Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kern County. No. BF118480A Stephen P. Gildner, Judge.
Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Gomes, J. and Hill, J.
On constitutional grounds, appellant Rory Robert Lawrence, Sr., challenges the court’s order denying his Marsden motion after an in camera hearing while civil mental competence proceedings were pending and the court’s order authorizing the involuntary administration of antipsychotic medication. We will affirm the court’s order denying his Marsden motion, will vacate the court’s order authorizing the involuntary administration of antipsychotic medication, and will remand with directions.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
BACKGROUND
A complaint charged Lawrence with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), misdemeanor child endangerment (Pen. Code, § 273a, subd. (b)), misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a)), and misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) and alleged one strike prior (Pen. Code, §§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)) and three prison term priors (§ 667.5, subd. (b)). He pled not guilty and denied the allegations. The facts underlying the charges and allegations are irrelevant to the issues on appeal.
Subsequent statutory references are to the Penal Code unless otherwise noted.
As Lawrence’s preliminary hearing was about to begin, the court suspended criminal proceedings, commenced mental competence proceedings, found him mentally incompetent, and ordered a hearing on the issue of the involuntary administration of antipsychotic medication. (§§ 1368, subd. (b), 1369, subd. (a), 1370, subd. (a)(2)(B).) At the latter hearing, Lawrence characterized as a conflict his appointed counsel’s readiness to submit the issue on the psychiatrist’s report and made a Marsden motion that the court denied after an in camera hearing. Both counsel submitted the issue on the psychiatrist’s report. The court found that he could not achieve mental competence without antipsychotic medication and ordered him committed to the State Department of Mental Health (DMH). (§§ 1370, subd. (a)(2)(B)(ii)(I), 1370.01, subd. (a).)
DISCUSSION
1. Marsden Motion
Lawrence challenges as a violation of his Sixth Amendment right to the effective assistance of counsel the court’s order denying his Marsden motion after an in camera hearing while civil mental incompetence proceedings were pending. The Attorney General argues that the court’s order was not an abuse of discretion.
As Lawrence’s preliminary hearing was about to begin, his appointed counsel asked the court to suspend proceedings on the ground of mental incompetence. (§ 1368, subd. (b).) The court suspended criminal proceedings, appointed a psychologist to examine him, and ordered a hearing on the issue of mental competence. (§§ 1368, subd. (b), 1369, subd. (a).) The psychologist submitted a report opining he was not competent to stand trial and not likely to cooperate with his own attorney.
At the hearing on the issue of mental competence, both counsel submitted the issue on the psychologist’s report, on the basis of which the court found Lawrence to be within the scope of section 1368, appointed a psychiatrist to examine him, and ordered a hearing on the issue of the involuntary administration of antipsychotic medication. (§§ 1369, subd. (a), 1370, subd. (a)(2)(B).) The psychiatrist submitted a report opining that he required antipsychotic medication in the absence of which there was a substantial likelihood he could not be restored to competency.
At the hearing on the issue of the voluntary administration of antipsychotic medication, Lawrence’s appointed counsel said that she was ready to submit the issue on the psychiatrist’s report, that her client wanted to “revisit the competency issue” because “he does not believe he is not competent,” and that she objected to a Marsden hearing since “the competency issue has been resolved and we are now at the placement stage.” He insisted he was competent, characterized her readiness to submit the matter as evidence of a conflict, and made a Marsden motion. The court ordered a Marsden hearing over her objection.
At the Marsden hearing, the court asked Lawrence to put on the record “every reason why the public defender should not represent [him].” The first reason, he said, was that “the public defender’s office knew right away” when the competency issue arose that he had been off his “psychotropic medication … for three weeks” and that he “just wanted time to get stable.” He said that the public defender’s office was “supposed to waive time for [him] to do that” and that at the time set for his preliminary hearing he told his counsel he had not “had any medication,” was “starting to hear voices,” was “paranoid,” and was “not going to be able to … help [her] in the defense at all at this point” because he “need[ed] some time to get on [his] meds.” He said that “for three weeks” the jail denied him his psychotropic medication” so he “had to stop the proceedings and the public defender knew that.”
The second reason, Lawrence said, was that his appointed counsel was ready to submit the issue on the psychiatrist’s report but that psychiatric staff at the jail who know better than anyone whether he was competent to stand trial never said anything about his not knowing what was going on in court. He said he was competent to stand trial and asked her for the psychiatrist’s report. She refused his request for the psychiatrist’s report. He asked how he could do anything without that report.
The third reason, Lawrence said, was that his appointed counsel did not help him get his antipsychotic medication, did not call his parole agent to verify he was not on parole, and did not file “motions like Marsden, demur and suppression motions” and that the doctors who read “reports that are fake” (like the one that said he was on parole) thought he was paranoid when he told the doctors he was not on parole. On the other hand, he admitted he was paranoid for the reason that the police went to his home and took him out of his shower naked.
In response, Lawrence’s appointed counsel said she called the jail and told a clerk at the health care clinic that her client said he was not getting medication. She said she spoke with a supervisor at the clinic who told her he had seen a nurse and a physician and had had a psychological evaluation. She said she checked his records on the date of the hearing and found out he receives psychological assistance from the jail. She said she gave him his police reports but acknowledged refusing his request for the psychiatrist’s report on the basis of her understanding that the public defender’s office is not supposed to give copies of psychiatric evaluations to clients.
