Opinion
C088541 C090401
10-06-2021
THE PEOPLE, Plaintiff and Respondent, v. ELWOOD DWAYNE HAYES, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. Nos. SCCR-CRF-2017-719-1 & SCCR-CRF-2017-1226-1
HOCH, J.
Defendant Elwood Duane Hayes appeals from an order finding him mentally incompetent to stand trial and committing him to a State Department of State Hospitals (DSH) facility pursuant to Penal Code section 1370. He separately appeals from a subsequent order for involuntary administration of antipsychotic medication. We consolidated the appeals for purposes of argument and disposition.
Undesignated statutory references are to the Penal Code.
With respect to the commitment order, we note preliminarily that defendant's court-appointed trial counsel, Melissa Fanoe, declared a doubt as to his mental competence under section 1368, defendant expressed opposition to such a finding, and the trial court appointed separate counsel, Erin O'Toole-McNally, to represent defendant solely for purposes of the competency trial. Two court-appointed psychologists testified at the competency trial, both of whom testified that defendant lacked the capacity to rationally assist his trial counsel in conducting a defense. After hearing this testimony, as well as testimony from defendant, the trial court found him mentally incompetent to stand trial.
Challenging this finding on appeal, defendant contends: (1) the trial court assessed his mental competence using an improper standard and erroneously placed the burden on defendant to prove his competence; (2) the trial court also violated defendant's federal constitutional rights by accepting Attorney Fanoe's waiver of his right to jury trial; (3) Attorney O'Toole-McNally provided constitutionally deficient assistance at the competency trial by failing to object when the court-appointed psychologists recited case-specific hearsay; (4) the cumulative prejudicial impact of the foregoing assertions of error requires reversal of the incompetency finding; and (5) the trial court prejudicially abused its discretion and further violated defendant's federal constitutional rights by declining to hold a hearing on his request under People v. Marsden (1970) 2 Cal.3d 118 to replace Fanoe as his court-appointed counsel after making the incompetency finding.
Challenging the trial court's subsequent order for involuntary administration of antipsychotic medication, defendant contends: (6) this order is not supported by substantial evidence; (7) the trial court violated defendant's constitutional right to be present at the hearing on the involuntary medication issue; and (8) defendant's attorney provided constitutionally deficient assistance at the hearing.
We affirm the order finding defendant incompetent to stand trial and committing him to a DSH facility. As we shall explain, the trial court assessed defendant's mental competence using the correct standard of proof and properly placed the burden of proving his incompetency on Fanoe. The trial court did not violate defendant's constitutional rights by accepting Fanoe's waiver of his right to jury trial. Nor did O'Toole-McNally provide ineffective assistance by failing to object to out-of-court statements related by the court-appointed experts. We further reject defendant's assertion of cumulative prejudice. With respect to his Marsden claim, assuming this issue is properly before us, we conclude any assumed error was harmless.
Turning to defendant's appeal from the order for involuntary administration of antipsychotic medication, we agree that order is not supported by substantial evidence. We shall therefore conditionally vacate the order and remand the matter to the trial court for reconsideration.
This conclusion makes it unnecessary to address defendant's final two contentions raised in appeal No. C090401.
BACKGROUND
Underlying these consolidated appeals are two felony cases filed against defendant in Siskiyou County, case Nos. SCCR-CRF-2017-719-1 and SCCR-CRF-2017-1226-1. We decline to set forth the charges, as they are not relevant to the issues raised in these appeals, except to note that, in addition to other counts, the first of these cases involved a count of kidnapping and the second case involved a count of murder. We shall refer to these cases as “the kidnapping case” and “the murder case, ” respectively.
Declaration of a Doubt Regarding Defendant's Mental Competence
Defendant initially represented himself during the preliminary hearing in the murder case, which began on May 24, 2018. The kidnapping case trailed behind, as did a separate misdemeanor case. During the second day of the preliminary hearing, the magistrate revoked defendant's right to represent himself due to his repeated failure to follow the magistrate's directions. The magistrate appointed standby counsel, Fanoe, to represent defendant during the remainder of the preliminary hearing. Fanoe asked the magistrate to continue the preliminary hearing until the following week so that she could confer with defendant. The magistrate granted the request.
When the preliminary hearing resumed the following Thursday, Fanoe declared a doubt as to defendant's mental competence under section 1368 et seq., questioning his ability to rationally assist counsel in the conduct of a defense. Defendant objected. When asked for the People's position, the prosecutor did not oppose appointment of mental health experts to evaluate defendant, but stated his belief that defendant was not mentally incompetent but rather “just simply a difficult man.”
Relevant Proceedings Leading to the Competency Trial
Based on Fanoe's declaration of a doubt as to defendant's mental competence, the trial court suspended all criminal proceedings against defendant and appointed two mental health experts, Dr. Claudia Lake and Dr. James McKellar, to examine defendant for purposes of determining whether he was capable of understanding the nature of the charges and criminal proceedings and whether he was also capable of rationally assisting his attorney in the conduct of a defense. Psychological evaluations prepared by these doctors were received on June 28 and 29, respectively. Both doctors concluded defendant was mentally incompetent. Their reasoning will be set forth during our description of their testimony at the competency trial.
On July 12, the parties appeared before the trial court to discuss how to proceed. Fanoe noted both doctors concluded defendant was mentally incompetent and stated she was willing to submit on their reports. The prosecutor stated: “We disagree with the reports.” Defendant joined: “So do I.” When asked whether he wanted to discuss the matter with his attorney, defendant answered: “I don't accept her as my attorney.” He requested her replacement as his court-appointed counsel under Marsden. The trial court declined to proceed on the Marsden motion at that time and continued the matter to July 24 for the setting of a date for the competency trial.
On July 24, the trial court asked whether defendant wanted to proceed with his Marsden motion. Fanoe indicated that he did and further stated that defendant was requesting appointment of separate counsel to represent him during the competency trial. The trial court held a Marsden hearing outside the presence of the prosecutor and denied the motion. The trial court did, however, appoint separate counsel, O'Toole-McNally, to represent defendant during the competency trial.
Additional Marsden motions made by defendant and denied by the trial court will be briefly described during the discussion portion of this opinion.
When the parties reconvened before the trial court on August 22 to discuss scheduling, O'Toole-McNally noted defendant had not waived his right to a jury trial of the competency issue. Fanoe then stated that she believed the law allowed her to waive defendant's right to a jury trial on his behalf and that she intended to do so. Defendant responded: “Not quite.” The trial court noted that it was also the court's “understanding that the jury trial was waived” and proceeded to ask counsel whether they expected to have live witnesses. O'Toole-McNally did not object to proceeding with a court trial. She did, however, object to proceeding without live testimony from the doctors, noting defendant was not willing to “waive any kind of hearsay objection” to their reports and “want[ed] the live witnesses here to be subject to cross-examination.” Fanoe responded by arguing the trial court would be justified in finding defendant incompetent based solely on the reports. The trial court decided to allow live testimony.
