Filed 3/17/21 Cal. Dept. of State Hospitals at Coalinga v. T.F. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
CALIFORNIA DEPARTMENT OF STATE
HOSPITALS AT COALINGA, F080811
Plaintiff and Respondent, (Super. Ct. No. 19CRAD685205)
v.
OPINION
T.F.,
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Mark E. Cullers,
Judge.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Cheryl L. Feiner, Assistant Attorney General,
Gregory D. Brown and Jennevee H. de Guzman, Deputy Attorneys General, for Plaintiff
and Respondent.
-ooOoo-
* Before Peña, Acting P.J., Meehan, J. and Snauffer, J.
INTRODUCTION
Appellant T.F. is a person civilly committed under the Sexually Violent Predator
Act (Welf. & Inst. Code, § 6600 et seq.).1 He suffers from certain disorders, but his
primary diagnosis is “schizoaffective disorder bipolar type.”
On January 27, 2020, the superior court determined that appellant lacks capacity to
refuse medical treatment. The court issued a written order that appellant could “be
involuntarily administered antipsychotic medication by Department of State Hospitals in
the dosage and for the frequency deemed necessary by Department of State Hospitals’
clinical treatment staff for the period of time not to exceed one year from the date of the
order.”
Appellant argues that the court’s order violates his federal constitutional rights to
due process and equal protection. He further contends that the court used erroneous
standards in issuing its order, and he asserts that substantial evidence does not support the
court’s ruling. We agree with respondent that appellant has forfeited his federal
constitutional challenges, and we conclude that appellant does not establish ineffective
assistance of counsel. We also determine that substantial evidence supports the order,
which we affirm.
BACKGROUND
The hearing below was initiated with the government’s petition seeking to
administer antipsychotic medications to appellant against his will. As we explain in
greater detail later in this opinion, California law permits the involuntary administration
1 Under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.), a
convicted sex offender may be declared a sexually violent predator (SVP) and be civilly
committed upon completion of the criminal sentence. (People v. Superior Court (Troyer)
(2015) 240 Cal.App.4th 654, 657.) A petition to commit someone as an SVP requires
two mental health evaluators to agree that the person in question is an SVP and is likely
to engage in acts of sexual violence without appropriate treatment and custody. (Ibid; see
also Welf. & Inst. Code, § 6601, subds. (d)–(i).)
2.
of such drugs upon an SVP if a court determines that the person is either (1) incompetent
to refuse the treatment; or (2) dangerous within the meaning of Welfare and Institutions
Code section 5300.2 (In re Calhoun (2004) 121 Cal.App.4th 1315, 1354; see also In re
Qawi (2004) 32 Cal.4th 1, 9–10 [establishing that the government may involuntarily
impose antipsychotic drugs upon a mentally disordered offender (MDO) utilizing the
same criteria].)
The government’s petition in this matter was filed under the authority of In re
Calhoun. The parties and the trial court agreed to bifurcate the proceedings. During the
first portion, only appellant’s capacity would be addressed. However, as appellant notes
in his opening brief, no further hearing occurred after the court ruled against appellant,
and the issue of dangerousness was never reached.3
2 Welfare and Institutions Code section 5300 is part of the Lanterman-Petris-Short
Act. This section permits, after expiration of a “14-day period of intensive treatment,” a
person may be confined for further treatment (not to exceed 180 days) if one of the
following exists:
“(1) The person has attempted, inflicted, or made a serious threat of substantial
physical harm upon the person of another after having been taken into custody, and while
in custody, for evaluation and treatment, and who, as a result of a mental health disorder,
presents a demonstrated danger of inflicting substantial physical harm upon others.
“(2) The person had attempted, or inflicted physical harm upon the person of
another, that act having resulted in the person being taken into custody and who presents,
as a result of a mental health disorder, a demonstrated danger of inflicting substantial
physical harm upon others.
“(3) The person had made a serious threat of substantial physical harm upon the
person of another within seven days of being taken into custody, that threat having at
least in part resulted in the person being taken into custody, and the person presents, as a
result of a mental health disorder, a demonstrated danger of inflicting substantial physical
harm upon others.” (Welf & Inst. Code, § 5300, subd. (a)(1)–(3).)
3 A finding of dangerousness was not necessary for the trial court to issue its order.
Instead, appellant’s lack of capacity was sufficient. (See In re Calhoun, supra, 121
Cal.App.4th at p. 1354.) Respondent asserts that the parties below “stipulated” that the
“sole issue before the trial court was T.F.’s capacity to consent to medical treatment.”
Appellant objects to respondent classifying this as a stipulation. We need not resolve that
3.
I. The Testimony From The Psychiatrist.
The prosecution established that appellant is an SVP who is under the care and
treatment of a psychiatrist. Appellant is an adult patient at the state hospital in Coalinga.
His doctor, Johnny Chee, testified that appellant’s primary diagnosis is schizoaffective
disorder bipolar type. Appellant’s main symptoms (when he is off his medications) are
mania, irritability, and delusions. Appellant reports auditory hallucinations. He also
suffers from “antisocial personality disorder, other specified paraphilic disorder, cannabis
use disorder, [and] hallucinogen disorder.”
Chee testified that, when he first met appellant, appellant agreed at that time that
he had a mental illness, and that he benefited from the medications. More recently,
however, appellant did not believe that he had a mental illness. He had refused to take
his medications for about one week, and he acquired a withdrawal symptom. Several
months after refusing to take his medications, appellant mentioned that he did have a
mental illness, but he did not believe he had schizoaffective disorder. During a more
recent conversation with appellant, appellant said “he heard voices” all the time.
