P. v. Atkins

Filed 6/25/07 P. v. Atkins CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

A patient at a state hospital is awaiting a determination whether he is competent to stand trial. The patient is legally entitled to call himself Jesus Christ. He insists on doing so with other patients, which leads to a number of incidents involving physical violence. The medical authorities at the hospital apply for judicial approval to administer an antipsychotic drug to the patient against his will. The trial court grants the approval, which the defendant appeals. Although defendants counsel is exceptionally earnest in the array of arguments she advances, there is but one issue before uswhether the trial courts order is supported by substantial evidence. We conclude that the order has more than the requisite amount of support in the record, and in light of that conclusion we affirm.

BACKGROUND

On October 28, 2005, defendant was scheduled to have a preliminary examination on a felony charge of inflicting corporal injury on the woman with whom he was cohabiting (Pen. Code,  273.5, subd. (a)[1]), and a misdemeanor charge of violating a court order to stay away from the woman ( 273.6, subd. (a)). After defense counsel declared a doubt as to defendants competency, the trial court suspended criminal proceedings and subsequently committed defendant to Napa State Hospital for evaluation pursuant to section 1370; the court specifically noted that it does not order the involuntary administration of antipsychotic medications.

However, Napa State Hospital had no available space for defendant, who spent the next five months receiving local treatment while being kept in the county jail. Because of this state of affairs, defendant in March 2006 moved for reconsideration of the commitment pursuant to section 1370, subdivision (b)(3). In terms of relief, defendant sought to either be released on [an] outpatient supervision plan or to have his case dismissed.[2]

The court determined that it cannot conclude that dismissal of the underlying case[] is in the interest of justice or otherwise appropriate. On the other hand, the court cannot continue to allow defendant to simply languish in the county jail. The courts solution was an order directing Napa State Hospital to show cause why the commitment order has not been obeyed and executed. This apparently caused a bed to become available for defendant, who was admitted to the hospital on April 6.

The next event disclosed by the record is a hearing held on July 5, 2006 regarding the [involuntary] administration of anti-psychotic medication to defendant at the request of Napa State Hospital. The sole witness was Dr. Daniel May, whose testimony included the following:

Dr. May has been a staff psychiatrist at Napa State since April (i.e., for three months), but he served his residency there from 1988 to 1991, and then was a staff psychiatrist until he left in 1994. His present duties are to evaluate . . . 72 individuals that are . . . on [section] 1370 holds and to treat them psychiatrically with medications and also to prepare progress reports to the Court.

Dr. May began treating defendant in early May.[3] Defendant had been previously diagnosed as having cognitive disorder not otherwise specified, as well as psychotic disorder not otherwise specified. The latter diagnosis is a sort of preliminary diagnosis . . . to indicate that . . . youre either dealing with schizophrenia or a bad bipolar illness, or youre dealing with someone who is acutely delirious. Dr. May subsequently refined the second part of the diagnosis; in his opinion defendant had bipolar disorder with psychotic features.

Defendant was the subject of a Harper hearing[4] held on May 12 by a committee of which Dr. May was a member, and which hearing had been requested by Dr. May a few days earlier because he believed defendant was dangerous to [him]self, primarily

. . . not dangerous to others. Dr. May was not defendants treating doctor at the time, but he knew that defendant was refusing to take an antipsychotic drug named Risperdal, which had been prescribed for him. Defendant and a patient rights advocate for him were present at the Harper hearing.

According to Dr. May, the Harper hearing had two related concerns. The first was that defendant had been involved in a number of incidents of violence since he came to Napa State. The cause was invariably the same: Mr. Atkins spent much of his time . . . walking around talking to himself or to other people and proclaiming himself on occasion that he was Jesus Christ and that he wanted to give to other individuals the benefit of this state of awareness that he had as being Jesus Christ. This behavior was intrusive, and was resented by other patients, who became very irritated, and reacted with scorn or anger at Mr. Atkins for this conviction that he had. According to Dr. May, on at least four occasions [defendant] was attacked by them. Defendant rebuffed staff attempts to dissuade him from sharing that with other people.

