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In re Locks

Court of Appeal of California, Second District, Division Six
Jul 29, 1999
73 Cal.App.4th 1159 (Cal. Ct. App. 1999)

Opinion

B124959 (Super. Ct. No. HC 3522)

Filed July 29, 1999 Certified for Publication

Appeal from the Superior Court County of San Luis Obispo, Michael L. Duffy, Judge

Jonathan B. Steiner, and Richard B. Lennon, under appointment by the Court of Appeal, for Petitioner.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Morris Lenk, Acting Senior Assistant Attorney General, Darrell L. Lepkowsky, Supervising Deputy Attorney General, and Helen E. Hesse, Deputy Attorney General, Respondent.



OPINION AND ORDER


Petitioner Eric O. Locks was charged with a criminal offense, found not guilty by reason of insanity, and committed to Atascadero State Hospital. Here we conclude that he is entitled to a hearing to determine whether he is competent to refuse to take antipsychotic medication. We therefore grant his petition for habeas corpus relief and order the Director of Atascadero State Hospital to afford him such a hearing.

FACTS

In 1976, Locks was found guilty of murder and committed to a life sentence in state prison. While in Pelican Bay Prison, he was charged with battery on a prison guard. The trial court declared Locks incompetent to stand trial, suspended proceedings, and sent him for treatment to Atascadero State Hospital. (Penal Code § 1368)

Unless otherwise specified, all statutory references are to the Penal Code.

After six months of treatment, Locks was found sufficiently competent to stand trial. (§ 1372.) Nevertheless, on February 23, 1995, the trial court conditionally accepted his plea of not guilty by reason of insanity. (§ 1026.) It ordered Locks to undergo further psychiatric examination. The examining psychiatrist determined that Locks was suffering from a schizophrenic illness. The trial court found him not guilty by reason of insanity and committed him to Atascadero State Hospital. ( Ibid.)

Over his objection, Locks was treated at the hospital with psychotropic medications. After two years the treatment was discontinued to determine whether Locks had recovered his sanity. Unfortunately, he had not recovered. The examining psychiatrist reported that Locks was a paranoid schizophrenic who required continued hospitalization. The prison psychiatrist resumed Locks' treatment with psychotropic medications, Haldol and Olanzapine.

Locks again objected to the treatment and sought habeas relief in the superior court. The trial court denied his petition. In a minute order, the court reasoned that Locks, having been adjudged not guilty by reason of insanity, had no right to refuse medication. This court summarily denied a subsequent petition.

Locks, acting in propria persona, next petitioned the California Supreme Court for review. The Supreme Court, citing Welfare and Institutions Code sections 5331, 5332; Riese v. St. Mary's Hospital Medical Center (1987) 209 Cal.App.3d 1303; and Keyhea v. Rushen (1986) 178 Cal.App.3d 526, granted the petition and transferred the matter to this court with an order to vacate our summary denial and to issue an order to show cause. We have done so.

DISCUSSION 1. Exhaustion of Administrative Remedies

The Attorney General asserts that Locks cannot obtain appellate relief because he failed to exhaust his administrative remedies. ( In re Muszalski (1975) 52 Cal.App.3d 500, 508; In re Serna (1978) 76 Cal.App.3d 1010, 1017.) The Attorney General does not enlighten us as to which particular administrative remedy Locks may eventually secure.

An exception to the exhaustion doctrine applies where the aggrieved party can show that the outcome of an administrative hearing is a foregone decision. ( In re Thompson (1985) 172 Cal.App.3d 256, 262-263; In re Fain (1976) 65 Cal.App.3d 376, 395.) In such case, administrative review is not required because it is a futile, idle, or useless act. ( In re Dexter (1979) 25 Cal.3d 921, 925; Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830, 834.)