Appellant, however, objected to Chee’s suggestion to use antipsychotics to treat his
auditory hallucinations. Chee believed that appellant was aware that he suffers from a
psychiatric condition, but “I don’t think he necessarily agrees with his clinical team or
my view on what he has.”
At the time of this testimony, appellant was taking lithium (450 milligrams a day)
as a mood stabilizer; paroxetine (20 milligrams a day) as an antidepressant; and
paliperidone (nine milligrams a day) as an antipsychotic. Chee described these drugs as
“a common combination for schizoaffective disorder.” He explained that lithium was
started in the summer of 2019 “after a period of non-adherence to [appellant’s] previous
mood stabilizer Depakote because he also wanted to resume his antidepressant
dispute. Instead, regardless of how the bifurcation occurred, it is undisputed that the trial
court only considered appellant’s capacity during this hearing.
4.
paroxetine.” Chee explained that the risk of prescribing an antidepressant without a
mood stabilizer “is bad and can sometimes result in mania in certain patients.”
The benefit of lithium is to keep appellant’s mood stable. In comparison to
appellant’s prior mood stabilizer, depakote, lithium would not result in weight gain,
which was a concern that appellant had expressed when he was on depakote. The benefit
of paroxetine is that it helps with depression or depressed mood. In the context of
appellant’s diagnosis, however, it could result in mania. The benefit of paliperidone is
that it treats psychotic symptoms such as voices and delusions. The risk it carries “is
things like acute dystonia, which is kind of a stiffening of the muscles; EPS, which is a
long-term effect of antipsychotics where there is kind of cognitive limit; and a less
consequential side effect” is a complaint of “sedation.”
Chee testified that he had discussed the risks and benefits of these drugs with
appellant as “best as I could.” In Chee’s opinion, appellant was unable to understand the
benefits and risks of taking or not taking the psychotropic medications. Appellant was
also not capable of understanding, participating and evaluating the information provided
to him with respect to his mental condition and treatment options. Chee explained that
appellant “has his opinion as to what the risks and benefits of his medications are and
they do not necessarily coincide with what we or what I feel like he needs to be taking to
maintain his stability.” Chee noted that, when appellant had stopped taking his
medications altogether for about one week, there were a greater number of “incident
reports” involving appellant, and Chee had decided to start the involuntary medication
process.
Chee informed the court that less intrusive methods for appellant were not
available for a standard treatment of schizoaffective disorder. He further opined that
appellant was unable to knowingly and intelligently give informed consent regarding his
treatment. Chee stated it was his professional opinion that appellant should be
administered psychotropic medication involuntarily if he refused to take the prescribed
5.
medication. The goal was to keep him “on the same scheduled medications that he has
been on since before the start of his involuntary medication via hospital panel. The goal
is not to increase his medications or whatnot. It is simply to make sure that he adheres to
the medication . . . he has been on.” Chee testified that it was important to keep appellant
on his medications because it is “the standard of treatment for his diagnosis and his
mental illness and he has had a decrease in incidents since he began adhering to his
medications again.”
Chee agreed that appellant’s current medication regimen was helping his
psychiatric condition. The contents of appellant’s conversations (at least in the times he
had agreed to see Chee or the team) “have been more reality based.” Reports of incidents
involving appellant “have completely decreased or been gone for the last couple of
weeks.” Before, appellant had suffered an increasing number of “significant incident
reports against female staff. He has been documented as being more focused on females
when he is manic. Since the start of the involuntary medication order by [the] hospital
panel, those reports have been non-existent.” Regarding delusions, Chee could not opine
whether those had lessened or not. However, Chee had not heard anything “other than
reality-based conversation coming from [appellant] in the last maybe one to two visits
that I’ve seen him.” Chee agreed that it was accurate to say that appellant’s mood was
more stable, and his discussions reality-based, because of the medications.
II. Appellant’s Testimony.
Appellant testified at the hearing. He agreed that, in June 2019, he had stopped
taking his medications for about nine days. During a meeting with Chee, appellant had
agreed to stop taking depakote and start a different mood stabilizer. Chee had wanted
him to take lithium, but appellant had reservations because he knew people who had
developed tardive dyskinesia. Appellant did not want that same outcome so he would not
take lithium. However, the next time he received his medications, they had been changed
6.
to lithium and haloperidol without appellant’s knowledge. That is why he refused to take
them. According to appellant, he told Chee that he would take other medications, but
Chee told him that those were the only two medications available. Chee started the
involuntary medication process when appellant refused to take them.
Appellant was concerned that the medications would cause him “visual twitches”
and other problems. He testified that, when considering whether or not to take prescribed
medication, he would read “the nursing handbook” to see the side effects and any
“counter-indicative” medications. He would also talk to other people, including a “dean
and supervisor and a psychologist .…”
Appellant stated that he went back on his medications to avoid problems with
staff. According to him, when he is not on his medications “they think that I’m going to
be a problem, so they make me a problem. They—they’ll search my room five times a
day, they’ll bump into me, and, like, they’ll create a problem.”