Dr. May then detailed the incidents. On April 10, the client [defendant] was agitated when a peer asked him, Are you Jesus Christ? [] And then . . . Mr. Atkins grabbed the peers leg and tried to bite the peers leg, and wouldnt let it go; and the peer . . . sustained a superficial scratch on the arm.

During the week of April 15, Mr. Atkins had been assaulted twice . . . and he complained that peers were bothering him . . . and the staff were redirecting Mr. Atkins to areas where there were fewer other men present, talking with him, they were putting him on a one-to-one, which is close in sight observation. Dr. May testified from the incident reports that on both occasions the problem is aggressiveness, i.e., defendant insisting that other patients call him Jesus Christ.

The final incident recounted by Dr. May occurred on May 7. Again, the cause was defendants intrusiveness. This time there was a significant injury, suffered by defendant when he was hit with a chair, requiring hospitalization. This incident occurred after the Harper hearing had already been set.

The second reason for the Harper hearing was that defendant refused to take the prescribed medication, a drug called Risperdal.[5] Dr. May described it as an antipsychotic . . . which also can stabilize moods for people who are bipolar or schizophrenic. Since he began treating defendant, Dr. May concluded that defendant was acutely manic with psychotic features. Based on what he had learned from [defendants] previous record of treatment and care . . . here at the state hospital, Dr. May testified that Mr. Atkins . . . periodically acted in a manner that I would describe as both manic and psychotic.

Dr. May further testified that the average daily dose of Risperdal is four‑to‑six milligrams. Defendant tried Risperdal in a daily dose of one milligram, but he refused to take it on a regular basis. Thus, his symptoms continued essentially unabated, and were very much present at the time of this Harper hearing. Dr. May explained to the Harper committee . . . that we wanted to treat him with Risperdal at higher doses, using an injection shot as a long-term treatment. Dr. May anticipated that Risperdal would moderate defendants maniathe pressured mood would come back into a normal state and . . . the psychotic features would go away. The person would again respond to reasonable entreaties by the staff and could be redirected away from peers who were dangerous to him.

Dr. May testified that, following the Harper hearing, he began administering four milligrams of Risperdal to defendant on a daily basis from May 15 through June 12, 2006. Once this regime began, Dr. May noticed a very significant improvement in defendants behavior, as well as his mood and his thinking. Dr. May explained this conclusion:

He no longer insisted that he be called Jesus Christ. He no longer was entering peoples physical space within a foot or two of their bodies to talk about the awareness of being Jesus Christ, and his manner of speech was slower. [] [T]here was more listening on his part, and he was less pressured and irritable, and he was less grandiose,

. . . no longer talking about things that we would consider delusional material, and as an example of that I would give the belief that one was Jesus Christ. Moreover, there were no [more] incidents of physical assault by the defendant.

Although the Harper hearing had authorized the use of Risperdal through November, and even though the drug was no longer being administered to defendant as of June, it was decided to seek a Sell decision from the court in June.[6] Dr. May explained why, notwithstanding that its use had been discontinued, they sought permission to administer Risperdal in future: Its my opinion that this illness will reoccur. It is a cyclical illness. It will reoccur on some pattern of frequency that we cannot exactly predict. It may occur in a month or two. It may take six to twelve months, but I think its associated with danger . . . to Mr. Atkins as well as to the community, and I think its also important for the restoration of competency in the long‑term for Mr. Atkins to receive this medicine.

Dr. May did not deny that Risperdal has quite a few side effects. It can cause a movement disorder, where the muscles of the neck . . . or the arms can go into spasm. It can cause abnormalities in blood sugar that lead to diabetes. It can inflame the liver. . . . [] Those are the main side effects. It can cause sedation [excessive sleepiness] as well. And, incidentally, the problem of sedation was why Mr. Atkins was refusing.