The Competency Trial
The competency trial began on September 14. As mentioned previously, Drs. McKellar and Lake testified, as did defendant. We shall describe their testimony in some detail. We pause here, however, to note that at the start of the trial, Fanoe requested to be the first to question the doctors because the burden was on her to prove defendant's incompetence. This understanding of who bore the burden of proof was consistent with the trial court's description of that burden during an earlier proceeding: “[A]s counsel are aware a trial on the issue of competency is more like a civil proceeding. And it's presumed that an individual is competent. The moving party then presents evidence of incompetency. And I anticipate that would be Ms. Fanoe who declared the doubt and initiated the process.”
Dr. McKellar was the first to testify at the competency trial. He interviewed defendant at the jail. Although a typical face-to-face competency evaluation lasts about 90 minutes, defendant spoke with McKellar for about 30 minutes before abruptly ending the meeting. During those 30 minutes, defendant “went on an extended monolog[ue], ” explaining his understanding of the law pertaining to competency evaluations and providing the doctor with reasons he believed he should not be compelled to participate in such an evaluation. Defendant cited case law that he claimed stood for the proposition that because he previously passed a certain intelligence test, the Wechsler Adult Intelligence Scale, he could not be compelled to participate in subsequent competency evaluations.
Defendant also showed Dr. McKellar various documents that appeared to be copies of court filings. As the doctor described, “he would quickly flash [the documents] before my eyes and then pull them away.” McKellar continued: “And during the evaluation I observed Mr. Hayes to be absolutely unwilling to engage with me, and when I did try to mediate or suggest a compelling reason that he may want to continue the competency evaluation -- because if a client is wanting to assert their competency, I often tell them it's in their best interest to participate because the purpose of the competency evaluation is to come to a finding. [¶] He would become extremely irritated, his voice would raise, at times he would clinch his fist. [¶] In addition, in the midst of his monolog[ue]s were verbalizations that appeared to be delusional and there were aspects of paranoid ideation in his presentation as well.”
Asked to elaborate on some of defendant's delusional statements, Dr. McKellar responded: “One example would be he made the comment that many of the jail staff were being viciously beaten and attacked by the guards regularly and that they were turning to him for representation so that he could get a lawsuit moving forward.” While McKellar acknowledged this was “possible, ” the doctor “judged that statement to be highly improbable” and a sign of delusional thinking. McKellar explained that defendant's statements became “more irrational” as his level of anger increased. The doctor opined: “Mr. Hayes is an intelligent man, he's a man who does have very good awareness of many aspects of court processes. However, when put under stress, which typically happens at some point during court processes, his reality testing became impaired and his ability to coherently address circumstances becomes impaired as well.” Asked how this would impact defendant's ability to assist his attorney with his defense, the doctor answered: “My ultimate finding in regard to that question was that Mr. Hayes if he is calm and if a situation is in his favor then he can probably present himself fairly well. However, as soon as the circumstance is such that he does not agree with the way a matter is being handled or he does not agree with perhaps a suggestion he's getting, his ability to present himself and deal with the situation competently is impaired.”
Fanoe then asked Dr. McKellar to elaborate on the “paranoid ideations” exhibited during his meeting with defendant. McKellar answered: “Well, one comment that he made was he was fairly convinced that you were not working on his behalf and were working in fact in cahoots with the Court against him.” The doctor opined that this paranoid belief, and the anger it generated within defendant, led to “self-defeating” behavior, such as refusing to participate in the competency evaluation, and “seemed to clearly be impacting his ability to participate in court hearings and assist his attorney in a rational and competent manner.”
In addition to defendant's “very intense, very agitated” demeanor, his domination of the meeting with Dr. McKellar, and his paranoid and delusional statements during that “entirely one sided” meeting, the doctor also noted “there was some evidence of tangential speech, which means switching topics without any relevant connection to what he was speaking about.” McKellar additionally described “idiosyncratic speech, ” where defendant would sometimes use technical terminology fairly accurately and then he would use “words that were basically not words but they sounded like words.”
Dr. McKellar considered defendant a “somewhat complicated client” who was not exhibiting “signs of a formal psychotic disorder, ” but was instead exhibiting “signs of likely substance or alcohol related dementia.” Elaborating on his conclusion that defendant could not rationally assist his attorney in conducting a defense, McKellar explained that defendant, when agitated, was unable to be redirected away from paranoid or delusional thoughts, and instead would continue talking over the other person in an uncooperative and self-defeating manner. This opinion was based mostly on the doctor's “firsthand observation” of defendant, but was also informed by certain information the doctor received from jail staff and defendant's attorneys.
Dr. Lake also testified at the competency trial. Her meeting with defendant also took place at the jail and was even shorter than Dr. McKellar's interaction with him. Lake described the meeting as an “attempted” evaluation because, as she explained: “Mr. Hayes came into the room and sat down, I began to explain the... evaluation process to him. He stopped me in mid[-]sentence and said that he would tell me how the evaluation process would go and basically spoke throughout the seven to eight minutes we were together. I attempted to intervene or interject on a couple of occasions, which he prevented me from doing.”
During defendant's brief interaction with Dr. Lake, he handed her a three-page document he had written. The doctor “found it difficult to read and follow the thought through the document, ” explaining: “He will start off with one thought and then he will proceed to go to another thought, to another thought and it -- it's kind of like... reading in a zigzag pattern to try to put together exactly what he was trying to say.” Lake understood the purpose of the document was to express defendant's belief that it was against the law to require him to participate in a psychological evaluation, “but he went on and began talking about a number of different legal actions that he was going to be taking or had taken against certain witnesses, certain individuals, and including the Court [for]... presenting an illegal action against him.” Lake explained that this thought process, which she termed “[c]ircumstantial tangents and flight of ideas, ” was “very resemblant of somebody that does have a mental health issue, either a bipolar or even a psychotic mental health issue.”
Asked to describe defendant's physical demeanor during her interaction with him, Dr. Lake answered: “He made really no eye contact with me. He was very concerned, he was going through his paperwork. He had brought at least two or three volumes of what looked like legal files with tabulations on them and he would be going through this documentation and pulling out odd documents and occasionally handing them to me for me to look at. And it just seemed to me that these documents were his legal arguments....” As Lake noted, however, that was not why she was there. Defendant also told the doctor that he had read some of the “documentation” that she had written, but since this was the first time they had met, she did not know what he was talking about. When defendant had finished speaking, he said “thank you very much, picked up his materials and got up” to leave.