On cross-examination, appellant identified his diagnosis as schizoaffective
disorder but he was not sure that he had a mental illness. He did not believe he met the
definition of that disorder because he was not “disorganized,” “unclean,” or “dirty.” He
said that disorder involved people who “talk to themselves and stumble around, and I’m
not like that.” He admitted that he suffers from auditory, visual and mental
hallucinations. He said it was “irrelevant” to describe his hallucinations, but explained
that he has a “collective consciousness” and he is “aware of things in the environment
that aren’t being observed” by others. He believes in God and he is “spiritual.”
Appellant testified that he hears “what I expect are the thoughts of others, what is
most likely—like I can intuit.” He said he was very “intuitive” and he can “intuit things
and my mind gives body to that. Like I’m able to get an audible voice in your presence,
like, I—it isn’t—I don’t—like, what—like, it doesn’t influence my capacity. In fact, it
helps me.”
7.
Appellant testified that he did not want to take depakote because of weight gain.
He usually weighs 185 pounds but he now weighs 250, and the problem was getting
worse. He decided to stay on depakote because the only alternative drugs were worse,
but Chee “changed it anyway.” He stated that he was currently taking paliperidone,
which was an antipsychotic. He said Chee’s testimony had already identified the risks of
that drug. Appellant, however, claimed that the benefits were “illusional.” He compared
it to “drinking water” because it does not “do anything.” Nevertheless, he would stay on
that drug for the sake of the staff. He noted that his mood had been stable “for a long
period of time” but he was not sure if that was attributable to lithium. However, he
would prefer to be on a mood stabilizer other than lithium because he was “not willing to
take the chance of tardive dyskinesia.”
III. The Trial Court’s Ruling.
After hearing the testimony from Chee and appellant, the attorneys made relatively
brief arguments. Counsel for respondent generally asserted that appellant did not have
full awareness of his mental illness, and he was not able to participate in or make
decisions about his treatment options. In contrast, appellant’s counsel emphasized that
appellant was aware that he suffered from a mental condition, and he understood the
effect certain medications have on him. According to appellant’s counsel, appellant
wanted to continue certain medications and discontinue other medications. Appellant’s
counsel asserted that appellant takes “a lot of different factors into consideration in
making his decision as to what meds he should be on and what meds he shouldn’t.” In
reply, counsel for respondent asserted that appellant had denied having a mental illness.
Appellant needed to take his medications consistently, and there was a risk he would stop
whenever he disagreed with the medication regimen. Respondent asserted “it’s pretty
clear that he doesn’t understand the risks and benefits of the medication.”
8.
The trial court stated that, although appellant is “generally aware” that he has a
mental illness, “he’s not acutely aware of his situation. He has a general understanding
of the benefits and risks of some of the treatments but not all of the treatment, and he has
a tendency to substitute his judgment for the judgment of the doctors when it’s—he
believes—well, whenever he believes it’s beneficial to him.” The court found by “clear
and convincing evidence that [appellant is] not able to understand and knowingly and
intelligently and rationally evaluate and participate in his treatment decision at this time.”
The court noted that appellant has the right as a patient to question the doctor’s judgment.
“However, when it gets to the point where the—it becomes either refusals or refusals to
take certain medications where the health … of [appellant’s health is] at stake and the
health and safety of the public and those at the Department of State Hospitals [is] at
stake, [appellant] has to yield.”
The court found the involuntary treatment order to be appropriate. It issued a
written order finding that appellant lacks capacity to refuse treatment. Appellant could be
“involuntarily administered antipsychotic medication by Department of State Hospitals in
the dosage and for the frequency deemed necessary by Department of State Hospitals’
clinical treatment staff for the period of time not to exceed one year from the date of the
order.” The order was signed on January 27, 2020, and filed that same day.
DISCUSSION
I. Appellant Has Forfeited His Federal Constitutional Challenges And He Fails
To Establish Ineffective Assistance Of Counsel.
The parties dispute numerous issues surrounding the trial court’s order. According
to appellant, the court violated his federal constitutional rights. He contends that the
court failed to consider and apply the standards set forth in certain United States Supreme
Court opinions, which deal with the circumstances under which medications may be
involuntarily administered to prisoners.
9.
In contrast, respondent asserts (in part) that waiver occurred because appellant
failed to raise any of the constitutional claims that he now advances. Respondent further
contends that appellant’s constitutional rights were not violated.
To overcome forfeiture (or waiver), appellant argues that any objection in the
lower court based on the federal Constitution would have been futile. He also raises
ineffective assistance of counsel.
We agree with respondent that appellant has forfeited his federal constitutional
claims in failing to raise them below. Moreover, he does not demonstrate ineffective
assistance of counsel.
A. Appellant has forfeited his federal constitutional challenges.
The term “forfeiture” is defined as the failure to make the timely assertion of a
right. (United States v. Olano (1993) 507 U.S. 725, 733.) To avoid forfeiture, a party
must call the trial court’s attention to any infringement of rights or risk losing them.4
(People v. Saunders, supra, 5 Cal.4th at p. 590 & fn. 6.) A failure to object in the trial
court results in a forfeiture of those issues which are then raised on appeal. (People v.
Dykes (2009) 46 Cal.4th 731, 756; see also People v. Redd (2010) 48 Cal.4th 691, 730
[failure to raise confrontation clause in the trial court forfeited the claim on appeal].)
Constitutional claims may be raised for the first time on appeal if the new
arguments do not involve facts or legal standards different from what was raised below.
(People v. Tully (2012) 54 Cal.4th 952, 979–980.) The new argument must assert “ ‘that
the trial court’s act or omission, insofar as wrong for the reasons actually presented to
4 The terms “waiver” and “forfeiture” are often used interchangeably. (People v.
Saunders (1993) 5 Cal.4th 580, 590, fn. 6.) However, waiver is different from forfeiture.
