Opinion
A130130
08-23-2011
THE PEOPLE, Plaintiff and Respondent, v. ALLYN HOPKINS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Del Norte County Super. Ct. No. 92-187-X)
In this appeal defendant challenges an order authorizing involuntary administration of psychotropic medication to him. We conclude that the prosecution adequately proved defendant is a danger to others without medication, and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Defendant was convicted in 1991 of attempted murder and assault with a deadly weapon on a peace officer (Pen. Code, §§ 664/187, 245, subd. (c)), and in 1994 was found not guilty by reason of insanity of two counts of possession of a weapon by a prisoner and one count of assault with a deadly weapon by a prisoner (Pen. Code, §§ 4502, subd. (a), 4501). He was subsequently found to be a mentally disordered offender (MDO) pursuant to Penal Code section 2970. He was committed to Atascadero State Hospital in 1994, and transferred to Coalinga State Hospital in December of 2009.
All further statutory references are to the Penal Code unless otherwise indicated.
On July 9, 2010, the prosecution filed a petition for an order to administer involuntary psychotropic medication to defendant, supported by a mental health evaluation and report from Dr. Mary Flavan. At a subsequent contested hearing on September 9, 2010, the court also heard testimony from Dr. Flavan, a staff psychiatrist at Coalinga State Hospital assigned to the "2970 unit," who evaluated and treated defendant following his commitment there in December of 2009.
Dr. Flavan's report and testimony indicated that defendant has an "extensive history" of mental illness, multiple hospitalizations, and recurrent assaultive behavior. Defendant's qualifying assault offense occurred while he was incarcerated at Pelican Bay State Prison in October of 1991; he attacked a sleeping cellmate by smashing his head and strangling him with a rope. He has a history of assault on African-American inmates, precipitated by a delusional belief that he is a member of The Aryan Brotherhood. In March of 2006, he slashed the throat of a peer at Atascadero State Hospital. In 2006 and 2007, he repeatedly committed batteries on staff, threatened staff, and assaulted his treating psychiatrist, under the influence of auditory hallucinations.
Dr. Flavan recounted that defendant recently punched a staff member in the head, threatened others, and charged another staff member from the back and struck her. Not long before the hearing, to "have some fun" defendant hit a staff member hard twice, bit an officer, then broke another person's toe by pulling it back until he "felt it snap." Later the same day defendant "was involved in another assault on another staff member."
According to Dr. Flavan, defendant arrived at Coalinga State Hospital "already on involuntary medication status," with a diagnosis of schizoaffective disorder, bipolar type. He suffers from auditory hallucinations, paranoid delusions, aggressive and suicidal behavior, depression and thought disorders. Defendant complained to Dr. Flavan of "hearing voices" and "feeling paranoid." Defendant reported to Dr. Flavan that he periodically hears chants and voices that "tell him to hit people" or "hurt himself." He justifies "his assaults on that basis."
Dr. Flavan testified that defendant is assaultive both with and without medication, but both she and another psychiatrist reported that defendant "is much more frequently assaultive when he is off medication." With medication, defendant remains aggressive and assaultive in his demeanor, but "doesn't act on it nearly as often."
Dr. Flavan also described defendant's current medicinal regimen. He takes two mood stabilizers, Lithium and Depakote, and "two antipsychotic or neuroleptic medications, Ziprasodon and Lexapro." He is also given Zoloft for depression, Melatonin for insomnia, and Cogentin to combat side effects. Dr. Flavan testified that the Lithium and Depakote are "anti aggression" types of medication that are "absolutely necessary" to manage defendant's mood disorder. Ziprasodon and Lexapro have helped to control the "voices" heard by defendant which seem to contribute to his assaultive behavior. She does not want to remove those medications, and plans to continue defendant's current treatment.