When Fanoe asked Dr. Lake whether she had an impression regarding defendant's ability to assist his attorney in presenting a defense, the doctor explained that defendant “appears to have some knowledge” of the law, “he is able to read the law book and cite specific legal statutes, ” but his understanding of those statutes appeared to the doctor to be lacking. This would not ordinarily be an issue because he had an attorney whose job it was to understand the law, but defendant's belief that “he can represent himself, ” and that he understands the law better than his attorney or the judge, and “that all these other individuals have somehow led him wrong or not allowed him to move forward in the direction he wants to, ” would negatively impact his ability to assist his attorney. Lake also described defendant's belief that others were attempting to prevent him from doing what he wanted to do as “persecutory” and explained that it suggested delusional thinking that could be caused by an underlying mental disorder. Relatedly, defendant's “fixated belief that he knows the law more than the Court does” suggested “grandiose delusions, ” as well as narcissism.
In addition to the delusional thinking witnessed firsthand by the doctor during her brief meeting with defendant, Dr. Lake also described certain jail documents that suggested he “believed that the individuals around him were somehow affecting his mind” and that the computers at the jail were also “controlling inmates' minds.”
After Drs. McKellar and Lake testified, defendant took the stand in an effort to demonstrate his mental competence. O'Toole-McNally began her examination of defendant by asking whether he understood the purpose of the competency trial. Defendant answered: “It's a competency hearing to see if an individual is competent enough to substructure on the Wechsler's Adult Intelligence Test, under prong one and two, as to being able to understand the nature of the proceedings, the crime charged against the position of each individual in the Court, and what their role is on that basis.” After elaborating upon his understanding of the two prongs of the competency evaluation, defendant was asked whether he understood O'Toole-McNally's role. He responded: “You're conflict counsel under a 1368 statutory rule that structures that I have a conflict with Fanoe. So you are appointed to structure a defense in a 1368 manner to substructure my ability or to analyze my capability under the Wechsler's Adult Intelligence Test under competency to proceed to hearing, or to be allowed to, under Faretta, to access the Court's -- the ancillary -- like, defense tools.” At this point, the trial court indicated that it did not understand the last comment made by defendant, prompting him to explain: “Like when I say there is Faretta, my [f]ederal Sixth Amendment rights and Fourteenth Amendment due process rights to be able to address the Court on a self- reputation basis or ancillary -- the -- the investigators and other tools that are used by attorneys to apply your case in a logical manner before the Court.”
O'Toole-McNally then asked defendant to describe his conflict with Fanoe. Using language similar to that recited above, defendant recounted that he attempted to represent himself at the preliminary hearing until Fanoe was appointed to act as his attorney, at which point Fanoe sought to change his “defense tactics.” Defendant viewed this as “her elaborating as a[n] organ of the state” because, as he put it, “her defense mandates totally erase everything that I've done and the false evidence that I brought forth in that court in the 859(b) preliminary hearing.”
At this point, defendant asked O'Toole-McNally whether she wanted to “present the documents.” She responded by redirecting defendant back to his relationship with Fanoe. Defendant then returned to a somewhat confusing summary of what transpired at the preliminary hearing and accused Fanoe of “presenting documentation in evidence to the Court that's going to erase the entire 859(b).” Defendant continued: “And when I objected to that factor of her attempting to do this, which is ineffective assistance of counsel under Faretta 485 -- that because defense is allocated directly to the accused. [¶] But yes, she wants to eliminate this entire documentation which I have right here, which I'd like to present as evidence in court, if I could.” The trial court told defendant to hold on to his documents. Defendant responded: “So -- but let me finish here. [¶] So I told her that I would not allow her to stop and impede the 859 time mandate factors, which now creates a 1381, 1382 time violation mandate which would be addressed by a writ to the [a]ppellate [c]ourt, which I've already addressed a lot of appellate review connotations that are before you right now.” Defendant continued in this manner until he was stopped by O'Toole-McNally.
Aside from some odd terminology, such as using words like “structure” and “substructure” where words like “present” or “demonstrate” would have been more appropriate to the sentence, defendant understood he was facing serious criminal charges, Fanoe was appointed to represent him, the prosecutor was charged with presenting the case against him, and the judge was there to preside over the proceedings and enforce the rules governing the admission of evidence and attorney conduct. However, in response to straightforward questions regarding the respective roles of the participants in the proceedings, defendant continued returning to his complaints about Fanoe.
O'Toole-McNally also asked defendant a series of questions regarding actions he wanted her to take at the competency trial, where she refused to do so, and whether he was nevertheless willing to follow her advice and accept her explanation for why she could not do what he wanted. Defendant acknowledged she was not following some of his directions and stated he was willing to follow her advice and accept her explanations. Towards the end of O'Toole-McNally's examination of defendant, he noted that they “actually established quite a relationship” and that he “could probably trust her in a... trial setting, ” but he could not trust Fanoe to represent him after she told him everything he was doing to represent himself at the preliminary hearing “was irrelevant.”
After hearing argument from Fanoe and O'Toole-McNally, the trial court took the matter under submission.
The Trial Court's Ruling
On November 26, the trial court found defendant incompetent to stand trial. After some introductory remarks, including a fairly detailed summary of the doctors' testimony that focused on their shared conclusion that defendant could not rationally assist counsel in conducting a defense, the trial court ruled as follows:
“Defendant is not merely an individual who is disruptive, uncooperative or difficult. That in and of itself does not mean somebody is incompetent. The evidence and signs of delusional paranoid deviation, poor impulse control, poor judgment. He demonstrates distorted thought processes.
“His fixed belief affects his ability to understand the legal system... so far as his ability to assist his attorney. His distorted thought processes give him [a]way. His grandiose idea that he can read and interpret the law and understand it as far as the circumstances concerned involving his case more than any attorney or the Court is really self-defeating given... the defendant's mental lack of competency.
“It is not -- and again, it is not simply the use of idiosyncratic language. If somebody was using certain kind of language that didn't seem to make a lot of sense, that in... and of itself would not indicate somebody is incompetent. And Mr. Hayes certainly does have his own language, his own legalese, as described, something that sounds like legal words but are not... really accurately describing the concepts and the way the law is. But I'm not finding that by itself.
“It's not the fact that he uses... his own legalese, idiosyncratic language. That is not enough. These are simply all of the factors that play into this, again, I think is clearly testified to by Dr. McKellar.”
After reiterating that defendant “is not competent to assist his attorney in... a rational competent manner, ” the trial court continued:
“Competency to stand trial is not determined by a score on the Wechsler Intelligence test....
