Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. SCD171074, Polly H. Shamoon, Judge.
McCONNELL, P. J.
In July 2006 the court sentenced Paul Hassler to 51 years 8 months in prison for 26 counts of robbery (Pen. Code, § 211), one count of attempted robbery (§§ 664, 211) and four serious felony prior convictions (§ 667, subd. (a)(1)). The sentencing court ordered that Hassler "be evaluated for his mental health issues."
All further statutory references are to the Penal Code.
The record does not disclose the facts of these offenses.
In 2009, while in prison, Hassler filed a petition for authorization for use of electroconvulsive therapy (ECT) (§§ 2670-2680). The petition alleged he had a worsening major depressive disorder and his medication was ineffective. Exhibits attached to the petition included Hassler's California Department of Corrections and Rehabilitation (CDCR) administrative appeal form and a June 6 letter from a prison psychiatrist asking the warden for permission to administer ECT.
There are three parts to the CDCR appeal form: Hassler's June 2, 2009 request for ECT; the psychiatrist's June 11 "informal level" response, "partially grant[ing]" the request and stating the psychiatrist had submitted a written request to the warden "to initiate the necessary procedures to formally grant [the] request;" and Hassler's June 15 "appeal for a formal level of review."
The psychiatrist's letter stated Hassler suffered from "Major Depressive Disorder, severe, recurrent with psychotic features." Years of treatment had left his symptoms "essentially unchanged." The psychiatrist believed ECT was required for Hassler's health and safety. Hassler had given his informed consent.
In July 2009 the superior court denied Hassler's petition without prejudice. The court reasoned Hassler was not authorized to petition on his own behalf for ECT; there was no indication the warden had given his permission and there was no statement of concurrence from a physicians' committee (Cal. Code Regs., tit. 15, § 3369). The court concluded: "[W]hile [Hassler] may have given his informed consent for [ECT], he has only begun this process for its administration and he needs to complete at least two more steps before this, or any, Court will issue the Order to allow it to be given." Hassler appeals the denial of his petition.
Appointed appellate counsel has filed a brief summarizing the proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel lists, as a possible but not arguable issue, whether a California inmate may demand to be treated with ECT when his treating physician thinks the treatment is appropriate. Counsel suggests this court's disposition should be without prejudice so that Hassler can seek further administrative relief.
We requested letter briefs from counsel discussing whether the order is appealable. Both counsel have responded. We agree with Respondent's counsel that the order is not appealable.
" '[An]... order is not appealable unless expressly made so by statute.' [Citations.]" (People v. Mazurette (2001) 24 Cal.4th 789, 792.) A criminal defendant in a felony case may appeal "[f]rom any order made after judgment, affecting the [defendant's] substantial rights...." (§ 1237, subd. (b).) Case law "has limited the scope of th[is] phrase, defining appealability more narrowly." (People v. Gallardo (2000) 77 Cal.App.4th 971, 980.)
While a warden may petition for authorization to use ECT on a prisoner (§ 2675, subd. (a)), there is no statutory authority permitting a prisoner to petition for authorization. Because Hassler had no right to petition the superior court, the denial of his petition did not affect his substantial rights and is not an appealable postjudgment order. (See People v. Turrin (2009) 176 Cal.App.4th 1200, 1208.) We therefore dismiss the appeal.
DISPOSITION
The appeal is dismissed.
WE CONCUR: HALLER, J., McINTYRE, J.