On cross-examination, Dr. May testified that the amount of time he spent actually speaking with defendant was approximately 30 minutes. He concluded that defendant was of normal intelligence, and suffered only mild cognitive problems as a result of his head injury (see fn. 5, ante). That injury did not cause a personality change in defendant.

Although he knew that defendant called himself Jesus Christ, Dr. May was not aware until he testified that defendant had gone through a formal name change and that Jesus Christ was his legal name. Dr. May did not treat this information as requiring a change in his diagnosis because Mr. Atkins literally believed that he wasnt just a guy named Jesus Christ, but he was the Jesus Christ. [] . . . [] There is a difference in my mind between having the name Jesus Christ and wanting to give the good word of the gospel to people in a forceful manner. That speaks of mania and psychosis. I felt . . . that the identification with the historical Jesus Christ was delusional because its not reasonable, in my opinion, to put oneself in danger in order to discuss religious ideas with other people. Defendant persisted in behaviors that were endangering him, such as his repeated insistence on being called Jesus Christ, which was very irritating to other inmates at the hospital. He insisted on carrying on the good work of saving others, and that included talking to them about all the Christian precepts.

Dr. May further testified that defendant stopped taking Risperdal because he complained of the side effects. Although he was not positive, Dr. May believed he asked for the Harper hearing prior to the May 8 assault with the chair that required defendants hospitalization. He acknowledged that defendant was compliant in taking his anti‑seizure medication (see fn. 5, ante), and had complained about the sedation side effect when he was receiving only one milligram of Risperdal. Dr. May believed this side effect was temporary: Almost everyone who takes Risperdal . . . complains of sedation, and that complaint . . . can last anywhere from one . . . to three or four weeks after the initiation of treatment. [] Thereafter, the complaint generally goes away . . . . Observing defendant after medication with Risperdal commenced, Dr. May did not see evidence that he was incapacitated.

Still on cross-examination, Dr. May admitted that there have been no further incidents after defendants Risperdal was discontinued on June 12 (i.e., more than three weeks before). This, he believed, was not particularly significant in that the average relapse time was three‑to‑six months. It also confirmed Dr. Mays diagnosis of bipolar disorder.[7]

Dr. May testified that defendant has also agreed to go back to being called Darcy Atkins, and has recently avoided confrontation. Dr. May also conceded that defendants ward was less dangerous than in the past because certain people had either left or received medicine[], but he still thought the medication is necessary for defendant. Without Risperdal, Dr. May testified there was a very high risk that hes going to relapse again soon . . . [and] that his competency and stability . . . will be adversely affected.

Dr. May testified on redirect that, notwithstanding the recent improvement, defendant does not believe that he has the need for . . . the Risperdal. The absence of the medication would have an impact on his competence because when these bipolar episodes occur . . . the ability to make reasonable decisions is the first [thing] to go. Prior to the Harper committees approval to medicate, defendant had gone through group meetings and behavior modification. Defendant had also been kept under close in sight observation, which involved a staff person . . . follow[ing] him around; these efforts to [p]rotect him and redirect him away from confrontational situations were not successful. Dr. May believed that administration of antipsychotics was essential for the defendants own safety.

Defendant was then allowed to make a statement without being put on oath. He told the court: I just wanted to say that the time I had been at the hospital, the men there, theyre under a lot of drugs, and theyre very subdued and irate, and they walk around talking to themselves 24 hours a day, andnot all of them, but a lot of them; and, you know, I just try toyou know, they cry out for help, and they come to me, and Well, I thought you were Jesus, and I go, Well, I had the name.

I never stated that I was Jesus, you know. I just carried his name, you know, prepared his way. That is my purpose. And I neverhalf the stuff the doctor spoke of I did not say, and I cant recall; but, you knowand I dont understand this procedure, whatbut I havent taken any of that medication in a month, and I feelI feel better. But when I was taking that medication, I was likeyou know, I was like drooling out of the left side of my mouth because I had the paralysis, and I would drool, and I spoke to Susan on the phone. Remember how I sounded? I was stuttering and talking slow, you know. It sedated me, and I dont feel there is any reason for me to do that.