“In some circumstances the defendant may be able to comport himself in court when asked a specific question, as to handling certain papers or documents, but it is more concerning in reviewing, regarding uncontrolled anger, outbursts, in response to individuals who would be offered to testify, somebody who does not fit into his fixed belief as to what happened, or what is happening in this case.
“There is no evidence of malingering or that the defendant is choosing to be uncooperative with the appointed counsel, or that he has any volitional control. In other words, choosing when to be cooperative or uncooperative. He does not have the ability to protect himself in legal proceedings given his flight of ideas, tangential thought processes -- there is no logical progression.
“And again, at the present time the Court is finding that he is not competent to stand trial, so I will make those findings.”
Thereafter, on December 17, the trial court committed defendant to a DSH facility pursuant to section 1370.
Subsequent Involuntary Medication Order
Additional psychological reports were filed between March and May 2019. Based on these reports, as well as the reports filed by Drs. McKellar and Lake, noted above, the trial court entered an order for involuntary administration of antipsychotic medication on July 5, 2019. We provide additional background regarding this order in the discussion portion of the opinion, to which we now turn.
DISCUSSION
I
The Trial Court's Assessment of Defendant's Mental Competence
Defendant contends the trial court assessed his mental competence using an improper standard and erroneously placed the burden on defendant to prove competence. He is mistaken.
The proper standard and placement of the burden of proof was stated by our Supreme Court in People v. Lawley (2002) 27 Cal.4th 102 (Lawley):
“A person cannot be tried or adjudged to punishment while mentally incompetent. [Citation.] A defendant is mentally incompetent if, as a result of a mental disorder or developmental disability, he or she is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. [Citation.] When the accused presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing. [Citations.] ‘Evidence is “substantial” if it raises a reasonable doubt about the defendant's competence to stand trial.' [Citation.]
“Although it arises in the context of a criminal trial, a competency hearing is a special proceeding, governed generally by the rules applicable to civil proceedings. [Citation.] The right to a jury determination of competency is statutory, however, not constitutional; thus, counsel may effectively waive it without a personal waiver from the defendant. [Citations.] A defendant is presumed competent unless the contrary is proven by a preponderance of the evidence. [Citations.] On appeal, the reviewing court determines whether substantial evidence, viewed in the light most favorable to the verdict, supports the trial court's finding. [Citation.] ‘Evidence is substantial if it is reasonable, credible and of solid value.' [Citation.]” (Lawley, supra, 27 Cal.4th at p. 131.)
Defendant's argument that the trial court required him to prove his competence is based on the following statement made by the court towards the beginning of its ruling: “A defendant is presumed competent prior to a competency trial, pursuant to [section] 1369[ subdivision ](f), and the burden is on the defendant to prove he is competent to stand trial by a preponderance of evidence.” In the context of the entirety of the ruling, as well as other statements made by the trial court before and during the competency trial, we conclude this was an obvious misstatement and not, as defendant claims, an indication the trial court was mistaken about who bore the burden of proof.
The sentence itself suggests the trial court intended to state “the burden is on the defendant to prove he is incompetent to stand trial by a preponderance of evidence.” This is because the sentence begins with an accurate description of the presumption of competence. It would make no sense to require a defendant, who is presumed competent, to nevertheless prove that competence. Instead, it is apparent that the trial court intended to state a defendant is presumed competent unless the contrary, i.e., incompetence, is proven by a preponderance of the evidence.
Nor is this conclusion undermined by the fact that the trial court stated “the burden is on the defendant” rather than “the burden is on Attorney Fanoe.” Ordinarily, it is the defendant who is seeking an incompetency finding. Here, Fanoe was attempting to prove defendant's incompetency while defendant opposed such a finding. Nevertheless, based on statements made by the trial court prior to the competency trial, it is quite clear the court understood Fanoe was the one who must prove defendant's incompetence. As previously indicated, the trial court stated: “[A]s counsel are aware a trial on the issue of competency is more like a civil proceeding. And it's presumed that an individual is competent. The moving party then presents evidence of incompetency. And I anticipate that would be Ms. Fanoe who declared the doubt and initiated the process.” Consistent with this understanding, the trial court allowed Fanoe to be first to question Drs. McKellar and Lake at the competency trial. Moreover, after hearing testimony from the doctors and defendant, the trial court again indicated it understood Fanoe had the burden of proving defendant's incompetency, and accordingly allowed her to present her argument first.
Aside from the misstatement noted above, there is nothing in the record supporting defendant's view that the trial court erroneously believed he had the burden of proving his competence. We conclude the court simply misspoke.
Defendant's argument that the trial court erroneously found him to be incompetent under the substantial evidence standard rather than by a preponderance of the evidence is also undermined by the record. Indeed, the quoted misstatement relied on by defendant to argue the trial court erroneously placed the burden of proof on him correctly states the standard of proof is the preponderance standard. However, after reciting the applicable law during what can best be described as introductory remarks prior to its ruling, the trial court stated: “The Court finds there is substantial evidence that defendant is incompetent to stand trial and that he is unable to assist his attorney in a rational, competent manner.” Defendant argues this indicates the trial court used the wrong standard in finding him to be incompetent to stand trial. We are not persuaded.
As our recitation of the applicable law reveals, the substantial evidence standard comes into play when the trial court is determining whether a full competency hearing is required. (Lawley, supra, 27 Cal.4th at p. 131.) Where there is substantial evidence of incompetency, such a hearing is required. Then, at that full competency hearing, the proponent of an incompetency finding must prove incompetency by a preponderance of the evidence. (Ibid.) Thus, viewed in context, it is not surprising that the trial court would indicate during introductory remarks to a ruling on defendant's mental competency that there was substantial evidence of incompetency. That is what necessitated the competency trial in the first place. This does not mean the trial court did not understand the proper standard for assessing defendant's mental competence at the competency trial was the preponderance of evidence standard.
After these introductory remarks, the trial court issued a detailed ruling finding defendant incompetent to stand trial. Viewing the ruling in its entirety, we conclude the trial court's finding of incompetency was properly based on the preponderance standard. Defendant's argument to the contrary is entirely unpersuasive.
II
Waiver of Defendant's Right to Jury Trial of the Competency Determination
Defendant also claims the trial court violated his federal constitutional rights by accepting Fanoe's waiver of his right to jury trial of the determination of his competency to stand trial. Not so.
“A defendant enjoys a statutory right to a jury trial in a competency proceeding.” (People v. D'Arcy (2010) 48 Cal.4th 257, 281.) However, as stated previously, because this right is not constitutional in nature, it may be effectively waived by counsel without a personal waiver from the defendant. (Lawley, supra, 27 Cal.4th at p. 131.)