Defendant has reported to Dr. Flavan that due to his Christian Science beliefs he does not "want to take his medication," and instead prefers treatment with a "natural regimen" alternative. Dr. Flavan testified that "there are no medication alternatives to interrupt a behavior and mood disorder" of the nature experienced by defendant.
Dr. Flavan offered the opinion that defendant suffers from major schizoaffective disorder that is only partly in remission with the medication. She further testified that defendant "continues to pose a serious danger to others."
At the conclusion of the hearing the trial court granted the petition and issued an order authorizing Coalinga State Hospital to administer involuntary psychotropic medication to defendant. This appeal followed.
On September 23, 2010, the prosecution filed a petition for a further extension of defendant's involuntary commitment as an MDO. The court found that defendant has a severe mental disorder, and as a result represents a substantial danger of physical harm to others. Defendant was ordered recommitted to Coalinga State Hospital until November 26, 2011.
DISCUSSION
Defendant challenges the order that authorized involuntary administration of antipsychotic medication to him. He claims that the involuntary medication order is not supported by substantial evidence. Specifically, he argues that without any evidence presented by the prosecution of "the requisite dosage information about the medication proposed," and the viable "less intrusive alternatives" to antipsychotic medication, his rights "of privacy" and to "due process of law" were violated by the court's order.
The United States Supreme Court has held that "an individual has a 'significant' constitutionally protected 'liberty interest' in 'avoiding the unwanted administration of antipsychotic drugs.' [Citation.]" (Sell v. United States (2003) 539 U.S. 166, 178 (Sell).)"The right to refuse necessary medical treatment, including antipsychotic drugs, is a liberty interest that is protected by the due process clause of the Fifth Amendment of the United States Constitution. [Citation.] The right of a competent adult to refuse antipsychotic drugs is also protected by the common law and article I, section 1 of the California Constitution." (People v. Fisher (2009) 172 Cal.App.4th 1006, 1012-1013.)
"The right of privacy guaranteed by the California Constitution, article I, section 1," which " 'guarantees to the individual the freedom to choose to reject, or refuse to consent to, intrusions of his bodily integrity' " "clearly extends to the right to refuse antipsychotic drugs." (In re Qawi (2004) 32 Cal.4th 1, 14 (Qawi); see also In re Luis F. (2009) 177 Cal.App.4th 176, 183.)
However, the right of a person committed as an MDO "to refuse antipsychotic drugs is qualified." (People v. Fisher, supra, 172 Cal.App.4th 1006, 1013.) The right to refuse antipsychotic drugs "may be overcome in nonemergency situations by a judicial determination either that the person is incompetent or that he or she is dangerous within the meaning of section 5300: '[A]n MDO can be compelled to be treated with antipsychotic medication under the following nonemergency circumstances: (1) he is determined by a court to be incompetent to refuse medical treatment; (2) the MDO is determined by a court to be a danger to others within the meaning of Welfare and Institutions Code section 5300.' " (Ibid., quoting from Qawi, supra, 32 Cal.4th 1, 27; see also People v. Dunkle (2005) 36 Cal.4th 861, 892.)
"We review an order authorizing involuntary administration of antipsychotic medication for substantial evidence. [Citation.] In the case of the MDO, the order must be supported by evidence that either the MDO is incompetent to refuse medical treatment or that the MDO is a danger to others within the meaning of section 5300. [Citation.] Section 5300 requires a particularized showing that the person is a demonstrated danger and that he or she was recently dangerous. [Citation.] In the case of an MDO, the commitment offense may establish demonstrated dangerousness and recent dangerousness consists of 'violent or threatening acts specified in section 5300 within the year prior to the commitment or recommitment.' [Citation.]" (People v. Fisher, supra, 172 Cal.App.4th 1006, 1016.)
