P. v. Aparicio

Filed 9/21/07 P. v. Aparicio CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Robert

R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to Cal. Const., art. VI,  6.) Affirmed.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant stands accused of murder for a decade-old crime. His prosecution has been delayed because he suffers from mental illness and has on numerous occasions been found incompetent to stand trial. Although antipsychotic medication has proven effective in terms of restoring his competency, he has been reluctant to medicate on his own. Because of this, the prosecution obtained an order allowing the forcible administration of antipsychotic drugs to appellant. Appellant challenges the order, contending it is procedurally flawed and lacks evidentiary support. We find no basis for reversal and therefore affirm the order.

* * *

Appellant has a history of mental illness and criminal activity. On June 12, 1997, he walked up to a group of strangers and stabbed one of them to death with a knife. The crime went unsolved for several years until appellant turned himself in to the police. Although the victim was not a gang member, appellant said the stabbing was gang-related payback for an earlier incident in which his brother was beaten up. Asked why he decided to come clean after so long, appellant said he had recently found Jesus and was having visions of hell.

In 2002, appellant was charged with murder and street terrorism, but he was found incompetent to stand trial and committed to Patton State Hospital (Patton). There, he was diagnosed with schizophrenia and antisocial personality disorder. However, he voluntarily took antipsychotic medications, which reduced the symptoms of his mental illness. In fact, appellants condition improved to the point where his treatment team believed he was competent to stand trial. The team also warned that for purposes of ensuring appellants continued competency, it was critical for him to continue taking his medication while he was in jail awaiting trial.

That didnt happen, at least not on a permanent basis. In late 2003, the court found appellants competence was restored and reinstituted criminal proceedings. But appellant subsequently refused to take his medication in jail, and in April 2004, the court once again found him incompetent to stand trial and recommitted him to Patton.

On December 13, 2004, the prosecution filed a superseding indictment and the grand jury indicted appellant for the originally charged offenses. When doubts about his competency again surfaced, the court appointed two doctors to evaluate him, psychiatrist David Sheffner and psychologist Veronica Thomas.

Dr. Sheffner met with appellant at the Orange County jail on January 22, 2005. Appellant did not exhibit any positive signs of schizophrenia, such as hallucinations and delusions, but he did exhibit plenty of negative signs, including marked apathy, slow thinking and non-responsiveness. He demonstrated little understanding of the legal process or his case in particular. And he insisted he had the right to refuse to take any medication. Dr. Sheffner concluded appellant was suffering from a profound mental disorder and lacked the capacity to make decisions about his medication, as well as the competency to stand trial. He also believed appellant would probably suffer serious harm to his mental health if he were not treated with medication.

Dr. Thomas interviewed appellant on May 12, 2005. At the time, appellant, was catatonic and exhibited signs of severe thought and speech impairment. Dr. Thomas detected no evidence of malingering and attributed appellants condition to his mental illness and his refusal to medicate. She did not think he would be able to achieve competency for trial if he did not resume his medication regimen. Nor did she believe appellant was competent to make decisions regarding antipsychotic medication.

On June 22, 2005, the parties agreed to have the court consider the issue of appellants competency based solely on the reports submitted by Drs. Sheffner and Thomas. Upon finding appellant incompetent to stand trial, the court asked him if he was willing to take his medications voluntarily, as recommended by the doctors. Appellant responded by telling the court, Im not sick. A supplemental placement report prepared by the Orange County Health Care Agency confirmed appellant was not taking his medications in jail. It also found appellant had little, if any, insight into his mental illness. Noting appellant was often found staring into space for long periods of time, the report recommended he be returned to Patton.

The prosecution then filed a motion for the forcible administration of antipsychotic medication. The hearing on that motion was held on August 5, 2005, with Dr. Sheffner as the sole witness. Before the hearing commenced, the prosecution showed Dr. Sheffner appellants jail records from December 2004 to May 2005. Dr. Sheffner had not seen those records before, but he did review them before taking the stand.