Here, Fanoe waived defendant's right to jury trial without objection from either defendant or O'Toole-McNally. We conclude the trial court did not err by accepting that waiver. Indeed, had the trial court not appointed O'Toole-McNally to separately represent defendant during the competency trial, it is settled that Fanoe would have been authorized to waive defendant's statutory right to jury trial even over his objection. (People v. Masterson (1994) 8 Cal.4th 965, 974 [“counsel may waive a jury trial in a proceeding to determine whether the defendant is competent to stand trial... even over the defendant's objection”].) We need not determine whether Fanoe would have been authorized to do so over O'Toole-McNally's objection, or whether O'Toole-McNally would have been the more appropriate person to waive defendant's right to jury trial of the competency determination since she was separately appointed to represent him during that proceeding. This is because O'Toole-McNally did not object to Fanoe's waiver, indicating her acquiescence in the waiver on defendant's behalf.
In light of the apparent agreement between defendant's two attorneys that defendant's statutory right to jury trial should be waived, we cannot fault the trial court for accepting the waiver. Nor did any assumed irregularity in the acceptance of the waiver violate defendant's constitutional rights. Again, the right to jury trial of the competency determination is statutory, not constitutional, in nature.
III
Ineffective Assistance of Counsel
Defendant further asserts O'Toole-McNally provided constitutionally deficient assistance by failing to object when Drs. McKellar and Lake related case-specific hearsay during the competency trial. Specifically, defendant challenges Dr. Lake's description of certain jail documents that suggested defendant “believed that the individuals around him were somehow affecting his mind” and that the computers at the jail were also “controlling inmates' minds, ” as well as her testimony that a correctional officer told her that he was concerned about defendant's mental health and that defendant sometimes “appear[ed] to be focused and clear and other times he doesn't always make sense.” Defendant challenges Dr. McKellar's testimony that he was “given information” about defendant's “impulsive, often unmanageable, frequently irrational” behavior in court and at the jail, and that the doctor was “told about” defendant's case history, including the fact that defendant “had a number of attorneys that he had been unwilling to continue with and at one point he had tried to represent himself.” Defendant argues this evidence was inadmissible under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and “there could have been no satisfactory tactical reason for not making a potentially meritorious objection” to this evidence. We are not persuaded.
“A defendant claiming ineffective assistance of counsel must establish that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and that there is a reasonable probability that the outcome would have been different absent counsel's ineffective representation. [Citation.] ‘If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, the claim on appeal must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citation.]” (People v. Garcia (2008) 159 Cal.App.4th 163, 171-172; Lawley, supra, 27 Cal.4th at p. 133, fn. 9.)
In Sanchez, our Supreme Court held “[w]hen any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay.” (Sanchez, supra, 63 Cal.4th at p. 686.) “Accordingly, the statements must either be independently proven or fall under a hearsay exception in order to be admissible. [Citation.] ‘Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried.' [Citation.]” (People v. Bona (2017) 15 Cal.App.5th 511, 520 (Bona).)
Sanchez also held “[w]hen a prosecution expert in a criminal case seeks to relate testimonial hearsay, as contemplated in Crawford v. Washington (2004) 541 U.S. 36 , there is a confrontation clause violation unless (1) the declarant is unavailable, or (2) the defendant either ‘had a prior opportunity for cross-examination, or forfeited that right by wrongdoing.' [Citation.]” (Bona, supra, 15 Cal.App.5th at p. 520.) However, as previously stated, “a competency hearing is a special proceeding, governed generally by the rules applicable to civil proceedings.” (Lawley, supra, 27 Cal.4th at p. 131.) Thus, “although certainly related to the underlying criminal case, [a competency hearing] is not itself a criminal action.” (People v. Masterson, supra, 8 Cal.4th at p. 969.) The portion of Sanchez dealing with the confrontation clause therefore does not apply in this case. (Bona, at p. 520.)
We assume for purposes of this opinion that the challenged statements related by Drs. Lake and McKellar amounted to case-specific hearsay prohibited by Sanchez. We nevertheless conclude defendant has not carried his burden of establishing either that counsel's performance fell below an objective standard of reasonableness, or that there is a reasonable probability the outcome would have been different had counsel raised a Sanchez objection.
Bona is instructive. There, the defendant was committed to the DSH for treatment as a mentally disordered offender and argued on appeal that his trial counsel provided ineffective assistance by failing to object to case-specific hearsay related by the prosecution's mental health expert. (Bona, supra, 15 Cal.App.5th at pp. 514, 519-520.) The appellate court held the record provided “no basis to conclude that counsel could have had no legitimate tactical reason for failing to raise a Sanchez objection.” (Id. at p. 521.) In this regard, the court noted counsel might have reasonably concluded the objectionable testimony “was less damaging to [the defendant] than the detailed account that would have resulted had counsel raised Sanchez objections.” (Id. at p. 522.) The court also held the defendant failed to establish prejudice, explaining: “[E]xclusion of the challenged evidence would not have precluded [the expert] from stating the opinions upon which that evidence was based. As Sanchez makes clear, ‘[a]ny expert may still rely on hearsay in forming an opinion, and may tell the [trier of fact] in general terms that he did so.' [Citation.] It is also clear from [the expert's] testimony that most of her opinions were based at least in part on her observations of [the defendant] and the information directly conveyed to her. Because it is not reasonably probable that a Sanchez objection would have led to a more favorable result, [the defendant's] claim of ineffective assistance of counsel fails.” (Id. at pp. 522-523, fn. omitted.)
Similarly, here, defendant has not persuaded this court that O'Toole-McNally had no legitimate tactical reason for failing to object to the challenged testimony. Indeed, the challenged references to out-of-court statements were very brief. Counsel may well have determined objections would have drawn more attention to evidence that Fanoe may have been able to properly admit by other means. Nor is it reasonably probable that a more favorable outcome would have resulted had such objections been made. Dr. McKellar specifically stated he was basing his opinion primarily on his “firsthand observation” of defendant. Dr. Lake's testimony also makes clear that her opinion was similarly based on her observations of defendant. Those observations were confirmed by defendant himself when he took the stand in an attempt to demonstrate his competence. There is no reasonable probability Sanchez objections would have led to a result more favorable to defendant.
Defendant's ineffective assistance of counsel claim fails.
IV
Cumulative Prejudice
Having concluded there was no error, prejudicial or otherwise, relating to the competency trial, we must also reject defendant's contention that cumulative prejudice requires reversal of the incompetency finding.