In his return, the Attorney General states it is the policy of the state that a prior court determination of insanity is conclusive evidence that an inmate is without competence to oppose medication. The Attorney General alludes to Locks' long-standing history of mental illness and takes the position that, in the absence of a judicial determination of restoration of sanity, Locks is mentally incapable of rejecting treatment. This position has been consistently maintained by the Attorney General both in his return filed in the superior court and his opposition to the petition before this court. This position makes ineffective and futile Locks' attempt to exhaust administrative remedies. Moreover, exhaustion is not required where, as here, there is a violation of a fundamental right. ( In re Davis (1979) 25 Cal.3d 384, 391; Holderby v. Intern. Union of Operating Engineers, Local No. 12 (1955) 45 Cal.2d 843, 847.)

2. Capacity to Choose

The Attorney General, citing section 1026, subdivision (a); Welfare and Institutions Code section 4304; and Youngberg v. Romeo (1982) 457 U.S. 307 [ 73 L.Ed.2d 28], argues that Locks has not demonstrated that the state has infringed upon a protected right. This is because the state bears the responsibility to properly care for inmates during their commitment; proper care of mental health patients often involves medication prescribed by physicians; the state must be afforded wide latitude in prescribing such treatment. ( Kansas v. Hendricks (1997) 521 U.S. 346 [ 138 L.Ed.2d 501].)

These noble goals ignore the central issue here: consent. Our Legislature recognizes that persons with mental disorders may refuse therapy. For example, patients committed under the Lanterman-Petris-Short Act, Welfare and Institutions Code section 5000 et seq. ("LPS Act"), have the right to refuse antipsychotic drugs. "No person may be presumed to be incompetent because he or she has been evaluated or treated for mental disorder. . . ." (Welf. Inst. Code, § 5331) Similarly, Welfare and Institutions Code section 5326.5, subdivision (d), states that "[a] person confined shall not be deemed incapable of refusal [of proposed therapy] solely by virtue of being diagnosed as a mentally ill, disordered, abnormal, or mentally defective person. . . ."

The appellate court in Riese recognized the inherent unreliability of psychiatric diagnoses. "'Because of the imprecision of the criteria and difficulty inherent in any attempt to compass the human mind' [citations] determinations of mental competence simply cannot achieve scientific certainty. . . ." ( Riese v. St. Mary's Hospital Medical Center, supra, 209 Cal.App.3d 1303, 1324.)

So, too, judicial determination of insanity under section 1026 does not equate with an adjudication of an inmate's inability to consent to medical treatment. Recognizing the inherent unreliability of psychiatric diagnoses and the risk of error, Riese holds that "[u]nless the incompetence of a person refusing drug treatment has been judicially established, 'it is the individual who must have the final say in respect to decisions regarding his medical treatment in order to insure that the greatest possible protection is accorded his autonomy and freedom from unwanted interference with the furtherance of his own desires.' [Citation.] The Legislature has made it eminently clear that this right does not disappear upon involuntary commitment. . . ." ( Riese v. St. Mary's Hospital Medical Center, supra, 209 Cal.App.3d 1303, 1324.)

A finding of not guilty by reason of insanity establishes the legal status of insanity. It is an adjudication that determines that the accused was insane at the time that the crime was committed and his mental condition negated the requisite criminal intent. (§ 25, subd. (b); People v. Skinner (1985) 39 Cal.3d 765, 773; People v. Miller (1972) 7 Cal.3d 562, 568.) It does not constitute a finding of incompetence to refuse treatment.

The literature of the mental health profession lends support to this proposition. "The mere presence of psychosis, dementia, mental retardation, or some other form of mental illness or disability is insufficient in itself to constitute incompetence." (Applebaum Gutheil, Clinical Handbook of Psychiatry and the Law (1991) 218, 220.) The authors of the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994), or DSM-IV, caution that proof of the existence of a mental illness does not necessarily portend a wholesale loss of cognitive powers. "It is precisely because impairments, abilities, and disabilities vary widely within each diagnostic category that assignment of a particular diagnosis does not imply a specific level of impairment or disability. [¶] . . . Even when diminished control over one's behavior is a feature of the disorder, having the diagnosis in itself does not demonstrate that a particular individual is (or was) unable to control his or her behavior at a particular time." ( Id., Introduction, at p. xxiii.) "Current psychiatric opinion . . . holds that mental illness often leaves the individual's intellectual understanding relatively unimpaired, but so affects his emotions or reason that he is unable to prevent himself from committing the act. [Citations.]" ( People v. Drew (1978) 22 Cal.3d 333, 342.)