When asked about the records, Dr. Sheffner testified they indicated appellants mental state had deteriorated while he was in jail. More precisely, they showed appellant had suffered psychotic decompensation as a result of his refusal to medicate while in custody. The jail records did nothing to change Dr. Sheffners view of appellants condition; rather they were consistent with his previous observations of and opinions regarding appellant. In accord with his report of January 22, 2005, Dr. Sheffner testified to his belief that appellant was suffering from schizophrenia and that it would be beneficial and medically appropriate for him to be treated with antipsychotic medications.

Particularly, Dr. Sheffner thought appellant would benefit from a class of medications that is typically administered to schizophrenics. Included in this class are Haldol, Zyprexa and Risperdal. Dr. Sheffner noted appellants history showed he had successfully received such medications with a beneficial therapeutic value while at Patton. Indeed, these medications had helped restore appellants competency in the past.

Dr. Sheffner felt that as far as restoring appellants competency, there were not any less intrusive alternatives to the forcible administration of psychotic medication, and such treatment would be unlikely to cause any side effects that would hinder appellants ability to assist in his defense. Dr. Sheffner declined to comment on appellants present ability to make decisions about his medical treatment, due to the fact he had not seen appellant for seven months. However, Dr. Sheffner noted appellant lacked such ability in January 2005, when he evaluated him. Indeed, at that time, appellant was very deficient in that regard. Although he had not seen appellant since then, Dr. Sheffner testified he would expect appellants mental health only would get worse if he did not take his medication. And, as noted above, his jail records indicated he was in fact suffering mental decompensation as a result of his refusal to medicate.

At the end of Dr. Sheffners direction examination, the court took a recess. When the hearing resumed, the court noted that during the break, defense counsel had indicated appellant had changed his mind and was now willing to medicate on his own. However, appellant chimed in and said, No, I dont. The court confirmed with appellant that he did not consent to medication, and the hearing resumed.[1]

At the conclusion of the hearing, the court made a tentative ruling authorizing the forcible administration of antipsychotic drugs to appellant. In a subsequent formal order, the court found: (1) Appellant does not consent to the administration of medication; (2) he lacks the capacity to make decisions regarding antipsychotic medication; (3) his mental disorder requires treatment with such medication; (4) absent such treatment, he will probably suffer serious harm to his mental health; (5) he is charged with a serious crime against the person; (6) the involuntary administration of antipsychotic medication is substantially likely to render him competent to stand trial; (7) such medication is unlikely to have side effects that would interfere with his ability to assist in his defense; (8) less intrusive treatments are unlikely to achieve the same result; and (9) antipsychotic medication is in his best medical interest given his medical condition. In light of these considerations, the court ordered appellant returned to Patton and authorized the staff there to involuntarily administer antipsychotic medication to him.

I

The trial courts findings authorized the involuntary administration of antipsychotic medication to appellant on two different grounds: (1) to prevent serious harm to appellants mental health; and (2) to render him competent to stand trial. (Pen. Code,  1370, subd. (a)(2)(B)(ii)(I) & (III).) Having determined that forced medication was justified on the first ground, the court should not have considered the second ground. However, while this was improper, we do not believe it warrants a reversal.[2]

Under Penal Code section 1370, there are three grounds upon which the court may order a criminal defendant to undergo forcible administration of antipsychotic medication. The first basis focuses on the defendants own mental health and allows for forced medication if [t]he 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. (Pen. Code,  1370, subd. (a)(2)(B)(ii)(I).) The trial court found all of these requirements applicable to appellant.

The second basis for forced medication is that the defendant is a danger to others. (Pen. Code,  1370, subd. (a)(2)(B)(ii)(II).) The trial court did not make any findings, one way or the other, as to whether appellant is a danger to others. Noting a lack of evidence on the issue, the court said it makes no statement with regard to that.

