P. v. Moore

Filed 9/28/06 P. v. Moore CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Ardell Moore, Jr., appeals an order determining his incapacity to consent to mental health treatment, and directing involuntary treatment with medications. (Welf. & Inst. Code, § 5334, subd. (e).)[1] He claims there is insufficient evidence to support the order, and that it violates his equal protection rights by permitting involuntary medication for a period in excess of six months. We affirm.

FACTS AND PROCEDURAL HISTORY

Moore was committed to Atascadero State Hospital (ASH) under the Sexually Violent Predators Act (SVPA). (§ 6600 et seq.) In August 2005, ASH filed an application to authorize involuntary treatment with psychotropic medications based on Moore's incompetence to give informed consent to treatment.[2]

At the hearing, Dr. Mary Flavan, Moore's treating psychiatrist testified that Moore suffers from a schizoaffective disorder with symptoms including "manic presentation at times, rapid speech, difficulty staying on track on a topic, believing that people are poisoning his food, believing that staff . . . are taking his things and conspiring to take more of them." Dr. Flavan testified that Moore denied that he is mentally ill and denied staff reports that he focuses on and stalks women.

Dr. Flavan testified that, although he functions well on medication, Moore's symptoms return when he stops taking his medication. Dr. Flavan testified that she tried to explain the benefits of medication, but Moore refused to acknowledge that he needed drugs or even that he had committed the sex offenses for which he had been convicted.

Dr. Flavan opined that Moore is unable to understand or knowingly and intelligently evaluate the benefits of medication or the risks of not taking medication because he does not think anything is wrong with him. She identified the drugs that she intended to use, which had been previously administered to Moore, and testified that the medication was necessary and that there were no alternative treatments. Dr. Flavan opined that, without medication, there was a risk that Moore would hurt someone and act on his sexual drive issues.

Moore testified that he was "sane," "normal," and felt "nothing much is wrong with me." He testified that, in the past, medication made him "slow functioning" and unable to masturbate, and "does something to me genetically having sex." He testified: "I can give you my word. I can function. I can do well without them, and I can bypass anything that might get in my way. . . . I won't act out again or be disruptive."

The trial court granted the application. The court stated that it was a "very close call" because Moore "expresses himself fairly well" and understands the side effects of the drugs, but concluded that respondent had met its burden of establishing the criteria required for involuntary medication. The order states that Moore's mental disorder "forecloses the patient's capacity to be aware of the existing medical condition. The patient is unable to understand the benefits and risks of the intervention of psychotropic or neuroleptic medication," and is "unable . . . to knowingly and intelligently evaluate the information [given to him or] participate in the treatment decision by means of rational thought process."

DISCUSSION

Order Supported by Substantial Evidence

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.) Conversely, an involuntarily committed patient may be forced to submit to antipsychotic medication in nonemergency situations if a court determines that the patient is "incompetent to refuse medical treatment," or is dangerous. (Id., at pp. 27-28; In re Calhoun (2004) 121 Cal.App.4th 1315, 1354-1355.) We conclude that substantial evidence supports the trial court's finding that Moore is incompetent to refuse medication.

A judicial determination of competency to refuse treatment involves consideration of three factors: (1) whether the patient is aware of, and acknowledges his or her condition, (2) whether the patient "is able to understand the benefits and the risks of, as well as the alternatives to, the proposed intervention," and (3) whether the patient "is able to understand and to knowingly and intelligently evaluate the information" regarding informed consent and "otherwise participate in the treatment decision by means of rational thought processes." (Riese v. St. Mary's Hospital & Medical Center (1987) 209 Cal.App.3d 1303, 1322-1323.) Here, Dr. Flavan testified to the seriousness of Moore's mental illness, the necessity of medication, and her unsuccessful efforts to persuade Moore to take the medication. The evidence shows that Moore was unwilling to consider Dr. Flavan's explanation based on a complete denial of his mental illness and history of violent sex offenses. Contrary to Moore's assertion, the evidence shows more than a disagreement between Moore and Flavan regarding the need for medication. The evidence shows Moore had no insight into his mental health or his prior behavior, and supports the conclusion that his mental illness prevents Moore from participating rationally in treatment decisions.

No Equal Protection Violation

Moore contends that, if otherwise affirmed, the order must be modified to limit involuntary medication to a period of six months. He argues that, because a six-month limitation is consistent with "California treatment schemes in general," failure to similarly limit voluntary medication of an SVP violates the equal protection clause of the Fourteenth Amendment to the federal Constitution. We conclude that the issue has not been preserved for appellate review and, even if properly reviewable, that Moore has not established an equal protection violation.

The claim has been waived because Moore failed to object to the terms of the order in the trial court. Appellate courts retain discretion to consider constitutional claims for the first time on appeal when they involve pure questions of law turning on undisputed facts, or important issues of public policy. (Hale v. Morgan (1978) 22 Cal.3d 388, 394; Punsly v. Ho (2001) 87 Cal.App.4th 1099, 1103.) Fairness and economy, however, require consideration of the relevant facts and legal authority in the trial court. (See People v. Lewis (2001) 26 Cal.4th 334, 385.) Accordingly, as a general rule, even constitutional claims are forfeited on appeal unless raised in the trial court. (See People v. Brown (2003) 31 Cal.4th 518, 546.)