Forfeiture is the failure to make the timely assertion of a right. In contrast, waiver is the
intentional relinquishment or abandonment of a known right. (United States v. Olano,
supra, 507 U.S. at p. 733.) In this matter, respondent asserts that appellant has waived
his federal constitutional claims. However, forfeiture appears to be the correct term in
this situation.
10.
that court, had the additional legal consequence of violating the Constitution.’
[Citations.] However, ‘[a] party cannot argue the court erred in failing to conduct an
analysis it was not asked to conduct.’ [Citation.]” (Id. at p. 980.)
Appellant claims it would have been futile to raise his federal constitutional
arguments below. According to him, the trial court would have merely followed the
current California law. We find this argument unpersuasive. Instead, appellant was
required to bring these issues to the court’s attention or risk losing them. (People v.
Saunders, supra, 5 Cal.4th at p. 590 & fn. 6.) His present constitutional challenges
involve facts and legal standards that are different from what was argued below. In short,
appellant cannot now contend that the court erred in failing to conduct an analysis it was
not asked to perform. (People v. Tully, supra, 54 Cal.4th at p. 980.) Appellant’s failure
to raise these constitutional issues in the superior court has resulted in their forfeiture on
appeal. (People v. Redd, supra, 48 Cal.4th at p. 730; People v. Dykes, supra, 46 Cal.4th
at p. 756.) Furthermore, appellant does not demonstrate ineffective assistance of counsel.
B. Appellant does not demonstrate ineffective assistance of counsel.
Under the federal and state Constitutions, a criminal defendant is entitled to the
effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People
v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on such a claim, a defendant must
establish two criteria: (1) that counsel’s performance fell below an objective standard of
reasonable competence; and (2) that he was thereby prejudiced. (Strickland v.
Washington (1984) 466 U.S. 668, 687–688.) The defendant has the burden of showing
both deficient performance and resulting prejudice. (People v. Lucas (1995) 12 Cal.4th
415, 436.)
As an initial matter, respondent contends that appellant had no right to the
effective assistance of counsel because this hearing was civil in nature. Appellant
disputes that assertion, contending that the state appointed counsel for him so it is logical
11.
to assume competent representation was required. Appellant, however, admits that he
has not found any published opinions which address and resolve an ineffective assistance
of counsel claim in the context of an involuntary medication order for a civilly committed
person.
We need not fully address the parties’ dispute regarding whether or not appellant,
as an SVP, enjoyed a federal constitutional right to the effective assistance of counsel
during the hearing below. Instead, we will presume that such a right extended to him in
this situation. With the presumption in mind, we summarize appellant’s constitutional
arguments before explaining why he does not demonstrate ineffective assistance of
counsel.
1. A summary of appellant’s constitutional arguments.
Appellant concedes that, under certain circumstances, the government may
involuntarily medicate a prisoner or person who is civilly committed. He asserts,
however, that federal law requires a showing of medical appropriateness (and, perhaps,
medical necessity). Because the trial court only focused on whether appellant lacked
capacity, and the court never considered whether or not the proposed medications were
medically appropriate, appellant contends that his federal due process rights were
violated.
Appellant also maintains that California law treats him disparately as an SVP
when compared to a defendant who is incompetent to stand trial. (See Pen. Code, § 1370,
subd. (a)(2)(B)(i)(I).) He claims that a less stringent standard was used for his situation
than those standards used to involuntarily medicate a defendant who lacks capacity to
assist in his own criminal trial. He contends that no “compelling governmental interest”
could exist for California to treat SVP’s differently from persons not competent to stand
trial. He argues we should reverse the trial court’s order and remand this matter so the
12.
court can employ the proper federal standards in determining whether it is appropriate for
the government to administer antipsychotic medications against his will.
2. A summary of the applicable federal law.
Appellant’s federal constitutional challenges stem from three United States
Supreme Court opinions. First, in Washington v. Harper (1990) 494 U.S. 210 (Harper),
the Supreme Court held that convicted prisoners possess a significant liberty interest in
avoiding the unwanted administration of antipsychotic drugs, and such drugs may be
involuntarily administered only if the inmate is dangerous to himself or others, and the
treatment is in the inmate’s medical interest. (Id. at p. 227.)
Second, in Riggins v. Nevada (1992) 504 U.S. 127 (Riggins), the Supreme Court
applied Harper to a criminal defendant facing trial. The Riggins court reversed a murder
conviction after concluding (1) there was an insufficient factual showing to support the
involuntary medication order; and (2) the defendant was likely prejudiced at trial because
the antipsychotic drugs had an adverse effect on his demeanor and ability to testify.
(Id. at pp. 137–138.)
Finally, in Sell v. United States (2003) 539 U.S. 166 (Sell), the Supreme Court
held that, following Harper and Riggins, the federal Constitution permits the government
to administer antipsychotic drugs involuntarily “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 governmental trial-related interests.” (Sell,
supra, 539 U.S. at p. 179.) The court acknowledged that the question of involuntary
medication to restore an accused’s ability to stand trial is different from involuntarily
medicating an inmate who is dangerous to himself or others when the refusal to take the
medication puts his health gravely at risk. (Id. at pp. 181–182.)
13.
3. A summary of the applicable California law regarding the
forced administration of antipsychotic drugs upon a criminal
defendant.