In Woodland v. Angus (D. Utah 1993) 820 F. Supp. 1497, 1502, footnote 5, the court noted: ". . . [¶] Whether plaintiff has been found incompetent to stand trial is not dispositive of his medical competence. See Freedman, Competence, Marginal and Otherwise: Concepts and Ethics, 4 Intern. J. of L. Psychiatry 53, 56 (1981) ('The test of competency varies from one context to another.'); Developments, Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1214 (1974) ('Commentators have also noted that only some of the mentally ill are unable to decide intelligently, whether or not to seek treatment.'). See generally Roth, Meisel Ledz, Tests of Competency to Consent to Treatment, 134 Am.J.Psychiatry 279 (1977)."

Courts have recognized that a defendant may make rational choices despite a mental disorder. "'[E]ven though a defendant has a history of mental disorder, a medical inquiry is not required if it appears that his election to represent himself is knowing and intelligent.' [Citation.]" ( People v. Hightower (1996) 41 Cal.App.4th 1108, 1114.)

In Riese, the appellate court recognized that "mental illness 'often strikes only limited areas of functioning, leaving other areas unimpaired, and consequently . . . many mentally ill persons retain the capacity to function in a competent manner.' ( Rivers v. Katz, supra, 495 N.E.2d at p. 342; Rogers v. Okin, supra, 478 F. Supp. at p. 1361; Davis v. Hubbard, supra, 506 F. Supp. 915, 927 ["roughly 85% of the patients (of a state mental hospital) are capable of rationally deciding whether to consent to (use of psychotropic drugs)"]; Brooks, The Constitutional Right to Refuse Antipsychotic Medications (1980) 8 Bull. of Am.Acad.Psychiatry L.Bull. 179, 191.)" ( Riese v. St. Mary's Hospital Medical Center, supra, 209 Cal.App.3d 1303, 1321.)

The Attorney General seems to argue that Locks is deranged because of his rejection of medication specially prescribed by medical experts for his treatment. In fact, Locks' desire not to take medications may reflect an awareness of the harmful side effects of psychotropics. Although psychotropic drugs have the potential to minimize or eliminate psychotic symptoms, they also have many serious side effects such as "akathesia (a distressing urge to move), akinesia (a reduced capacity for spontaneity), pseudo-Parkinsonism (causing retarded muscle movements, masked facial expression, body rigidity, tremor, and a shuffling gait), and various other complications such as muscle spasms, blurred vision, dry mouth, sexual dysfunction, drug-induced mental disorders, and, on rare occasions, sudden death. A potentially permanent side effect of long-term exposure, for which there is no cure, is tardive dyskenesia [ sic], a neurological disorder manifested by involuntary, rhythmic, and grotesque movements of the face, mouth, tongue, jaw, and extremities. [Citations.]" ( Keyhea v. Rushen, supra, 178 Cal.App.3d 526, 531, fn. omitted.)

3. The Right to Refuse Treatment

As we stated in Alcocer v. Superior Court (1988) 206 Cal.App.3d 951, 957: "A right that is imposed, as compared to a right that is chosen, is an impoverished right. A right derives its significance and vitality from its being chosen. (See Matter of Quinlan (1976) 70 N.J. 10 [ 355 A.2d 647, 79 A.L.R.3d 205].) [¶] John Stuart Mill observed: '[i]n each person's own concerns his individual spontaneity is entitled to free exercise. Considerations to aid his judgment, exhortations to strengthen his will may be offered to him, even obtruded on him, by others; but he himself is the final judge. All errors which he is likely to commit against advice and warning are far outweighed by the evil of allowing others to constrain him to what they deem his good.' (Mill, On Liberty (Bobbs-Merrill ed. 1956) p. 93.)"