The evidence that defendant is a danger to others within the meaning of Welfare and Institutions Code section 5300 is quite persuasive. Defendant's attempted murder and assault convictions demonstrated his propensity for violence. Of even greater significance is defendant's continued, unrelenting violent and assaultive behavior while committed. Dr. Flavan conveyed defendant's history of assaults on African-American inmates and others committed in the facilities they shared with defendant. His recent conduct included throat-slashing, repeated batteries committed on staff, threats to staff members, and an assault of his treating psychiatrist. Not long before the hearing in the present case defendant committed a sequence of serious assaults in a single day on both staff members and other patients. Dr. Flavan testified that defendant is driven to engage in violent conduct by a paranoid, delusional belief system and auditory hallucinations. According to Dr. Flavan, the medication she has prescribed for defendant, which she specifically described, improves but does not entirely remediate his assaultive behavior. Dr. Flavan testified without contradiction or equivocation that defendant continues to pose a serious danger to others, particularly without the benefits of medication. Overwhelming evidence of defendant's danger to others was presented by the prosecution. (People v. Fisher, supra, 172 Cal.App.4th 1006, 1016-1017.)
Defendant relies on the recent decision in People v. Christiana (2010) 190 Cal.App.4th 1040 (Christiana), to argue that an order for involuntary administration of antipsychotic drugs must be supported by evidence that identifies the precise dosages of prescribed medications and the less intrusive alternative treatment regimens available. In Christiana, following a finding that the defendant was incompetent to stand trial, the trial court held a hearing pursuant to section 1370, and ordered involuntary administration of antipsychotic medication to defendant. (Christiana, supra, at p. 1045.) On appeal, the court observed that section 1370, authorizes involuntary treatment of an incompetent defendant " 'when and as prescribed by the defendant's treating psychiatrist,' if the court determines that '[t]he people have charged the defendant with a serious crime against the person or property; involuntary administration of antipsychotic medication is substantially likely to render the defendant competent to stand trial; the medication is unlikely to have side effects that interfere with the defendant's ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner; less intrusive treatments are unlikely to have substantially the same results; and antipsychotic medication is in the patient's best medical interest in light of his or her medical condition.' (§ 1370, subd. (a)(2)(B)(iii,) (Id. at p. 1050.)The court found that the failure of the prosecution to specifically identify "what drugs would likely be used to treat defendant," their potential side effects, and the "medical appropriateness" of the drugs for the defendant's particular medical condition, required reversal of the order authorizing involuntary administration of antipsychotic drugs. (Id. at pp. 1051-1052.)
The court in Christiana also noted that section 1370 "essentially tracks the Sell factors" enunciated by the United States Supreme Court as necessary to override the individual's constitutionally protected liberty interest in avoiding the unwanted administration of antipsychotic drugs: " 'First, a court must find that important governmental interests are at stake.' [Citation.] ' Second, 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 . . . . [Citation.]' [Citation.] 'Third, the court must 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. . . .' [Citation.] 'Fourth, . . . 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.' [Citations.]" (Christiana, supra, 190 Cal.App.4th 1040, 1049.)
The prosecution in Christiana offered adequate evidence of the lack of effective alternative treatments. (Christiana, supra, 190 Cal.App.4th 1040, 1051.)
In Christiana the court recognized and explicitly mentioned, however, that the "Sell factors control only when the sole purpose of the involuntary medication is to render the defendant competent to stand trial; they do not control if involuntary medication is justified on other bases, such as when the defendant is dangerous to himself or others or when the refusal to take medication puts the defendant's own health at grave risk." (Christiana, supra, 190 Cal.App.4th 1040, 1049, fn. 4, italics added.) Where, as here, an application for involuntary medication is based on the need to control an MDO who is a demonstrated danger, the state's interest is much more compelling, and thus is governed by the test articulated in Qawi. (People v. Fisher, supra, 172 Cal.App.4th 1006, 1015.) The prosecution made the requisite particularized showing in the present case that defendant is a danger to others without medication. Accordingly, the judgment is affirmed.
Dondero, J. We concur: Marchiano, P. J. Margulies, J.