V
Marsden Claim
Defendant's final claim raised in appeal No. C088541 is that the trial court prejudicially abused its discretion and further violated his federal constitutional rights by declining to hold a hearing on his Marsden request to replace his court-appointed counsel after the trial court found him incompetent to stand trial. Because this appeal is from the commitment order, and because any assumed error in declining to hold a Marsden hearing occurred after defendant was found incompetent to stand trial, any such error was manifestly harmless.
A.
Additional Background
As previously mentioned, when the parties appeared before the trial court on July 12, 2018, to discuss how to proceed after the reports of Drs. Lake and McKellar were received, Fanoe indicated she was willing to submit the competency matter on their reports, and defendant requested her replacement as his court-appointed counsel under Marsden. The trial court declined to proceed on the Marsden motion at that time and continued the matter to July 24 for the setting of a date for the competency trial. On July 24, the trial court asked whether defendant wanted to proceed with his Marsden motion. Fanoe indicated that he did and further stated that defendant was requesting appointment of separate counsel to represent him during the competency trial. The trial court held a Marsden hearing outside the presence of the prosecutor and denied the motion. The trial court did, however, appoint separate counsel, O'Toole-McNally, to represent defendant during the competency trial.
The parties reconvened before the trial court on August 22 to discuss scheduling of the competency trial. At the close of this session, defendant indicated he had filed another Marsden motion seeking to replace Fanoe. The trial court held a hearing on the motion outside the presence of both the prosecutor and O'Toole-McNally and denied the motion. On August 28, after the parties again discussed scheduling, defendant indicated he was making two additional Marsden motions, seeking to replace both Fanoe and O'Toole-McNally. Those motions were heard separately and denied on September 14, prior to the start of the competency trial.
On November 26, after the trial court found defendant incompetent to stand trial, Fanoe informed the trial court that defendant was requesting another Marsden hearing. The trial court responded: “I don't know that I'm -- I'll indicate here he is requesting one. I don't know that that -- that we can conduct[] one since he has now been determined to be incompetent.”
Then, on December 17, after the trial court committed defendant to a state hospital, defendant reminded the trial court that he had “a Marsden on file, ” to which the trial court responded: “The Court is not going to conduct a Marsden today. The Court is making the commitment order and the Court will be in recess.”
B.
Analysis
“[A]n order determining a defendant to be incompetent and committing him to a state hospital is appealable as a final judgment in a special proceeding.” (People v. Christiana (2010) 190 Cal.App.4th 1040, 1045 (Christiana).) Again, while it arises in the context of a criminal prosecution, “a competency hearing is a special proceeding, governed generally by the rules applicable to civil proceedings.” (Lawley, supra, 27 Cal.4th at p. 131.) In an analogous context of a civil commitment following a determination of narcotics addiction, our Supreme Court has explained “the contours of that proceeding delimit the scope of its review: ‘in such appeal [the defendant] may base error only on the lack of jurisdiction of the trial court to institute commitment proceedings or the invalidity of the proceedings culminating in the order itself.' [Citation.]” (People v. Murphy (1969) 70 Cal.2d 109, 115, fn. omitted.)
Here, defendant does not take issue with the trial court's handling of any of his Marsden motions made during the proceedings leading to the court's finding of incompetency. The commitment order followed from the incompetency finding. However, between the two, defendant again made a Marsden motion. He then reminded the trial court about the motion after the commitment. Defendant challenges the trial court's failure to act on that motion. Assuming, without deciding, that this claim is based on asserted error in the proceedings culminating in the commitment order, and therefore properly before us in this appeal, we conclude any error in failing to hold another Marsden hearing between the incompetency finding and the order committing defendant to a state hospital was harmless. In light of the many Marsden hearings held previously, there is no reason to believe this repetitive motion would have been granted. Moreover, even if the trial court had replaced Fanoe at that point in the proceedings, it would still have been required to commit defendant to a state hospital because the court had already found him to be incompetent to stand trial.
Thus, any error in the trial court's handling of this particular Marsden motion had no effect on the commitment order.
Indeed, it is telling that defendant presents this claim in his appellate briefing after his cumulative prejudice argument, tacitly conceding that any error in declining to hold this Marsden hearing did not contribute to the commitment order.
VI
Sufficiency of the Evidence Supporting the Involuntary Medication Order
Turning to appeal No. C090401, defendant contends the order for involuntary administration of antipsychotic medication is not supported by substantial evidence. We agree.
A.
Additional Background
As stated previously, two additional psychological reports were filed in March and May 2019, after defendant was committed to the DSH facility at Atascadero.
The first of these reports, authored by Dr. Arlene Cruz, a forensic psychologist at the facility, reviewed defendant's charges and the previous reports authored by Drs. Lake and McKellar before describing various assessments performed at Atascadero.
Dr. Cruz noted defendant was assessed by an admitting psychiatrist upon his arrival at the facility on March 4. Defendant “presented as malodorous with rapid, pressured speech and disorganized thought process.” After initially speaking over the doctor, defendant eventually became more cooperative and responsive to questioning. Asked why he was at the hospital, defendant answered: “ ‘I'll be frank about it. I'm a certified paralegal... I have a degree in psychology and criminology... I had the judge disbarred.' ” Although defendant denied experiencing any hallucinations and did not appear to be responding to internal stimuli, “he expressed several paranoid and delusional statements involving conspiracies and technological experiments performed on county jail inmates (e.g., how in jail they were experimenting on prisoners using a device that can amplify a microwave, that he was certified as an ES Army Harris 5 machine operator, that this experiment burns the people, that there is a conspiracy against him as a result of his reporting this misuse of military and medical technology).” Defendant was diagnosed with “delusional disorder, mixed type and severe alcohol use disorder.” Defendant was also assessed by a staff psychologist. During this assessment, defendant “used several legal jargons and often digressed into nonsensical rambling narratives about his personal understanding of the legal system.” He also “endorsed delusions about sophisticated military-grade technology used against him and other inmates.”
With respect to the competency restoration process, Dr. Cruz noted the first step of that process involved “the administration of a semi-structured interview based on the Revised Competency Assessment Instrument (RCAI).” This interview was conducted by defendant's treating psychologist on March 8. Defendant failed. The psychologist who conducted the interview noted defendant appeared to have an adequate factual understanding of the criminal proceedings, but he did not have a rational understanding of the “array of legal terms” that were “littered” throughout his responses. Defendant was also “unable to provide a coherent account for why he was admitted to [the state hospital] and digressed into an overly detailed rambling story about his successful run representing himself in court before that right was taken away from him.” The psychologist also noted: “In addition to grandiose delusions about his legal expertise and training in administrative justice, criminology, forensic psychology, molecular genetics, and neuroscience, he also described an entrenched persecutory delusional belief system involving a ‘military-grade' surveillance system that uses ‘a cell phone to amplify a microwave field' and make a ‘DNA imprint' to monitor jail inmates and ex-felons in the community.”