Following Sell, the California Legislature amended Penal Code section 13705 to
comply with federal due process requirements. (People v. O’Dell (2005) 126
Cal.App.4th 562, 569.) The Legislature added subdivisions governing the administration
of antipsychotic medication. (People v. Lameed (2016) 247 Cal.App.4th 381, 396.)
The Penal Code now directs a trial court to “hear and determine” whether a
criminal defendant lacks capacity to make decisions regarding the administration of
antipsychotic medication. (Pen. Code, § 1370, subd. (a)(2)(B).) A court must determine
if any one of the following three sets of conditions or criteria are true. (Pen. Code,
§ 1370, subd. (a)(2)(B)(i).)
The first possible condition or criteria is as follows: The defendant lacks capacity
to make decisions regarding antipsychotic medication; the defendant’s mental disorder
requires medical treatment with antipsychotic medication; and, if the defendant’s mental
disorder is not treated with antipsychotic medication, is it probable that serious harm to
the physical or mental health of the defendant will result.6 (Pen. Code, § 1370, subd.
(a)(2)(B)(i)(I).)
The second possible condition or criteria is as follows: The defendant is a danger
to others.7 (Pen. Code, § 1370, subd. (a)(2)(B)(i)(II).)
5 Penal Code section 1370 deals with criminal defendants who lack competency.
6 “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 a mental disorder and his or her condition is substantially deteriorating. The fact
that a defendant has a diagnosis of a mental disorder does not alone establish probability
of serious harm to the physical or mental health of the defendant.” (Pen. Code, § 1370,
subd. (a)(2)(B)(i)(I).)
7 The statute explains that this means the “defendant has inflicted, attempted to
inflict, or made a serious threat of inflicting substantial physical harm on another while in
custody, or the defendant had inflicted, attempted to inflict, or made a serious threat of
14.
The final possible condition or criteria is as follows: “The 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 defendant’s 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
patient’s best medical interest in light of his or her medical condition.” (Pen. Code,
§ 1370, subd. (a)(2)(B)(i)(III).)
Appellant acknowledges that California law follows the federal due process
standards from Sell, Riggins and Harper when it comes to involuntarily administering
antipsychotic medications to an accused person found mentally incompetent to assist in
his or her own trial. He argues, however, that California law, at least regarding the
involuntary administration of antipsychotic medications to an SVP, is at odds with those
federal requirements. To understand appellant’s assertions, we summarize the California
law regarding the involuntary administration of antipsychotic medications to an SVP.
4. A summary of the applicable California law regarding the
forced administration of antipsychotic drugs upon an SVP.
Welfare and Institutions Code section 6600 et seq. sets forth authority for civilly
committing a person designated as an SVP after they have completed a criminal sentence.
(State Dept. of State Hospitals v. J.W. (2018) 31 Cal.App.5th 334, 341.) Under the
inflicting substantial physical harm on another that resulted in his or her being taken into
custody, and the defendant presents, as a result of mental disorder or mental defect, a
demonstrated danger of inflicting substantial physical harm on others. Demonstrated
danger may be based on an assessment of the defendant’s present mental condition,
including a consideration of past behavior of the defendant within six years prior to the
time the defendant last attempted to inflict, inflicted, or threatened to inflict substantial
physical harm on another, and other relevant evidence.” (Pen. Code, § 1370, subd.
(a)(2)(B)(i)(II).)
15.
statutory scheme, an SVP is “a person who has been convicted of a sexually violent
offense against one or more victims and who has a diagnosed mental disorder that makes
the person a danger to the health and safety of others in that it is likely that he or she will
engage in sexually violent criminal behavior.” (Welf. & Inst. Code, § 6600, subd. (a)(1).)
In this context, a diagnosed mental disorder “includes a congenital or acquired condition
affecting the emotional or volitional capacity that predisposes the person to the
commission of criminal sexual acts in a degree constituting the person a menace to the
health and safety of others.” (Id. at subd. (c).) It must be found beyond a reasonable
doubt that the person qualifies as an SVP. (Welf. & Inst. Code, §§ 6603, subd. (f), 6604.)
If this standard is not met, the person shall be released at the end of their original
sentence or period of parole. If it is met, the person is then “committed for an
indeterminate term to the custody of the State Department of State Hospitals for
appropriate treatment and confinement.”8 (Welf. & Inst. Code, § 6604.)
Under California law, a competent adult has a common law and constitutional
right to refuse medical treatment, including the administration of antipsychotic drugs. (In
re Qawi, supra, 32 Cal.4th at p. 14.) Relatedly, “nonprisoners in California have a
statutory right to refuse long-term treatment with psychotropic drugs absent a judicial
determination that they are incompetent to do so.” (Keyhea v. Rushen (1986) 178
Cal.App.3d 526, 541.) However, an involuntarily committed patient may be forcibly
8 Respondent asserts that appellant’s treatment plan “had already been decided at
the time he was committed to the state hospital for treatment.” According to respondent,
due process did not “once again” require the lower court to make this determination.
Appellant objects to these assertions, claiming no such determination ever occurred when
he was first hospitalized. We agree with appellant in this regard. Respondent fails to cite
to the record establishing that appellant’s current treatment plan had already been decided
when he was committed to the state hospital for treatment. Welfare and Institutions Code
section 6606 merely requires the State Department of State Hospitals to provide
“programming” to an SVP “which shall afford the person with treatment for his or her
diagnosed mental disorder.” (Welf. & Inst. Code, § 6606, subd. (a).)
