Opinion
F076028
02-08-2018
CALIFORNIA DEPARTMENT OF STATE HOSPITALS AT COALINGA, Plaintiff and Respondent, v. C.G., Defendant and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Senior Assistant Attorney General, Ismael A. Castro and Brenda A. Ray, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CRAD683772)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Kimberly Gaab, Judge. Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Senior Assistant Attorney General, Ismael A. Castro and Brenda A. Ray, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Peña, J. --------
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INTRODUCTION
Appellant C.G., a mentally disordered offender (MDO), previously was subject to an involuntary medication order. He contends substantial evidence does not support the superior court's July 3, 2017 order that he be involuntarily medicated. We disagree and affirm.
FACTUAL AND PROCEDURAL SUMMARY
On May 24, 2017, the Department of State Hospitals (DSH) filed a petition to renew an order to compel involuntary treatment with antipsychotic medication of C.G. The petition alleged that C.G. was committed to DSH-Coalinga as an MDO; that he is diagnosed with Schizoaffective Disorder; and has a history of noncompliance with taking antipsychotic medication. Symptoms of his diagnosis exhibited by C.G. included delusions that he is a fictional spy character, the United Nations Security General, and the anti-Christ. C.G. had stated that his brain was replaced by a cell phone and he wanted to be in "solar flare form."
It also was alleged C.G. demonstrates a lack of insight into his mental illness, and consequently, does not believe he has any symptoms of a psychiatric illness. C.G. was "at times" refusing medications stating, "I don't think it is working. It is too strong."
The petition further alleged C.G. is incompetent to refuse medical treatment, does not understand the benefits and risks of treatment, and is unable to participate in treatment decisions. Attached to the petition is a verification signed by Dr. Alaric Frazier, stating, "The contents of the petition are true based on personal knowledge and review of the medical history, diagnosis, and treatment of this individual."
The trial court appointed the public defender to represent C.G. and ordered all DSH medical records of C.G. be provided to defense counsel. A hearing on the petition was set for July 3, 2017.
At the July 3, 2017 hearing, Dr. Ravi Chand testified as an expert witness; the parties stipulated to his qualification as an expert. Chand is a staff psychiatrist at DSH- Coalinga. He personally interviewed C.G. for 30 to 45 minutes and reviewed C.G.'s medical records. Chand also interviewed C.G.'s psychiatrist, his treatment team, level of care staff, and medication person. Upon completion of these interviews and medical record review, Chand diagnosed C.G. as having paranoid schizophrenia.
According to Chand, the symptoms that C.G. exhibited that supported the diagnosis were that he was "very paranoid" and "very guarded" in his interview, had a "restricted affect," and appeared preoccupied. Additionally, C.G. "appeared to have disorganization of his thought process." Chand opined that C.G. "had residual symptoms of schizophrenia, although they were not full-blown," and could "keep his thoughts together and present fairly well" which could "give the Court a false impression of Mr. [G.] having insight."
When Chand interviewed C.G., C.G. told him "that he does not have any psychiatric symptoms." Chand testified he disagreed with that assessment. C.G. admitted he had paranoid schizophrenia in the past, but stated he had no "psychiatric symptoms at the present time." Chand stated the "ordinary course of treatment" for people with C.G.'s diagnosis was "[u]sually seven out of ten patients would need treatment for life."
Chand opined that C.G. did not understand the risks or benefits to taking his medication. In his interview with C.G., Chand did not observe any physical side effects from the prescribed medications C.G. was taking and C.G. did not complain of any side effects. C.G. has been "highly functional, which typically paranoid schizophrenia patients can be with appropriate treatment." Chand testified that C.G.:
"clearly lacks insight into the mainstay of his treatment, which is psychiatric meds. The capacity, you know, the basic understanding of the nature of his psychiatric illness, the risk and benefits of his psychiatric meds, risk and benefits of alternatives to psychiatric meds, possible consequences of no treatment, and attending some groups or perhaps some leisure activities alone as alternatives are not going to alleviate the symptoms of his psychosis."
