorder, (ii)
the treatment of which disorder calls for antipsychotic medications, (iii) appellant’s
symptoms have shown significant improvement with the use of the medication, (iv) his
symptoms deteriorate without the medication.
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In conclusion, the due process issue has been forfeited by appellant’s failure to
object in the trial court; furthermore, even if the issue had not been forfeited, an implied
finding that the treatment was in appellant’s medical interest is warranted under the facts.
Accordingly, no reversible or cognizable due process error has been shown.
VI. Purported Equal Protection Error Forfeited
Appellant contends his right to equal protection of the laws was violated because
of an alleged difference between the standard under the SVPA for determining whether
involuntary medication may be administered and the standard applied to persons who are
found incompetent to stand trial (IST) in a criminal proceeding. According to appellant,
an IST patient may only be involuntarily medicated if harm to the IST patient’s physical
or mental health would result in the absence of being treated with antipsychotic
medication (see Pen. Code, § 1370, subd. (a)(2)(B)(i)(I)), while no such showing is
required under the SVPA. However, appellant failed to raise his equal protection claim
in the trial court, and therefore we conclude the issue has been forfeited. (See People v.
Alexander (2010) 49 Cal.4th 846, 880, fn. 14 [forfeiture of equal protection claim];
People v. Saunders, supra, 5 Cal.4th 580, 590 [constitutional issues may be deemed
forfeited by the party’s failure to assert such right or claim in the trial court].)
We note DSH argues that, in addition to forfeiture, the equal protection claim also
fails as a matter of law because SVP’s and IST patients are not similarly situated for
purposes of determining whether involuntary medication is appropriate. (See People v.
McKee, supra, 47 Cal.4th at p. 1202 [prerequisite to equal protection claim is that the
state has adopted a classification that affects two or more similarly situated groups in an
unequal manner].) According to DSH, the two classifications have important contextual
differences. For example, generally at the time a petition for involuntary medication is
considered under the SVPA, an SVP has been convicted of a sexually violent offense (see
§ 6600, subd. (a)), “has been judicially determined to be suffering from a mental disorder
that renders him dangerous to others” (In re Calhoun, supra, 121 Cal.App.4th at p. 1349),
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and DSH will have developed a program providing “treatment for his or her diagnosed
mental disorder” (§ 6606, subd. (a)). Whereas, IST patients may not have been convicted
of a crime or previously adjudicated to be dangerous, and their mental status is generally
being evaluated by the trial court “[p]rior to making the order directing that the defendant
be committed to [DSH].” (Pen. Code, § 1370, subd. (a)(2); cf. Welf. & Inst. Code
§ 6600, subd. (a) [“ ‘Sexually violent predator’ means a person who has been convicted
of a sexually violent offense against one or more victims and who has a diagnosed mental
disorder that makes the person a danger to the health and safety of others in that it is
likely that he or she will engage in sexually violent criminal behavior”].) We find it is
unnecessary to reach the merits of the equal protection question because, as discussed
hereinabove, appellant forfeited his argument on appeal by failing to raise it in the trial
court.
Appellant argues that even if the equal protection and due process issues have
been forfeited due to his failure to object, we should reverse on the ground that his
counsel’s assistance was ineffective. We disagree because appellant has not met the
difficult requirements of demonstrating ineffective assistance of counsel. “In order to
establish a claim for ineffective assistance of counsel, a defendant must show that his or
her counsel’s performance was deficient and that the defendant suffered prejudice as a
result of such deficient performance. [Citation.] To demonstrate deficient performance,
defendant bears the burden of showing that counsel’s performance ‘ “ ‘ “fell below an
objective standard of reasonableness … under prevailing professional norms.” ’ ” ’
[Citation.] To demonstrate prejudice, defendant bears the burden of showing a
reasonable probability that, but for counsel’s deficient performance, the outcome of the
proceedings would have been different.” (People v. Mickel, supra, 2 Cal.5th at p. 198.)
Additionally, the record must demonstrate affirmatively that counsel’s omissions were
not based on a rational tactical decision, such as a reasonable assumption that such
objections would be overruled or that any deficiency might easily be cured. (See People
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v. Samayoa (1997) 15 Cal.4th 795, 848; see also People v. Lucas (1995) 12 Cal.4th 415,
443 [“we presume counsel’s decision not to raise the claim was a reasonable, tactical one
unless the record affirmatively demonstrates otherwise”].)
Based on Dr. Vallabhaneni’s testimony at the hearing on appellant’s need for the
antipsychotic medication and how it has significantly helped his mental health symptoms,
it appears likely that appellant did not raise these issues for a tactical reason and/or
because it appeared the objections would be overruled. It also appears likely on this
record that if an objection had been made, further or supplemental information could
have readily been supplied, if needed, regarding appellant’s medical interests in receiving
the medication and/or the medicine’s prevention of harm to appellant’s mental health. In
any event, appellant has clearly failed to adequately demonstrate any prejudice resulted
from his counsel’s failure to object. We reject his ineffective assistance of counsel
argument.
DISPOSITION
The order of the trial court is affirmed.
HILL, P.J.
WE CONCUR:
DETJEN, J.
PEÑA, J.
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