16.
treated with antipsychotic medication if a court has determined that he is not competent
to refuse treatment. (In re Qawi, supra, 32 Cal.4th at p. 14; In re Calhoun, supra, 121
Cal.App.4th at p. 1354.) “The right to refuse medication may be limited by
countervailing state interests such as caring for persons who are unable to care for
themselves and ‘institutional security.’ [Citation.]” (In re Greenshields (2014) 227
Cal.App.4th 1284, 1289.)
In In re Qawi, our high court analyzed whether a mentally disordered offender
under the Mentally Disordered Offender Act (MDO Act)9 has the right under statutory
law to refuse antipsychotic medication prescribed for his mental disorder in the absence
of a judicial determination of his incapacity to make such a decision. (In re Qawi, supra,
32 Cal.4th at p. 9.) The Supreme Court held that “an MDO can be compelled to take
antipsychotic medication in a nonemergency situation only if a court, at the time the
MDO is committed or recommitted, or in a separate proceeding, makes one of two
findings: (1) that the MDO is incompetent or incapable of making decisions about his
medical treatment; or (2) that the MDO is dangerous within the meaning of Welfare and
Institutions Code section 5300.” (In re Qawi, supra, 32 Cal.4th at pp. 9–10.) In addition,
“[t]he rights of MDO’s to refuse medication can be further limited by State Department
of Mental Health regulations necessary to provide security for inpatient facilities.” (Id. at
p. 10.)
Following In re Qawi, the Court of Appeal expanded this law to an SVP. An SVP
may refuse antipsychotic medication unless a court determines the person is
(1) incompetent to refuse the treatment; or (2) dangerous within the meaning of Welfare
9 The MDO Act requires “that offenders who have been convicted of violent crimes
related to their mental disorders, and who continue to pose a danger to society, receive
mental health treatment during and after the termination of their parole until their mental
disorder can be kept in remission.” (In re Qawi, supra, 32 Cal.4th at p. 9.)
17.
and Institutions Code section 5300.10 (In re Calhoun, supra, 121 Cal.App.4th at
p. 1354.) It was In re Calhoun which served as the legal basis for the government’s
petition in this matter.
5. Appellant does not establish that his counsel had no rational
tactical purpose for the alleged omissions and appellant does not
show prejudice.
In ruling on a claim of ineffective assistance of counsel, we are to defer to
counsel’s reasonable tactical decisions, and there is a strong presumption that counsel’s
conduct falls within the range of reasonable professional assistance. (People v. Lucas,
supra, 12 Cal.4th at pp. 436–437.) An appellate court will reverse the conviction “only if
the record on appeal affirmatively discloses that counsel had no rational tactical purpose
for his act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581.) In
conducting this review, the appellate court considers whether the record contains any
explanation for counsel’s actions; if the record sheds no light on counsel’s actions, the
claim is not cognizable unless counsel was asked for an explanation and failed to provide
one, or unless there could be no satisfactory explanation for the actions taken. (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266; People v. Kelly (1992) 1 Cal.4th 495, 520.)
In this matter, this ineffective assistance claim is not cognizable on appeal because
appellant’s counsel was not asked for an explanation regarding his alleged failure to raise
federal constitutional standards, and we cannot state that there can be no satisfactory
explanation for the actions taken. Instead, appellant’s counsel clearly attempted to
establish that appellant had capacity to refuse the medications. Appellant testified and
explained why he refused his treatment. During closing argument, appellant’s counsel
emphasized that appellant was aware that he suffered from a mental condition, and he
10 In In re Greenshields, the same court that decided In re Calhoun held that persons
who are found not guilty by reason of insanity have the same constitutional right as
MDO’s and SVP’s to refuse antipsychotic medication. (In re Greenshields, supra, 227
Cal.App.4th at p. 1287.)
18.
understood the effect certain medications have on him. According to appellant’s counsel,
appellant wanted to continue certain medications and discontinue other medications.
Appellant’s counsel asserted that appellant takes “a lot of different factors into
consideration in making his decision as to what meds he should be on and what meds he
shouldn’t.”
Appellant claims that his trial counsel “could have had no tactical reason for
failing to raise the two constitutional arguments.” We disagree. It is possible that a
reasonable attorney would have focused on the issue of capacity, and elected not to raise
federal constitutional arguments, in attempting to defeat the government’s petition during
this initial bifurcated proceeding. Thus, it appears counsel made a reasonable tactical
decision, which we will not second-guess on appeal. (See People v. Kelly, supra, 1
Cal.4th at p. 520.) Consequently, appellant fails to establish that his counsel’s
performance fell below an objective standard of reasonable competence. In any event,
even if his counsel failed to act reasonably, appellant also fails to establish prejudice.
To show prejudice, a defendant must demonstrate that there is a reasonable
probability the result of the proceeding would have been different in the absence of
counsel’s alleged errors. (People v. Majors (1998) 18 Cal.4th 385, 403.) “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.)
Here, Chee’s testimony established that appellant requires antipsychotic
medication. Appellant’s drug regimen was “a common combination for schizoaffective
disorder.” Chee opined that less intrusive methods are not available.