At one point in his testimony, in responding to a question, Chand referred to a statement made to him by Dr. Frazier about C.G. Defense counsel objected as calling for hearsay and the trial court sustained the objection. This is the only objection made by the defense to any of Chand's testimony.
On cross-examination, Chand testified he did a full examination of C.G. C.G.'s "medication person" told Chand that C.G. recently had refused some of his medications. C.G. told Chand that if he had a choice, he would not take Haldol and Risperdal. He would take Clozaril.
Chand acknowledged these medications could have serious side effects, including drooling, "Parkinsonian side effects, stroke, heart attack, diabetes, obesity, hypertension," but noted C.G. had not complained about any side effects and Chand had noticed no side effects. Chand also indicated C.G. did not have diabetes or high cholesterol. Chand acknowledged there are different antipsychotic medications with differing risks, but noted "some of the medications work better for certain patients than others."
C.G. was selective about taking Clozaril and selective about how much of the drug he would take. C.G. was on a dosage of Clozaril that is "very safe as far as metabolic syndrome" and "almost has no Parkinsonian side effects." The Haldol was to "augment the effects of Clozaril." C.G. had to have a regimen of blood work on a regular basis while on the medication.
Supplemental antipsychotics were generally "very important" in treatment decisions. The attending psychiatrist could accede to C.G.'s demands to remove medications other than Clozaril and increase the Clozaril. If the attending believed that increasing Clozaril would increase the risk of seizures, drooling, excessive sedation, or falling down and incurring fractures, then an alternative such as augmentation with other drugs would be chosen.
Chand agreed that C.G. "has a lot of experience with different medications and their effects on him personally." Chand also opined, "the very fact that he ended up on Clozaril, which means it's the last stop for him." Chand would not alter the combination of medications C.G. was currently taking because "he's doing well, and he's safe. And safety is a major factor in a maximum security forensic hospital."
Chand opined that C.G. had vacillating insight, but presented fairly well and could hold a conversation. The goal at DSH-Coalinga was to use "least restrictive measures" to treat a patient. When a patient is "resistant to insight," more extreme measures have to be used. In Chand's opinion, C.G. needed to be on involuntary medication to enhance his functioning and safety.
Without medication, C.G. would not receive the full benefits of treatment. "[A]bout 70 percent of his D2 receptors" needed to be blocked in order to "control the psychotic symptoms." C.G.'s intermittent insight meant he would reject medication at some points, but not others. Chand opined that C.G. probably would not ever reach a point where his insight was not intermittent. Regardless, C.G. had not reached that point as of the date of the hearing and needed to continue on involuntary medication.
C.G. also testified at the hearing. C.G. had been at DSH-Coalinga since 2010; previously he was at Atascadero. Before being placed in a state hospital, C.G. was not taking any antipsychotic medication.
Dr. Frazier was C.G.'s treating psychiatrist. C.G. was not opposed to taking medication; he was opposed to being forced to take medication. He admitted refusing to take medication in the past, on two occasions, because he "didn't want to take the medication." He did not want to be subject to an involuntary medication order "[b]ecause if I do want to skip a medication day, they can force it on me."
When asked if he thought he had symptoms of paranoid schizophrenia, he stated, "So far today I haven't had any thoughts of people being out to get me or anything like that, so I don't see how I'm paranoid schizophrenic." He acknowledged having symptoms in the past, including delusions, because of his use of "crystal meth."
C.G. felt he could weigh the risk of taking medication and make his own decision. If he was subject to a forced medication order, he "can't go to CONREP or anything like that." When asked if he could comply without an order, C.G. responded, "I'm trying to do the best mental health possible. Trying to have a clean, crisp mental health. So I don't know what to do."
On cross-examination, C.G. answered that he had a mental illness and that illness was paranoid schizophrenia. He still testified, though, that his illness was a result of use of "crystal meth" and that his delusions were "in the past."
The superior court found that C.G.'s testimony was "inconsistent in his understanding of what his diagnosis is and whether he suffers from paranoid schizophrenia." The superior court noted that at one point, C.G. testified he "couldn't see how he could be paranoid schizophrenic," but "it's been inconsistent." The superior court stated, "he refused twice in the past to take his medications. His reasoning was because he didn't want to take it. So I have concerns."