The third and final basis for forced medication of a criminal defendant is to render him competent to stand trial. Forced medication is appropriate if [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. (Pen. Code,  1370, subd. (a)(2)(B)(ii)(III).) The trial court made findings authorizing the forced medication of appellant pursuant to the requirements of this provision.
The problem is, Penal Code section 1370 provides that the trial competency justification should only be used as a last resort, after the other two grounds for forced medication have been found not to exist: The court shall not authorize forced medication for trial competency purposes unless it has first found that the defendant is not a danger to himself or others. (Pen. Code,  1370, subd. (a)(2)(B)(iii).) Because the trial court found forced medication of appellant was justified to protect his own mental health, the court should not have proceeded to determine whether forced medication was justified on trial competency grounds. In that sense, the courts finding on the trial competency issue was, as appellant contends, premature. But it could also be described as an abundance of caution. Either way, contrary to appellants claim, it did not violate his due process rights.

The statutory framework authorizing forced medication to render a defendant competent to stand trial was patterned after Sell v. United States (2003) 539 U.S. 166 (Sell). (See People v. ODell (2005) 126 Cal.App.4th 562, 569.) In Sell, the United States Supreme Court acknowledged that individuals have a significant constitutionally protected liberty interest in avoiding the unwanted administration of antipsychotic drugs. [Citation.] (Sell, supra, 539 U.S. at p. 178.) However, the court determined the involuntary administration of such drugs to a mentally ill defendant to render him competent to stand trial is permissible 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 governmental trial-related interests. (Id. at p. 179.)

The Sell court also stated, A court need not consider whether to allow forced medication for [trial competency] purpose[s], if forced medication is warranted for a different purpose [] related to the individuals dangerousness[] or [] the individuals own interests where refusal to take drugs puts his health gravely at risk. (Sell, supra, 539 U.S. at pp. 181-182, citing Washington v. Harper (1990) 494 U.S. 210, 225-226.)

Indeed, [t]here are often strong reasons for a court to determine whether forced administration of drugs can be justified on these alternative grounds before turning to the trial competence question. (Sell, supra, 539 U.S. at p. 182.)
For one thing, the inquiry into whether medication is permissible [on these alternative grounds] is usually more objective and manageable than the inquiry into whether medication is permissible to render a defendant competent. [Citation.] (Sell, supra, 539 U.S. at p. 182.) For another thing, courts typically address involuntary medical treatment as a civil matter, and justify it on these alternative . . . grounds. (Ibid.) If a court authorizes medication on these alternative grounds, the need to consider authorization on trial competence grounds will likely disappear. (Id. at p. 183.)
While it may be easier and more practical for doctors and judges to determine in the first instance whether forced medication is warranted on the grounds the defendant is a danger to himself or others, Sell does not require as a constitutional mandate that this determination be made before turning to the issue of whether forced medication is justified to render the defendant competent to stand trial. By imposing this requirement, and indeed requiring a determination that forced medication is not required on other grounds before ordering it on trial competency grounds, Penal Code section 1370, goes beyond what the Constitution calls for.

For the reasons explained in Sell, this makes perfectly good sense. But it does not mean the trial courts order in this case was constitutionally flawed. It just means the prosecution and the court wore suspenders and a belt in terms of justifying the forced medication of appellant. Having determined forced medication was justified to protect appellants own mental health, the court need not have proceeded to address the trial competency issue. However, appellant fails to explain how this could have prejudiced him and we can discern no prejudicial effect ourselves. Therefore, the procedural error that occurred by virtue of the courts rendering judgment on the trial competency issue is not cause for reversal.

II

While it was not necessary for the court to reach the trial competency issue, that was a central issue at the forced medication hearing. Therefore, in the interest of completeness, we will consider appellants sufficiency-of-the-evidence argument on this issue. For reasons explained below, we find there is substantial evidence to support the courts finding forced medication is justified to render appellant competent to stand trial. (See People v. ODell, supra, 126 Cal.App.4th at p. 570 [order for forced medication is reviewed for substantial evidence].)

