Filed 12/4/19 Davis v. Superior Court CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

—-

STEVEN CHESTER DAVIS,

Petitioner,

v.

THE SUPERIOR COURT OF SHASTA COUNTY,

Respondent;

THE PEOPLE et al.,

Real Parties in Interest.

C088420

(Super. Ct. No. 1807084)

At the recommendation of the Board of Chiropractic Examiners (the Board), made pursuant to Penal Code section 23, the trial court restricted petitioner Steven Chester Davis’s use of his chiropractor’s license during the pendency of the criminal proceeding against him. Because we conclude the way in which the trial court imposed this restriction violated due process, we will issue a writ of mandate directing the trial court to vacate its order.

FACTUAL AND PROCEDURAL HISTORY

Petitioner is a licensed chiropractor. He was arrested on October 11, 2018, pursuant to an arrest warrant for practicing medicine without a license and claiming to be naturopathic doctor without a license. The warrant was based on a declaration for arrest warrant signed under penalty of perjury by an “officer” of the Shasta County District Attorney’s Office under information and belief that defendant committed the crimes alleged in the complaint based on documents forwarded to the District Attorney’s Office by the Department of Consumer Affairs (the Department). Attached to the declaration of arrest warrant was a probable cause summary detailing the circumstances of the Department’s investigation of petitioner.

The Department’s investigation began in October 2016 with an anonymous complaint made to the Naturopath Medicine Committee by a psychotherapist whose patient reported that she had breast cancer and petitioner convinced her to forego conventional medicine in favor of his “supplemental and energy medicine plan.” After six months of petitioner’s treatment, the patient’s tumor grew significantly. The psychotherapist was concerned about petitioner’s dubious claims and the fact that petitioner leads patients away from standard care. The psychotherapist was also concerned that petitioner appeared to have a financial interest in the supplements he sells and calls himself a doctor without any degree or license.

In February 2018, an undercover investigator with the Department called petitioner’s clinic to set up an appointment with him under the guise that she “had recently been told that she may have ovarian cancer” and was interested in being treated “ ‘by Dr. DAVIS’ ” with alternative medicine. The undercover investigator was told to bring her laboratory results to the initial consultation and be prepared to provide urine and saliva samples, so they could check her nutritional profile. In March 2018, a different investigator went to petitioner’s office and said she was picking up paperwork and a test kit for a friend. She was given an envelope of documents and test cups for saliva and urine. The paperwork included a consent for care form, testing forms, a health survey, a form stating petitioner “is not a medical doctor or psychiatrist,” and another form stating he was a “ ‘quality physician’ ” and an “ ‘Alternative Physician.’ ”

Petitioner’s Web site referred to petitioner as a “quality physician,” “Alternative Doctor,” “licensed Chiropractor,” “Certified Traditional Naturopath,” and a “true alternative physician.” The Web site also advertised acupuncture services. A search of the relevant licensing agencies showed petitioner was a chiropractor but did not hold a license with the Medical Board of California, the Board of Acupuncture, or the Naturopathic Medicine Committee.

In June 2018, the two investigators went to petitioner’s clinic for the appointment. One of the investigators told petitioner that she may have ovarian cancer and her doctors wanted to do a biopsy, but she was unsure and wanted another opinion. After hearing her symptoms and the results of some early testing, petitioner explained his medical philosophy focused on a person’s energy levels as influenced by “food, the cosmos, sun, [and] earth,” among other things. When asked whether these energies would cure cancer, petitioner responded “ ‘uh huh.’ ” Petitioner agreed a biopsy was unnecessary and advised against a recommended shot in favor of Chinese and Arabic herbs, which he had tested and believed to be better than the shot. Petitioner claimed his methods could turn cancer on and off and while he believed the investigator had “a concern with cancer, . . . he [was] not convinced she ha[d] it.”

Following petitioner’s arrest, he was released on his own recognizance after signing a release agreement. The agreement contained conditions of release, including that he obey all reasonable conditions imposed by the court. He also agreed to appear for his November 2, 2018, court date. As of that time, no indictment or information had been filed against petitioner only a complaint had been filed.

On October 29, 2018, the Board informed petitioner’s counsel by telephone that it would appear at the November 2 hearing pursuant to section 23 and recommend to the trial court that petitioner be restricted from using his chiropractic license while released on his own recognizance. On November 1, 2018, the Board filed with the trial court and served petitioner with its notice of appearance and recommendation.

