Opinion
C093777
02-09-2022
THE PEOPLE, Plaintiff and Respondent, v. TANISHA RENE DEAL, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 20FE016192
KRAUSE, J.
Defendant Tanisha Rene Deal was charged with robbery and then found mentally incompetent to stand trial. The trial court, relying on a report from a psychologist, later issued an order authorizing the involuntary administration of antipsychotic medication. On appeal, defendant contends there is insufficient evidence supporting the involuntary medication order. We agree and will reverse.
BACKGROUND
On October 10, 2020, defendant allegedly attacked and robbed a woman at a light rail station. Defendant was charged with second degree robbery (Pen. Code, § 211). On November 3, 2020, the trial court suspended criminal proceedings and appointed Dr. Janice Nakagawa under section 1369, subdivision (a) to determine defendant's competency to stand trial.
Undesignated statutory references are to the Penal Code.
This case was joined with three other misdemeanor cases.
Dr. Nakagawa, a licensed psychologist, submitted a report on December 11, 2020. In preparing the report, she reviewed defendant's arrest records, which included several battery charges as well as mental health assessments made of defendant in jail after her arrest. Dr. Nakagawa also interviewed defendant "to determine whether she was presently mentally competent." Dr. Nakagawa noted in her report that defendant "reportedly assaulted another inmate the day before" the interview. During the interview, defendant "was frequently irrational, with thought disorganization in evidence as well as delusional paranoid perspectives evident."
Dr. Nakagawa concluded that defendant has "Unspecified Schizophrenia and Other Psychotic Disorder," is unable to understand the criminal proceedings or to assist counsel, and "does not present as having the capacity to make decisions regarding antipsychotic medications." The doctor found there was no evidence that defendant is "a current danger to herself," but opined that "there is a potential for danger to others if her mental health issues are not addressed adequately," and "[w]ithin the scope of [her] license and opinions, antipsychotic medication is medically appropriate and is likely to restore [defendant's] competence." Thus, it was Dr. Nakagawa's "opinion that [defendant] is incompetent."
On December 15, 2020, the trial court found defendant incompetent to stand trial and requested an evaluation and recommendation about where defendant should receive treatment. On December 30, 2020, Gordon Migliore, a forensic mental health specialist, submitted a report relying on Dr. Nakagawa's report, recommending defendant "be referred to inpatient treatment with the California Department of State Hospitals."
On January 26, 2021, the trial court ordered defendant committed as an inpatient to the custody of the State Department of State Hospitals for a maximum of two years. At the hearing, the trial court stated it also was "ordering that involuntary antipsychotic medication is necessary as part of the treatment of [defendant] and to assist in her regaining her competency and I will provide authority to the State Hospital to administer medications as deemed appropriate." The court also filed a written order, checking boxes that "[a]ntipsychotic medication has been recommended for defendant," "[d]efendant has been determined not to have the capacity to make medication decisions," and defendant "has a mental disorder that requires medical treatment with antipsychotic medication, and, if not treated with medication, it is probable that serious harm to the defendant's physical or mental health will result. On this basis, antipsychotic medication may be administered to defendant." (Original underscoring.) The court also ordered periodic reports that include the details and effects of any antipsychotic medication administered to defendant.
DISCUSSION
Defendant contends the trial court's order of involuntary administration of antipsychotic medication under section 1370, subdivision (a)(2)(B)(i)(I) is not supported by substantial evidence. Defendant asserts this, in part, because the trial court erred in basing its order on Dr. Nakagawa's report alone because she is a psychologist, not a psychiatrist. The People contend Dr. Nakagawa's report was sufficient evidence to support the trial court's order. They also assert Dr. Nakagawa could properly evaluate defendant for the appropriateness of antipsychotic medication. On the record before us, we find defendant's position more persuasive.
When a defendant has been found mentally incompetent, a court must determine whether a "defendant lacks capacity to make decisions regarding the administration of antipsychotic medication." (§ 1370, subd. (a)(2)(B).) If any one of three conditions are satisfied "the court shall issue an order authorizing involuntary administration of antipsychotic medication to the defendant when and as prescribed by the defendant's treating psychiatrist." (§ 1370, subd. (a)(2)(B)(ii).)
The first condition is when the court finds "[t]he 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, it is probable that serious harm to the physical or mental health of the patient will result." (§ 1370, subd. (a)(2)(B)(i)(I).) The second condition is met if the court finds the defendant is a danger to others and has inflicted or threatened to inflict "substantial physical harm on another . . . and the defendant presents, as a result of mental disorder or mental defect, a demonstrated danger of inflicting substantial physical harm on others." (§ 1370, subd. (a)(2)(B)(i)(II).) And the third condition is when the defendant has been charged with a serious crime, "involuntary administration of antipsychotic medication is substantially likely to render the defendant competent to stand trial," there is no less intrusive treatment, and "antipsychotic medication is in the defendant's best medical interest in light of their medical condition." (§ 1370, subd. (a)(2)(B)(i)(III).)