The right to refuse treatment is independent of the state's obligation to adequately treat the mentally ill. Under section 2600, a prisoner is "entitled to a judicial determination of [his] competency to refuse treatment before [he] can be subjected to long-term involuntary psychotropic medication. . . ." ( Keyhea v. Rushen, supra, 178 Cal.App.3d 526, 542.) The parties in Keyhea agreed that "'long-term' medication within the context of the issues . . . is . . . medication in excess of 10 days." ( Id., at p. 532, fn. 3.)

In Keyhea, the trial court issued an injunction compelling the state to adjudicate mental competency prior to subjecting prisoners to long-term involuntary medication. In upholding the lower court's order, the court of appeals, finding "[f]orced drugging [to be] one of the earmarks of the gulag," held that section 2600 encompassed the statutory right of non-prisoners to refuse or to consent to medical treatment. ( Keyhea v. Rushen, supra, 178 Cal.App.3d 526, 542.) Keyhea declared the LPS Act to be the "sole mechanism" for allowing the involuntary psychotropic medication of inmates and applicable to prisoners. ( Id., at p. 541.)

Section 2600 currently provides, in pertinent part: "Nothing in this section shall be construed to permit the involuntary administration of psychotropic medication unless the process specified in the permanent injunction, dated October 31, 1986, in the matter of Keyhea v. Rushen, 178 Cal.App.3d 526, has been followed. The judicial hearing for the authorization for the involuntary administration of psychotropic medication . . . shall be conducted by an administrative law judge. . . ."

"By specifically referring to the Keyhea injunction in section 2600, the Legislature has expressly endorsed the injunction's standards for involuntary medication. . . ." ( Department of Corrections v. Office of Administrative Hearings (1998) 66 Cal.App.4th 1100, 1108; see also Department of Corrections v. Office of Administrative Hearings (1997) 53 Cal.App.4th 780 [psychiatrist may be appointed by administrative law judge to assist inmate and counsel in responding to medication order].)

The Attorney General seeks to distinguish Keyhea upon the rationale that section 2600 applies solely to prisoners. Locks, on the other hand, has been committed as an inmate of a mental hospital; therefore, he is not a prisoner.

This argument misses the point. The procedural safeguards relative to the administration of medication extend with equal force to prisoners, mentally disordered inmates, and mentally ill patients. ( Keyhea v. Rushen, supra, 178 Cal.App.3d 526, 532-533, 542; Riese v. St. Mary's Hospital Medical Center, supra, 209 Cal.App.3d 1303, 1324.) In sum, there has been no Keyhea hearing. The previous findings in criminal proceedings of insanity are of no import.

The dissent argues that the LPS Act does not provide an apt analogy here. That is because Locks has committed horrendous crimes. He is therefore different than persons who are "gravely disabled" under the LPS Act. Locks' conviction for murder over 20 years ago, for which he is serving a life sentence, has nothing to do with the issue before us. This case stems from a charge of battery that resulted in a finding of not guilty by reason of insanity.

The dissent also argues the LPS Act is inapposite because persons committed under it have not been adjudicated insane. But as the dissent acknowledges, such persons are committed because of a mental disorder that makes them a danger to others, themselves or because they are gravely disabled.