When his counsel asked did you tell people that your name was Jesus Christ? defendant answered: Yeah. There is another man on the unit. His name is Jesus Ramiros, and I answer the phone for him all the time. Hes Spanish. I say Jesus, and no one has any problem calling him that. [] But this one guy that I got in some altercations with, he has an anger problem. Hes violent. And he beat me three times, and I forgave him each time, and now were friends.

After hearing argument from counsel, the court ruled as follows:

[I]t does seem to me that given the language which I believe is a codification of Sell, and also Harper in a sense, that the People have met their burden . . . in that it clearly appears to me that the defendant lacks capacity to make decisions regarding antipsychotic medication; and whether Dr. May is absolutely 100 percent accurate in his diagnosis I dont know, and I dont know that thats proven beyond a reasonable doubt. [] But there is evidence that supports his diagnosis, and . . . there is evidence that the defendants mental disorder, and that he has one, that treatment with antipsychotic medication is required to treat that mental disorder . . . .

And although there was some backing off of that issue, there was some testimony by Dr. May that the defendant posed a danger to others in that I believe there was one episode of which he had some information that the defendant attempted to bite somebody else; but I dont think thats the underpinning justification for the medication, although there is some evidence of that.

[] . . . [] . . . there was some testimony from Dr. May that he believed that the antipsychotic medicationI dont know that he used the word substantially, but I understand it to be the functional equivalent of thatthat it would be likely to be able to render the defendant competent to stand trial; and it appears to me that the medication is unlikely to have such side effects that would interfere with the defendants ability to understand the nature of the proceedings . . . .

Following entry of a written order as directed by the court, defendant filed a timely notice of appeal.

DISCUSSION

We recently reviewed the general principles governing appeals of this nature:

[Defendant] has a constitutionally protected liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment. (Harper, supra, 494 U.S. 210, 221-222; [citations].) This same interest is protected under Californias right to privacy, which clearly extends to the right to refuse antipsychotic drugs. [Citations.]

The Legislature codified this constitutional principle in section 1370, subdivision (a)(2)(B)(ii)(III). Under section 1370, a court may order the involuntary administration of antipsychotic medication to render a defendant competent to stand trial only if it finds that [t]he people have charged the defendant with a serious crime against the person or property; involuntary administration of antipsychotic medication is substantially likely to render the defendant competent to stand trial; the medication is unlikely to have side effects that interfere with the defendants ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner; less intrusive treatments are unlikely to have substantially the same results; and antipsychotic medication is in the patients best medical interest in light of his or her medical condition. ( 1370, subd. (a)(2)(B)(ii)(III), italics added.)

We review the trial courts order under the substantial evidence standard of review. [Citation.] (People v. McDuffie (2006) 144 Cal.App.4th 880, 886-887.)

Our function under that standard is modest. In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient . . . . (People v. Young (2005) 34 Cal.4th 1149, 1181.) We must accept all reasonable inferences or deductions in favor of the order that could have been drawn by the trial court acting as the trier of fact. (E.g., People v. Hughes (2002) 27 Cal.4th 287, 357; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Although defendants counsel acknowledges this standard, in her zeal for defendants cause she skillfully introduces discussion of a number of other considerations in his attack on the asserted absence of substantial evidence.

For example, while arguing that the prosecution did not establish that defendant was incapable of making own his decisions about being medicated with Risperdal, she obliquely launches a number of attacks on Dr. Mays competence to render an opinion on this point. Thus, she argues: What we have, here, is a doctor who based his opinion on insufficient facts. Dr. May officially became appellants doctor in early May and first requested the Harper hearing, almost immediately, around May 8, 2006, because he felt appellant was a danger to himself The doctor had observed appellant a few times from the hallways and corridors and had spent no more than 15-20 minutes at a time with appellant. Dr. May had spent a total of thirty minutes with appellant during the two‑week period before he requested authority to medicate him forcibly, together with only a cursory review of the medical records. As a result, what we have is: a doctor whose interaction with appellant was, admittedly limited to thirty minutes at most; a doctor who did not believe it was worthwhile to interact face-to-face with a patient before forcing him to take mind-altering medication; a doctor who did not explain the risks and benefits to the patient in an effort to obtain informed consent; and a doctor, who in response to the direct question of whether or not appellant had capacity to make this decision, stated its a difficult thing to weigh, but in general . . . yes. 

