Opinion
A167185
07-17-2023
THE PEOPLE, Plaintiff and Respondent, v. JASON IVAN MOSQUEDA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. Nos. 02003338522, 02003269198, 02003289386)
STEWART, P.J.
Jason Ivan Mosqueda appeals from an order compelling involuntary treatment with antipsychotic drugs. His appointed appellate counsel filed a brief setting forth the applicable facts and law pursuant to Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.) and People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Appointed counsel informed Mosqueda that he could file a supplemental brief, as did this court, but Mosqueda has not done so. Our discretionary review of the record discloses no arguable issues, and we therefore affirm.
BACKGROUND
As summarized in our opinion on Mosqueda's prior appeal (People v. Mosqueda (May 16, 2023, A166072) [nonpub. opn.]) a complaint filed on January 6, 2021, charged Mosqueda with one felony count of murder (Pen. Code, § 187, subd. (a)) and one misdemeanor count of disobeying a protective order (§ 273.6, subd. (a)). It was further alleged that in committing these offenses Mosqueda violated probation in three prior cases. Mosqueda entered a plea of not guilty on January 15, 2021. Subsequently, the trial court suspended criminal proceedings pursuant to sections 1367 and 1368 and, in accordance with the reports of two experts appointed to evaluate Mosqueda, found him incompetent to stand trial. On August 17, 2022, the court committed Mosqueda to the Department of State Hospitals (DSH) for a maximum of two years (§ 1370, subd. (c)(1)). Mosqueda's appointed appellate counsel filed a brief setting forth the applicable facts and law pursuant to Ben C. and People v. Blanchard (2019) 43 Cal.App.5th 1020, 1026. Our discretionary review of the record disclosed no arguable issues, and we affirmed.
Further statutory references are to the Penal Code.
Meanwhile, on January 13, 2023, the DSH filed a petition for an order to compel involuntary treatment with antipsychotic medication (§ 1370, subd. (a)(2)(B)(iv)). The day before, an administrative law judge had issued an order temporarily authorizing involuntary administration of antipsychotic medication until January 31, 2023.
After a hearing on January 30, 2023, at which the court heard expert testimony from two DSH psychiatrists involved in Mosqueda's treatment, the court granted the petition, finding Mosqueda lacked capacity to make decisions regarding antipsychotic medication and serious harm to his physical or mental health was probable if he was not treated.
Mosqueda filed a timely notice of appeal on February 2, 2023.
DISCUSSION
In Ben C., our Supreme Court held that "[i]f appointed counsel in a conservatorship appeal finds no arguable issues, counsel . . . should (1) inform the court he or she has found no arguable issues to be pursued on appeal; and (2) file a brief setting out the applicable facts and the law." (Ben C., supra, 40 Cal.4th at p. 544, fn. omitted.) In addition, "[t]he conservatee is to be provided a copy of the brief and informed of the right to file a supplemental brief." (Id. at p. 544, fn. 6.) The reviewing court may then dismiss the appeal if there are no arguable issues. (Id. at p. 544.) The Ben C. procedure applies to appeals in competency proceedings. (People v. Blanchard, supra, 43 Cal.App.5th at pp. 1025-1026.)
We follow the same procedure here, although the issue is not the order finding Mosqueda incompetent to stand trial and committing him to DSH but involuntary treatment with antipsychotic medication during such commitment.
Here, defendant's appointed appellate counsel followed Ben C. and the procedures described in Delgadillo, supra, 14 Cal.5th at pages 231-232 [procedures for no-issues appeal from denial of relief under post-sentencing ameliorative statutory amendments].) Counsel reviewed the record, found no arguable issues and so informed Mosqueda; filed his brief in this court and provided a copy to Mosqueda; informed Mosqueda that he could file a supplemental brief and that the appeal would likely be dismissed if he did not do so; provided Mosqueda with the transcripts in the record on appeal; and advised Mosqueda that he could request to have counsel relieved. Mosqueda has not filed a supplemental brief. Counsel recognizes we are not required to independently review the record but asks us to exercise our discretion to conduct an independent review. (Ben C., supra, 40 Cal.4th at p. 544, fn. 7 [appellate court may choose to retain an appeal rather than dismiss it; Delgadillo, at p. 232 [court retains discretion to conduct independent review of record].)
We have reviewed the record. The findings that Mosqueda lacks capacity to make decisions about treatment with antipsychotic medication, requires the medication and would suffer serious harm to his mental health without it are supported by substantial evidence. Mosqueda was represented by able counsel.
DISPOSITION
The order authorizing involuntary administration of antipsychotic medication to Mosqueda is affirmed.
We concur. RICHMAN, J., MARKMAN, J. [*]
[*] Judge of the Alameda Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.