"Although not a criminal proceeding, conservatorship proceedings under the LPS Act may result in 'a massive curtailment of liberty' ( Humphrey v. Cady (1972) 405 U.S. 504, 509 . . .) as severe as that faced by a criminal defendant." ( Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1022 (conc. and dis. opn. of Mosk J.) It is true, nonetheless, that a person adjudicated legally insane has demonstrated that he is dangerous by committing a criminal offense. ( People v. Wilder (1995) 33 Cal.App.4th 90, 104-105.) But many persons committed under the LPS Act are also dangerous and, for all practical purposes, have been adjudicated insane. Unlike them, however, Locks has not had a hearing to determine competency to refuse psychotropic medication.

4. Consent

The Attorney General asserts that there is no violation of the law because Locks is voluntarily taking his medication. The Attorney General alludes to a declaration dated May 5, 1998, from Dr. M. Lisiak, Locks' treating physician, at Atascadero: "Although Mr. Locks expressed he did not care for this form [intramuscular injection] and does not wish to take medication at all, he was taking it voluntarily."

The Attorney General would seemingly punish Locks and other inmates for cooperating with the medical staff at Atascadero State Hospital. Locks may be aware that active resistance to the prison regimen is counterproductive. Instead, his behavior is comparable to those prisoners described in Keyhea, "objecting verbally while they hold out their arm to get the shot." ( Keyhea v. Rushen, supra, 178 Cal.App.3d 526, 542, fn. 13.) Instead, Locks seeks redress through the courts. Moreover, the Attorney General's assertion of consent is logically inconsistent with his position that Locks is mentally incapable of refusing medication.

It is elemental that consent obtained through threats of force or intimidation do not pass constitutional muster. ( Schneckloth v. Bustamonte (1973) 412 U.S. 218, 233 [ 36 L.Ed.2d 854, 866].) Because of the serious implications for individual liberty and the nature of the intrusion, a declaration of consent of an inmate to being medicated will be carefully reviewed by the courts. ( Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal.3d 937, 944; Keyhea v. Rushen, supra, 178 Cal.App.3d 526, 540.)

The avowal of consent is belied by the record. Locks has made repeated use of the great writ to protest forced medication. He also attempted to file two petitions for writ of mandamus to review the denials of his habeas petitions. In addition, he sent two letters to the Director of Atascadero State Hospital, and filed at least two internal complaint forms. These petitions, letters, and complaint forms have but a singular theme: Locks does not want to be given psychotropic medication.

Locks is described in his psychiatric records as an inmate of above-average intelligence. This is borne out by his success in having his writ granted, a daunting task for an attorney, let alone an inmate in propria persona. (See Payne v. Superior Court (1976) 17 Cal.3d 908.)

5. The Hearing

Locks is entitled to the same hearing afforded patients under the LPS Act. It is simply an evidentiary hearing to determine whether he is able to give knowing and intelligent consent to his treatment of medication. (Welf. Inst. Code, § 5326.5)

In exercising discretion, the hearing officer must take into account a variety of factors. For example, the evidence could show that Locks' medication renders him competent to refuse the very medication that makes him competent. Without such medication he may lack the competence to make the choice to refuse his medication. Such a "Catch 22" situation could generate a succession of alternating hearings brought by Locks and by prison officials, yielding one result when Locks is taking the medication and another result when he is not taking the medication.

If the evidence shows that such a result is likely or probable, the hearing officer may take that into consideration in arriving at his or her decision. Evidence concerning alternate, less obtrusive methods of treatment may also be appropriate. These matters we leave to the sound discretion of the hearing officer.

CONCLUSION

For over a year Locks has sought, without success, to exercise his right to a hearing to determine his competence to refuse medication. What our colleague Justice Abbe penned in In re Reyes (1984) 161 Cal.App.3d 655, 659, is especially apt here: "Viewed from the perspective of petitioner, his right to a [ Keyhea hearing], like the sun at the battle of Jericho, appears to be standing still. Due process demands that petitioner not languish in confinement awaiting the date, if ever, that the [state] deems it appropriate to hold a [ Keyhea] hearing. . . ."

Let a writ of habeas corpus issue, commanding the Director of Atascadero State Hospital to afford Locks a Keyhea hearing so that it may be properly determined whether Locks is mentally competent to refuse psychotropic medication.