Dr. Cruz's report further noted defendant had refused to take any psychotropic medications, including aripiprazole (Abilify), which was prescribed to treat defendant's delusions, and that “[s]taff members provide ongoing education regarding the importance of medication in treating his delusions and advancing his release from [the facility].”
The second report was authored by Dr. Hadley Osran, M.D., who diagnosed defendant with unspecified schizophrenia and opined that defendant had “no substantial likelihood [of]... regain[ing] mental competency in the foreseeable future absent an involuntary medication order.” Dr. Osran continued: “If the court does issue an involuntary medication order, I believe that the [defendant] can be restored to competency in the foreseeable future....”
After describing the evaluations performed by Drs. Lake and McKellar, Dr. Osran also described the psychological assessments performed upon defendant's admission at the hospital, as well as his failed Revised Competency Assessment Instrument interview, quoting the following from the report generated after that interview:
“Based on an assessment of Mr. Hayes' competency to stand trial, he continues to be considered incompetent due to his inability to assist counsel in the preparation of a rational defense. Consistent with his behavior across all previous evaluations, Mr. Hayes presents as argumentative, challenging, disruptive, disorganized, and poorly informed. He believes himself to be a legal expert and relies upon the frequent and often inaccurate use of legal terminology and case law in an effort to demonstrate his ‘expertise.' If left uninterrupted, he spends several minutes providing long, rambling, disorganized, and illogical responses to questions that could and should be answered in one sentence or less. (Of note, he is able to answer in one sentence or less when explicitly asked/reminded to do so.) He remains convinced his finding of incompetency is a violation of his ‘statutory compulsory federal rights' which he identified as ‘the rights to an expert witness,' ‘the rights to a judge that didn't endorse the doubt,' and something about the Wechsler Intelligence Test, as well as his belief those in charge of his competency determination ‘felt intimidation by my knowledge in law.' He made a variety of nonsensical statements and claims throughout the interview consisting of neologisms (made-up words)/word approximations (‘substantuated' [sic]), and what sounded often like word salad (i.e. ‘the judicial litigative function of a paralegal and the circuit court requisition'). While it appears increasingly possible his arrogance, argumentativeness, and enjoyment of hearing himself speak (even if what he is saying is entirely illogical) is purely characterological, he does continue to endorse delusional-sounding beliefs about ‘SD-5 Harris microwaveable technology' that ‘applicates microwaveable fields to a biological unit' (i.e. a person) and ‘alters biochemical structures' of county jail inmates. Asked why the federal government has any interest in the inmates in Siskiyou County, let alone enough to invest in using expensive top secret technology on them, he stated, ‘it's a dark web issue' about which ‘I'm not going to go on into the ramifications.' Ultimately, these types of comments and his underlying belief system appear to support the presence of a genuine mental illness.”
Dr. Osran's assessment of defendant's current mental status was consistent with the previous assessments. As mentioned, the doctor diagnosed defendant with schizophrenia, noting defendant's “disorganized speech including frequent derailment and incoherence and delusional ideation dating back at least to June 2018.” Dr. Osran opined that defendant did not have the capacity to rationally assist counsel in the preparation of a defense “given his current psychotic symptoms.” The doctor also noted defendant was prescribed “Abilify 10 mg at night for psychosis” and “has refused all psychotropic medications while here at the hospital and continues to insist that he is not mentally ill, nor will he consider taking psychotropic medications.” Dr. Osran recommended an order authorizing the involuntary administration of antipsychotic medication, adding: “Given his diagnosis of Schizophrenia and psychosis, the only known effective treatment for this would be the administration of antipsychotic medications.”
The parties appeared before the trial court to discuss this matter on July 2, 2019. Attorney Joseph Ahart appeared on defendant's behalf and waived his appearance. The trial court indicated it would be ordering a follow-up evaluation so that the hospital could further evaluate “whether or not Mr. Hayes lacks the capacity to make decisions regarding the administration of antipsychotic medication” and “whether or not the psychiatrists believe that involuntary antipsychotic medication has become medically necessary and appropriate in this matter.”
Three days later, on July 5, the trial court entered the order challenged in this appeal, specifically finding “defendant meets the criteria set forth in... section 1370[ subdivision ](a)(2)(B)(i)(III), in that the defendant is charged 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 medical condition.”
Thereafter, on August 13, the parties again appeared before the trial court and defendant's attorney again waived his appearance. The trial court indicated that it decided to issue the order for involuntary administration of antipsychotic medication “after further reflection” following the July 2 hearing. Defendant's attorney objected to the order on defendant's behalf.
B.
Analysis
“An individual has a constitutionally protected liberty interest in avoiding the unwanted administration of antipsychotic medication under the due process clause of the Fourteenth Amendment. [Citations.] [¶] ‘The significant due process liberty interest in avoiding mandatory administration of antipsychotic medication is grounded in two considerations.' [Citation.] ‘First, the drugs “tinker[] with the mental processes” [citation]' and while they can eliminate undesirable behaviors, they also interfere with a person's autonomy and can impair his ability to function in certain contexts. [Citation.] Second, while antipsychotic medication has well-documented therapeutic benefits, the medication has serious, even fatal, side effects. [Citation.]” (People v. O'Dell (2005) 126 Cal.App.4th 562, 568-569 (O'Dell).)
In Sell v. United States (2003) 539 U.S. 166 (Sell), the Supreme Court held “the Constitution permits the Government involuntarily to administer antipsychotic drugs 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.” (Id. at p. 179.) Elaborating on these requirements, the high court explained that the government's interest in “bringing to trial an individual accused of a serious crime” will ordinarily be an important interest. (Id. at p. 180.) However, in deciding whether to order the involuntary administration of antipsychotic medication, the court must still “consider the facts of the individual case” because certain circumstances “may lessen the importance of that interest.” (Ibid.) Moreover, “the court must conclude that involuntary medication will significantly further those concomitant state interests. It must find that administration of the drugs is substantially likely to render the defendant competent to stand trial. At the same time, it must find that administration of the drugs is substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense, thereby rendering the trial unfair. [Citation.]” (Id. at p. 181.) The court must also “conclude that involuntary medication is necessary to further those interests. The court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results. [Citations.] And the court must consider less intrusive means for administering the drugs, e.g., a court order to the defendant backed by the contempt power, before considering more intrusive methods.” (Ibid.) Finally, “the court must conclude that administration of the drugs is medically appropriate, i.e., in the patient's best medical interest in light of his medical condition.” (Ibid.)