The superior court found C.G. had been adjudicated an MDO; was presently incompetent to make decisions regarding his medical treatment; and lacks capacity to refuse treatment. The superior court ordered C.G. involuntarily be medicated by DSH in a dosage and frequency deemed necessary for a period not to exceed one year.
The order authorizing DSH to involuntarily medicate C.G. with antipsychotic medication was filed July 3, 2017, and remains in effect for one year. On July 11, 2017, C.G. filed a notice of appeal from the order.
On August 23, 2017, this court granted calendar priority to the appeal.
DISCUSSION
C.G. contends substantial evidence does not support the superior court's order to compel involuntary treatment with antipsychotic medication.
MDO Act
The MDO Act was enacted in 1985. It 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 until their mental disorder can be kept in remission. (Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1061, disapproved on another point in People v. Harrison (2013) 57 Cal.4th 1211, 1230, fn. 2.) Commitment as an MDO is not indefinite. An MDO is committed for one-year periods and thereafter has the right to be released unless the People prove beyond a reasonable doubt that he or she should be recommitted for another year. (Lopez, supra, at p. 1063.)
A recommitment under the MDO law requires proof beyond a reasonable doubt that the patient has a severe mental disorder; the disorder is not in remission or cannot be kept in remission without treatment; and because of that disorder, the patient represents a substantial danger of physical harm to others. (Pen. Code, § 2970, subd. (b); People v. Burroughs (2005) 131 Cal.App.4th 1401, 1404.) The focus is on the defendant's current condition. (People v. Cobb (2010) 48 Cal.4th 243, 252.)
Involuntary Treatment
An involuntarily committed patient may forcibly be treated with antipsychotic medication if a court determines he is not competent to refuse treatment. (In re Qawi (2004) 32 Cal.4th 1, 14 (Qawi).) Individuals in custody may refuse to take psychotropic medication. (Ibid.) The right of a person committed as an MDO "to refuse antipsychotic drugs is qualified." (People v. Fisher (2009) 172 Cal.App.4th 1006, 1013 (Fisher).) The right to refuse may be overcome by a judicial determination that (1) the MDO is incompetent or incapable of making decisions about his or her own treatment, or (2) the MDO is dangerous within the meaning of Welfare and Institutions Code section 5300. (Qawi, supra, at p. 27.)
A judicial determination of whether an MDO is competent to refuse antipsychotic medication involves the consideration of three factors: (1) whether the patient is aware of his situation; (2) whether the patient understands the benefits and risks of treatment; and (3) whether the patient is able to understand and knowingly, intelligently, and rationally evaluate and participate in treatment decisions. (People v. Qawi, supra, 32 Cal.4th at pp. 17-18.)
Standard of Review
We review an order authorizing administration of antipsychotic medication for substantial evidence. (Fisher, supra, 172 Cal.App.4th at p. 1016.) Substantial evidence is evidence of legal significance, reasonable in nature, credible and of solid value. (People v. Maury (2003) 30 Cal.4th 342, 396.)
In reviewing the sufficiency of the evidence, we draw all reasonable inferences from the record in support of the trial court's findings. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082.) We review the record in the light most favorable to the judgment or order. (Ibid.) We do not reweigh the evidence or decide the credibility of witnesses. (Id. at pp. 1082-1083.)
"To succeed under a substantial evidence review, defendant must establish that no rational jury could have concluded as it did—it does not matter that 'the evidence could reasonably be reconciled' " with a contrary finding. (People v. Shamblin (2015) 236 Cal.App.4th 1, 9; People v. Miranda (2016) 2 Cal.App.5th 829, 834.) " ' "An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise. [Citation.]" [Citation.]' " (People v. Hovarter (2008) 44 Cal.4th 983, 1015.)
Analysis
At the hearing on the petition, the State proceeded only on the ground C.G. lacked capacity to refuse treatment. In its order, the superior court found that C.G. lacked capacity to refuse treatment. C.G. challenges the sufficiency of the evidence adduced at the hearing.