In this case, because the material facts and law were not considered in the trial court, the record is inadequate for review and determination of the claim on appeal. Not only did Moore fail to make an equal protection claim in the trial court, he failed to challenge the provisions of the medication order at all. The order does not authorize involuntary medication for a period in excess of six months or for any specified period. The order is silent on the matter, as is the record as a whole.

In addition, involuntary medication pursuant to the order is not open-ended. The length of an SVP commitment or recommitment is two years. (§§ 6604, 6604.1.) Therefore, Moore's involuntary medication pursuant to the order will necessarily end or be reconsidered and, if appropriate, be re-imposed by the court in less than two years. We cannot determine from the record when Moore was committed or most recently recommitted as an SVP and, consequently, cannot determine the maximum length of involuntary medication under the current order. It is possible that the issue was not considered in the trial court because the order will be subject to review in a relatively short period of time.

In any event, Moore has not established an equal protection violation. A violation requires a showing that the state has adopted a classification that results in unequal treatment for two or more groups which are similarly situated for purposes of the law being challenged. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253; In re Calhoun, supra, 121 Cal.App.4th at p. 1351.) Moore bases his claim on a similarity in medical treatment of persons incarcerated in state prison (Pen. Code, § 2600) and committed under the Lanterman-Petris-Short Act (LPSA) (§ 5000 et seq.), the Mentally Disordered Offenders Act (MDOA) (Pen. Code, § 2960 et seq.), and the SVPA. Moore does not claim that persons subject to these statutes are similarly situated for all purposes, and such a claim would be contrary to established authority. Moore contends that patients under all these statutes are similarly situated for the purpose of the length of time during which medication can be administered involuntarily.

It is established that state prisoners, conservatees under the LPSA, and patients under the MDOA and SVPA may be subjected to involuntary medication only if there has been a judicial determination that they are dangerous or incompetent to make medical decisions. (See In re Calhoun, supra, 121 Cal.App.4th at pp. 1343-1346, 1350-1354.) That right is statutory as to state prisoners, MDOs, and LPS conservatees, and has been judicially extended to SVPs by our decision in Calhoun. In Calhoun, we concluded that the equal protection clause requires "that an SVP be provided with the same right as an MDO to refuse antipsychotic medication." (Calhoun, at p. 1351.) Accordingly, as we held, an SVP can be compelled to take such medication only after a judicial finding that the person is incompetent to make treatment decisions or is dangerous. (Id., at p. 1322.)

Moore claims that, because patients under all these statutes can be involuntarily medicated only after a judicial determination, they are similarly situated with respect to all terms and conditions of such medication, including the maximum time period for involuntary medication. He suggests that, because certain of the statutes limit orders to six months, all of the statutes must have six-month limits.[3] We disagree.

In effect, Moore is arguing that the right of involuntarily committed persons to refuse medication without a judicial finding creates an equal protection requirement that the factors considered in making that finding and the specific terms and conditions of the resulting order must be essentially identical. We reject the argument.

The equal protection clause requires similarly situated persons to receive similar treatment. It does not require identical treatment. (In re Jose Z. (2004) 116 Cal.App.4th 953, 960; People v. Green (2000) 79 Cal.App.4th 921, 924.) The state "may adopt more than one procedure for isolating, treating, and restraining dangerous persons; and differences will be upheld if justified. [Citations.] Variation of the length and conditions of confinement, depending on degrees of danger reasonably perceived as to special classes of persons, is a valid exercise of state power." (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 172; see also People v. Hubbart (2001) 88 Cal.App.4th 1202, 1217.)

Even assuming that an SVP is similarly situated with persons subject to the LPSA and Penal Code section 2600, as well as MDOs, as to his or her right to refuse antipsychotic medication, the need for such medication may be dissimilar. By limiting a commitment or recommitment to a period of two years, the SVPA limits the maximum period of involuntary medication to two years. (§§ 6604, 6604.1.) This limitation, together with other procedural safeguards contained in the SVPA (§§ 6602, 6603), are sufficient to satisfy equal protection requirements.

The judgment (order) is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Roger T. Picquet, Judge

Superior Court County of San Luis Obispo

______________________________

Jean F. Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Robert F. Katz, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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[1] All statutory references are to the Welfare and Institutions Code unless otherwise stated.

[2] A prior order for the involuntary medication of Moore was affirmed by this court in an unpublished opinion. (People v. Moore (Dec. 22, 2004, B173458).)

[3] Moore does not assert that the MDOA has a six-month limitation on involuntary medication, and is incorrect in his assertion that Penal Code section 2600 and the LPSA have six-month limits. Penal Code section 2600 incorporates the injunction issued in Keyhea v. Rushen (1986) 178 Cal.App.3d 526, which limited the involuntary medication of state prison inmates to one year, not six months. (See People v. Thomas (1990) 217 Cal.App.3d 1034, 1039.) And, the LPSA provides for one-year, not six-month, conservatorships. Moore's contention, however, would lack merit for the same reasons if he proposed a one-year rather than a six-month limitation.