Chee made it clear that, when appellant was not using his antipsychotic
medication, he suffers serious harm to his mental health, which abates when he was on
his recommended regimen. During a more recent conversation with appellant, appellant
had said “he heard voices all the time” but objected to Chee’s suggestions for the use of
antipsychotics to treat his auditory hallucinations. Chee noted that, when appellant had
stopped taking his medications altogether for about one week, there were a greater
19.
number of “incident reports” involving appellant, and Chee had decided to start the
involuntary medication process. Chee testified that it was important to keep appellant on
his medications because it is “the standard of treatment for his diagnosis and his mental
illness and he has had a decrease in incidents since he began adhering to his medications
again.” Chee’s testimony amply demonstrated that the antipsychotic medication was
medically appropriate for appellant, if not necessary.
Appellant claims that “the government was required by the federal constitution to
prove medical necessity in order to involuntarily medicate him.” Regarding forfeiture (or
waiver), he asserts that his silence could not result in losing this right, which he equates
as a required element for the government to prove. We reject this assertion.
The three federal cases upon which appellant relies, Sell, Riggins, and Harper, did
not address the circumstances upon which a civilly committed patient may be
involuntarily administered antipsychotic drugs. Indeed, the Sell court noted that “courts
typically address involuntary medical treatment as a civil matter, and justify it on these
alternative, Harper-type grounds. Every State provides avenues through which, for
example, a doctor or institution can seek appointment of a guardian with the power to
make a decision authorizing medication—when in the best interests of a patient who
lacks the mental competence to make such a decision.”11 (Sell, supra, 539 U.S. at
p. 182.)
Although we have reservations regarding whether appellant is correct that the
requirements in Sell, Riggins, and Harper apply to an SVP, we need not fully analyze the
merits of his assertion. Instead, in light of this record, it is not reasonably probable the
trial court would have denied the government’s petition even if appellant’s counsel had
raised the federal constitutional arguments which he now advances in this appeal. Our
11 The Sell court also noted that, in civil proceedings, a court may authorize
involuntary medication “where the patient’s failure to accept treatment threatens injury to
the patient or others.” (Sell, supra, 539 U.S. at p. 182.)
20.
confidence in the outcome of this matter is not undermined. As such, ineffective
assistance of counsel is not present, and appellant’s claims must fail. His federal
constitutional challenges, which he failed to raise below, are deemed forfeited.
II. Substantial Evidence Supports The Trial Court’s Order.
Appellant contends that the trial court imposed the wrong standards in issuing its
order, and he asserts that substantial evidence does not support it.
A. Standard of review.
An appellate court reviews an order authorizing involuntary administration of
antipsychotic medication for substantial evidence. (State Dept. of State Hospitals v. J.W.,
supra, 31 Cal.App.5th at p. 344.) Such evidence must be reasonable, credible and of
solid value. We cannot reverse the judgment merely because the evidence could be
reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
B. Analysis.
When ruling in this matter, the trial court stated it did not know if appellant was
reading some medical literature when questioning Chee’s judgment. The court said it
was appellant’s right to do that as a patient, but the court expressed the following
concern: “However, when it gets to the point where the—it becomes either refusals or
refusals to take certain medications where the health … of [appellant’s health is] at stake
and the health and safety of the public and those at the Department of State Hospitals [is]
at stake, [appellant] has to yield.”
Appellant asserts that the trial court ordered him involuntarily medicated “simply
because he chose not to agree to the medications his doctors wished him to take.” He
contends that his “alleged dangerousness” was not at issue during this bifurcated
proceeding, and he argues that the court’s “concern about the safety of the hospital was
completely irrelevant.” He claims that the court’s analysis was flawed because it
assumed that he lacked capacity merely because he chose to weigh the dangers of the side
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effects against the benefits of the medications, only to reach a different conclusion from
the doctor. He maintains that the court implicitly determined that a “mere refusal to go
along with the medical recommendations of the treating psychiatrist proves the existence
of a lack of capacity.” Finally, appellant asserts that the trial court failed to consider the
required factors necessary to find a lack of capacity.12 He contends that nothing shows
his refusal was delusional. He argues that the trial court “simply rubber stamped” the
hospital’s decision to involuntarily medicate him.
We disagree with appellant’s numerous arguments. “A judicial determination of
competency to refuse treatment involves consideration of three factors: (1) whether the
patient is aware of his situation and acknowledges the existence of his condition;
(2) whether the patient understands the benefits and risks of treatment, as well as
alternatives to treatment; and (3) whether the patient is able to understand and evaluate
the information required to be given to patients whose informed consent is sought and
participate in the treatment decision by rational thought processes.”13 (State Dept. of
State Hospitals v. J.W., supra, 31 Cal.App.5th at p. 344, citing Riese v. St. Mary’s
Hospital & Medical Center, supra, 209 Cal.App.3d 1303, 1322–1323.)
A superior court must use a “clear and convincing” evidentiary standard to
determine if a committed patient is competent to refuse treatment. (State Dept. of State
Hospitals v. J.W., supra, 31 Cal.App.5th at p. 343.) Under this standard, the evidence
must be “so clear as to leave no substantial doubt, [and] sufficiently strong to command
12 Appellant, however, concedes that, in this context, there is “no clear definition” of
how capacity or competency is defined under California case law.
13 At least one appellate court has concluded that, with respect to the last
consideration, it should be assumed that the patient is using rational modes of thought
unless a clear link is shown between his or her delusional or hallucinatory perceptions
and the ultimate decision regarding medical treatment. (Riese v. St. Mary’s Hospital &
Medical Center (1987) 209 Cal.App.3d 1303, 1323.)