C.G. contends that unspecified portions of Chand's expert testimony improperly were admitted in violation of People v. Wright (2016) 4 Cal.App.5th 537 and People v. Sanchez (2016) 63 Cal.4th 665 allegedly because it was case-specific hearsay. In Wright, the expert reached a diagnosis of the defendant by speculating about the characteristics of the victims of defendant's sex crimes. (People v. Wright, supra, 4 Cal.App.5th at pp. 542-543.) The appellate court concluded that an expert's opinion based upon assumptions of fact without evidentiary support, or speculation, has no evidentiary value and may be excluded from evidence. (Id. at pp. 545-546.)
In Sanchez, an expert testified to various statements made by the defendant to police officers and contained in police reports. The expert had never met the defendant, but opined that the defendant was a gang member based in part on the defendant's statements contained in the police reports. (People v. Sanchez, supra, 63 Cal.4th at pp. 672-673.) The California Supreme Court held that the case-specific statements concerning defendant's gang membership, as related by the expert, constituted inadmissible hearsay. (Id. at pp. 670-671.) Experts may rely upon background information accepted in the field of expertise, information within their personal knowledge, and nontestimonial hearsay properly admitted under a statutory exception. (Id. at p. 685.) An expert cannot relate case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception. (Id. at pp. 685-686.) Sanchez announced a paradigm shift in the law. (People v. Stamps (2016) 3 Cal.App.5th 988, 995.)
With regard to Chand's expert testimony, there is only one statement made by Chand that elicited an objection from defense counsel. That statement was "However, Dr. Frazier was concerned that Mr. [G.] will not participate in treatment groups." Defense counsel objected on the grounds of hearsay; the superior court sustained the objection. In the approximately 13 pages of testimony from Chand, this is the only objection.
The Wright opinion was published in October 2016, and the Sanchez opinion in June 2016. Thus, C.G.'s counsel and the superior court would have been aware of the holdings at the time of the July 3, 2017 hearing and presumably, counsel would have objected to any testimony of Chand's that was excludable under Wright or Sanchez. Failure to object to the admission of evidence on the basis of the confrontation clause forfeits the right to raise the issue on appeal. (People v. Redd (2010) 48 Cal.4th 691, 730; People v. Thornton (2007) 41 Cal.4th 391, 427.)
Reviewing courts have excused a failure to object where such an objection would have been futile. (See, e.g., People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) C.G. cannot contend, however, that an objection based upon the holdings of Wright or Sanchez would have been futile in this case, since these two cases were published eight to 12 months before his July 2017 hearing and the superior court properly sustained the one hearsay objection made.
Consequently, to the extent C.G. is contending portions of Chand's testimony, other than the one sentence to which he objected, were based upon incompetent hearsay, incompetent hearsay admitted without objection is sufficient to sustain a finding or judgment. (People v. Baker (2012) 204 Cal.App.4th 1234, 1245.) The failure to object to expert testimony or hearsay at trial forfeits an appellate claim that such evidence improperly was admitted. (Evid. Code, § 353, subd. (a); People v. Stevens (2015) 62 Cal.4th 325, 333; People v. Eubanks (2011) 53 Cal.4th 110, 142.)
We find nothing in the subsequent cases addressing Sanchez issued by the California Supreme Court that abrogates the requirement to object to inadmissible evidence or else forfeit any appellate challenge to that evidence. (See, e.g., People v. Jones (2017) 3 Cal.5th 583, 602-604 [failure to assert evidentiary basis for admissibility in trial court precludes reliance on that ground in an appeal]; People v. Hopson (2017) 3 Cal.5th 424, 429 [objection to admissibility raised in trial court]; People v. Williams (2016) 1 Cal.5th 1166, 1200-1201 [objection to admissibility raised in trial court].) Consequently, all of Chand's testimony, with the exception of the one sentence to which an objection was sustained, properly is admitted.
Regardless of the forfeiture of the issue, unlike the expert who testified in Wright, Chand did not base his testimony on speculation or assumed facts, nor did Chand lack personal knowledge as did the expert in Sanchez. Chand based his testimony largely on a personal interview and evaluation of C.G.; C.G.'s own statements to him; and his specialized knowledge of his field of expertise, all of which is admissible under the holding of Sanchez. (People v. Sanchez, supra, 63 Cal.4th at pp. 685-686.)