Trial courts must determine whether a defendant lacks capacity to make decisions regarding the administration of antipsychotic medication based upon opinions in reports prepared under section 1369, subdivision (a). (§ 1370(a)(2)(B).) Under that statute, the trial court may "appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant." (§ 1369, subd. (a)(1).) They also shall evaluate "if within the scope of their licenses and appropriate to their opinions, whether or not treatment with antipsychotic medication is medically appropriate . . . . If an examining psychologist is of the opinion that antipsychotic medication may be medically appropriate for the defendant and that the defendant should be evaluated by a psychiatrist to determine if antipsychotic medication is medically appropriate, the psychologist shall inform the court of this opinion and his or her recommendation as to whether a psychiatrist should examine the defendant. . . . If the defendant is examined by a psychiatrist and the psychiatrist forms an opinion as to whether or not treatment with antipsychotic medication is medically appropriate, the psychiatrist shall inform the court of his or her opinions as to the likely or potential side effects of the medication, the expected efficacy of the medication, possible alternative treatments, and whether it is medically appropriate to administer antipsychotic medication in the county jail." (§ 1369, subdivision (a)(2), italics added.)
Here, the trial court's involuntary medication authorization reflects an implicit finding that the first circumstance applied. "We review the trial court's order authorizing the involuntary administration of antipsychotic medication to defendant for substantial evidence. [Citation.]" (People v. Lameed (2016) 247 Cal.App.4th 381, 397.)
For the first condition, the trial court was required to find, among other factors, that defendant's mental disorder requires medical treatment with antipsychotic medication. We agree with defendant that Dr. Nakagawa could not make this recommendation within the scope of her license. Further, her report did not, as contemplated by section 1369, subdivision (a)(2), make a recommendation as to whether a psychiatrist should examine defendant. The trial court therefore erred in relying on Dr. Nakagawa's opinion in issuing the challenged order.
The procedure for ordering involuntary administration of antipsychotic medication cannot exceed the limits of a psychologist's license. It instead explicitly ties the process to "the scope of their license." In California, "[t]he practice of psychology shall not include prescribing drugs." (Bus. & Prof. Code, § 2904.) This explains why, under section 1369, a psychologist can recommend that medication may be appropriate, but only a psychiatrist can determine that medication is medically appropriate. Consequently, a psychologist must recommend to the court whether a psychiatrist should examine the defendant to conclusively determine medical appropriateness, and then the psychiatrist informs the court of his or her opinion. (§ 1369, subd. (a)(1).)
This process was employed in Lameed, a case relied upon by the People. There, the trial court first reviewed a report from a psychologist who "recommended that defendant continue taking antipsychotic medication," so the court then appointed a psychiatrist who concluded it was" 'medically appropriate to treat . . . defendant with antipsychotic medication.'" (People v. Lameed, supra, 247 Cal.App.4th at pp. 390, 391.) From this, the trial court ordered" 'defendant may be involuntarily medicated while in placement.'" (Id. at p. 393.) The appellate court found this order was supported by substantial evidence because, in part, the psychiatrist "testified that if defendant is not treated with antipsychotic medication, he will have a recurrence of his delusions and symptoms." (Id. at p. 401.) In this case, this important step was bypassed.
The People argue that determining medical appropriateness of a medication is different than prescribing a medication, so finding medication medically appropriate can still be within the scope of a psychologist's license. This may be true, as even after a trial court finds any one of the three conditions satisfied, "the court shall issue an order authorizing involuntary administration of antipsychotic medication to the defendant when and as prescribed by the defendant's treating psychiatrist at any facility housing the defendant." (§ 1370, subd. (a)(2)(B)(ii), italics added.) But again, only a psychiatrist can find a medication "is medically appropriate" under section 1369, which is a requirement for the first condition of section 1370. (§ 1370, subd. (a)(2)(B)(i)(I) ["the defendant's mental disorder requires medical treatment with antipsychotic medication"].) These statutes, therefore, treat psychiatrists and psychologists differently in terms of what findings they can provide to court, just as the licensing statutes treat them differently in terms of their ability to prescribe medication.
Here, Dr. Nakagawa was not herself prescribing medication, and it might be that the trial court envisioned that a psychiatrist at the State Hospital would review its order and exercise his or her judgment about whether prescription antipsychotics were necessary, but that is not the process prescribed by the statute, nor is it how the text of the order reads.
The trial court here received no evidence or reporting from a psychiatrist as to the necessity of medication before "ordering that involuntary antipsychotic medication is necessary" and may be administered by the State Hospital. Putting aside whether Dr. Nakagawa's report provided evidence of other elements required under the first condition, the court's order lacked substantial evidence because there was necessarily no valid evidence that medication was necessary or medically appropriate; that opinion could only be furnished by a psychiatrist.
DISPOSITION
The judgment is reversed as to the involuntary medication authorization and the matter is remanded for further proceedings consistent with this opinion. The judgment is affirmed in all other respects.
We concur: BLEASE, Acting P. J., RENNER, J.