From the tenor of these arguments, one might conclude that defendant was attacking the very basis of Dr. Mays competence to render expert opinions. If so, the logical course at trial was to move that Dr. Mays testimony be stricken. But defendant did not do so. Nor did he object when Dr. May was proposed by the prosecution, and accepted by the trial court, as an expert in the fields of head trauma and the diagnosis and treatment of mental illnesses.

Matters such as the amount of time Dr. May had actually spent interact[ing] face‑to-face with him, would go to nothing more than the weight of Dr. Mays opinion. (E.g., People v. Bolin (1998) 18 Cal.4th 297, 321-322; Brown v. Colm (1974) 11 Cal.3d 639, 643.) But reweighing evidence is not a function of appellate review. (E.g., People v. Guerra (2006) 37 Cal.4th 1067, 1129; People v. Culver (1973) 10 Cal.3d 542, 548.)

Moreover, defendants approach gives insufficient credit to the entirety of Dr. Mays experience. He was not a novice, but a person whose career was dedicated to mental health practice, and who was returning to Napa State Hospital having previously spent six years there.

We must also pay greater respect to the larger context than does defendant. True, Dr. Mays face-to-face time with defendant may not have been extensive. But he not only had the benefit of his previous years at the hospital, he had observed defendant prior to becoming his physician of record, and had also consulted with the physician who treated defendant before Dr. May took over. In the same vein, Dr. May was certainly warranted in accepting the information gathered by that physician, and other hospital personnel, prior to his arrival. Treatment cannot be expected to go back to square one every time there is a staff change at a large institution.

And defendant pays no attention to the likelihood that Dr. May obtained information from sources other than defendant himself. For example, in response to the April 10 assault, the incident report states that the client has been refusing regularly scheduled medicine. The staff will emphasize the importance of taking the meds. As already explained, defendant was not averse to taking his anti-seizure medication. (See fn. 5, ante.) It is a logical inference that, in order for defendant to refuse the anti‑psychotic medicine, and continue taking the anti-seizure medicine, defendant was able to differentiate between them. That, in turn, supports the inference that somebody at the state hospital explained their purposes.[8]

The context also demonstrates the underlying fallacy of defendants argument, i.e., that defendant was in the position of a ordinary patient, not a person accused of a serious crime against another person, and who had been committed to the state hospital to determine if he was competent. Defendant does not dispute the diagnoses made of him, including Dr. Mays refined diagnosis that defendant was acutely manic with psychotic features, and was suffering from bipolar disorder with psychotic features.[9]

Most pertinently, an appreciation of context brings us to the matter of defendants non-birth identity. Although in his statement to the court defendant disclaimed ever having represented himself as the Jesus Christ, the trial court, sitting as the trier of fact was at liberty to disregard this statement and reach the opposite conclusion. That conclusion would have a solid foundation, because it could rely on Dr. Mays testimony (Mr. Atkins literally believed that he wasnt just a guy named Jesus Christ, but he was the Jesus Christ), supported by incident reports and other documents received in evidence that defendant was intrusively and aggressively holding himself out as the Jesus Christand demanding that other patients accept him as such.