In its moving papers, the Board recommended the trial court impose as a reasonable condition of petitioner’s release that he be restricted from engaging in acts requiring a chiropractic license until the criminal action was concluded and that that condition continue in the event he be granted probation at the conclusion of the criminal proceedings. The Board argued that allowing petitioner to maintain his chiropractic license posed a substantial danger to the public’s health and safety because he used the license to lure vulnerable people to his substandard care. This assertion was based on petitioner’s conduct of dissuading a breast cancer patient from seeking medical treatment in favor of his supplement and energy plan, which resulted in significant growth of the patient’s tumor. Further, the undercover investigation revealed that petitioner mislead clients about his credentials and steered them away from conventional medical treatment to his supplements, which were advertised on his Web site and produced by a company he was financially interested in as a clinical researcher and product developer.

At the hearing the next day, petitioner filed an opposition. The trial court recognized that there may be procedural due process issues that required it to take the matter under submission. The Board, however, argued that due process required notice, which petitioner was given on October 29 telephonically, and an opportunity to be heard, which petitioner was given with the present hearing. After reassuring the court a collateral administrative hearing would eventually take place, the Board argued an interim suspension order would interfere with the criminal process, requiring it to make the present recommendation. As justification for an order restricting petitioner’s conduct, the prosecution proffered that additional victims were coming forward and that the matter was still under investigation, but the underlying charges related to a cancer patient who petitioner dissuaded from seeking cancer treatment and as a result suffered a serious loss or potential death, making these facts more egregious than the norm. The Board presented the court with a screenshot of petitioner’s Web site arguing that the Web site’s content alone was enough to justify the court’s order restricting petitioner’s conduct.

After indicating it was unfamiliar with the law regarding the issue and that it had not read the Board’s moving papers, and appearing not to have read petitioner’s opposition, the trial court examined the court file. Specifically, the court looked to the declaration for arrest warrant and “as a result, look for the basis for that under any reports, confidential section of the file, because this would have been an investigation that was conducted, apparently, by the [Department], whereby, there has been a declaration of arrest signed under penalty of perjury under information and belief.” The court noted the probable cause summary described petitioner’s Web site and that the undercover investigation revealed how petitioner dissuaded patients from seeking conventional medical care. The court concluded, “So I’m looking at this, and if this is true, which it’s been submitted as a complaint against the defendant for purposes of going forward, then that would be dangerous to the community, and to have that website up to encourage others to be present and to adhere to the tenets of [petitioner], that would be a very dangerous situation for the community. So I am going to grant the order.” The trial court’s order restricted petitioner from performing any act for which a chiropractic examiner’s license was required until conclusion of the pending criminal matters, and further conditioned any future grant of probation on the same condition until the anticipated administrative action could be completed.

Petitioner filed a petition for writ of mandate and request for stay with this court. The Board filed a preliminary opposition, after which we issued an order to show cause why the trial court’s order should not be vacated. We further stayed the trial court’s order restricting petitioner’s use of his chiropractic license.

DISCUSSION

An accused who bargains for release on his own recognizance is statutorily required to, among other things, “obey all reasonable conditions imposed by the court or magistrate.” (§ 1318; In re York (1995) 9 Cal.4th 1133, 1141.) Hence, when an accused person seeks to be released from custody on his or her own recognizance, the Legislature is deemed to have granted courts or magistrates broad discretion to require that person to comply with all reasonable release conditions, including those related to ensuring subsequent court appearances and to public safety. (York, at pp. 1143-1144.)

Recently, our Supreme Court extended the holding of York and held that a trial court has inherent powers to impose bail conditions, so long as those conditions are reasonable and have a “sufficient nexus” to protecting public safety. (In re Webb (2019) 7 Cal.5th 270, 277-278.) While that case pertained to bail conditions and not conditions imposed following own recognizance release, our Supreme Court cited approvingly of Gray, which held that an order prohibiting a defendant doctor from practicing medicine could be reasonable as a condition of release; however, the way the condition was imposed on the defendant doctor violated procedural due process. (In re Webb, at p. 275, citing Gray v. Superior Court (2005) 125 Cal.App.4th 629, 636-643.) Indeed, “[t]he state may not deprive a person of life, liberty, or property without due process of law. (U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7.) ‘Due process requires that before one . . . is disciplined by deprival or abridgement of the right to engage in his business or profession, he be given reasonable notice of the charges against him, notice of the time and place of a hearing, and thereafter a fair hearing on the charges.’ ” (Gray, at pp. 636-637.)

In Gray, the defendant doctor was charged with multiple felonies. Without prior notice, the Medical Board of California (the Medical Board) appeared at his arraignment and requested that his medical license be suspended until resolution of the criminal proceedings as a condition of bail. The trial court granted the bail condition and the Court of Appeal issued a writ vacating the order. In doing so, it balanced the private and governmental interests involved to determine the extent procedural due process was available under the California Constitution. (Gray v. Superior Court, supra, 125 Cal.App.4th at pp. 635-638.) “This weighing process ‘generally requires consideration of (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’ ” (Id. at p. 638.)