Again, we are guided by the Supreme Courts decision in Sell: First, a court must find that important governmental interests are at stake. The Governments interest in bringing to trial an individual accused of a serious crime is important. That is so whether the offense is a serious crime against the person or a serious crime against property. In both instances the Government seeks to protect through application of the criminal law the basic human need for security. [Citation.] [] . . . Moreover, the Government has a concomitant, constitutionally essential interest in assuring that the defendants trial is a fair one. (Sell, supra, 539 U.S. at p. 180.)

Second, the court must conclude that involuntary medication will significantly further those concomitant state interests. It must find that administration of the drugs is substantially likely to render the defendant competent to stand trial. At the same time, it must find that administration of the drugs is substantially unlikely to have side effects that will interfere significantly with the defendants ability to assist counsel in conducting a trial defense, thereby rendering the trial unfair. [Citation.] (Sell, supra, 539 U.S. at p. 181.) Whether a particular drug will tend to sedate a defendant, interfere with communication with counsel, prevent rapid reaction to trial developments, or diminish the ability to express emotions are matters important in determining the permissibility of medication to restore competence . . . . (Id. at p. 185.)

Third, the court must conclude that involuntary medication is necessary to further those interests. The court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results. [Citations.] And the court must consider less intrusive means for administering the drugs, e.g., a court order to the defendant backed by the contempt power, before considering more intrusive methods. (Sell, supra, 539 U.S. at p. 181.)

And finally, the court must conclude that administration of the drugs is medically appropriate, i.e., in the patients best medical interest in light of his medical condition. The specific kinds of drugs at issue may matter here as elsewhere. Different kinds of antipsychotic drugs may produce different side effects and enjoy different levels of success. (Sell, supra, 539 U.S. at p. 181.)

Appellant argues the court failed to make adequate findings to support its conclusion the state has an important interest in rendering him competent to stand trial. Appellant notes that while the court mentioned he was facing a homicide charge, it did not articulate the specific charges in rendering its decision, nor did it expressly consider the facts or circumstances of his case. (See Sell, supra, 539 U.S. at p. 180 [states interest in rendering defendant competent may be lessened by the particular facts and circumstances of the given case].) But the court did refer to appellants actions as a serious crime against the person. The court also took judicial notice of the records in this case, which contain the full details of appellants alleged crimes. We can find nothing in the facts or circumstances of this case nor has appellant cited us to anything that would undermine the states important interest in rendering appellant competent to stand trial. In so doing, the state justifiably seeks to protect through application of the criminal law the basic human need for security. . . . (Sell, supra, 539 U.S. at p. 180.)

Appellant also takes issue with the courts finding that the forcible administration of antipsychotic medication is substantially likely to render him competent to stand trial and substantially unlikely to have side effects that would impair his ability to assist his attorney at trial. The crux of appellants complaint lies in the fact that Dr. Sheffner testified there is an entire class of medications, which includes Haldol, Zyprexa, and Risperdal, that would be beneficial and safe for him to take. Appellant argues that the record shows and indeed Dr. Sheffner previously testified the only drug that will help him is Haldol. We disagree.

At appellants competency hearing of April 7, 2004, Dr. Sheffner testified that appellant was treated with antipsychotic medications at Patton from May to October 2003. Dr. Sheffner further testified to his belief that those medications included Haldol, which he described as a trade name for a particular antipsychotic medication. He said taking a medication such as Haldol would be beneficial for appellant in terms of restoring his competency to stand trial. The record also shows that appellant has been treated with Zyprexa and Risperdal.