With that predicate established, the trial court had a sound basis for accepting Dr. Mays testimony that defendant was delusional. It follows that a physician is justified in dealing with a delusional person in a state hospital on a different basis than an ordinary patient talking with a general practitioner. It is not reasonable to speak of a patients informed consent in these circumstances.[10]

The fact that defendant was delusional largely defangs defendants argument that Dr. May did appear to testify that defendant had the capacity to make medical decisions for himself. However, again, it is context that is crucial. Significantly, Dr. May did not unequivocally testify that defendant was always competent to make that decision, or that he had been competent in the recent past. The contrary is implicit in Dr. Mays requests for the Harper hearing at Napa State, and, more significantly, for the Sell hearing in the trial court. But Dr. May did testify, repeatedly, that medication with Risperdal was important for the restoration of [defendants] competency. (Italics added.) The clear implication of restoring a thing is that the thing is not currently possessed. In this case, the thing was defendants competency to make a medical decision for himself.

The fragment of Dr. Mays testimony that defendant seizes upon can be read as expressing the doctors opinion that, with medication, defendant could in the future exercise informed consent. Because that reading is reasonable, we must, and do, assume that the trial court made it. (People v. Hughes, supra, 27 Cal.4th 287, 357.)

In light of the foregoing, we reject defendants claim that there is no substantial evidence in the record to support the trial courts finding that defendant lacked the capacity to make his own medical decisions.

Defendant next contends that there is likewise no evidence to support the trial courts finding that defendant was a danger to himself if not medicated with anti‑psychotics. This claim also fails.

In his delusional state, aggressively and intrusively confronting other patients and insisting that they recognize him as the Jesus Christ, defendant evoked a response from other patients that often turned violent. Defendant refuses to accept this, maintaining the harm was not directly caused by the failure to take the prescribed medication, but by a combination of the aggressive behavior of other patients and the inattentiveness of the hospital staff. The abstract points of a proximate cause analysis need not be explored to defeat defendants argument.

The trial court had evidence that once defendant started taking Risperdal, his delusion that he was Jesus Christ stopped. He no longer confronted other patients, he was not involved in any new fights, and he suffered no new injuries. Even if defendants self-generated danger was originally as attenuated as defendant maintains, it disappeared with the medication. The trial court could conclude that, with the medication, defendant was no longer a danger to himself, in the sense that he no longer had the impulse to initiate situations which had a demonstrated history to end with violence directed at him.[11]

Defendants counsel tries heroically to paint the picture of defendant-as-victim, the recipient of violence for merely telling other patients that his name was Jesus Christ, as it legally was at the time. As counsel reasons, it is not defendants fault that the reaction to this announcement was violent; the responsibility rests with the staff at Napa State Hospital for failing to isolate or medicate the attackers, not the victim, and with the State, which did not delay the hearing to determine whether defendants reverting to using the name Darcy Atkins obviated the need for Risperdal.[12] Counsels efforts are not persuasive.

As to defendants first point, Dr. May testified that attempts were made prior to the Harper hearing to avoid further incidents without drugsi.e., group meetings, behavior modification, close observationbut they were not successful (doubtless because of defendants delusion and insistence on confronting other patients). Success only came with the medication that abated defendants delusion, and his compulsion to seek recognition of his identity as the Jesus Christ. Even so, and notwithstanding Dr. Mays testimony that the ward was now less dangerous, the danger of relapse made the availability of Risperdal for possible future use essential for the defendants own safety.

As for defendants second point, concerning the states failure to delay the hearing, this was not made before the trial court, and thus is not properly raised for the first time here. (E.g., People v.Vera (1997) 15 Cal.4th 269, 275; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  394, pp. 444-445.) Nothing prevented defendant from asking the trial court for a continuance of the hearing.

Defendants final claim is that the prosecution presented no evidence that defendant was presently suffering adverse effects or that his condition was substantially deteriorating. Again, we cannot agree.