Additionally, Lawrence’s appointed counsel said she called his parole agent and verified he was off parole by the time the police went to his home. She said she explained to him that the police went to his home not because he was on parole but because there was a report of domestic violence and an issue about children who were at the mother-in-law’s home. She said she told him she cannot file motions while her client is making delusional statements about how the district attorney controls the doctors and about how everyone is in a conspiracy together. She said that she could file motions in the criminal proceeding only after resolution of the mental competence issue. The court denied the Marsden motion.
The crux of Lawrence’s argument is that he informed the court at the Marsden hearing that he told his appointed counsel “he had been deprived of his psychotropic medication for three weeks” and needed time to “get stabilized” but that she declared a doubt about his mental competence and precipitated the civil proceedings that led to his commitment to DMH instead. Before ruling, the court invited comment from Lawrence and his appointed counsel alike. His complaints about what she did and did not do filled close to four pages of reporter’s transcript. Her explanations of why she did what she did and why she did not do what she did not do filled almost two pages of reporter’s transcript. His rejoinders filled over another page of reporter’s transcript. The record is replete with the accusations and the explanations that are “required only in those situations in which a satisfactory explanation for counsel’s conduct or attitude toward his [or her] client is necessary in order to determine whether counsel can provide adequate representation.” (People v. Penrod (1980) 112 Cal.App.3d 738, 747.)
Lawrence admitted that he heard voices, felt paranoid, and was incapable of helping his appointed counsel with his defense. Even though he disagreed with her about whether he was mentally incompetent, the record fails to show that they had “‘“become embroiled in such an irreconcilable conflict that ineffective representation [was] likely to result.”’” (People v. Memro (1995) 11 Cal.4th 786, 857.) Likewise, the record fails to show that she was “‘not providing adequate representation’” on the issue of his mental competence. (Ibid.) So the court’s denial of Lawrence’s Marsden motion was not an abuse of discretion. (See People v. Earp (1999) 20 Cal.4th 826, 876, citing People v. Berryman (1993) 6 Cal.4th 1048, 1070, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Since the premise implicit in his constitutional argument is that the court’s ruling was an abuse of discretion, his Sixth Amendment argument is equally meritless. (See People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3; cf. Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 919.)
2. Antipsychotic Medication
Lawrence challenges as a denial of his Fourteenth Amendment right to due process the court’s order authorizing the involuntary administration of antipsychotic medication. The Attorney General argues that a sufficiency of the evidence supports the court’s order.
Following the denial of Lawrence’s Marsden motion, both counsel submitted the issue of the involuntary administration of antipsychotic medication on the psychiatrist’s report. Finding that Lawrence could not achieve mental competence “without such medication” and that there were “no appropriate alternatives,” the court ordered him committed to DMH. (§§ 1370, subd. (a)(2)(B)(ii)(I), 1370.01, subd. (a).)
The United States Supreme Court recognizes an individual has a “constitutionally protected liberty interest” guaranteed by the due process clause “to refuse administration of antipsychotic medication” unless he or she “is dangerous to himself [or herself] or others and the treatment is in [his or her] medical interest.” (Carter v. Superior Court (2006) 141 Cal.App.4th 992, 999 (Carter), citing Washington v. Harper (1990) 494 U.S. 210, 221.) The government can “involuntarily medicate a mentally ill criminal defendant in order to render him [or her] competent to stand trial only if four factors are present: (1) ‘important governmental interests are at stake’; (2) involuntary medication will ‘significantly further’ the concomitant state interests of timely prosecution and a fair trial; (3) ‘involuntary medication is necessary to further those interests’; and, (4) ‘administration of the drugs is medically appropriate.…’” (People v. O’Dell (2005) 126 Cal.App.4th 562, 569 (O’Dell), quoting Sell v. United States (2003) 539 U.S. 166, 180-183 (Sell).)
Effective January 1, 2005, the Legislature amended California law to conform to the high court’s constitutional mandate in Sell. (§ 1370; Stats. 2004, ch. 486, § 2; see O’Dell, supra, 126 Cal.App.4th at p. 569.) “If the defendant does not consent to the administration of medication,” the amended statute provides, the court shall “hear and determine whether the defendant, with advice of his or her counsel, consents to the administration of antipsychotic medication” and “hear and determine whether,” inter alia, the prosecution has “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)(ii)(III).)
A later amendment to the statute made changes irrelevant to the issue here, so statutory references are to the latter version of the statute. (Stats. 2006, ch. 799, § 1.)
The parties agree, and we concur, that the findings of fact here were pursuant to section 1370, subdivision (a)(2)(B)(ii)(III). (Cf. Carter, 141 Cal.App.4th at p. 1001, fn. 4.)
Lawrence argues that the record shows that the court neither inquired into his willingness to take antipsychotic medication nor made all of the findings that Sell and section 1370, subdivision (a)(2)(B)(ii)(III) require. By application of the substantial evidence standard of review for an order authorizing the involuntary administration of antipsychotic medication, we agree. (See Carter, supra, 141 Cal.App.4th at p. 1001; O’Dell, supra, 126 Cal.App.4th at p. 570.)
DISPOSITION
With reference to the court’s May 25, 2007, denial of Lawrence’s Marsden motion, the order is affirmed.
With reference to the court’s May 25, 2007, authorization of the involuntary administration of antipsychotic medication, the court is ordered to (1) vacate its order, (2) conduct a new hearing on that issue, if and only if appropriate to the then-current status of the case, at which hearing the parties shall be permitted to introduce additional evidence, and (3) determine whether, under the criteria in Sell and section 1370, antipsychotic medication should be involuntarily administered to Lawrence.