Upon weighing these factors, the Gray court determined the condition was invalid. Of equal importance to the lack of notice provided to the defendant doctor, the court noted that there are a number of statutory procedures under which the Medical Board may suspend a physician’s license, all of which accord with due process. But the Medical Board ignored those statutorily-mandated procedures in favor of seeking “an immediate and indefinite suspension of a medical license without notice, evidence, or an adequate opportunity to litigate the issues, simply because criminal charges have been filed. [There is] no support for the proposition that the due process and proof required for a license suspension may be ignored when a criminal complaint has been filed against a licensee.” (Gray v. Superior Court, supra, 125 Cal.App.4th at p. 640.) The court additionally noted that had the Medical Board sought a preliminary injunction against the defendant doctor, the unverified criminal complaint would not have been “competent evidence demonstrating a serious threat of injury to the public. The complaint, by itself, does not provide the required evidentiary showing.” (Id. at pp. 640-641.) “At a minimum, the suspension must be based on evidence showing an immediate risk to the public.” (Id. at p. 640, italics added.)

Similarly, in Naidu, the appellate court vacated an order preventing the contractor defendants from using their state issued licenses, despite the fact the defendants were given notice of the licensing board’s request and an opportunity to be heard, “without some sort of evidentiary hearing at which it was established that the [release] condition

 

was necessary to protect the public . . . .” (Naidu v. Superior Court, supra, 20 Cal.App.5th at p. 305.) The Naidu court found the Gray court’s analysis of the evidentiary showing required to effectively suspend a defendant’s state issued license persuasive and concluded that due process “presupposes that the trial court considers actual evidence regarding the danger petitioners allegedly pose to the public.” (Naidu, at p. 312.) The Naidu court concluded the showing there lacking because no witness testified and the only admissible evidence presented to the trial court was a declaration from the licensing board void of facts gained from personal knowledge. (Id. at p. 313.) Indeed, “the evidence before the trial court amounted to little more than the fact that a criminal complaint had been filed,” which is insufficient considering there is no probable cause showing until an information or indictment has been filed. (Id. at pp. 314-315.)

Here, the evidentiary showing described in Gray and Naidu was not made. The trial court relied on the declaration for arrest warrant and the attached statement of probable cause. While the declaration of arrest warrant was signed under penalty of perjury, it purported only to believe petitioner committed the crimes charged based on the “documents” forwarded to it by the Department. The “documents” appear to be the statement of probable cause, which was not signed under penalty of perjury and was prepared by someone other than the declarant of the declaration for arrest warrant. The statement of probable cause summarized the Department’s investigation, part of which was composed of an anonymous complaint wherein a psychotherapist related to the Department something told to him or her by a patient. This hearsay included the facts of the “underlying case” the prosecutor related to the trial court and the Board relied upon in its argument to justify the release condition. This hearsay also included the assertion that petitioner financially benefited from the supplements he sold.

 

Further, the screenshot of petitioner’s Web site, while somewhat described in the statement of probable cause does not appear in the appellate record, was not attached to the Board’s request or otherwise provided to petitioner before his arraignment, nor was it authenticated before provided to the trial court. Similarly, the facts of the undercover investigation were not provided to the court as evidence but merely as an unsworn statement from an investigator who was not subject to cross-examination. “ ‘Procedural due process requires notice, confrontation, and a full hearing whenever action by the state significantly impairs an individual’s freedom to pursue a private occupation.’ [Citation.] Since the hearing that occurred here was not ‘full’ in an evidentiary sense, it was insufficient to protect petitioners’ due process right.” (Naidu v. Superior Court, supra, 20 Cal.App.5th at p. 314.)

The Board attempts to avoid this conclusion by focusing on the other considerations of the due process analysis, including the notice provided to petitioner, his presence at his arraignment, the government’s interest in protecting the public, and the burden of requiring additional processes. We agree the government has an interest in protecting the public and that notice and an opportunity to be heard were provided to petitioner. Like Naidu, however, we do not believe these protections substitute for “at least some evidence of danger to the public.” (Naidu v. Superior Court, supra, 20 Cal.App.5th at pp. 312-313.) Contrary to the Board’s belief, this would not require it institute the administrative process, but would require it to make an evidentiary showing with competent evidence demonstrating a serious threat of injury to the public. (Id. at pp. 315-317.) Accordingly, the trial court’s order restricting petitioner’s use of his chiropractic license violates due process.

DISPOSITION

Let a peremptory writ of mandate issue directing the respondent court to vacate its order restricting petitioner’s use of his chiropractic license while released on his own recognizance and as a future condition of probation. This court’s stay order is vacated upon finality of this opinion. Costs are awarded pursuant to California Rules of Court, rule 8.493(a)(1)(B).

/s/

Robie, J.

We concur:

/s/

Hull, Acting P.J.

/s/

Duarte, J.