A trial court conducting a Sell hearing authorized by section 1370, can order involuntary medication if it determines that The defendant lacks capacity to make decisions regarding antipsychotic medication, the defendants mental disorder requires medical treatment with antipsychotic medication, and, if the defendants mental disorder is not treated with antipsychotic medication, it is probable that serious harm to the physical or mental health of the patient will result. Probability of serious harm to the physical or mental health of the defendant requires evidence that the defendant is presently suffering adverse effects to his or her physical or mental health, or the defendant has previously suffered these effects as a result of mental disorder and his or her condition is substantially deteriorating. ( 1370, subd. (a)(2)(B)(ii)(I), italics added.) However, the Attorney General correctly notes that defendants argument overlooks the fact that the definition of probability of serious harm is phrased in the disjunctive, and defendant thus ignores the crucial or.

Although the trial court did not specify which part of the definition it found was proved, the second prong appears the more likely. Dr. Mays testimony clearly demonstrated that defendants delusion had led to adverse effects. Risperdal kept the delusion at bay. However, because its use has been discontinued, the return of the delusion was a medical certainty. There was consequently substantial evidence that, without further Risperdal, defendants condition was deteriorating as of the time of the trial court hearing.

DISPOSITION

The order is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Lambden, J.

[1] Statutory references are to the Penal Code.

[2] Defendant stated in his moving papers that he has previously been found incompetent in six other criminal cases. The Peoples opposition to defendants motion provides some detail. The first case resulted in defendants misdemeanor conviction in 2001 for resisting a peace officer, the second and third with additional misdemeanor convictions in 2003 for battery, and for contempt for violating a court order (on the same victim named in the instant case). Following these convictions, defendant was twice admitted to probation.

The other three cases were to revoke defendants probation. One of these cases was dismissed, and the other two were apparently still pending at the time the instant prosecution was commenced. There is nothing in the record which establishes that this information was known to the personnel at Napa State Hospital.

[3] However, it seems that Dr. May had commenced evaluating defendant prior to formally becoming defendants treating physician.

[4] This is a reference to Washington v. Harper (1990) 494 U.S. 210 (Harper), where the United States Supreme Court held that the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmates medical interest. (Id. at p. 227.) However, the treatment must be preceded by a hearingwhich does not have to be judicial, but can be conducted by medical professionalsthat complies with procedural due process (i.e., notice, inmates right to be present, and examine witnesses). (Id. at pp. 231-235.)

[5] When defendant was 18, he was involved in a serious automobile accident that put him in a coma for a month. Since then, defendantwho is now 50has suffered neurological seizures, and been prescribed medication to prevent the seizures. This continued at Napa State. Defendant has always consented to taking an anti-seizure medicine.

Also, on May 8-9, defendant received what Dr. May described as emergency doses of Haldol, which we can give on a one-time basis for people who are acutely dangerous to self or others.

[6] In Sell v. United States (2003) 539 U.S. 166, 179, the court held, in light of Harper and Riggins v. Nevada (1992) 504 U.S. 127, that the Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important government trial-related interests. Unlike a Harper hearing, which can be conducted solely by medical professionals, the Sell standard is to be applied by courts.

[7] Dr. May was emphatic that the organic brain damage defendant suffered as a result of the car accident (see fn. 5, ante) could not produce the symptoms that led him to diagnose bipolar disorder. Moreover, the brain damage does not have endangering features.

[8] Peoples Exhibit 1, which was received in evidence at the hearing, is the Wellness and Recovery Plan for defendant. It describes how Nursing staff will assist in educating about psychiatric diagnosis by providing information onmedication anddosages. (Italics added.)

[9] However, disputing Dr. Mays diagnosis was virtually the sole argument defendants counsel made to the trial court, apart from a couple of brief thoughts as to whether medication was the least intrusive treatment.

[10] The logic of the situation was expressed by Dr. May with dry understatement: I usually dont find that its helpful to spend a great deal of time face to face with acutely psychotic individuals.

[11] Defendants argument ignores the fact that the trial court expressly found that an unmedicated defendant was a danger to others. Dr. Mays testimony about the April 10 incident, where defendant appears to have been the aggressor and tried to bite another patients leg, constitutes substantial evidence in support of that finding. This was a clear instance of defendants danger to others while in his delusional state.

[12] Dr. May testified that he did not suggest or ask defendant to change his practices with regard to his name.