Turning now to the issue before us, whether the three factors set forth in Qawi have been met, substantial evidence establishes those factors have been satisfied. It is not whether some evidence supports C.G.'s position; it is whether substantial evidence supports the superior court's order.
With regard to the first factor of whether the patient is aware of his situation, C.G. does not fully acknowledge his medical condition. When Chand interviewed C.G., he found C.G. to be "very paranoid" and suffering from paranoid schizophrenia. During the interview, C.G. admitted having paranoid schizophrenia in the past, but denied having any symptoms at the present. The superior court noted C.G.'s testimony on this point was inconsistent. In one instance, he testified, "So far today I haven't had any thoughts of people being out to get me or anything like that, so I don't see how I'm paranoid schizophrenic." On cross-examination, C.G. answered that he had a mental illness and that illness was paranoid schizophrenia. He still testified, though, that his illness was a result of use of "crystal meth" and that his delusions were "in the past." His acknowledgement and understanding of his illness clearly varies; it varied during his testimony at the hearing.
As to the second factor, whether the patient understands the benefits and risks of treatment, the record shows that C.G. denies his diagnosis at times, but also denies the reality of the symptoms and behavioral events upon which that diagnosis is based. Without medication, C.G. would not receive the full benefits of treatment. "[A]bout 70 percent of his D2 receptors" needed to be blocked in order to "control the psychotic symptoms." Yet, C.G. refused to take his medication or some of his medication on at least two occasions to which he admitted, because he simply did not want to and wanted to be able to "skip a medication day" whenever he chose. C.G. told Chand in his interview that if he had a choice, he would not take some of the drugs.
The specific combination of drugs prescribed for C.G. was designed to ameliorate his symptoms and minimize any side effects, as well as keep him functioning and safe. Refusing to take his medications, or any portion of them, could result in an increase in symptoms and the need for higher dosages of medications. Chand opined that in his expert opinion, C.G. "needs to be on involuntary medication for as long as we can put him on to enhance his functioning and safety."
An understanding of the benefits of proposed treatment involves an understanding of the symptoms and behaviors ameliorated by the medication. C.G.'s refusal to acknowledge those symptoms and behaviors presents an insurmountable barrier to his understanding of the proposed medication. Put simply, C.G. cannot be made to appreciate the potential benefits of medication that is prescribed to alleviate symptoms from which C.G. believes he no longer suffers.
Finally, as to the third factor, the record supports the conclusion that C.G. is unable to participate in his treatment decisions in an intelligent, knowing, and rational manner. As noted above, C.G. varies in his understanding that he suffers from a medical diagnosis of paranoid schizophrenia, as well as the reality of his symptoms. Chand found C.G. to be suffering from symptoms of paranoid schizophrenia when he interviewed C.G., yet C.G. denied having any symptoms. Indeed, C.G. has refused to take medications, or some of his medications, just because he wants to skip a medication day, not because of any identifiable side effects. One cannot rationally participate in treating symptoms when one denies the presence of symptoms or a diagnosis.
We note that our finding of incompetency is not based solely on C.G.'s diagnosis of a mental illness and refusal to submit to antipsychotic medication. Instead, our findings are based on C.G.'s intermittent denial of his diagnosis, his lack of understanding of the relationship between his medication and the reduction of symptoms and behaviors indicative of his condition, and his belief that prescribed medication is something he should be able to forego whenever the mood strikes. Those beliefs, and not the mere presence of psychiatric illness, prevent C.G. from being competent to refuse medication, and require the affirmance of the superior court's order.
There is substantial evidence supporting the superior court's findings that C.G.: (1) is not fully aware of his situation; (2) does not understand the benefits and risks of treatment; and (3) is not able to understand and knowingly, intelligently, and rationally evaluate and participate in treatment decisions. (People v. Qawi, supra, 32 Cal.4th at pp. 17-18.) Accordingly, we affirm the superior court's order permitting C.G. to be involuntarily medicated with antipsychotics for up to one year.
DISPOSITION
The July 3, 2017 order is affirmed.