22.
the unhesitating assent of every reasonable mind.” (Conservatorship of Waltz (1986) 180
Cal.App.3d 722, 733, fn. 14.)
We reject appellant’s claim that the court found a lack of capacity merely because
appellant had disagreed with his medical team. The court determined that appellant is
“generally aware” that he has a mental illness, but “he’s not acutely aware of his
situation. He has a general understanding of the benefits and risks of some of the
treatments but not all of the treatment, and he has a tendency to substitute his judgment
for the judgment of the doctors when it’s—he believes—well, whenever he believes it’s
beneficial to him.” The court found by “clear and convincing evidence that [appellant is]
not able to understand and knowingly and intelligently and rationally evaluate and
participate in his treatment decision at this time.”
Although the court did not articulate the three factors outlined in case law to
determine appellant’s competency, substantial evidence supports the court’s ruling. Chee
testified that appellant had recently expressed disbelief that he had a mental illness.
During a more recent conversation with him, appellant said “he heard voices all the time”
but objected to Chee’s suggestion for the use of antipsychotics to treat his auditory
hallucinations. Chee thought appellant was aware he had a psychiatric condition, but
appellant did not necessarily agree with the clinical team.
Chee testified that he had discussed the risks and benefits of the drugs with
appellant as “best as I could.” In Chee’s opinion, appellant was unable to understand the
benefits and risks of taking or not taking the psychotropic medications. Appellant was
also not capable of understanding, participating and evaluating the information provided
to him with respect to his mental condition and treatment options. Chee explained that
appellant “has his opinion as to what the risks and benefits of his medications are and
they do not necessarily coincide with what we or what I feel like he needs to be taking to
maintain his stability.” Chee noted that, when appellant had stopped taking his
medications altogether for about one week, there were a greater number of “incident
23.
reports” involving appellant, and Chee had decided to start the involuntary medication
process.
Chee informed the court that less intrusive methods were not available for a
standard treatment of schizoaffective disorder. He further opined that appellant was
unable to knowingly and intelligently give informed consent regarding his treatment.
Chee stated it was his professional opinion that appellant should be administered
psychotropic medication involuntarily if he refused to take the prescribed medication.
The goal was to keep him “on the same scheduled medications that he has been on since
before the start of his involuntary medication via hospital panel. The goal is not to
increase his medications or whatnot. It is simply to make sure that he adheres to the
medication . . . he has been on.” Chee testified that it was important to keep appellant on
his medications because it is “the standard of treatment for his diagnosis and his mental
illness and he has had a decrease in incidents since he began adhering to his medications
again.”
Finally, appellant told the court that the benefits of paliperidone, an antipsychotic,
were “illusional.” He compared it to “drinking water” because it does not “do anything.”
The evidence from the hearing, and especially from Chee’s testimony, represented
substantial evidence supporting the three factors necessary for the trial court to have ruled
that appellant lacked capacity. The evidence established that (1) appellant was not aware
of his situation and he did not acknowledge his condition; (2) he did not understand the
benefits and risks of treatment, as well as alternatives to treatment; and (3) he did not
understand and could not evaluate the information, and he could not participate in the
treatment decision by rational thought processes. (See State Dept. of State Hospitals v.
J.W., supra, 31 Cal.App.5th at pp. 343–344.)
Appellant contends that Chee never connected his refusal to take the medications
to any “delusional beliefs.” According to appellant, he refused the medication because he
wanted to avoid the side effects. He concedes that some of his testimony contains
24.
material “that can be viewed as delusional,” but he argues that it was not delusion for him
to want to avoid unpleasant side effects. He maintains that he did recognize that he
suffers from a mental illness, and he recognized “at least some symptoms of his mental
illness and knows the side effects of the medicines the doctors want him to take.” He
argues that, if he is not allowed to refuse these medications, then the “entire process”
underlying these hearings “becomes a fraud.”
Appellant further notes that, given the state of the evidence, the trial court could
have decided to deny the government’s petition. He contends that the court could have
determined that he “was making a knowing and intelligent evaluation of the information
about the medication to reach a conclusion that while, perhaps, suboptimal, was not
indicative of a lack of capacity to make a decision.” Appellant asserts that he “offered a
rational explanation for his short term decision to stop taking medications completely.”
We decline appellant’s invitation to second-guess how the trial court should have
viewed the testimony. Although Chee never expressly opined whether or not appellant’s
delusional or hallucinatory perceptions were linked to his ultimate decision regarding
medical care, the totality of this record demonstrates that appellant was not capable of
evaluating the information provided to him, or understanding and participating regarding
his mental condition and treatment options. Moreover, when searching for substantial
evidence, we will neither reweigh the evidence nor reevaluate witness credibility. We
cannot reverse the court’s order merely because the evidence could be reconciled with a
contrary finding. (See People v. D'Arcy, supra, 48 Cal.4th at p. 293 [applying that
standard for a judgment].) The court clearly found Chee’s testimony credible, and it
rejected appellant’s testimony. We will not disturb how the court weighed the evidence
or the credibility of the two witnesses.
Based on this record, the trial court’s ruling had evidentiary support that was
reasonable, credible and of solid value. A reasonable fact finder could have concluded
based on clear and convincing evidence that appellant lacked capacity to refuse the
25.
administration of antipsychotic drugs. As such, substantial evidence appears in this
record. Accordingly, we will not reverse the court’s order, and appellant’s various
assertions are without merit.
DISPOSITION
The court’s order appealed from is affirmed.
26.