These required conclusions are commonly referred to as the “Sell factors.” (Christiana, supra, 190 Cal.App.4th at p. 1050; O'Dell, supra, 126 Cal.App.4th at p. 570.)
In accordance with the holding in Sell, section 1370, subdivision (a)(2)(B)(i)(III) & (ii), authorizes an order for involuntary administration of antipsychotic medication where: “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 defendant's best medical interest in light of their medical condition.” (§ 1370, subd. (a)(2)(B)(i)(III).)
Section 1370, subdivision (a)(2)(B)(i) & (ii), authorizes an order for the involuntary administration of antipsychotic medication in two other circumstances: “(I) 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, it is probable that serious harm to the physical or mental health of the defendant will result.... [¶] (II) The defendant is a danger to others, in that 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 inflicting substantial physical harm on another that resulted in the defendant 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....” (§ 1370, subd. (a)(2)(B)(i)(I) & (II).) The trial court here concluded defendant did not meet the criteria set forth in these provisions.
“We review a trial court's order authorizing a state hospital to involuntarily administer antipsychotic medication to defendant for substantial evidence.” (O'Dell, supra, 126 Cal.App.4th at p. 570.)
Beginning with the first Sell factor, involving “an inquiry into whether the charged offense is a serious crime against person or property in light of the individual case” (Christiana, supra, 190 Cal.App.4th at p. 1050), we note that in O'Dell, the trial court “did not consider the facts and any special circumstances of [the] defendant's case, but rather, simply listed the crimes with which [the] defendant was charged and concluded that the People had a right to a speedy and public resolution of these charges.” (O'Dell, supra, 126 Cal.App.4th at pp. 570-571.) We concluded this “limited review of the governmental interests at stake provided insufficient evidence to satisfy the first factor in Sell.” (Id. at p. 571.) Similarly, here, murder and kidnapping are serious crimes, the record does not support a conclusion that the trial court considered the facts and any special circumstances of defendant's case. This is fatal to the first factor because the seriousness of the charged crimes alone cannot support a finding of a sufficiently important governmental interest to justify involuntary administration of antipsychotic medication. For example, as explained in Sell, a defendant who has refused to take antipsychotic medication voluntarily may face a lengthy confinement in a mental institution, thereby “diminish[ing] the risks that ordinarily attach to freeing without punishment one who has committed a serious crime” and “lessen[ing] the importance” of the government's interest in bringing the defendant to trial. (Sell, supra, 539 U.S. at p. 180.)
Turning to the second Sell factor, in order to affirm, there must be “substantial evidence that involuntarily medicating the defendant would significantly further the state interests of timely prosecution and a fair trial, which in turn requires showings that such medication is both substantially likely to render the defendant competent to stand trial and substantially unlikely to have side effects that would interfere significantly with the defendant's ability to assist counsel in conducting the defense.” (Christiana, supra, 190 Cal.App.4th at p. 1050.) In O'Dell, we concluded there was no such showing because the hospital in that case “never specified the condition it was proposing to treat and never specified the actual antipsychotic medication it was proposing to administer to [the] defendant.” (O'Dell, supra, 126 Cal.App.4th at p. 571, fns. omitted.) Similarly, in Christiana, the appellate court found the evidence supporting this factor to be lacking where the defendant's doctors “testified only about antipsychotic drugs as a class, without identifying what drugs would likely be used to treat [the] defendant. Their testimonies about potential side effects were similarly generic.” (Cristiana, at p. 1051.)
Here, Drs. Cruz and Osran both indicated defendant was prescribed Abilify for psychosis. Dr. Osran's report states that defendant was diagnosed with schizophrenia, that Abilify “could in fact address [defendant's] psychotic symptoms by reducing his paranoia and improving his thought disorganization, ” and that defendant “can be restored to competency in the foreseeable future” if the court issued an involuntary medication order, but there was “no substantial likelihood” of him regaining mental competency in the foreseeable future absent such an order. However, there is no discussion in either report about any potential side effects of that medication, let alone an assessment of whether there was a substantial likelihood of side effects that would interfere significantly with defendant's ability to assist counsel in conducting a defense. We conclude the evidence was insufficient to establish the second Sell factor.
“The third Sell factor requires a showing that involuntary medication is necessary to further the state's interests in timely prosecution and a fair trial.” (Christiana, supra, 190 Cal.App.4th at p. 1051.) “The court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results. [Citations.] And the court must consider less intrusive means for administering the drugs, e.g., a court order to the defendant backed by the contempt power, before considering more intrusive methods.” (Sell, supra, 539 U.S. at p. 181.) Dr. Osran's report stated: “Given [defendant's] diagnosis of Schizophrenia and psychosis, the only known effective treatment for this would be the administration of antipsychotic medications.” In O'Dell, we found a similarly conclusory assertion to be insufficient to support the trial court's order. (O'Dell, supra, 126 Cal.App.4th at pp. 571-572.) However, in Christiana, the appellate court concluded this factor was adequately supported by a statement from the defendant's doctor “that no effective alternative treatments were available and... that traditional psychotherapy was unlikely to benefit [the] defendant.” (Christiana, at p. 1051.) We need not decide whether substantial evidence supports the trial court's conclusion that antipsychotic medication was necessary to render defendant competent to stand trial because there is no evidence the court considered less intrusive means for administering the drugs.
Finally, “[t]he fourth Sell factor requires a showing of medical appropriateness. [Citations.] In Sell, the United States Supreme Court explained: ‘The specific kinds of drugs at issue may matter... [because] [d]ifferent kinds of antipsychotic drugs may produce different side effects and enjoy different levels of success.' [Citation.] Thus, courts have held that, ‘[a]t a Sell hearing, “the [trial] court is required to consider specific drugs, their unique side effects, and their medical appropriateness. Specificity as to the medications to be administered is critical.”' [Citation.]” (Christiana, supra, 190 Cal.App.4th at p. 1052.) Again, there was no discussion in either report about the potential side effects of Abilify or any other antipsychotic medication the hospital was considering giving defendant to return him to competency.
We conclude the order authorizing involuntary administration of antipsychotic medication is not supported by substantial evidence.
DISPOSITION
The order of commitment is affirmed. The order authorizing involuntary administration of antipsychotic medication is conditionally vacated and the matter is remanded to the trial court for reconsideration of the order. Along with all of the Sell factors discussed above, the trial court is directed to consider the following: (1) the individual circumstances of defendant's case, (2) any less intrusive means for administering the medication, such as by court order backed by the contempt power, and (3) any potential side effects of the medication. If the trial court determines the Sell factors are met, the order shall be reinstated. If not, the order shall remain vacated.
We concur: ROBIE, Acting P. J. MURRAY, J.