We vacate the order to show cause.

I concur:

COFFEE, J.


I respectfully dissent. I do not accuse the majority of practicing psychiatry without a license. I suggest, however, that by allowing an administrative hearing officer to second-guess a psychiatrist's treatment decision, the majority undermine the physician-patient relationship and the judicial commitment for "care and treatment." Initially this court summarily denied the petition for writ of habeas corpus. However, the Supreme Court issued an order to show cause and transferred the matter to us citing statutes and decisional law pertaining to the Lanterman-Petris-Short Act. (Welf. Inst. Code, § 5000, et seq.) As I shall explain, nothing in these authorities require an appellate court to add further procedural safeguards for persons found not guilty by reason of insanity who do not want to take prescribed medication.

Petitioner was convicted of two counts of first degree murder in 1976 and sentenced to state prison for life. (Pen. Code, §§ 187, 189.) In 1994, he threw feces and urine at a prison guard at Pelican Bay and was charged with battery on a correctional officer. (Pen. Code, § 4501.5.) The trial court determined that he was incompetent to stand trial and committed him to the Department of Mental Health. (Pen. Code, § 1368.) Thereafter, his mental health improved and criminal proceedings were resumed. He was found not guilty by reason of insanity and committed to the Department of Mental Health.

The Department of Mental Health provides a brief summary of petitioner's offenses: "In about 1974, Mr. Locks was accused of exposing himself lewdly. The charge was a misdemeanor. Mr. Locks hired someone to kill the witness to the crime, but the hit man failed to follow through. In retaliation, Mr. Locks fire-bombed the hit man's home, and two persons were killed in the resulting fire."

Two treating medical doctors, specializing in psychiatry, opine that it is necessary that petitioner be treated with antipsychotic medication. Petitioner does not want to take the medication. The majority hold that he is entitled to what is referred to as a Keyhea hearing. ( Keyhea v. Rushen (1986) 178 Cal.App.3d 526.) At such hearing an administrative law judge determines whether petitioner has the capacity to consent to the administration of antipsychotic medication. If petitioner prevails at the hearing, he would "trump" his treating psychiatrist's medication decision and eviscerate the commitment order for treatment. In the literature, this is referred to as allowing the person to "'rot with their rights on.'" (Morris, Judging Judgment: Assessing The Competence of Mental Patient to Refuse Treatment (1995) 32 San Diego L.Rev. 343, 344.) Even if "rotting" includes "wasting away" while untreated, the word may be inappropriate. ( Id., at p. 435. fn. 5.) Nevertheless, the word conjures up the spectacle of an insane person in acute mental distress.

The majority rely on Riese v. St. Mary's Hospital Medical Center (1987) 209 Cal.App.3d 1303, 1324, as authority for the proposition that the writ must be granted: " Unless the incompetence of a person refusing drug treatment has been judicially established, 'it is the individual who must have the final say in respect to decisions regarding his medical treatment in order to insure that the greatest possible protection is accorded his autonomy and freedom from unwanted interference with the furtherance of his own desires.' [Citation]." ( Emphasis added.)

In my view, a person who is found not guilty by reason of insanity has had a judicially established incompetency finding. The insanity finding is broad enough to include the determination that the person is mentally incompetent to refuse drug treatment. "If the verdict or finding be that the defendant was insane at the time the offense was committed, the court, unless it shall appear to the court that the sanity of the defendant has been recovered fully, shall direct that the defendant be confined in a state hospital for the care and treatment of the mentally disordered . . . ." (Pen. Code, § 1026 subd. (a).) That is what happened here. The trial court ordered that petitioner be given care and treatment. Until petitioner's sanity is restored, there is a presumption that he is insane. (Pen. Code, § 1026.2.) The majority say that we should, at the very least, listen to a presumptively insane person's request at a Kehea hearing that he be treated without medication. According to the majority, even though the defendant is insane for purposes of the criminal law, he may not be insane for purposes of refusing medication. (Maj. Op. at pp. 4-5.) I understand the majority theory but I am unable to draw such a distinction. (Compare Woodland v. Angus (D. Utah 1993) 820 F. Supp. 1497, 1502-1503 [finding that defendant was mentally incompetent to stand trial did not adjudicate defendant's competency to make treatment decisions].)