The upshot of Dr. Sheffners testimony, and the record as a whole, is that Haldol is but one of the antipsychotic medications that would help restore appellants competency. Therefore, the fact that during the forcible medication hearing Dr. Sheffner identified Haldol as being in the class of antipsychotic medications that would be beneficial to appellant is of little moment. All along, Dr. Sheffner has been consistent in his view that administering antipsychotic medications to appellant would greatly enhance the odds of appellant regaining his competency. He did not hang his hat on the administration of any particular drug, or combination of drugs, so we are disinclined toward appellants position on the matter. Suffice it to say, Dr. Sheffners testimony and reports constitute substantial evidence to support the trial courts conclusion that the forcible administration of antipsychotic drugs to appellant is substantially likely to restore his competency and substantially unlikely to interfere with his ability to assist his attorney at trial.

Next, appellant contends the involuntary administration of antipsychotic medications is not necessary in this case because there are less intrusive means to achieve the goal of restoring his competency. He suggests therapy or counseling would be just as effective in terms of treating his schizophrenia, but Dr. Sheffner rejected this notion in his testimony. He simply did not believe that less intrusive treatment options would do the trick. Although the record shows appellant participated in group therapy and educational activities at Patton, antipsychotic medication has always been the mainstay of his treatment plan. It is, according to Drs. Sheffner and Thomas, the one thing appellant needs in order to regain his competency to stand trial.

Appellant also claims the court should have tried to compel him to take his medication under the threat of contempt before considering an order for forcible medication. But given the state of the record, that would have been a futile gesture. Appellant had made it abundantly clear by the time of the forced medication hearing that he was unwilling to take his medication voluntarily. He toyed with the notion of giving his consent at the hearing, but in the end he was steadfast about refusing to medicate on his own. And since he was already in custody at the time, the threat of contempt was unlikely to change his mind on the issue. The courts failure to explore the contempt option was entirely understandable; it does not undermine the validity of its order.

Appellant further argues there is insufficient evidence to support the trial courts finding that treating him with antipsychotic medication against his will is medically appropriate. On this point, appellant reiterates his earlier argument that only Haldol is appropriate for him, so the fact Dr. Sheffner testified Haldol is but one of several drugs that can help him is a sufficient basis to impugn the courts order. As we have explained, however, the record shows appellant has been successfully treated in the past with a class of antipsychotic drugs which includes Haldol. Because the record does not support appellants claim that Haldol is the only drug that will work for him, we have no occasion to disturb the courts finding regarding medical appropriateness.

In sum, there is substantial evidence to support the trial courts ruling that forcible administration of antipsychotic drugs is justified to render him competent to stand trial. We therefore reject appellants evidentiary challenge to that aspect of the courts order.

III

As discussed above, the court also found the forcible administration of antipsychotic medication to appellant was necessary to preserve his mental health. As to that justification, appellant challenges but one finding, i.e., he lacked the capacity to make decisions regarding antipsychotic medication. (See Pen. Code,  1370, subd. (a)(2)(B)(ii)(I).)

In arguing insufficient evidence as to that issue, appellant makes much of the fact that during the forced medication hearing in August 2005, Dr. Sheffner was unwilling to render an opinion regarding appellants present capacity to make decisions regarding antipsychotic medication. However, seven months before the hearing, in January 2005, Dr. Sheffner reported appellant lacked such capacity. Dr. Thomas reached the same conclusion in May 2005. And appellants jail records from December 2004 to May 2005 showed that his condition was worsening, due to his refusal to medicate. If appellant lacked capacity in January and May 2005 and his condition was on a downward spiral because of his failure to medicate, the logical inference would be that he lacked capacity at the time of the forced medication hearing in August 2005. The trial courts finding in this regard is supported by substantial evidence.

The order is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

OLEARY, J.

ARONSON, J.

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[1] During Dr. Sheffners redirect examination, appellant left the courtroom without saying where he was going. He returned to the courtroom just as Dr. Sheffners testimony ended. The record offers no enlightenment about this odd occurrence.

[2] At our invitation, the parties submitted supplemental letter briefs on this issue.