Assuming that petitioner knows what is best for him, the best that he can do at the Keyhea hearing is introduce conflicting evidence about the course of medication. What is the hearing officer to do? Rule that the treating psychiatrists must now treat petitioner without medication against their medical judgment? This may be tantamount to telling a dentist that he may not use Novocain before drilling, or a doctor that he may not use penicillin to combat an infection.

An administrative hearing officer may be hard pressed to substitute his or her judgment for those of medical professionals. As indicated by the United States Supreme Court, ". . . an inmate's interests are adequately protected, and perhaps better served, by allowing the decision to medicate to be made by medical professionals rather than a judge." ( Washington v. Harper (1990) 494 U.S. 210, 231 [ 108 L.Ed.2d 178, 204].)

It must be emphasized that Department of Mental Health psychiatrists are under superior court order to "treat" a person committed to their charge. (Pen. Code, § 1026, subd. (a).) The effect of the majority holding is that petitioner, and similarly situated persons, will be given Keyhea hearings. This is bound to have the effect of diverting precious time spent on medical treatment to time spent preparing for and attending legal hearings. In my view, there is a presumption that treating psychiatrists, pursuant to the commitment order, are acting in good faith and would not prescribe antipsychotic medication unless it is necessary. Here, both treating psychiatrists have opined that medication is necessary. They have even honored petitioner's wishes for a time with poor results. This is hardly a situation where petitioner is suffering in the gulag. ( Keyhea v. Rushen, supra, 178 Cal.App.3d at p. 542.) Administrative protections are now extant in the Department of Mental Health which provide petitioner and other similarly situated persons with procedural due process of law.

The state, through its regularly employed medical personnel, has "wide latitude" and "considerable discretion" in determining a course of treatment for a person committed as insane. (See Kansas v. Hendricks (1997) 521 U.S. 346, ___, fn. 4 [ 138 L.Ed.2d 501, 519, fn. 4].) Other than his self-serving statements that he is not insane and doesn't require medication, petitioner has made no factual showing that the prescribed treatment is arbitrary, whimsical, or capricious.

The analogy to the Lanterman-Petris-Short Act is inapposite. There a person is civilly committed because he or she is, as a result of mental disorder, a danger to others, himself or herself, or gravely disabled. (Welf. Inst. Code, § 5150) These persons have not committed criminal offenses and have not been adjudicated insane. Nor have they been committed for treatment until their sanity is restored. By contrast, petitioner killed two people and served 20 years in prison before committing his latest offense, for which he was found insane and committed to the Department of Mental Health. He is qualitatively different than a person who is "gravely disabled."

Similarly, the analogy to "prisoners" in Penal Code section 2600 must fail. Prisoners serving penal sentences in state prison are qualitatively different than a person who has been adjudicated insane and is being treated at the Department of Health. Prisoners serving penal sentences have no prior adjudication of incompetence and may be afforded Keyhea hearings.

I would deny the petition for habeas corpus relief and discharge the order to show cause.


Summaries of

In re Locks

Court of Appeal of California, Second District, Division Six
Jul 29, 1999
73 Cal.App.4th 1159 (Cal. Ct. App. 1999)
Case details for

In re Locks

Case Details

Full title:In re ERIC O. LOCKS, on Habeas Corpus

Court:Court of Appeal of California, Second District, Division Six

Date published: Jul 29, 1999

Citations

73 Cal.App.4th 1159 (Cal. Ct. App. 1999)
87 Cal. Rptr. 2d 303